Case No. IT-03-68-T
IN TRIAL CHAMBER II
Before:
Judge Carmel Agius, Presiding
Judge Hans Henrik Brydensholt
Judge Albin Eser
Registrar:
Mr. Hans Holthuis
Decision of:
07 January 2004
PROSECUTOR
v.
NASER ORIC
_______________________________________
SECOND DECISION ON THE URGENT DEFENCE MOTION TO EXCLUDE EXHIBITS PURSUANT TO RULES 89 AND 95
_______________________________________
The Office of the Prosecutor:
Mr. Jan Wubben
Counsel for the Accused:
Ms. Vasvija Vidovic
Mr. John Jones
TRIAL CHAMBER II ("Trial Chamber") of the International 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"):
BEING SEISED OF the "Urgent Defence Motion to Exclude Exhibits Pursuant to Rules 89 and 95" filed on 14 December 2004 ("Motion") in which the Defence applies to the Trial Chamber, pursuant to Rules 89 and 95 of the Rules of Procedure and Evidence of the Tribunal ("Rules"), to exclude from evidence and/or declare inadmissible the video-tape designated as V000-2554 ("Video") and the English translation of its BCS transcript, both previously admitted as Prosecution Exhibit P98, in the event that the Office of the Prosecutor ("Prosecution") would seek to use or admit them into evidence;
NOTING that in its Motion, the Defence submits that the prejudicial effect of the use of the Video would outweigh its probative value in so far that its authenticity and reliability may be questioned, that the interviews depicted in the Video may have been obtained under oppression and that the English translation of the BCS transcript of the Video is inaccurate and incomplete;
NOTING further that the Defence does not oppose the portion of the Video depicting Prosecution witness, Mr. Nedeljko Radic, being shown to him for his comments;
NOTING that, during the 14 December 2004 hearing ("Hearing"), the Trial Chamber instructed the parties to limit their oral submissions to the parts of the Motion relating to the potential use of the Video by the Prosecution during the testimony of the witness about to give evidence, namely Mr. Slavoljub Zikic. During the Hearing, the Prosecution stated that it would file a written response regarding the other parts of the Motion, namely the use of the Video during the testimony of Nedeljko Radic;1
NOTING further the "Decision on the Urgent Defence Motion to Exclude Exhibits Pursuant to Rules 89 and 95" rendered by the Trial Chamber on 17 December 2004 ("First Decision") in which the Trial Chamber dismissed the Motion in part and decided that the use of the Video during the testimony of Slavoljub Zikic would be allowed with the caveat that the probative value and the authenticity of the Video shall be assessed in due course by the Trial Chamber when it comes to evaluate the totality of the evidence provided before the Trial Chamber during the course of the proceedings. The Trial Chamber reserved its position regarding the remaining parts of the Motion until the Prosecution filed its written submissions on the use of the Video during the testimony of Nedeljko Radic;
NOTING the "Response to Defence Urgent Motion to Exclude Exhibits Pursuant to Rules 89 and 95" filed by the Prosecution on 17 December 2004 ("Response") in which the Prosecution submits that, for the reasons set out in the First Decision, the remainder of the Motion should also be denied, thus allowing the use of the Video during the upcoming testimony of Nedeljko Radic;
CONSIDERING that the reasoning expressed by the Trial Chamber in its First Decision is all the more applicable to the use of the portion of the Video which depicts Nedeljko Radic as he will personally be in a position to answer any questions concerning the reliability and the authenticity of the Video during his examination and cross-examination;
CONSIDERING that, regarding the use of the portions of the Video which do not depict Nedeljko Radic, the Trial Chamber reiterates the reasons set out in the First Decision, namely that the Defence submissions are relevant only for the stage of evaluating the contents of the Video for the purpose of establishing its probative value or otherwise, but should have absolutely no bearing on the admissibility aspect at this stage of the proceedings;
FOR THE FOREGOING REASONS
PURSUANT TO Rules 89 and 95 of the Rules;
HEREBY DISMISSES the remaining parts of the Motion which relate to the use of the Video during the testimony of Nedeljko Radic, and DECIDES THAT:
The use of the Video for the purpose of the testimony of Nedeljko Radic shall be allowed with the caveat that the probative value and the authenticity of the Video shall be assessed in due course by the Trial Chamber when it comes to evaluate the totality of the evidence provided before the Trial Chamber during the course of the proceedings.
Done in French and English, the English version being authoritative.
Dated this seventh day of January 2005,
At The Hague,
The Netherlands.
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Carmel Agius
Presiding Judge
[Seal of the Tribunal]