Case No. IT-01-42-PT

IN TRIAL CHAMBER I

Before:
Judge Alphons Orie, Presiding
Judge Amin El Mahdi
Judge Joaquín Martín Canivell

Registrar:
Mr. Hans Holthuis

Order of:
12 December 2003

PROSECUTOR

v.

PAVLE STRUGAR

____________________________________

DECISION ON THE DEFENCE MOTION TO OPPOSE ADMISSION OF AN EXPERT REPORT PURSUANT TO RULE 94 bis

____________________________________

The Office of the Prosecutor:

Mr. Susan Somers
Mr. Philip Weiner

Counsel for the Accused:

Mr. Goran Rodic
Mr. Vladimir Petrovic

 

TRIAL CHAMBER I of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("Tribunal");

BEING SEISED of the Prosecutionís submission of an expert report pursuant to Rule 94 bis of the Rules of Procedure and Evidence, ("Rules"), dated 23 October 2003, in which the Prosecution submits the expert report of Dr. John Allcock ("Expert Report"),

NOTING the Defence response to the Prosecutionís submission of the Expert Report ("Response"), dated 21 November 2003, in which the Defence:

  1. requests the Chamber not to admit the Expert Report into evidence;
  2. challenges, pursuant to Rule 94 bis (B) (iii) of the Rules, the qualifications of Dr. Allcock on the grounds that, as a professional sociologist, he is not qualified to give an expert opinion on the history and architectural heritage of Dubrovnik;
  3. submits that the Expert Report is unreliable, as it is incorrect on numerous points relating to the boundaries of the city, the history of the Balkans and the background of the armed conflict in the former Yugoslavia, and is, therefore, unhelpful to the Chamber,
  4. in the alternative, requests the Trial Chamber to order that this witness be called for cross examination,

NOTING the Prosecutionís Reply to the Defence Response ("Reply") dated 28 November 2003, to which the Prosecution had attached material showing Dr. Allcockís working experience and publications, and in which it submits that the Defenceís objections are without merit since Dr. Allcock, according to the definition set out in the case law of the Tribunal, is clearly an expert, whose principal area of research since 1968 has been the sociology of the former Yugoslavia and its successor States, and that Dr. Allcock has already testified as an expert in the case Prosecutor v. Kordic & Cerkez (IT-95-14/2-T) before this Tribunal,

FURTHER NOTING the Defence request for an oral hearing on this matter to enable them to submit additional arguments and present evidence,

CONSIDERING that Rule 94 bis of the Rules does not envision an oral hearing as of right,

CONSIDERING that the Chamber is of the opinion that, on the basis of the written submissions, it has been sufficiently briefed on the matters raised by the Defence Response, and accordingly, that there is no need to hold an oral hearing,

CONSIDERING that whereas Rule 94 bis of the Rules does not provide a definition of an expert witness, the Trial Chamber adopts the following definition based on the case law of this Tribunal:

A person whom by virtue of some specialised knowledge, skill or training can assist the trier of fact to understand or determine an issue in dispute. 1

FINDS that Dr. John Allcock is properly characterised as an expert pursuant to the aforementioned definition, based on his specialised knowledge of the political, economic and sociological aspects of the former Yugoslavia and its successor States, as set out in the material annexed to the Prosecutionís Reply, and that he has the necessary expertise to give evidence on the issues dealt with in the Expert Report, namely the historical and contemporary significance of the Old Town of Dubrovnik,

CONSIDERING that Rule 89 (C) of the Rules sets out the standard for the admissibility of evidence, including the admissibility of expert evidence admitted under Rule 94 bis of the Rules, and permits the Chamber to admit "any relevant evidence which it deems to have probative value",align2

CONSIDERING that the Expert Report does not contain any indicia of unreliability so as to render it without probative value within the meaning of Rule 89 (C) of the Rules,

CONSIDERING that the Defence will have ample opportunity to put questions on any of the matters raised in its Response to Dr. Allcock in its cross-examination of the witness,

PURSUANT to Rule 89 and 94 bis of the Rules,

HEREBY:

  1. Accepts the Prosecutionís submission of Dr. Allcockís expert report,
  2. Orders Dr. Allcock to appear for cross-examination.

 

Done in English and French, the English version being authoritative.

Dated this twelfth day of December 2003
At The Hague,
The Netherlands.

_____________
Judge Alphons Orie
Presiding

[Seal of the Tribunal]


align1. Prosecutor v. Stanislav Galic, Case No. IT-98-29-T, Decision Concerning the Expert Witnesses Ewa Tabeau and Richard Philipps, 3 July 2002, p.2.
2. Prosecutor v. Radoslav Brdjanin, Case No. IT-99-36-T, Decision on Prosecutionís Submission of Statement of Expert Witness Ewan Brown, 3 June 2003.