IN THE TRIAL CHAMBER
Judge Florence Ndepele Mwachande Mumba, Presiding
Judge David Hunt
Judge Fausto Pocar
Mrs. Dorothee de Sampayo Garrido-Nijgh
29 March 2000
ORDER ON DEFENCE EXPERTS
Office of the Prosecutor:
Mr. Dirk Ryneveld
Counsel for the Accused:
Mr. Slavisa Prodanovic and Ms. Mara Pilipovic for the accused Dragoljub Kunarac
Mr. Momir Kolesar for the accused Radomir Kovac
Mr. Goran Jovanovic and Ms. Jelena Lopicic for the accused Zoran Vukovic
1. The three accused have filed a joint motion upon a confidential basis and entitled "defence Joint Request for Presence of Defence Experts during the Trial". The motion was argued in open session, and the confidentiality of the motion is therefore lifted.
2. During the course of the argument, it became apparent that the relief sought in the motion was misstated. Ultimately, it became clear that the joint application of the three accused was twofold: first, to permit three medical experts to have access to the statements of five witnesses who are presently the subject of protective orders; and, secondly, to permit the medical experts to examine these witnesses. Two other issues were raised: whether the medical experts could give evidence in the trial; and whether the medical experts could be present in the courtroom when the witnesses gave their evidence. This last issue was withdrawn.
3. The Prosecutor does not oppose the medical experts being given access to the statements of these witnesses, provided that the medical experts are bound by the protective orders presently in place. Orders will be made accordingly.
4. The Prosecutor does not consent to any medical examinations taking place without good cause being shown in relation to particular witnesses.
5. The Trial Chamber agrees with the approach taken by the prosecutor. Expert medical evidence is not required in relation to the evidence of witnesses in relation to crimes such as rape, torture, outrages upon personal dignity and enslavement, and the circumstances in which expert medical evidence would even be relevant are rare. An example where such evidence may be relevant would be where a witness claims that a particular scar resulted from a cigarette burn, but where the expert was able to say that that scar was the result of a surgical procedure.
6. However, it would not be appropriate to permit a medical examination unless there is shown to be a reasonable likelihood in the particular case that it will assist the accused. Each case will have to be considered separately. Similarly, whether evidence may be given by the medical experts will also have to be considered on a case by case basis. As such evidence is governed by Rule 94 bis ("Testimony of Expert Witnesses"), full statements of the evidence will have to be filed in advance, and a determination will be made upon the basis of what they contain. Such witnesses will be defence witnesses, and not, as suggested by Defence counsel, as assisting the Trial Chamber.
7. It should be clearly understood as both parties have conceded that it is for the Trial Chamber, and for the Trial Chamber alone, to assess the credibility of the witnesses. At the hearing, it was suggested that a psychoanalyst could give evidence to assist the Trial Chamber as to the credibility of a witness who has allegedly given four different statements in relation to certain events. The Trial Chamber is not persuaded from what has been said so far that such evidence would be admissible.
8. The Trial Chamber, pursuant to Rules 73, 75 and Rule 94 bis of the Rules
HEREBY ORDERS THAT:
9. The Defence may disclose the witness statements of witnesses FWS-48, FWS-75, FWS-87, FWS-101 and FWS-205 ("the witnesses") to the following medical experts, namely, Prof. Dr. Dusan Dunjic, a forensic expert; Dr. Aleksandar Jovanovic, a neuropsychiatrist; and Dr. Milan Kostic, a psychologist ("medical experts").
10. The Defence, if it considers it necessary, may call any or all of the medical experts to testify as expert witnesses. In that case, Rule 94 bis of the Rules have to be complied with. Any or all of the medical experts will be allowed to be present in court only when they testify as expert witnesses.
11. Should the Defence consider it necessary to physically examine one or more of the witnesses, they have to apply on an individual basis, with good cause being shown, for leave to do so. The Prosecution will be given an opportunity to respond to such applications.
12. All the protective measures orders in force for all the Prosecution witnesses, not only the ones relevant to this oral Motion, will bind the medical experts and anybody assisting them. These orders are:
(i) "Decision on Prosecution Motion to Protect Victims and Witnesses" of 29 April 1998;
(ii) "Order on Prosecutors Motion Requesting Protective Measures for Witnesses at Trial" of 5 October 1998;
(iii) "Decision Granting Protective Measures for Witness FWS-191" of 20 November 1998;
(iv) The confidential "Decision on Prosecutors Motion Related to Witnesses FWS-191 and FWS 192" of 26 March 1999; and
(v) "Order on Protective Measures" of 20 March 2000.
13. The medical experts may disclose the witness statements or any information related thereto to third parties only when strictly necessary. The medical experts shall each maintain a log indicating the name, address and position of each third party that receives a copy of a witness statement or any information related thereto as well as the date of such disclosure. The medical experts shall submit the log through Defence counsel to the Registrar at the end of the trial proceedings.
14. The medical experts or any third party shall not reproduce the witness statements or any information related thereto. The medical experts or any third party shall return the witness statements or any information related thereto to the Defence counsels as soon as they are no longer required. The Defence shall verify that the medical experts and any third party comply strictly with this order.
15. Any violation of this order may be dealt with as contempt of the Tribunal under Rule 77 of the Rules. A person found in contempt of the Tribunal may be imprisoned for a term of up to seven years, or fined up to Dfl. 20 000, or both.
16. The medical experts are to file, through Defence counsel, a written acknowledgement of receipt of this order and of their knowledge of the protective measures in force as identified in paragraph 12 within one day of receiving the witness statements.
Done in both English and French, the English version being authoritative.
Dated this twenty-ninth day of March 2000,
At The Hague,
[Seal of the Tribunal]