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 DEFENCE MOTION TO ADMIT THE EVIDENCE OF A WITNESS IN THE FORM OF A WRITTEN STATEMENT PURSUANT TO RULE 92BIS

___________________________________________

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 Vidovi
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 "Defence Motion to Admit the Evidence of a Witness in the Form of a Written Statement Pursuant to Rule 92bis" filed by Counsel for Naser Oric (respectively "Defence and "Accused") on 16 December 2005 ("Motion"), in which the Defence seeks the admission of the written statement of Phillip von Recklinghausen ("Witness") appended to the Motion ("Statement") pursuant to Rule 92bis(A) of the Rules of Procedure and Evidence ("Rules");

NOTING the "Prosecution’s Response to the Defence Motion to Admit the Evidence of a Witness in the Form of a Written Statement Pursuant to Rule 92bis" filed by the Office of the Prosecutor ("Prosecution") on 21 December 2005 ("Response"), in which the Prosecution solely opposes the admission of the Statement on formal grounds pursuant to Rule 92bis(B) of the Rules and submits that the Statement is not accompanied by a declaration of the Witness attesting to its veracity and has not been witnessed by a third party authorised by Rule 92bis(B) of the Rules;

NOTING Rule 89(C) of the Rules pursuant to which the Chamber has discretion to admit any relevant evidence with probative value;

NOTING Rule 92bis(A) of the Rules pursuant to which "a Trial Chamber may admit, in whole or in part, the evidence of a witness in form of a written statement in lieu of oral testimony which goes to proof of a matter other the act and conduct of the accused as charged in the indictment", taking into account such factors in favour of and against admitting evidence in the form of a written statement as set out in Rule 92bis(A)(i) and (ii) of the Rules;

NOTING further the formal requirements set out in Rule 92bis(B) of the Rules pursuant to which

(B) A written statement under this Rules shall be admissible if it attaches a declaration by the person making the written statement that the contents of the statement are true and correct to the best of that person’s knowledge and belief and

(i) the declaration is witnessed by:

(a) a person authorised to witness such a declaration in accordance with the law and procedure of a State; or

(b) a Presiding Officer appointed by the Registrar of the Tribunal for that purpose; and

(ii) the person witnessing the declaration verifies in writing:

      1. that the person making the statement is the person identified in the said statement;

      2. that the person making the statement stated that the contents of the written statement are, to the best of that person’s knowledge and belief, true and correct;

      3. that the person making the statement was informed that if the content of the written statement is not true then he or she may be subject to proceedings for giving false testimony; and

      4. the date and place of the declaration.

The declaration shall be attached to the written statement presented to the Trial Chamber.

NOTING that the only exceptions to the formal requirements of Rule 92bis(B) of the Rules are set out in Rule 92bis(C) of the Rules but do not apply to the instant case;1

CONSIDERING that the Statement has probative value and goes to proof of matters other than the acts and conduct of the Accused as charged in the Third Amended Indictment2;

CONSIDERING however that the Statement does not fulfil the formal requirements set out in Rule 92bis(B) of the Rules in so far that the declaration made by the Witness that the Statement is true to the best of his knowledge and belief3 has not been witnessed by a third party authorised to do so pursuant to Rules 92bis(B)(i) following the procedure laid down in Rule 92bis(B)(ii) of the Rules;

PURSUANT TO Rule 92bis of the Rules;

HEREBY GRANTS the Motion with allowance for the Defence to file a revised written statement of Phillip von Recklinghausen which complies with the formal requirements of Rule 92bis(B) of the Rules.

 

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

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

_________________________
Carmel Agius
Presiding Judge

[Seal of the Tribunal]

1. Rule 92bis(C) of the Rules provides that “[a] written statement not in the form prescribed by paragraph (B) may nevertheless be admissible if made by a person who has subsequently died, or by a person who can no longer with reasonable diligence be traced, or by a person who is by reason of bodily or mental condition unable to testify orally, if the Trial Chamber: (i) is so satisfied on a balance of probabilities; and (ii) finds from the circumstances in which the statement was made and recorded that there are satisfactory indicia of its reliability."
2. Prosecutor v. Naser Oric, Case No. IT-03-68-T, Third Amended Indictment, 17 June 2005 ("Indictment").
3. Motion, Annex, Statement, para. 8.