Tribunal Criminal Tribunal for the Former Yugoslavia

Page 17353

 1                           Wednesday, 25 September 2013

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.37 a.m.

 5             JUDGE ORIE:  Good morning to everyone in and around this

 6     courtroom.  Madam Registrar, would you please call the case.

 7             THE REGISTRAR:  Good morning, Your Honours.  This is case

 8     IT-09-92-T, the Prosecutor versus Ratko Mladic.

 9             JUDGE ORIE:  Thank you, Madam Registrar.  There are a few matters

10     we would like to deal with before we start hearing the testimony of the

11     witness.

12             First, the representative of the Registry has assigned the

13     numbers to the Clark exhibits which were admitted ranging from P2270 up

14     to and including P2337.  That's one issue.  Now, from yesterday there are

15     still associated exhibits remaining to be tendered, Mr. Jeremy, yes.

16             MR. JEREMY:  Yes, good morning, Your Honours.  There are 19

17     remaining associated exhibits from this witness that I originally

18     intended to tender and which are not -- yet been admitted.  Your Honours,

19     perhaps we should go into closed session.

20             JUDGE ORIE:  We turn into closed session.  Private session would

21     do, I take it otherwise we have to wait for the curtains.

22                           [Private session]

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 3                           [Open session]

 4             THE REGISTRAR:  Your Honours, we are now in open session.

 5             JUDGE ORIE:  Thank you, Madam Registrar.

 6             The Chamber will now deal with two outstanding matters related to

 7     the witness Reynaud Theunens.  The Defence notice, objection, and motion

 8     to bar Witness Theunens from testifying as an expert filed on the 9th of

 9     September, 2013, and the Prosecution's urgent request for pre-assignment

10     of exhibit numbers to the Theunens documents filed on the 23rd of

11     September of this year.

12             On the 8th of January the Prosecution filed its notice of

13     disclosure of Theunens's CV and his expert report.  On the 24th of

14     January, the Chamber requested the Prosecution to correct a number of

15     technical mistakes in the uploading of the report, to explain the

16     relevance of certain sections of the report, and to review the report

17     with a view to redact any possible overlap with adjudicated facts.  The

18     Prosecution dealt with these matters through its filings of the 14th of

19     February, the 15th of July, and the 26th of July.

20             On the 9th of September, the Defence filed its notice, objection,

21     and motion to bar Witness Theunens from testifying as an expert.  The

22     Prosecution has not responded to this submission.

23             As for the applicable law concerning expert evidence, the Chamber

24     refers to its decision concerning Richard Butler filed on the 19th of

25     October, 2012.


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 1             The Defence argues that Witness Theunens is not an expert and

 2     should therefore not be allowed to present expert evidence before the

 3     Chamber.  The Chamber notes that Theunens's CV sets out that he was

 4     educated at the Royal Military Academy in Brussels and that during the

 5     last 20 years he has researched and analysed political and military

 6     issues, in particular in the former Yugoslavia.  Between 2001 and 2008,

 7     Theunens worked as an intelligence analyst in the military analysis team

 8     at the Office of the Prosecutor of the Tribunal.  In this capacity, he

 9     drafted a number of reports on armed forces in the former Yugoslavia

10     which were used in other cases before the Tribunal.

11             The Chamber is satisfied that Theunens is a military expert who

12     can assist the Chamber on matters related to the VRS.

13             As for the relevance of part I of the report, covering around

14     180 pages and dealing with the SFRY armed forces, the Defence argues that

15     this part refers exclusively to facts that fall outside the temporal

16     scope of the indictment.  The Defence acknowledges that there will

17     inevitably be a need for references in the report to matters outside the

18     indictment period; however, it argues that the report expands on

19     irrelevant issues that could have been dealt with by precise explanations

20     or footnotes rather than with extensive sections of dense information.

21             In its submission of the 26th of July, 2013, the Prosecution

22     argues that parts I and II of the report are inextricably intertwined and

23     necessary to understand one another.  More precisely, the Prosecution

24     refers to a sentence in the executive summary of the report stating that

25     the command and control in the VRS was based on the same principles that


Page 17439

 1     applied to the SFRY armed forces and submits that these principles are

 2     set out in part I of the report.

 3             Having considered the parties' submissions on this matter, the

 4     Chamber agrees with the Defence that part I, which is approximately

 5     180 pages long and deals with a matter which appears to be of limited

 6     relevance to the indictment, is excessive in length.  The Chamber defers

 7     its decision on admission of the report; however, the Prosecution is

 8     hereby informed that the Chamber is inclined to deny admission of part I

 9     and that it should elicit any relevant matters related to this part

10     during the examination of Mr. Theunens.

11             As for any other arguments related to the content and methodology

12     of the Theunens report and about the impartiality or independence of

13     Theunens as a former employee of the Office of the Prosecution, the

14     Chamber considers that this can and should be addressed during the

15     examination of the witness.

16             Finally, with regard to the Defence request to cross-examine the

17     witness, the Chamber notes that he will be called to testify and the

18     Defence will therefore have the opportunity to cross-examine him.

19             Based on the foregoing, the Chamber decides that Witness Theunens

20     may testify as an expert witness and denies the Defence request to bar

21     the Prosecution from presenting his evidence.

22             This concludes the Chamber decision on the Defence notice,

23     objection, and motion to bar Witness Theunens from testifying.

24             The second matter that the Chamber will deal with is the

25     Prosecution's urgent request for pre-assignment of exhibit numbers to the


Page 17440

 1     Theunens documents.  This request pre-supposes that the Prosecution will

 2     tender more than 900 documents with this witness.  This is, in the

 3     Prosecution's own estimation, more than half of the documents underlying

 4     the Theunens report.  The Prosecution's request appears to completely

 5     ignore the Chamber's guidance on the tendering of underlying material for

 6     expert reports delivered on the 29th of October, 2012.  In this respect,

 7     the parties are referred to transcript pages 4138 and 4139.  According to

 8     the guidance, the Chamber expects the calling party not to tender such

 9     material just because a proposed expert referred to or used the documents

10     in compiling his or her report.  The Prosecution is instructed to

11     reconsider its approach for the upcoming Witness Theunens in light of

12     this guidance.  The request for pre-assigning exhibit numbers is denied.

13             And this concludes the Chamber's decision.

14             We adjourn for the day and we will resume tomorrow, Thursday, the

15     26th of September, at 9.30 in the morning, in this same courtroom, I.

16                           --- Whereupon the hearing adjourned at 2.15 p.m.,

17                           to be reconvened on Thursday, the 26th day of

18                           September, 2013, at 9.30 a.m.

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