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:
17 January 2006

PROSECUTOR

v.

NASER ORIC

_______________________________________________

DECISION ON PARTLY CONFIDENTIAL DEFENCE MOTION REGARDING THE CONSEQUENCES OF A PARTY FAILING TO PUT ITS CASE TO WITNESSES PURSUANT TO RULE 90(H)(ii)

_______________________________________________

The Office of the Prosecutor:

Mr. Jan Wubben
Ms. Patricia Sellers Viseur
Mr. Gramsci di Fazio
Ms. JoAnne Richardson

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 "Partly Confidential Defence Motion Regarding the Consequences of a Party Failing to Put its Case to Witnesses Pursuant to Rule 90(H)(ii) filed by Counsel for Naser Oric (respectively "Defence" and Accused") on 30 November 2005 ("Motion"), in which the Defence submits that the Office of the Prosecutor ("Prosecution") has repeatedly failed to put its case to Defence witnesses during cross-examination pursuant to Rule 90(H)(ii) of the Rules of Procedure and Evidence of the Tribunal ("Rules") and requests that the Trial Chamber adopts the adequate measures as a consequence of this repeated failure;

NOTING the "Prosecution Response to Defence Partly Confidential Motion Regarding the Consequences of a Party Failing to Put its Case to a Witness Pursuant to Rule 90(H)(ii)" filed on 14 December 2005 ("Response"), in which the Prosecution submits that the Defence mischaracterises the obligation that the parties carry pursuant to Rule 90(H)(ii) of the Rules in so far that it requires "the Prosecution to put to every Defence witness all documents and prior testimony, which is or could be interpreted by the Trial Chamber as contrary to that witnessí testimony"1 and that it does not present the specific violations for which it is requesting that remedies be granted by the Trial Chamber;

NOTING Rule 90(H)(ii) of the Rules which provides that "[i]n the cross-examination of a witness who is able to give evidence relevant to the case for the cross-examining party, counsel shall put to that witness the nature of the case of the party for whom that counsel appears which is in contradiction of the evidence given by the witness";

NOTING that the case-law on Rule 90(H)(ii) is limited but that Trial Chamber II, in the Brdjanin and Talic Case, gave a detailed analysis of the foundations, purpose and scope of the Rule and held that Rule 90(H)(ii), which equivalent is found in certain common-law jurisdictions, requires the cross-examining party to put the nature of its case, meaning the substance of the contradictory evidence and not every detail that the party does not accept, to the witness if this party contests the evidence of this witness but allowed for a certain flexibility depending on the various circumstances at trial2 (emphasis added);

CONSIDERING that, with the exception of the cross-examination of Defence witnesses Sidik Ademovic and D002, the Defence, in its Motion, does not allege any specific violation of Rule 90(H)(ii) of the Rules by the Prosecution;

CONSIDERING that, with regard to Defence witnesses Sidik Ademovic and D002, the Prosecution put the nature of its case on relevant issues, including but not limited to, the structure of the armed groups of these two respective witnesses and their participation in the actions charged in the Third Amended Indictment against the Accused;3

CONSIDERING further that, by not putting Prosecution exhibit P598 to either Sidik Ademovic or D002, the Prosecution did not breach Rule 90(H)(ii) of the Rules but rather adopted a more flexible approach in accordance with the spirit of the Rule and the relevant case-law, in so far that it put the substance of its case on the contested parts of the testimonies of Defence witnesses Sidik Ademovic and D005;

CONSIDERING that it is not appropriate for the Trial Chamber to issue abstract guidelines as requested by the Defence and that it will rule on a case by case basis if, and when, either of the parties alleges a specific violation of Rule 90(H)(ii) of the Rules by the other party;

PURSUANT TO Rule 90(H)(ii) of the Rules

HEREBY DENIES the Motion.

 

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

Dated this seventeenth day of January 2006,
At The Hague,
The Netherlands

_________________________
Judge Carmel Agius
Presiding

[Seal of the Tribunal]


1. Prosecutionís Response to Defence Partly Confidential Motion Regarding the Consequences of a Party Failing to put its Case to a Witness Pursuant to Rule 90(H)(ii) ("Response"), para. 2.
2. Prosecutor v. Radoslav Brdjanin and Momir Talic, Case No. IT-99-36-T, Decision on "Motion to Declare Rule 90(H)(ii) Void to the Extent it is in Violation of Article 21 of the Statute of the International Tribunal" by the Accused Radoslav Brdjanin and on "Rule 90(H)(ii) Submissions" by the Accused Momir Talic, 22 March 2002.
3. Sidik Ademovic, T. 13137-13164, 13167-13239; D005, T. 14018-14026, 14032-14092, 14110-14166 (partly in private session).