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:
29 September 2005

PROSECUTOR

v.

NASER ORIC

______________________________________________

DECISION ON ALLEGED PROSECUTION NON-COMPLIANCE WITH DISCLOSURE OBLIGATIONS UNDER RULES 66(B) AND 68(i)

______________________________________________

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"):

NOTING the complaints raised during the proceedings of 15 September 2005 by counsel for Naser Oric ("Defence" and "Accused" respectively) concerning non-disclosure by the Office of the Prosecutor ("Prosecution") of three statements given by Defence witness Edina Karic in 1994 to authorities of Bosnia and Herzegovina, which were made available to the Defence only on the eve prior to Edina Karic’s testimony ("Defence complaints");1

NOTING the Defence submission that these three statements, designated by the Trial Chamber as Trial Chamber exhibits C4, C5, and C6 for the limited purpose of considering the present issue, fall squarely within the ratio of Rule 68(i) of the Tribunal’s Rules of Evidence and Procedure ("Rules"),2 and that therefore, the Prosecution has breached Rule 68(i) of the Rules as these exhibits should have been disclosed to the Defence by the Prosecution as soon as practicable;

NOTING that the Prosecution disputes the characterisation of these exhibits as exculpatory or otherwise subject to the requirements of Rule 68(i) of the Rules, notwithstanding that the statements should otherwise have been made available at an earlier date for inspection by the Defence pursuant to Rule 66(B) of the Rules;3

CONSIDERING that it is established in the jurisprudence of the Tribunal that the expression "evidence" for the purposes of Rule 68(i) evaluation is to be interpreted widely, including all information which, in the actual knowledge of the Prosecutor, may suggest the innocence, mitigate the guilt of the accused, or affect the credibility of Prosecution evidence;4

FINDING that part of the content of these statements, particularly that relating to the existence of a prison camp in Sase, the existence of which was denied by some Prosecution witnesses, but also details about the search for food by civilians as well as details about some military actions, undoubtedly fall within the ratio of Rule 68(i) of the Rules and accordingly should have been disclosed by the Prosecution pursuant to the same sub-rule;

FINDING FURTHER that there is no indication that, in failing to disclose these statements to the Defence before, both under Rule 68(i) and under Rule 68(B) of the Rules, the Prosecution acted maliciously or in bad faith;

FINDING HOWEVER that by the late disclosure of Trial Chamber exhibits C4, C5, and C6 to the Defence, the Prosecution has not met its obligations both under Rule 66(B) and Rule 68(i) of the Rules;

CONSIDERING that only minor differences exist between the contents of Trial Chamber exhibits C4 and C6 and the evidence given at trial by witness Edina Karic and that furthermore, the Defence had at its disposal already the statement identified as C5;

CONSIDERING FURTHER that there is no indication that, as a result of the late disclosure of the three statements of witness Edina Karic, the Accused has sustained any prejudice;

FINDING that given the totality of the circumstances, it is not the case to impose any sanctions against the Prosecution other than the admonition infra;

FOR THE FOREGOING REASONS

PURSUANT TO Rules 54 and 68 of the Rules

HEREBY ENJOINS the Prosecution to make all efforts in the future to comply with all obligations imposed on it pursuant to Rule 66(B) and Rule 68(i) of the Rules.

 

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

Dated this twenty-ninth day of September 2005,
At The Hague
The Netherlands

________________________
Carmel Agius
Presiding Judge

[Seal of the Tribunal]

1. Transcript pages 11055-11065.
2. Rule 68(i) of the Rules provides: "[t]he Prosecutor shall, as soon as practicable, disclose to the Defence any material which in the actual knowledge of the Prosecutor may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence".
3. Rule 66(B) of the Rules provides: "The Prosecutor shall, on request, permit the defence to inspect any books, documents, photographs or tangible objects in the Prosecutor’s custody or control, which are material to the preparation of the defence, or are intended for use by the Prosecutor as evidence at trial or were obtained from or belonged to the accused."
4. Prosecutor v. Momcilo Krajisnik, Case No. IT-00-39-PT, Decision on Defence Motions for Disclosure of Statements and Other Evidence Pursuant to Rule 68 (confidential), 17 April 2003, para. 17.