Before:
Judge Jean-Claude Antonetti
Judge Vonimbolana Rasoazanany
Judge Albertus Swart

Registrar:
Mr Hans Holthuis

Decision of:
4 February 2004

The Office of the Prosecutor:

Mr Ekkehard Withopf
Mr Daryl Mundis
Mr Chester Stamp
Ms Tekla Henry-Benjamin

Defence Counsel:

Ms Edina Residovic and Mr Stéphane Bourgon for Enver Hadzihasanovic
Mr Fahrudin Ibrisimovic and Mr Rodney Dixon for Amir Kubura

Trial Chamber II (“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’s Application Pursuant to Rule 92 bis (A) of the Rules, Confidential in Part, filed by the Office of the Prosecutor (“Prosecution”) on 18 December 2003 (“Application”) in which the Prosecution requests the Chamber to grant it leave, pursuant to Rule 92 bis (A) of the Rules of Procedure and Evidence (“Rules”), to submit in lieu of oral testimony the written statements and related exhibits: (a) of witnesses 60, 69 and 131 and (b) of witnesses 10, 15, 21, 27, 28, 36, 45, 65, 72, 82, 94, 95, 96, 101, 103, 114, 115, 116, 125 and 126 and alternatively (a) grant it leave to file those passages from the statements of witnesses 10, 15, 21, 27, 28, 36, 45, 65, 72, 82, 94, 95, 96, 101, 103, 114, 115, 116, 125 and 126 which might not relate to the accused’s acts or conduct or be dealt with in oral testimony or cross-examination and (b) allow that the other passages from the statements be related orally and undergo cross-examination;

NOTING the Joint Defence Response to Prosecution’s Application Pursuant to Rule 92 bis (A) of the Rules filed jointly by counsel for the two accused (“Defence”) on 12 January 2004 (“Response”), in which the Defence agrees with the submission pursuant to Rule 92 bis (A) of the Rules, of the written statements and exhibits related to witnesses 10, 27, 28, 36, 45, 60, 65, 69, 72, 94, 95, 96, 101, 103, 114, 116 and 126 but objects to the Application with regard to witnesses 15, 21, 82, 115, 125 and 131 and requests that these witnesses give evidence orally and that they undergo an examination-in-chief and/or cross-examination on all the points contained in their statements;

CONSIDERING that, pursuant to Rule 92 bis (A) of the Rules, the Chamber may admit, in whole or in part, the evidence of a witness in the form of a written statement in lieu of oral testimony which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment;

CONSIDERING that Rule 92 bis (B) of the Rules provides that the person witnessing the written declaration pursuant to this Rule must verify (a) that the person making the statement is the person identified in the said statement; (b) 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, truthful and exact; (c) 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 (d) the date and place of the declaration;

CONSIDERING that the Chamber notes that 13 of the 23 written statements submitted by the Prosecution do not refer to the false testimony as required under Rule 92 bis (B)(ii)(c) of the Rules;

CONSIDERING however that those omissions have no consequences, particularly since the Defence has not made any observation in this regard;¹

CONSIDERING that, for the purposes of Rule 92 bis (A) of the Rules, the case-law of the Tribunal differentiates between the acts and conduct of the accused and those of his subordinates² and that it interprets “the acts and conduct of the accused” in the context of Article 7(3) of the Statute of the Tribunal as referring to any element which would make it possible to establish that “?the accusedg was a superior to those who actually did commit the crimes, or that he knew or had reason to know that those crimes were about to be or had been committed by his subordinates, or that he failed to take reasonable steps to prevent such acts or to punish those who carried out those acts”;³

CONSIDERING that, in certain instances, according to Article 7(3) of the Statute, the proof of the acts or conduct of the accused’s subordinates may also make it possible to establish the acts or conduct of the accused and that it would not be fair to the accused to permit that such evidence be submitted in written form;⁴

CONSIDERING that, in deciding on a statement’s admission pursuant to Rule 92 bis (A) of the Rules, the case-law specifies that the Chamber has the discretion to decide whether the evidence must in fact be admitted in written form;⁵

CONSIDERING that, in the exercise of this discretion, the Chamber considers the proximity to the accused of the subordinate whose acts and conduct are set out in the statement and the significance of that evidence for the Prosecution case;⁶

CONSIDERING that, under Rule 92 bis (E) of the Rules, the Chamber shall decide whether the witness should appear for cross-examination;

CONSIDERING that none of the statements submitted in this case relate to the accused’s acts or conduct, as set out under Rule 92 bis (A) of the Rules;

CONSIDERING that, in its Response, the Defence did not state its intention to cross-examine witnesses 10, 27, 28, 36, 45, 60, 65, 69, 72, 94, 95, 96, 101, 103, 114, 116 and 126;

CONSIDERING that, according to the documents submitted, the statements of witnesses 21, 115, 125 and 131 only corroborate other statements already presented orally before the Chamber, that there is no close link between the acts and the conduct described in their statements and the accused and that, consequently, those statements are admissible under the provisions of Rule 92 bis (A) of the Rules;

CONSIDERING, thus, that there is no reason for their entire testimony to be heard orally;

CONSIDERING, however, that, in keeping with the requirements of a fair trial, the accused should, in principle, be granted the right to cross-examine those Prosecution witnesses;

CONSIDERING that the evidence contained in the written statements of witnesses 15 and 82 might provide information on the structure and composition of the 7th Muslim Mountain Brigade and other ABiH units and on the subordination of the members of those units to the accused, that there is a close link between that evidence and the acts and conduct of the accused and that, consequently, the Chamber considers that the entire testimony of these witnesses should be presented orally;

FOR THE FOREGOING REASONS,

PURSUANT to Rule 92 bis of the Rules,

ADMITS the written statements and exhibits relating to witnesses 10, 27, 28, 36, 45, 60, 65, 69, 72, 94, 95, 96, 101, 103, 114, 116 and 126 in lieu of oral testimony;

ADMITS the written statements and exhibits relating to witnesses 21, 115, 125 and 131, which shall be subject to cross-examination;

REJECTS the request to admit the written statements of witnesses 15 and 82 and

DECIDES that witnesses 15 and 82 shall testify orally before the Chamber.

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

Done this fourth day of February 2004
At The Hague
The Netherlands

___________________
Presiding Judge of the Chamber
Judge Jean-Claude Antonetti

[Seal of the Tribunal]