Case No. IT-03-68-AR73.2


Judge Theodor Meron, Presiding
Judge Fausto Pocar
Judge Mohamed Shahabuddeen
Judge Mehmet Güney
Judge Wolfgang Schomburg

Mr Hans Holthuis

7 July 2005



Naser ORIC




Counsel for the Defense

Vasvija Vidovic
John Jones


Jan Wubben

1. The Appeals Chamber of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“Tribunal” or “ICTY ”) is seized of the “Urgent Appeal of Trial Chamber’s Decision on Length of Defence Case,” filed by Naser Oric on 6 July 2005 (“Appeal”).

2. This case arises from a dispute regarding the framework for the presentation of the Defence case. When the Prosecution closed its case, Oric served notice of his intention to call 73 witnesses in his defense and estimated that his examination -in-chief would take 249 hours.1 He contended that this was a reasonable allotment in light of the fact that the Prosecution’s case had taken roughly 260 hours of court time.2 The Trial Chamber, however, rejected Oric’s proposed framework. The Trial Chamber found that a number of “areas of evidence” had been “sufficiently addressed during the Prosecution case in a manner and to an extent which in the Trial Chamber’s opinion does not require any further evidence on the part of the Defence.”3 These areas included, inter alia, any testimony regarding “the positioning of Bosnian Serb forces in and around Srebrenica,” “the influx of refugees in Srebrenica and the critical condition which the population of Srebrenica had to live”, the “military superiority of the Bosnian Serbs”, and “the urgent necessity for the Bosnian Muslims to attack villages and hamlets named in the Indictment in order to try and secure food, medicine, and weapons, for the purpose of the survival of the Muslim population in Srebrenica.”4 The Trial Chamber therefore ordered Oric to file a new witness list with no more than 30 witnesses, and ordered that the Defense case must finish on 30 September 2005.5

3. Oric filed an oral request for certification to appeal the decision6 and a written motion for stay of proceedings pending appeal.7 The Trial Chamber determined that this issue “would significantly affect the fair and expeditious conduct of the proceedings in this case” and that “an immediate resolution by the Appeals Chamber may materially advance the proceedings.”8 It therefore granted certification for an interlocutory appeal of its scheduling order under Rule 73(B) of the Tribunal’s Rules of Procedure and Evidence.9 In an oral decision rendered on 4 July 2005, however, it declined to enter a stay on the ground that the uncertainty as to when the Appeals Chamber would deliver its decision would place an excessive burden on the pace of the trial; it also refused to certify this latter issue for appeal.

4. The outcome of this appeal will have a profound impact on Oric’s strategic choices for the presentation of his case, which is scheduled to begin in two working days, on 11 July 2005. If successful, he may be permitted to put on many more witnesses and to take much more time examining each individual witness. If not successful, the time he has available for direct examination will be gravely restricted.10 Oric’s decisions about which witnesses to present and, especially, how much time to spend on each witness would look very different under each scenario. The Appeals Chamber concludes that, under the circumstances of this case and the extreme impact this appeal will have on the very structure of his trial, it would be unfair to Oric to make him gamble on the outcome of the Appeals Chamber’s decision as he plans the presentation of his evidence.

5. It is thus necessary for the Appeals Chamber to consider this appeal on an expedited basis. Accordingly, pursuant to Rules 54, 107, and 127, the Appeals Chamber orders that the time limits for filings in regard to this appeal be varied as follows. The Prosecution must file its Response to Oric’s Appeal no later than 11 July 2005. The Defense must file any Reply to the Prosecution’s Response no later than 13 July 2005. The Appeals Chamber will endeavor to issue its decision as soon as possible thereafter.

Done in English and French, the English text being authoritative.

Dated this 7th day of July 2005,
At The Hague,
The Netherlands.

Judge Theodor Meron
Presiding Judge

[Seal of the International Tribunal]

1 - “Defence Filing Pursuant to Scheduling Order,” 17 June 2005; “Second Defence Filing Pursuant to Scheduling Order,” 28 June 2005.
2 - Appeal, para. 22.
3 - “Decision on First and Second Defence Filings Pursuant to Scheduling Order,” 4 July 2005, p. 3 (“Trial Chamber Decision”).
4 - Trial Chamber Decision, pp. 3-4.
5 - Trial Chamber Decision, p. 5. The Trial Chamber Decision allows for an additional three days at the end of that time, if the Defense chooses, to present mitigating evidence.
6 - See “Decision on Request for Certification to Appeal Trial Chamber’s Decision on Defence Filings,” 4 July 2005, p. 1 (“Certification of Appeal”).
7 - “Urgent Defence Motion for a Stay of Proceedings Pending Appeal,” 4 July 2005.
8 - Certification of Appeal, p. 1.
9 - Certification of Appeal, p. 1
10 - Appeal, para. 22.