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:
9 February 2006

PROSECUTOR

v.

NASER ORIC

_______________________________________________

DECISION ON THE PROSECUTION MOTION WITH ADDENDUM AND URGENT ADDENDUM TO PRESENT REBUTTAL EVIDENCE PURSUANT TO RULE 85(A)(iii)

_______________________________________________

The Office of the Prosecutor:

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

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 “Prosecution Motion to Present Rebuttal Evidence in SsicC Pursuant to Rule 85(iii)SsicC” (“Motion”), filed confidentially by the Office of the Prosecutor (“Prosecution”) on 24 January 2006 pursuant to Rule 85(A)(iii) of the Rules of Procedure and Evidence (“Rules”), wherein the Prosecution seeks to admit in rebuttal the testimony of two viva voce witnesses, namely, General Guy de Vere Wingfield Hayes (“General Hayes”) and Dževad Hrvacic, and three areas of documentary evidence, namely, an immigration declaration of Defence witness Mustafa Sacirovic, documents concerning military awards to ABiH members, and documents concerning a purported institutional relationship between the Zvornik and Srebrenica Hospitals in 1992;

NOTING the “Addendum to the Prosecution Motion to Present Rebuttal Evidence Pursuant to Rule 85 (iii)SsicC” (“Addendum”) filed confidentially on 27 January 2006, in which the Prosecution seeks to admit two additional areas of rebuttal evidence, specifically, expert forensic evidence regarding the authenticity of the signatures of Hamed Salihovic and Hamdija Fejzic and a statement under Rule 92bis of the Rules of Nikola Popovic, who had testified in the Prosecution case-in-chief;

NOTING the “Defence Response to Prosecution Motion to Present Rebuttal Evidence Pursuant to Rule 85 (iii)SsicC” (“Defence Response”), filed on 31 January 2006 by the Defence for Naser Oric (“Defence” and “Accused” respectively), whereby the Defence seeks denial of the Motion with Addendum on the basis, inter alia, that none of the proposed rebuttal evidence satisfies the requirements for the admission of such evidence;

NOTING, however, the “Urgent Addendum to the Prosecution Motion to Present Rebuttal Evidence Pursuant to Rule 85(iii)SsicC” (“Urgent Addendum”), filed confidentially on 2 February 2006, according to which the Prosecution seeks to admit as rebuttal evidence new documents concerning a purported institutional relationship between the Zvornik and Srebrenica Hospitals under Rule 92bis of the Rules, exchanging them for previously submitted documents in annexes to the Motion and Addendum;

FURTHER NOTING the “Reply to the Defence Response to Prosecution Motion to Present Rebuttal Evidence Pursuant to Rule 85(iii)SsicC” (“Reply”), filed confidentially on 3 February 2006, whereby the Prosecution withdraws its request for admission into evidence the testimony of Dževad Hrvacic, expert forensic evidence regarding the authenticity of the signatures of Hamed Salihovic and Hamdija Fejzic, an immigration declaration of Defence witness Mustafa Sacirovic and documents concerning military awards to ABiH members, and renews its request for admission of the vive voce testimony of General Hayes and for documents concerning a purported institutional relationship between the Zvornik and Srebrenica Hospitals in 1992 under Rule 92bis of the Rules as evidence in rebuttal;

ALSO NOTING the “Addendum to the Reply to the Defence Response to Prosecution Motion to Present Rebuttal Evidence to Rule 85 (iii)SsicC” (“Addendum to Reply”), filed confidentially on 6 February 2006, in which the Prosecution clarifies its intention to continue to seek the admission of a statement of Nikola Popovic as evidence in rebuttal under Rule 92bis of the Rules, or alternatively, his vive voce testimony, either in court or by of way video link;

NOTING, in sum, the following three areas which are requested to be admitted as rebuttal evidence, namely:

i) the testimony of General Hayes (“first proposed evidence”):

ii) two documents concerning a purported institutional relationship between the Zvornik and Srebrenica Hospitals in 1992 pursuant to Rule 92bis of the Rules (“second proposed evidence”): and

iii) a statement of Nikola Popovic under to Rule 92bis of the Rules, or alternatively, his vive voce testimony, either in court or by of way video link (“third proposed evidence”);

NOTING the submissions of the Prosecution that the first proposed evidence rebuts the testimony of Defence witness Diego Arria that in Srebrenica no proper army existed, thereby negating evidence that the Accused was a local commander,1 that the second proposed evidence rebuts the evidence of the Defence witness Šuhra Dijlovic that there was no institutional relationship between the Zvornik and Srebrenica Hospitals,2 and that the third proposed evidence rebuts the credibility of the protected Defence witness D005 who identified a person in exhibit D943 as Nikola Popovic3;

NOTING the submissions of the Defence4 regarding the first proposed evidence, that the non-existence of a Muslim army and the corresponding appointment “without substance” of the Accused as commander have been a consistent theme of the Defence case from the beginning of trial and that Prosecution witnesses have given similar evidence on the matter,5 regarding the second proposed evidence, that the Prosecution could have anticipated the evidence adduced during the examination of Šuhra Dijlovic,6 and regarding the third proposed evidence, that the Prosecution failed to recall Nikola Popovic when the matter arose during its case-in-chief or to challenge the testimony of D005 during cross-examination as to his identification of a person in exhibit D943 as Nikola Popovic7;

NOTING that Rule 85(A) of the Rules requires, unless otherwise directed by the Trial Chamber in the interest of justice, that prosecution evidence in rebuttal shall follow evidence for the defence;

NOTING, however, that Rule 85(A) of the Rules merely refers to the ordinary sequence of presenting evidence at trial and not to the standard for admissibility of rebuttal evidence;

RECALLING that, in the jurisprudence of the Tribunal, evidence which goes to a matter that forms a fundamental part of the case which the Prosecution is required to prove in relation to the charges brought in the Indictment should be brought as part of the Prosecution case-in-chief and not in rebuttal;8

RECALLING further that, in the jurisprudence of the Tribunal, the Prosecution is under a duty to adduce all the evidence critical to proving the guilt of an accused by the close of its case, and it is the obligation of the Prosecution to lead its evidence in its case-in-chief, and only if a new issue is raised in the course of the Defence case may the Prosecution lead evidence in rebuttal;9

RECALLING that, in the jurisprudence of the Tribunal, the prosecutorial purpose of presenting rebuttal evidence is to refute a particular piece of evidence which has been adduced by the Defence;10

RECALLING that, in the jurisprudence of the Tribunal, the over-arching standard for admissibility of rebuttal evidence is that such evidence must relate to a significant issue arising directly out of defence evidence which could not reasonably have been anticipated, and conversely, the Prosecution cannot call additional evidence merely because its case has been met by certain evidence to contradict it;11

FURTHER RECALLING that, in the jurisprudence of the Tribunal, only highly probative evidence on a significant issue in response to Defence evidence, and not merely evidence which reinforces or fills gaps in the Prosecution’s case-in-chief, will be permitted in rebuttal, and that evidence on peripheral and background issues will be excluded;12

CONSIDERING in sum, that the jurisprudence of the Tribunal requires that proposed rebuttal evidence, in order to be admitted, be highly probative in relation to a significant issue arising directly out of Defence evidence which could not reasonably have been anticipated, and be offered to refute the Defence evidence;

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

RECOGNISING, however, that in exercising such discretion, it is imperative for the Trial to balance the probative value of the evidence and the need to ensure a fair trial which necessarily includes the consideration of the goal of ascertaining the truth and the possible prejudice to the Accused;13

RECOGNISING that in their submissions, the Prosecution and Defence are in general agreement as to the jurisprudence of the Tribunal with respect to the standard of admissibility for rebuttal evidence which is to be applied;14

MINDFUL, HOWEVER, that in a system where, as in this Tribunal, at the pre-trial stage the Prosecution is limited in the number of witnesses it can produce and time in which it needs to conclude its case, a rigid application of the characteristically high or strict standard of admissibility for rebuttal evidence may consequently encourage or even compel the Prosecution to seek to admit an over -abundance of evidence in its case-in-chief in order to avoid the risk of foreclosure of evidence deemed critical by the Prosecution at the rebuttal stage of the proceedings, and that a flexible application of the standard of admissibility is preferred by this Trial Chamber as it might avert such an undesirable approach in conducting trials before the Tribunal;

CONVINCED, though, that in the instant case, admission of the rebuttal evidence proposed by the Prosecution, even if permissible under a more flexible application of the high or strict standard of admissibility, would be outweighed by the need to ensure a fair and expeditious trial;

FINDING, as to the first proposed evidence, that the proffered testimony of General Hayes that the Accused remained the commander for all of the Muslim forces in the Srebrenica enclave in April and May 1993 does not relate to a significant issue arising directly out of Defence evidence which could not reasonably have been anticipated. In addition, the proffered evidence purports to rebut testimony of Diego Arria which arose during cross-examination and concerned the absence of an army “as such” in Srebrenica,15 but only marginally refutes such testimony and is thus of limited probative value. Furthermore, it involves matters clearly addressed in the Prosecution’s case-in- chief, and thus necessarily anticipated by the Prosecution;

FINDING as to the second proposed evidence, that the proffered documents concerning a purported institutional relationship between the Zvornik and Srebrenica Hospitals in 1992 do not relate to a significant issue arising directly out of Defence evidence which could not reasonably have been anticipated. The proffered evidence purports to rebut testimony of Šuhra Djilovic which arose during cross-examination and concerned the lack of an institutional relationship between the hospitals,16 of which the Prosecution summarily contends is significant and highly probative without articulating any explanation or analysis for its contention,17 and which, if concerning the authenticity of documents issuing from the Srebrenica Hospital,18 has been a matter clearly addressed in the Prosecution’s case-in-chief, and thus reasonably anticipated by the Prosecution;

FINDING as to the third proposed evidence, that the testimony of Nikola Popovic, either in the form of a statement admitted pursuant to Rule 92bis of the Rules, or as a vive voce witness, does not relate to a significant issue arising directly out of Defence evidence which could not reasonably have been anticipated, in that, inter alia, the proposed evidence is purportedly offered for the limited purpose of attacking the credibility of the protected Defence witness D005 solely as to that witness’s identification of Nikola Popovic in exhibit D943,19 a matter which the Trial Chamber has no difficulty in characterising as insignificant, and further which, although relating to witness credibility, concerns a collateral or peripheral aspect of the testimony of that witness.

FOR THE FOREGOING REASONS,

PURSUANT TO Rules 85(A)(iii), Rule 89(C) and Rule 92bis of the Rules

HEREBY DENIES the Motion.

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

Dated this ninth day of February 2006,
At The Hague,
The Netherlands

_________________________
Carmel Agius
Presiding Judge

[Seal of the Tribunal]


1 - Motion, paras 8-10.
2 - Urgent Addendum, para. 7.
3 - Addendum, para. 6; Addendum to Reply, paras 4, 6.
4 - The submissions identified herein briefly summarise only a sampling of the numerous objections to each of the three areas of rebuttal evidence proposed by the Prosecution. See Defence Response, paras 14-25, 51-58.
5 - Defence Response, paras 21-40, 50.
6 - Defence Response, paras 176, 182-183, 185-187. It is noted that the Defence’s arguments respond only to the Motion and the Addendum and thus those relevant arguments corresponding to the Prosecution’s submissions are referred to. The Defence argues that the Defence not only had alerted the Prosecution in advance to that fact that this witness would be testifying on this subject, but also has challenged the authenticity of documents allegedly issued by the Srebrenica War Hospital bearing the stamp of Zvornik Hospital, as well as an issue concerning the lack of any relationship between the Zvornik and Srebrenica authorities.
7 - Defence Response paras 5(F), 195-199.
8 - Prosecutor v. Delalic et al., Case No. IT-96-21-A, Appeals Chamber Judgement, 20 February 2001 (“Celebici Appeals Judgement”), para. 275; Prosecutor v. Vidoje Blagojevic and Dragan Jokic, Case No. IT-02-60-T, Decision on Prosecution’s Motion to Admit Evidence in Rebuttal and Incorporated Motion to Admit Evidence under Rule 92bis in its Case on Rebuttal and to Re-open its Case for a Limited Purpose, 13 September 2004 (“Blagojevic Decision”), para. 5. See also Prosecutor v. Delalic et al., Case No. IT-96-21-T, Decision on the Prosecution’s Request to Reopen the Prosecution’s Case, 19 August 1998 (“Celebici Decision”), para. 23.
9 - Blagojevic Decision, para. 5; Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-T, Decision on Prosecution’s Motion to Admit Rebuttal Statement via Rule 92bis, 7 July 2005 (“Limaj Decision”), para. 6.
10 - Celebici Appeals Judgement, para, 273. See also Prosecutor v. Radislav Kristic, Case No. IT-98-33-T, Decision on the Defence Motions to Exclude Exhibits in Rebuttal and Motion for Continuance, 4 May 2001 (“Kristic Decision”), para. 8; Prosecutor v. Stanslav Galic, Case No. IT-98-29-T, Decision on Rebuttal Evidence, 2 April 2003 (“Galic Decision”), para. 4; Blagojevic Decision, para. 5; Limaj Decision, para. 6; Prosecutor v. Sefer Halilovic, Case No. IT-01-48-T, Decision on Prosecution Motion to Call Rebuttal Evidence, 21 July 2005 (“Halilovic Decision”), pp. 2-3.
11 - Celebici Appeals Judgement”, paras 273, 275.
12 - Blagojevic Decision, para. 5. Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-T, Oral Decision, 18 October 2000 (“Kordic Oral Decision”), T. 26646-26647, endorsed by Kristic Decision, para. 10; Galic Decision, para. 4; Limaj Decision, para. 6.
13 - See also Kristic Decision, para. 16.
14 - Motion, paras 3-6; Defence Response, paras 2-3, 17-18.
15 - Motion, paras 9-11; Reply, para. 6; Defence Response, para. 22.
16 - Urgent Addendum, para. 5.
17 - Motion, para. 19; Urgent Addendum, para. 7.
18 - Defence Response, paras 176-190.
19 - Addendum, para. 6; Addendum to Reply, paras 4-6.