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

Order of:
25 January 2006

PROSECUTOR

v.

NASER ORIC

________________________________________

PROPRIO MOTU ORDER TO CALL A HANDWRITING EXPERT

________________________________________

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 that Rule 98 of the Rules of Procedure and Evidence of the Tribunal ("Rules") allows the Trial Chamber to "proprio motu summon witnesses and order their attendance";

NOTING the forensic opinions of Prosecution handwriting expert witness, Wilhelmus Petrus Franciscus Fagel, as appear in the report tendered into evidence as Prosecution exhibit P264 and in the addendum to the report tendered into evidence as Prosecution exhibit P265 (together "Prosecution Handwriting Expert Report");¹

NOTING further the forensic opinions of Defence handwriting expert witness, Esad Bilic, as appear in the report annexed to the "Defence Motion to File the Statement of an Expert Witness" disclosed by Counsel for Naser Oric (respectively "Defence" and "Accused") on 16 December 2005 ("Defence Handwriting Expert Report") pursuant to Rule 94bis(A) of the Rules;

NOTING that ten documents, copies of which have been tendered into evidence as Prosecution exhibits, were examined by both handwriting experts and that conflicting opinions were reached for each of the ten documents ("Ten Questioned Documents");²

CONSIDERING that, in these circumstances and at this stage of the proceedings, the Trial Chamber deems it necessary to obtain an expert opinion by an independent Trial Chamber appointed handwriting expert who shall assist the Trial Chamber in its evaluation of the Ten Questioned documents on which the Prosecution and Defence Handwriting Experts disagree;

CONSIDERING that, in addition to the Ten Contested Documents, it is also in the interest of justice to conduct further forensic examination of Prosecution exhibit P269, which was previously examined by the Prosecution Handwriting Expert (altogether "Questioned Documents")³;

CONSIDERING further that, pursuant to Rule 41 of the Rules, the responsibility for retention, storage and security of documents obtained by the Prosecution in the course of the investigation remains with the Prosecution until such documents leave the custody and control of the Prosecution and are formally tendered into evidence;

CONSIDERING that the Questioned Documents are photocopied documents and that the originals of the Questioned Documents have not been tendered into evidence and are thus still within the custody and control of the Prosecution;

PURSUANT TO Rules 54 and 98 of the Rules;

HEREBY INSTRUCTS the Registry to

1. specially appoint an independent handwriting expert ("Handwriting Expert") pursuant to the "Practice Direction on Engagement of Expert Consultants who Provide Reports and/or Testimony at the Request of Chambers"⁴ to conduct a forensic examination of the original documents of which Prosecution exhibits P3, P4, P13, P14, P37, P73, P74, P75, P158, P210 and P269⁵ are photocopies in order to determine the authenticity of the Questioned Documents and to resolve the disputes identified by the conflicting opinions of the Prosecution and the Defence Handwriting Experts with regard to the Ten Questioned Documents; and

2. specially appoint a representative from within its staff who shall fulfil the responsibilities of the Prosecution pursuant to Rule 41 of the Rules and with respect to the subject matter of this Decision ("Registry Representative"); and

ORDERS that

1. the Registry shall communicate in writing the name of the Handwriting Expert and of the Registry Representative to the Trial Chamber, as soon as practicable;

2. a meeting between the Trial Chamber and the Handwriting Expert shall be held in the Presiding Judge’s chamber, as soon as practicable ("Meeting");

3. the terms of reference, scope and schedule of the forensic examination shall be determined in consultation between the Trial Chamber and the Handwriting Expert during the Meeting and shall be the subject of a further order by the Trial Chamber at a later stage;

4. the Prosecution shall make available the originals of the Questioned Documents, namely Prosecution exhibits P3, P4, P13, P14, P37, P73, P74, P75, P158, P210 and P269⁶ to the Registry for the purpose of examination by the Handwriting Expert, starting on the date of the Meeting;

5. the Registry Representative shall be responsible for receiving from the custody and control of the Prosecution, for retaining, storing and securing the Questioned Documents, for the purpose of consigning them to the Handwriting Expert, for informing the Trial Chamber when consignment of the Questioned Documents to the Handwriting Expert has occurred, for retrieving the Questioned Documents from the Handwriting Expert upon completion of the handwriting examination, and for returning them to the custody and control of the Prosecution;

6. prior to consignment of the Questioned Documents to the Handwriting Expert for forensic examination, the Handwriting Expert shall submit to the Trial Chamber or to the appointed representative of the Registry a written and signed declaration undertaking to examine the documents entirely by non-destructive and non-damaging means, to protect the physical integrity of the questioned documents and ensure that they are returned as soon as the examination is completed to the Registry Representative in a condition suitable for further examination should it ever be required;

7. the Handwriting Expert shall compile his forensic opinions in a written report and disclose the said written report to the Trial Chamber, the Prosecution and Defence before the presentation of his oral evidence;

8. the Handwriting Expert shall be made available to give oral evidence before the Trial Chamber at the close of the presentation of the defence evidence in rejoinder to expand on his forensic opinions on the Questioned Documents;

9. Wilhelmus Petrus Franciscus Fagel, expert witness called by the Prosecution, and Esad Bilic, expert witness called by the Defence, shall be allowed to be present during the presentation of the oral evidence of the Handwriting Expert to assist both parties in the examination of the Handwriting Expert, should either of the parties so desires;

10. the oral evidence of the Handwriting Expert shall be presented as follows:

• the Judges will pose questions;

• the Prosecution and then the Defence shall be given an equal opportunity to examine the Handwriting Expert within the scope of the testimony given in response to questions posed by the Trial Chamber.

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

Dated this twenty-fifth day of January 2006,
At The Hague,
The Netherlands

_________________________
Carmel Agius
Presiding Judge

[Seal of the Tribunal]

Home | Terms & Conditions | About

Copyright © 1999- WorldCourts. All rights reserved.