Case No. IT-01-42-PT

IN TRIAL CHAMBER II

Before:
Judge Kevin Parker
Judge Krister Thelin

Judge Christine Van Den Wyngaert Registrar:
Mr. Hans Holthuis

Order of:
1 April 2004

PROSECUTOR

v.

PAVLE STRUGAR

__________________________________

DECISION ON THE DEFENCE MOTIONS TO OPPOSE ADMISSION OF PROSECUTION EXPERT REPORTS PURSUANT TO RULE 94 bis

__________________________________

The Office of the Prosecutor:

Ms. Susan Somers
Mr. Philip Weiner
Mr. David Re

Counsel for the Accused:

Mr. Goran Rodic
Mr. Vladimir Petrovic

 

TRIAL CHAMBER II 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 submissions, dated 3 February 2004, of the expert reports of Major General Milovan Zorc and Lieutenant Colonel Jozef Poje ("Poje Expert Report") pursuant to Rule 94 bis of the Rules of Procedure and Evidence ("Rules"),

NOTING the Prosecutionís resubmission of the expert report of Major General Milovan Zorc dated 12 February 2004, incorporating corrections to errors in translation that were identified in the first version of the report ("Zorc Expert Report"),

NOTING the Defence responses (i) to the Prosecutionís submission of the expert report of Major General Milovan Zorc ("Response on Zorc") (ii) to the Prosecutionís submission of the expert report of Lieutenant Colonel Jozef Poje ("Response on Poje"), dated 4 March 2003, (collectively "Defence Responses"),

NOTING the Prosecutionís replies to the Defence Responses dated 18 March 2004 ,

NOTING, first, the arguments of the Defence set out in the Response on Zorc, namely that the Defence:

  1. requests the Chamber not to admit the Zorc Expert Report into evidence;
  2. challenges, pursuant to Rule 94 bis (B) (iii) of the Rules, the impartiality of Major General Milovan Zorc on the grounds that, in June 1991, he deserted the JNA to assist the Slovenian government in its struggle against the JNA, and, in the Defenceís opinion, the fact that he took sides in the conflict between Slovenia and the JNA during that period, suggest that he is not neutral in relation to the conflict between Croatia and the JNA that forms the basis of the present indictment1;
  3. submits that the conclusions in the Zorc Expert Report are based on unreliable documents;
  4. submits that the Zorc Expert Report contains numerous errors and inconsistencies and requests the opportunity to cross-examine Major General Milovan Zorc,

NOTING, secondly, the arguments of the Defence set out in the Response on Poje, namely that the Defence:

  1. requests the Chamber not to admit the Poje Expert Report into evidence;
  2. submits that Lieutenant Colonel Jozef Poje merely sets forth his expertise and fails to apply that expertise to the particular circumstances prevailing at the time of the events alleged in the Indictment, and submits accordingly, that the Poje Expert Report is not relevant;
  3. submits that the Poje Expert Report contains misleading information and inconsistencies and requests the opportunity to cross-examine Lieutenant Colonel Jozef Poje,

FURTHER NOTING that the Defence have requested that an oral hearing be held on the matters raised in both the Response on Zorc and the Response on Poje,

NOTING the submissions of the Prosecution in its reply to the Defence Response on Zorc, namely:

  1. that Milovan Zorc retired from the JNA in June 1991 with the rank of Major General after more than 30 years of service and that he is clearly qualified to act as an expert in relation to command and control doctrine in the JNA;
  2. that Milovan Zorc was not involved in military operations in Dubrovnik in 1991 and that he is sufficiently remote from these events as to be in a position to present an objective opinion;
  3. that the report is relevant and that the sources can be verified in the course of his testimony;

NOTING the submissions of the Prosecution in its reply to the Defence Reponse on Poje, namely:

  1. Lieutenant Colonel Poje is qualified to testify as an expert because he served as a military officer in the JNA specializing in artillery for over thirty years;
  2. that the Poje Expert Report is relevant to a consideration of the matters in the Indictment, that it was substantiated and that any inconsistencies can be dealt with in cross-examination;
  3. that the Poje Expert Report covers the areas identified by the Prosecution, which are identified in the Annex attached to the Prosecution reply;

NOTING Rule 94 bis of the Rules which reads in relevant part:

[Ö]

(B) Within thirty days of disclosure of the statement of the expert witness, or such other time prescribed by the Trial Chamber or pre-trial Judge, the opposing party shall file a notice indicating whether:

(i) it accepts the expert witness statement; or

(ii) it wishes to cross-examine the expert witness; and

(iii) it challenges the qualifications of the witness as an expert or the relevance of all or parts of the report and, if so, which parts.

(C) If the opposing party accepts the statement of the expert witness, the statement may be admitted into evidence by the Trial Chamber without calling the witness to testify in person.

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 informed of the matters raised by the Defence Responses, 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.2

FINDS that Major General Milovan Zorc is properly characterised as an expert under this definition, based on his specialised knowledge of command and control in the JNA, and that he has the necessary expertise to give evidence on the issues dealt with in the Zorc Expert Report,

FINDS that the question of Major General Milovanís Zorcís alleged bias and the alleged errors and inconsistencies in the Zorc Expert Report are matters which can be appropriately dealt with in cross-examination of this witness,

SIMILARLY FINDS that Lieutenant Colonel Jozef Poje is properly characterised as an expert under the aforementioned definition, based on his specialised knowledge of artillery and weapon use in the former JNA, and that he has the necessary expertise to give evidence on the issues dealt with in the Poje Expert Report,

FURTHER FINDS that the matters dealt with in the Poje Expert Report are relevant to a consideration of the type and nature of the weapons used during the alleged JNA campaign against Dubrovnik in October, November and December 1991,

FINDS that the alleged errors and inconsistencies in the Poje Expert Report are matters appropriately dealt with in cross-examination of the witness,

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",3

CONSIDERING that neither the Zorc Expert Report nor the Poje Expert Report contain any indicia of unreliability so as to render either report without probative value within the meaning of Rule 89 (C) of the Rules,

PURSUANT to Rule 89 and 94 bis of the Rules,

HEREBY:

  1. Accepts the Prosecutionís submission of the Zorc Expert Report and the Poje Expert Report,

  2. Orders both Major General Milovan Zorc and Lieutenant Colonel Jozef Poje to appear for cross-examination.

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

Dated this first day of April 2004
At The Hague,
The Netherlands.

________________
Judge Kevin Parker
Presiding

[Seal of the Tribunal]


1. Indeed the Defence argues as follows: "The fact that Zorc is personally interested in the legal and historical evaluation of the conflicts in which the JNA participated during 1991, render his wholly incompetent to act as an expert witness from whom one can expect an unbiased approach". Response to Zorc, para. 7.
2. 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.
3. Prosecutor v. Radoslav Brdjanin, Case No. IT-99-36-T, Decision on Prosecutionís Submission of Statement of Expert Witness Ewan Brown, 3 June 2003.