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Prosecution failure to disclose key evidence prompts court ruling that may have a big impact on the case.
By Merdijana Sadović

In a move that could significantly influence the course of the trial of former Srebrenica commander Naser Oric, the defence are to be allowed to both recall prosecution witness for further questioning and introduce new witnesses to their previously prepared list.

The judges in the war crimes case - currently in its defence phase - made their ruling on the potential re-examination of witnesses last week, because the prosecution failed to disclose some evidence, which might have eroded the case against the accused.

The trial of Oric – a controversial figure, seen by those who lived in Srebrenica as the heroic defender of a Bosnian Muslim enclave surrounded by hostile Serb forces, and by Serbs as a terroriser of Serb civilians – has been dogged by a series of rulings against the prosecution, undermining what some observers already describe as a very weak case.

The new evidence in question is an interview with former Serb combatant Slobodan Misic, published in the Serbian newspaper Vranjske Novine in 1997, in which he gave a detailed account of organised Serb attacks on “Muslim civilians and villagers” in the area around Srebrenica and Bratunac in 1992 and 1993.

This evidence, which - the defence claims, and the judges agree - “goes to the heart of the case” against Oric, charged with responsibility for the destruction of Serb villages around Srebrenica, caused quite a stir in defence and prosecution ranks alike.

Throughout the trial, the prosecutors have maintained that Muslim forces in Srebrenica were properly organised with “a central command structure headed at the top by Naser Oric”. They have argued that those who plundered and burned Serb property in Serb villages around Srebrenica were under Oric’s “effective control”, and that there was no military necessity for attacking these villages.

But Misic’s interview - which has been in the prosecution’s possession since 1997 - appears to be extremely important exculpatory evidence, which could shatter the very core of the prosecution case.

In 1992, Misic - originally from Serbia - was based in the village of Fakovici, which is listed in the indictment against Oric, as one of “50 Serb villages and hamlets” whose destruction by Muslim forces allegedly under Oric’s command was “not justified by military necessity”.

But in his 1997 interview, Misic described Fakovici as a military outpost, from which Serb forces launched attacks on “Muslim villages in the hills…burning everything on their way”.

Serb forces, said Misic, “had everything - food, weaponry, ammunition”, while Muslims were “poor and hungry lot”, with very few weapons at their disposal. He estimated that about 5000 Muslims from 8 villages were killed in the attacks in 1992.

“In the village of Tegare, more than 1000 Muslims were killed in just 3-4 hours,” said Misic in this interview.

Asked by the reporter whether Serb volunteers from the Bratunac area fought against an organised Muslim army, Misic said, “No, those were civilians and villagers, poorly armed. They only had hunting rifles and similar weapons.”

Misic’s answers - which, according to the prosecution, he later refuted, saying he was drunk at the time of the interview - seem to support some of the main defence arguments: that there was no Muslim army in that area, just civilians and self-organised groups of armed men, and that villages around Srebrenica attacked by Muslim forces in 1992 and 1993 were not some “simple hillside, rustic communities”, as the prosecutors portrayed them, but legitimate military targets.

The defence has submitted documents to the court which appear to bolster the credibility of the details contained in the interview, by showing that Misic was on the payroll of the Bosnian Serb army at the time, based in Fakovici.

In a decision announced on October 27, judges ruled that the Misic interview is exculpatory evidence, which could have changed the course of the trial had it been disclosed to the defence during the prosecution case.

Under the tribunal’s rules, prosecutors are required to disclose any material in their possession that could “suggest the innocence or mitigate the guilt of the accused, or may affect the credibility of prosecution evidence”.

The judges concluded in their decision that this is “the fifth [time]” that prosecutors in Oric case failed to meet their obligations, and that “the existence of new material is of great concern and troubles the trial chamber”.

Prosecutors received a previous slap on the wrist right at the beginning of the trial in 2004 when they presented a transcript of a video interview given by one of their witnesses Slavisa Eric, concerning the destruction of the Serb village of Kravica by Muslim forces.

When the defence retrieved the video and played it in court, Misic was shown to be wearing full army uniform, contradicting prosecution arguments that the defenders of the Serb villages were apparently amateur volunteers.

In July this year the defence received another boost when the appeals chamber quashed a decision by the trial chamber sought to restrict the number of witnesses they could call and the length of time they had to present their case.

The appeals chamber ruled that the time frame was “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”.

Referring to the Misic interview, Oric’s defence counsel John Jones pointed out that this “could have been a completely different trial” had the defence had “documents like this at the beginning”. He suggested that prosecution witnesses challenged by Misic’s interview during the defence cross-examination “might have given completely different evidence”.

Although the prosecution maintained that it is very unlikely any of the witnesses would have changed their testimony because of this document, the judges disagreed.

In an apparent attempt to limit the potential damage caused by the prosecution oversight of the exculpatory material, the judges decided on October 27 to allow Oric’s defence to recall some prosecution witnesses and cross-examine them again “in light of the discovery of the [new evidence]”.

They also ordered the prosecution to “conduct a thorough and complete search for the material relevant to the defence” by November 11 and “immediate disclosure…of any further material in its possession relating to Slobodan Misic and ethnic cleansing by Serbs in the locations referred to in the indictment, or which is in any other manner material [useful] to the defence”.

Should Oric’s lawyers decide to use the opportunity to recall some prosecution witnesses – they have been given until November 18 to provide the names – and challenge their previous testimonies in light of the new evidence, they could punch even more holes into the prosecution case.

Merdijana Sadovic is an IWPR reporter in Sarajevo.

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