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
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]
11 Pages 17354-17359 redacted. Private session.
23 [Closed session]
11 Pages 17361-17436 redacted. Closed session.
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.
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
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
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.