Judges deciding on Naser Oric’s defense team’s urgent appeal against a court decision allowing them only thirty witnesses and nine weeks to present their case have ruled in the appellant’s favour.
On July 20, the appeals chamber, presided over by Judge Theodor Meron, ruled that the Srebrenica wartime commander should be allotted much more time to introduce his evidence, and can even “begin presenting his case again, if he so chooses”.
Oric has been charged with wanton destruction of Serb property in the villages around Srebrenica and murder and abuse of Serb detainees in the town’s prison in 1992 and 1993.
At the end of the prosecution case, he was acquitted of two out of six charges against him and an amended indictment was issued last month.
The defence started presenting their evidence earlier this month, although somewhat reluctantly, because the court had also dismissed their calls for the trial to be suspended until the appeals court verdict on their request for more time and witnesses.
The question of the scope of Oric’s defence case has been an issue since the beginning of this month, when the defence call for 73 witnesses and 120 days to present its evidence was flatly rejected by the trial chamber led by Judge Carmel Agius of Malta.
Explaining their decision to drastically cut the number of defence witnesses and allow first only 19, and then 30 over a nine-week period, the judges at Oric’s trial said there were certain areas related to the indictment “the defence doesn’t have to address”, because the trial chamber has “heard enough evidence already…which go to [Oric’s] favour”.
In their July 4 decision, the judges specified eight issues that in their mind the defence need not to address anymore, such as political and military background and “the large number of attacks by Bosnian Serb forces on Bosnian Muslim villages” around Srebrenica; “the killing and inhumane treatment of Bosnian Muslims…by Bosnian Serbs”; “the whole policy of ethnic cleansing by Bosnian Serb political or military authorities”; “and the genocide against Bosnian Muslims in Srebrenica in 1995”.
The judges also said no further evidence was required to prove some of the aspects of the unbearable situation inside the town, as well as the “military superiority of the Serbs” and “the urgent necessity” of the Muslim attacks on the Serb villages around Srebrenica to secure food, weapons and medicine for survival.
But Oric’s defence counsel argued that excluding the eight areas from the defence case was “not a proper legal finding” and could still leave a lot of maneuvering space for the prosecution if they wanted to re-open any of these during the cross-examination.
In its July 20 decision, the appeals chamber seemed to have supported the defence arguments.
“Unless the trial chamber is prepared to reconsider its ruling [on the defence request for Oric’s acquittal] and grant partial judgment of acquittal, it must give Oric a reasonable opportunity to present reliable and relevant evidence on at least [some] of these issues,” the court said.
One of the main grounds for the appeal in the view of the defence was that the prosecutors were allowed to bring 50 witnesses over eight months, which suggested there was no “equality of arms” between the defence and the prosecution.
“If we are allowed only 25 per cent of the time that was allocated to the prosecutors, then this will be a sham, a mockery of a trial!” said Oric’s lawyer John Jones at the pre-defence conference held on July 1.
The appeals chamber seemed to take a similar view.
“The principle of equality of arms between the prosecutor and accused in a criminal trial goes to the heart of the fair trial guarantee. At a minimum, [it] obligates a judicial body to ensure that neither party is put at disadvantage when presenting their case,” judges said in their July 20 ruling.
They added that the allocation of 30 witnesses and 9 weeks of testimony “is not remotely proportional to the time that was allotted to the prosecution” and “given the complexity of the issues at stake, particularly regarding military necessity, such disproportion cannot be justified”.
While the appeals chamber judges admitted that the accused is “not necessarily entitled to precisely the same amount of time or the same number of witnesses as the prosecution”, they say “the trial chamber must also consider whether the amount of time is objectively adequate to permit the accused to set forth his case in a manner consistent with his rights”.
On June 8 - when the prosecution ended its case - the trial chamber acquitted Oric of two of the six charges against him, namely those relating to plunder of public and private property. But four other charges - including wanton destruction of Serb property in a number of villages around Srebrenica and the murder and abuse of Serb detainees in the town’s prison in 1992 and 1993 - remained in the indictment.
Edgar Chen, a liaison officer from the Coalition for International Justice, says the appeals chamber made “the right decision”.
“It sends a message to the trial bench that the procedural rights of the defendant cannot be so sweepingly curtailed,” he said. “The touchstone is relevance – the defence should be entitled to present as much relevant and probative evidence as they can.”
Oric’s defence lawyers are expected to continue presenting their case after the tribunal’s summer recess, which will most likely last much longer than 9 weeks previously allotted to them by the trial chamber.
Merdijana Sadovic is an IWPR reporter in The Hague.
