Case No. IT-02-60-T
IN TRIAL CHAMBER I, SECTION A
Before:
Judge Liu Daqun, Presiding
Judge Volodymyr Vassylenko
Judge Carmen Maria Argibay
Registrar:
Mr. Hans Holthuis
Decision:
7 November 2003
PROSECUTOR
v.
VIDOJE BLAGOJEVIC
DRAGAN JOKIC
__________________________________
DECISION ON PROSECUTION’S MOTIONS FOR ADMISSION OF EXPERT STATEMENTS
__________________________________
The Office of the Prosecutor:
Mr. Peter McCloskey
Counsel for the Accused:
Mr. Michael Karnavas and Ms. Suzana Tomanovic for Vidoje Blagojevic
Mr. Miodrag Stojanovic and Ms. Cynthia Sinatra for Dragan Jokic
TRIAL CHAMBER I, SECTION A, (“Trial Chamber”) 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”) is seized of various motions and supporting
submissions filed by the Office of the Prosecutor (“Prosecution”) related
to the admission of evidence, in the form of written statements, reports or
transcripts of prior testimony, from expert witnesses pursuant to Rule 92
bis of the Rules of Procedure and Evidence (“Rules”) and Rule 94 bis
of the Rules.1
THE TRIAL CHAMBER, HAVING CONSIDERED the oral and written submissions
of the Parties,
HEREBY RENDERS ITS DECISION.
I. PROCEDURAL BACKGROUND
- On 17 February 2003, the Prosecution provided notice to the Trial Chamber
of its disclosure of twenty expert reports2 to
the defence for the Accused, Vidoje Blagojevic and Dragan Jokic,3
(collectively, “Defence”, and respectively, “Blagojevic Defence” and “Jokic
Defence ”) and submitted the reports to the Trial Chamber.4
Simultaneously, in its 92 bis Motion the Prosecution sought to have
admitted pursuant to Rule 92 bis (B), among other statements, six of
the expert reports that were submitted with the 94 bis Notice,5
and the transcripts of the prior testimony of another seven experts in the
case Prosecutor v. Radislav Krstic, Case No. IT-98-33-T (“Krstic
Trial”) pursuant to Rule 92 bis (D), whose reports were submitted
with the 94 bis Notice.6 In addition,
the prior testimony of a Prosecution Analyst,7
for whom no expert report was provided, was submitted in the 92 bis Motion
for admission pursuant to Rule 92 bis (D). The Prosecution’s submissions
on the admission of evidence pursuant to Rule 92 bis has been discussed
in a prior Trial Chamber decision and will not be elaborated upon in this
Decision,8 beyond what is necessary to consider
the witnesses discussed herein.
- At a Status Conference held on 27 March 2003 (“Status Conference”), the
Pre-Trial Judge stated that the decision on the admissibility of statements
or transcripts under Rule 92 bis or expert reports under Rule 94 bis
of the Rules should be taken by the judges hearing the case.9
- The Trial Chamber received responses from the Defence to the 94 bis
Notice10 and the 92 bis Motion11
on 31 March 2003, in accordance with the scheduling order for filings issued
by the Pre-Trial Judge.12
- In Blagojevic’s 94 bis Response, the Blagojevic Defence submits
that it wishes to cross-examine six of the experts,13
while it accepts the remaining expert witness statements. In Blagojevic’s
92 bis Response, the Blagojevic Defence accepts the expert reports
or transcripts of former testimony without cross-examination of ten of the
same experts that it accepts in Blagojevic’s 94 bis Response. The Blagojevic
Defence objects to the admission of the former testimony of three witnesses
submitted pursuant to Rule 92 bis (D) and one witness statement pursuant
to Rule 92 bis (B).14
- In Jokic’s 94 bis Response, the Jokic Defence submits that seven
of the proposed expert reports require live testimony and cross-examination,15
while it accepts the remaining expert reports in lieu of live testimony. In
Jokic’s 92 bis Response the Jokic Defence requests that the Trial Chamber
deny the 92 bis Motion in full; alternatively, if the Trial Chamber
grants the 92 bis Motion, it requests that all witnesses will be called
for cross-examination .
- In accordance with a request made by the Pre-Trial Judge at the Status
Conference , on 22 April 2003, the Prosecution provided notice of disclosure
to the Defence of an additional expert report16
pursuant to Rule 94 bis, and of an outline of the expected report and
testimony of another expert.17 It also disclosed
one updated expert report18 and announced three
more updated expert reports19 would be forthcoming.
- On the same day the Prosecution filed its 92 bis Reply, in which
it again submits that no cross-examination is necessary for any of the witnesses
proposed under Rule 92 bis of the Rules.20
It further requests that the expert reports that were listed in the 94 bis
Notice, but had not been included in the 92 bis Motion, also be
admitted under Rule 92 bis (B) without cross-examination.21
It exempts from this request those experts who it had proposed to call as
live witnesses .22
- On 30 May 2003, the Prosecution filed its 30 May 94 bis Notice,
to which it attached two updated expert reports.23
In “Dragan Jokic’s Response to the Prosecution’s Notice of Disclosure of Expert
Witness Statements under Rule 94 bis,” filed on 30 June 2003, the Jokic
Defence accepted the two updated expert reports to be admitted into evidence
without calling the experts to testify in person. The Blagojevic Defence did
not file a response .
- Following the guilty plea of former co-accused Momir Nikolic, the Prosecution
requested leave to delete three of the experts24
from its witness list,25 and this request was
granted by the Trial Chamber on 25 June 2003.26
- On 23 June 2003, the Prosecution notified the Trial Chamber of the disclosure
of a previously announced military expert report.27
- On 23 July 2003, the Trial Chamber held a hearing concerning the status
of the expert reports (“Hearing”) and sought specific reasons from the Defence
as to their objections to certain expert reports or their concrete reasons
for requiring certain expert witnesses to be called for cross-examination.
At the Hearing, the Blagojevic Defence objected to the recently disclosed
military expert report28 and gave reasons for
its objection to some of the previously submitted expert reports and its request
to cross-examine these experts.29 The Prosecution
restated its request that the transcript testimony of Demographer Helge Brunborg
be admitted under Rule 92 bis (D) while not objecting to calling him
for cross-examination regarding his qualifications and his updated report.30
The Prosecution further promised to revisit the expert report of firearm examiner
Martin Ols.31
- The Jokic Defence stated during the Hearing that it changed its position
in relation to the witnesses proposed under Rule 92 bis, as presented
in Jokic’s 92 bis Response,32 and no longer
objects to the admission of the proposed Rule 92 bis (D) former testimony
of expert witnesses from the Krstic Trial,33
with the exception of the Prosecution Analyst, whom it still seeks to cross-examine
.34 It also objected to the recently disclosed
military expert report.35 The Jokic Defence further
informed the Trial Chamber that it had agreed with the Prosecution to revisit
five expert witnesses.36
- On 23 July 2003, the Prosecution disclosed a new expert report under Rule
94 bis.37 The Blagojevic Defence accepts
this report,38 while the Jokic Defence requests
the expert to be called for cross-examination.39
On 28 July 2003, the Jokic Defence further informed the Trial Chamber that
it continues to seek live testimony and cross examination of two of the five
expert witnesses it had revisited, irrespective of their testimony being offered
under Rule 94 bis or 92 bis of the Rules.40
- In its Motion to Amend Witness List, filed on 3 September 2003, the Prosecution
requests leave to withdraw three experts from its witness list.41
- Finally, on 10 October 2003 the Prosecution provided notice of disclosure
of three additional expert reports42 under Rule
94 bis.43
II. APPLICABLE LAW
- Rule 92 bis of the Rules (“Proof of Facts other than by Oral Evidence
”) provides, in relevant part:
(A) A Trial Chamber may admit, in whole or in part,
the evidence of a witness in the form of a written statement in lieu of
oral testimony which goes to proof of a matter other than the acts and
conduct of the accused as charged in the indictment.
(i) Factors in favour of admitting evidence in the
form of a written statement include but are not limited to circumstances
in which the evidence in question:
(a) is of a cumulative nature, in that other witnesses
will give or have given oral testimony of similar facts;
(b) relates to relevant historical, political or
military background;
(c) consists of a general or statistical analysis
of the ethnic composition of the population in the places to which
the indictment relates;
(d) concerns the impact of crimes upon victims;
(e) relates to issues of the character of the accused;
or
(f) relates to factors to be taken into account
in determining sentence.
(ii) Factors against admitting evidence in the form
of a written statement include whether :
(a) there is an overriding public interest in the
evidence in question being presented orally;
(b) a party objecting can demonstrate that its nature
and source renders it unreliable , or that its prejudicial effect
outweighs its probative value; or
(c) there are any other factors which make it appropriate
for the witness to attend for cross-examination.
(B) A written statement under this Rule shall be admissible
if it attaches a declaration by the person making the written statement
that the contents of the statement are true and correct to the best of
that person’s knowledge and belief and
(i) the declaration is witnessed by:
(a) a person authorised to witness such a declaration
in accordance with the law and procedure of a State; or
(b) a Presiding Officer appointed by the Registrar
of the Tribunal for that purpose ; and
(ii) the person witnessing the declaration verifies
in writing:
(a) that the person making the statement is the
person identified in the said statement ;
(b) that the person making the statement stated
that the contents of the written statement are, to the best of that
person’s knowledge and belief, true and correct ;
(c) that the person making the statement was informed
that if the content of the written statement is not true then he or
she may be subject to proceedings for giving false testimony; and
(d) the date and place of the declaration.
The declaration shall be attached to the written statement
presented to the Trial Chamber.
[…]
(D) A Chamber may admit a transcript of evidence given
by a witness in proceedings before the Tribunal which goes to proof of
a matter other than the acts and conduct of the accused.
(E) […] The Trial Chamber shall decide, after hearing
the parties, whether to admit the statement or transcript in whole or
in part and whether to require the witness to appear for cross-examination.44
- Rule 94 bis of the Rules (“Testimony of Expert Witnesses”) provides
:
(A) The full statement of any expert witness to be called
by a party shall be disclosed within the time-limit prescribed by the
Trial Chamber or by the pre-trial Judge.
(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.
III. DISCUSSION
- Through its various motions and submissions, the Prosecution has submitted
most of the reports of the expert witnesses whom it does not seek to call
as live witnesses under both Rule 94 bis and Rule 92 bis (B)
or (D) of the Rules. It offered during the Status Conference that it filed
the expert reports under Rule 94 bis to determine whether the Defence
object, and, barring an objection, thereby have the reports admitted; the
submission of the reports or former testimony under Rule 92 bis was
simply “another means” of having certain reports or former testimony from
the Krstic Trial admitted.45 The Trial
Chamber notes that the Defence has offered no submissions on the applicability
of Rule 92 bis versus Rule 94 bis to expert statements.
1. Admission of Evidence of Expert Witnesses pursuant to Rule 94 bis
of the Rules
- Rule 94 bis of the Rules is the general Rule dealing explicitly
with expert witnesses. The Trial Chamber agrees with the Trial Chamber in
the Prosecutor v. Stanislav Galic case that an expert is “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”46
meaning an issue or allegation upon which the Trial Chamber must make a determination
or finding . The Trial Chamber notes that one of the distinctions between
an expert witness and a fact witness is that due to the qualifications of
an expert, he or she can give opinions and draw conclusions and present them
to the Trial Chamber. The Trial Chamber endorses the view of the Galic
Trial Chamber that “an expert witness is expected to give his or her expert
opinion in full transparency of the established or assumed facts he or she
relies upon and of the methods used when applying his or her knowledge, experience
or skills to form his or her expert opinion.”47
Rule 94 bis (A) provides a timetable for disclosure of expert witness
statements and Rule 94 bis (B) requests the opposing party to respond
in reaction to the disclosure of an expert witness statement.
- The Trial Chamber finds that standard practice within the Tribunal has
been to tender and admit expert reports through Rule 94 bis.48
2. Application of Rule 92 bis to expert witnesses in light of Rule
94 bis
- Rule 94 bis already existed when Rule 92 bis was introduced.
The adoption of Rule 92 bis opened the possibility for the admission
of written statements other than only expert witness statements, when these
statements go to other than the acts and conduct of the accused. As Rule 92
bis (A)( i)(b) and (c) provide for the admission of a written statement
in which the evidence in question “relates to relevant historical, political
or military background” or “consists of a general or statistical analysis
of the ethnic composition of the population in the places to which the indictment
relates,” it appears to encompass evidence that is often subject of expert
testimony. In this respect, the two Rules therefore show an overlap. Rule
94 bis is distinct from Rule 92 bis, however, as it provides
for a strict procedure for the tendering of expert witness statements, and
in addition, Rule 94 bis (B) (iii) invites the opposing party to indicate
if it challenges the qualifications of the witness as an expert, which again
stresses the distinction between the evidence of experts and non-experts.
- The question before the Trial Chamber is therefore whether Rule 92 bis
also applies to expert witnesses or whether Rule 94 bis is an
exclusive provision dealing with expert witnesses.
- The Appeals Chamber, in its decision of 7 June 2002 in the case Prosecutor
v. Stanislav Galic,49 dealt with the application
of Rule 92 bis to expert witnesses. The issue before the Appeals Chamber
was the admissibility of the written statement of a deceased expert under
Rule 92 bis (C). The Appeals Chamber noted that Rule 94 bis
has two separate functions. One function is to provide a timetable for the
disclosure of expert witness statements separate to the one under Rules 65
ter and 66 (A) (ii). The other function is, in contrast to the provisions
in Rules 65 ter and 66 (A) (ii), to require the opposing party to react
to the expert statement , once it has been disclosed, and, depending upon
whether the opposing party wishes to cross-examine the expert, to provide
for the admission of the expert statement without calling the expert witness
to testify.50 The Appeals Chamber therefore found
that there is a distinction for experts versus non-experts.51
- The Appeals Chamber further held, however, that the application of Rule
92 bis to expert witnesses is not inconsistent with Rule 94 bis.
It found that Rule 92 bis provides explicitly for the admission of
a written statement that “relates to relevant historical, political or military
background”, which is often the subject of expert evidence.52
Finally, the Appeals Chamber concluded that “[t]here is nothing in either
Rule which would debar the written statement of an expert witness, or the
transcript of the expert’s evidence in proceedings before the Tribunal, being
accepted in lieu of his oral testimony where the interests of justice would
allow that course in order to save time, with the rights of the other party
to cross-examine the expert being determined in accordance with Rule 92 bis.”53
- The Trial Chamber therefore finds that in light of the Galic Appeals
Decision expert witness statements are generally admissible under Rule 92
bis of the Rules, provided the other requirements of Rule 92 bis
are satisfied. However, the Trial Chamber notes that the Galic Appeals
Decision dealt with a particular situation i.e. the admission of the
statement of a deceased expert and only Rule 92 bis (C) contains a
specific provision for the admission of statements of deceased witness.
- Rule 92 bis (E) provides explicitly for the Trial Chamber to decide
whether to admit the statement or transcript testimony of a witness, bearing
in mind the general restrictions on admission of evidence under this Rule,
and whether to require the witness to appear for cross-examination. On condition
that the requirements set out in Rule 92 bis (A) - (D) are met Rule
92 bis (E) therefore provides the Trial Chamber with full discretion.
Turning to Rule 94 bis (C) it reads: “[i]f 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.” The
Trial Chamber finds that the argumentum e contrario of the provision
of Rule 94 bis (C) is that in cases where the opposing party does not
accept the statement of the expert witness on grounds not to be considered
unreasonable, the statement can only be admitted into evidence after the expert
had been called and has testified in person.
- The Trial Chamber finds that Rule 94 bis (C) is a specific provision
regarding the admission of expert statements, and that its application cannot
be avoided simply by tendering the statements under Rule 92 bis, where
more discretion exists for the Trial Chamber. In cases in which the opposing
party objects to the statement of the expert witness, the right of the opposing
party to cross -examine the expert should not be determined without considering
the argumentum e contrario of the provision of Rule 94 bis (C),
even when deciding upon the admissibility of an expert statement under Rule
92 bis. The Trial Chamber therefore finds that in such cases the discretion
provided for in Rule 92 bis (E) has to be exercised in light of Rule
94 bis (C).54
- As it is Rule 94 bis that provides for a clear procedure regarding
the admission of expert reports which includes the right of the opposing party
to challenge the qualifications of a proposed expert witness the Trial Chamber
therefore considers Rule 92 bis as lex generalis for the admission
of witness statements and Rule 94 bis as lex specialis for expert
witness statements. Therefore , the Trial Chamber will accept reports tendered
both under Rule 92 bis ( B) and Rule 94 bis under Rule 94 bis.55
3. Analysis of the proposed 94 bis and/or 92 bis expert witnesses
- The Trial Chamber first establishes that it is satisfied on the basis of
the curriculum vitae attached to the expert reports that the authors of said
reports qualify as experts, as they show that the authors have specialised
knowledge, skill or training to provide the information contained therein.56
- The military analyst Richard Butler and the investigator Dean Manning are
live witnesses whose reports were exclusively submitted pursuant to Rule 94
bis . Richard Butler’s reports deal with the Army of Republika Srpska
(“VRS”) Brigade Command Responsibility and information allegedly linking the
VRS to the crimes committed in the Srebrenica ‘safe area’ in July 1995.57
Dean Manning’s reports provide a summary of the forensic evidence regarding
the execution points and mass graves. The Trial Chamber finds these reports
to be highly relevant to the case and admissible under Rule 89 and its Guidelines
on the Standards Governing the Admission of Evidence.58
The Defence will have the opportunity to cross-examine Richard Butler and
Dean Manning during their testimony before the Trial Chamber.
- The expert report of General Patrick Cordingley, who also is proposed as
viva voce witness, was submitted only pursuant to Rule 94 bis.
The report , which primarily deals with the military command and control in
the VRS and VRS brigade command responsibility, specifically in the Zvornik
and Bratunac Brigades , is structured in a question-answer format. General
Cordingley provides an interpretation of documents presented to him basing
his answers only on his long training and command experience in the British
Army and NATO forces. The Trial Chamber finds General Cordingley’s submissions
appropriate only to evaluate his qualifications. In light of the information
provided through Richard Butler’s report on the VRS Brigade Command Responsibility
the Trial Chamber is not satisfied of the relevance and probative value of
General Cordingley’s report. The Trial Chamber finds, however, that there
may be relevant information that General Cordingley can provide during his
live testimony, including certain information contained in his report, and
therefore, allows the Prosecution to maintain him on its witness list.
- The Prosecution requests leave to withdraw Martin Ols from the 92 bis
witness list, but will move for admission of his ballistic expert report
during the live testimony of Dean Manning.59
The Defence and the Trial Chamber will have the opportunity to raise any issues
arising from the Martin Ols report with Dean Manning during his testimony;
depending on whether any clarifications are necessary following the live testimony
of Dean Manning, the Trial Chamber will order the Prosecution to call Martin
Ols to address these points before deciding on the admission of his report.
- In its Motion to Amend Witness List, the Prosecution requests leave to
remove from its witness list W.P.F. Fagel and C.H.W. Ten Camp; and the report
“Examination of Stamp Impressions”, dated 9 May 2001, written by J.A. de Koeijer.
The reports of W.P.F. Fagel, C.H.W. Ten Camp and J.A. de Koeijer all deal
with one Krstic Trial exhibit that establishes the date that General
Krstic took over the command of the Drina Corps. The Prosecution submits that
it intends to introduce and lay the foundation for this exhibit during trial
and that it may only resubmit the said expert reports in the event that the
Defence challenge the admissibility of this document.60
The Trial Chamber therefore finds the request for leave to withdraw the expert
reports appropriate and grants the motion.
- The Accused object to the admission of the transcript testimony of the
Prosecution Analyst, submitted pursuant to Rule 92 bis (D).61
The Prosecution Analyst, who worked on the Prosecution’s intercept project,
compiling the intercept database, testified during the Krstic Trial
in regard to the accuracy, authenticity and reliability of the communication
intercepts. She described in her testimony the different factors being considered
to determine the reliability of the intercepts62
and found the intercepts to be “genuine” and “absolutely reliable”.63
The Trial Chamber is satisfied of the relevance and probative value of this
transcript testimony to the current proceedings. It is further satisfied that
this testimony does not go to proof the acts and conduct of the accused.64
In considering whether the expert shall be called pursuant to Rule 92 bis
(E) to appear for cross-examination, the Trial Chamber refers to its
first decision on the admission of witness statements pursuant to 92 bis
laying out the relevant criteria.65 The Trial
Chamber has to assess whether the testimony goes to proof of a critical element
of the Prosecution’s case against the Accused and whether the cross-examination
of the witness in the Krstic Trial dealt adequately with the issues
relevant to the defence in the current proceedings.66
The Trial Chamber finds that it is not necessary to call the Prosecution Analyst
for cross -examination as the Defence has not identified any issues concerning
the accuracy , authenticity and reliability of the communication intercepts
which were not addressed during the examination, cross-examination and questioning
by the judges in the Krstic Trial.
- The Accused do not object to the admission of the statements and transcript
testimony of John Clark, William Haglund, Christopher Lawrence, Richard Wright
and José Pablo Baraybar submitted pursuant to 94 bis and 92 bis
(D).67 This expert evidence deals with exhumations
of mass graves and forensic examination to determine the gender, age and cause
of death of the exhumed people from these mass graves. The Trial Chamber is
satisfied of the relevance and probative value of these reports and transcripts
to these proceedings. The Trial Chamber is further satisfied that none of
the information contained in the statements or transcripts dealing with forensic
evidence relates to the acts and conduct of the accused as charged in the
Indictment. It further finds that the transcript testimonies presented to
the Trial Chamber pursuant to 92 bis (D) provides together with the
reports submitted under Rule 94 bis a complete picture of the expert
evidence.
- The Blagojevic Defence objects to the admission of the demographic expert
reports of Helge Brunborg pursuant to 94 bis and 92 bis (D).
The Blagojevic Defence claims that Helge Brunborg might not be objective as
he worked for the Prosecution as an “in-house expert”.68
It argues that Helge Brunborg’s demographic report and its updated version
will be used by the Prosecution to prove genocide.69
The Blagojevic Defence further asserts that it needs to cross-examine Helge
Brunborg because he was not thoroughly cross-examined during the Krstic
Trial and an updated report has been submitted.70
The Prosecution does not object to calling the witness for cross-examination
regarding his qualifications and his updated report, but argues that the original
report is appropriate for admission.71
- The Trial Chamber finds Helge Brunborg’s reports on the number of missing
and dead from Srebrenica highly relevant to these proceedings and having probative
value. The Trial Chamber is further satisfied with the qualifications of Helge
Brunborg as expert as he meets the criteria set out above, which includes
his specialisation in demography. The Trial Chamber rejects the Blagojevic
Defence argument that simply because Mr. Brunborg worked with the Prosecution
he may not be considered as an appropriate person to be called as an expert
and must be viewed as lacking objectivity;72
the Trial Chamber will take into account all relevant factors of this witness
when it assesses the evidentiary value of his reports. The reports do not
go to prove the acts and conduct of the Accused.73
The Trial Chamber therefore finds both reports together with the transcript
testimony appropriate for admission . Regarding whether Helge Brunborg shall
be called for cross-examination pursuant to Rules 94 bis (C) and 92
bis (E) the Trial Chamber holds that the grounds provided by the Blagojevic
Defence are not to be considered unreasonable as the Prosecution stated that
it may use the reports to prove genocide and the Defence Counsel in the Krstic
Trial was in fact not able to review all submissions before his cross-examination.74
In addition, the updated report on which the witness was not cross-examined
yet cannot be seen separated from his initial report. The Trial Chamber therefore
finds that Helge Brunborg shall be called for cross-examination on both reports.
- The accused do not object to the admission of the reports of A.D. Kloosterman
, Freddy Peccerelli, Anthony Brown, S.E. Maljaars and J.A. de Koeijer75
which are submitted pursuant to 94 bis and 92 bis (B).76
The Trial Chamber notes that there is no reason for these reports to be submitted
under Rule 92 bis, wherefore it is considering them only under the
lex specialis Rule 94 bis. These reports provide forensic evidence
on excavations , exhumations and examination of blood, textile and soil samples
from different mass gravesites and alleged execution points; and the analysis
on alterations made in one document. The Trial Chamber is satisfied of the
relevance of these reports to these proceedings and their probative value.
The Trial Chamber does not find it necessary to call these experts to testify
in person as the reports are clear and comprehensive.
- The Jokic Defence requests to call expert Michael Maloney for cross-examination
, who co-authored a report with expert Michael Brown on the collection of
blood and tissue samples from two alleged execution sites, which was submitted
pursuant to Rules 94 bis and 92 bis (B). The Trial Chamber notes
that there is no reason for the report to be submitted under Rule 92 bis,
wherefore it is considering the report only under the lex specialis Rule
94 bis . The Trial Chamber finds the report relevant and of probative
value. The Jokic Defence based its request for cross-examination of Michael
Maloney on the grounds that Michael Maloney and Michael Brown had personally
dealt with Jokic and have personal information about him.77
The Trial Chamber therefore does not find this request being related to the
substance of the expert report and as such not reasonable.
- The expert report of handwriting expert Kate Barr, which was submitted
pursuant to Rule 94 bis deals with the question of whether Dragan Jokic
wrote entries in the Unofficial Duty Officer’s Log Book of the Zvornik Brigade
up to the date of 15 July 1995. The Jokic Defence seeks to cross-examine Kate
Barr.78 As the report goes to prove entries made
by Dragan Jokic into the unofficial Duty Officer’s Log Book of the Zvornik
Brigade during the “critical period”, as specified in the Indictment, and
as the Trial Chamber needs more information on the conclusion drawn by the
expert in order to assess her findings, The Trial Chamber requests Kate Barr
to be called to testify in person.
- The latest expert reports submitted pursuant to Rule 94 bis are
two further reports on excavations from expert José Baraybar79
and a report on the examination of evidence from one alleged execution site
from expert Michael Hedley.80 The Chamber is
satisfied of the relevance and probative value of the reports. As the Defence
does not object to these reports81 and the Trial
Chamber finds them comprehensive it holds them admissible under Rule 94 bis.
IV. DISPOSITION
- The Trial Chamber ORDERS the deletion of experts W.P.F. Fagel and
C. H.W. Ten Camp from the witness list; of expert Martin Ols from the 92 bis
witness list and the deletion of J.A. de Koeijer’s report “Examination
of Stamp Impressions“, dated 9 May 2001, from the list of submitted expert
reports;
- Pursuant to Rule 94 bis of the Rules, the Trial Chamber ADMITS
the reports of Richard Butler, Dean Manning, A.D. Kloosterman, Freddy
Peccerelli, Anthony Brown, S.E. Maljaars, Michael Brown, Michael Maloney,
José Baraybar82, J.A. de Koeijer83
and Michael Hedley;
- Pursuant to Rule 92 bis (D) of the Rules, the Trial Chamber ADMITS
the transcript testimony of Stephanie Frease;
- Pursuant to Rules 94 bis and 92 bis (D) of the Rules, the
Trial Chamber FURTHER ADMITS the expert reports and transcript testimonies
of John Clark, William Haglund,84 Christopher
Lawrence, Richard Wright, José Pablo Baraybar85
and Helge Brunborg;
- The Trial Chamber DENIES the admission of the expert report of General
Patrick Cordingley; FURTHER DENIES at this stage the admission of the
expert report of Kate Barr;
- The Trial Chamber, pursuant to Rule 94 bis and 92 bis (E),
FURTHER ORDERS the Prosecution to call Helge Brunborg to be cross-examined
by the Blagojevic Defence, and, pursuant to Rule 94 bis, to call Kate
Barr to testify in person and be cross-examined by the Jokic Defence.
Done in French and English, the English version being authoritative.
Dated this seventh day of November 2003,
At The Hague
The Netherlands
_________________
Judge Liu Daqun
Presiding
[Seal of the Tribunal]
1 - Prosecution’s Notice of Disclosure of Expert
Witness Statements under Rule 94 bis, dated 14 February 2003 and filed
on 17 February 2003 (“94 bis Notice”); Prosecution’s Motion for Admission
of Witness Statements and Prior Testimony Pursuant to Rule 92 bis and Incorporated
Motion in limine to Admit Related Exhibits, dated 14 February 2003 and filed on
18 February 2003 (“92 bis Motion”); Prosecution’s Consolidated Reply Regarding
its 14 February 2003 Motion for Admission of Evidence under Rule 92 bis
and Incorporated Motion for Admission of Nine Additional Witness Statements under
Rule 92 bis, filed on a partially confidential basis on 22 April 2003 (“92
bis Reply”); Prosecution’s Notice of Filing Updated Expert Materials, filed
on 22 April 2003; Prosecution’s Notice Regarding Status of Updated Expert Reports,
filed on 22 April 2003; Prosecution’s Notice of Disclosure of Expert Witness Statements
under Rule 94 bis, filed on 30 May 2003 (“30 May 94 bis Notice”);
Prosecution’s Notice of Rule 94 bis Disclosure of Expert Report of General
Patrick Cordingley, filed on 23 June 2003; Prosecution’s Notice of Rule 94 bis
Disclosure of Expert Report of Kate Barr, filed 23 July 2003 (“23 July 94 bis
Notice”); Prosecution’s Motion to Amend Witness List and Incorporated Motion to
Admit Evidence under Rule 92 bis, filed on a partially confidential basis
on 3 September 2003 (“Motion to Amend Witness List”); and Prosecution’s Notice
of Disclosure of Expert Witness Statements under Rule 94 bis, filed on
10 October 2003.
2 - 94 bis Notice. These are the expert reports of A.D.
Kloosterman (DNA Analysis Expert), Johan de Koeijer (Forensic Document Analyst),
Fredy Peccerelli (Anthropologist), Anthony Brown (Palynologist), Michael Maloney/Michael
E. Brown (US Navy Special Agents), Martin Ols (Firearm Examiner), John Clark (Forensic
Pathologist), William Haglund (Anthropologist), Christopher Lawrence (Forensic
Pathologist), Richard Wright (Anthropologist), José Baraybar (Anthropologist),
Helge Brunborg (Demographer), Peter French (Tape and Voice Analysis Expert), Robert
Greenberg (BCS Phonetics Expert), Dean Manning (Report of Srebrenica Investigation),
P. de Bruyn (Forensic Explosives Analyst), W.P. Fagel (Comparative Handwriting
Analyst), Mark Mills (Seiko Watch Analyst), C.H.W. Ten Camp (Forensic Document
Analyst), Richard Butler (Military Analyst). The Experts de Bruyn and Mills were
subsequently withdrawn. See, Prosecution’s Motion for Leave to Amend Witness List,
27 February 2003.
3 - At the time that the 94 bis Notice was filed, two
additional accused – Momir Nikolic and Dragan Obrenovic – were joined to this
case; as they have subsequently been separated from these proceedings, the Trial
Chamber will not address their submissions on this matter.
4 - The two reports of Richard Butler had been disclosed and
submitted on 31 October 2002 and 1 November 2002. Additionally, a report on textile
investigation written by S.E. Maljaars (forensic textile Analyst) was also submitted
on 17 February 2003, although it was not listed in the 94 bis Notice.
5 - Anthony Brown, Michael Maloney/Michael E. Brown, Martin
Ols, Johan de Koeijer, Fredy Peccerelli, A.D. Kloosterman.
6 - José Baraybar, Helge Brunborg, John Clark, Robert Greenberg,
William Haglund, Christopher Lawrence and Richard Wright.
7 - Stephanie Frease on Prosecution investigation related to
intercepts (“Prosecution Analyst”).
8 - First Decision on Prosecution’s Motion for Admission of
Witness Statements and Prior testimony pursuant to Rule 92 bis, 12 June
2003 (First 92 bis Decision).
9 - Status Conference, 27 March 2003, Transcript page (“T.”)
127.
10 - Vidoje Blagojevic’s Response to the Prosecution’s Notice
of Expert Witness Statements under Rule 94 bis, (“Blagojevic’s 94 bis Response”)
and Dragan Jokic’s Response to “Prosecution’s Notice of Disclosure of Expert Witness
Statements under Rule 94 bis” (“Jokic’s 94 bis Response”).
11 - Vidoje Blagojevic’s Response to the Prosecution’s Motion
Concerning Rule 92 bis, (“Blagojevic’s 92 bis Response”) and Dragan Jokic’s
Response to “Prosecution’s Motion for Admission of Prior Testimony and Witness
Statements Pursuant to Rule 92 bis and Incorporated Motion in limine
to Introduce [sic] Related Exhibits” (“Jokic’s 92 bis Response”).
12 - Order for Filings Related to 92 bis and 94 bis,
20 February 2003.
13 - These were the experts Helge Brunborg, P. de Bruyn, Peter
French, Robert Greenberg, Martin Ols and Richard Butler.
14 - All but one of these witnesses were objected to in Blagojevic’s
94 bis Response; the additional witness is Stephanie Frease.
15 - These were the reports of: Michael Maloney, Michael Brown,
Peter French, Robert Greenberg, Dean Manning, Richard Butler, W.P. Fagel and C.H.W.
Ten Camp.
16 - Expert report of Jurrien Bijhold (Photographic and Video
Forensics Analyst).
17 - General Patrick Cordingley.
18 - Updated expert report of Richard Butler.
19 - Updated expert reports of John Clark, Dean Manning and
Helge Brunborg. Following the Trial Chamber’s Decision on Prosecution’s Notice
of Identification of Handwriting Analysis Expert and Motion for Extension of Time
to File Reports of Handwriting Expert and Dean Manning, issued on a confidential
basis on 7 July 2003, the updated expert report of Dean Manning was disclosed
to the Defence on 25 August 2003.
20 - 92 bis Reply, para. 5.
21 - 92 bis Reply, para. 16. These were the reports
of S.E. Maljaars, C.H.W. Ten Camp and W.P.F. Fagel. Additionally it asked for
the report written by Jurrien Bijhold, of which disclosure pursuant to Rule 94
bis the Chamber was notified the same day, to be admitted under Rule 92 bis (B)
without cross-examination.
22 - These were the experts Richard Butler, Dean Manning and
Peter French. See, Prosecution’s Notice of Filing Additional Witness Information,
filed confidentially on 22 April 2003.
23 - These were the reports of John Clark and Helge Brunborg.
24 - These were the experts Peter French, Robert Greenberg
and Jurrien Bijhold.
25 - Prosecution’s Motion to Amend Witness List and Incorporated
Motion to Admit Evidence under Rule 92 bis, filed confidentially on 10
June 2003.
26 - Decision on Prosecution’s Motion to Amend Witness List.
27 - Prosecution’s Notice of Rule 94 bis Disclosure
of Expert Report of General Patrick Cordingley. Patrick Cordingley is proposed
as live witness; See, Prosecution’s Motion to amend witness list and Incorporated
Motion to Admit Evidence Under Rule 92 bis filed confidentially on 20 June
2003, and Prosecution’s Notice of Filing Revised Witness List, filed on 15 July
2003.
28 - It objected to the report of General Patrick Cordingley,
both as to its form and in substance, and indicated that it wishes to cross-examine
him. Hearing, T. 1448. See also, Vidoje Blagojevic’s Response to Prosecution’s
Notice of Rule 94 bis Disclosure of Expert Report of General Patrick Cordingley,
which was filed on 23 July 2003.
29 - The Blagojevic Defence restated that it objects to Richard
Butler’s reports and want to cross-examine him. Hearing, T. 1448. The Blagojevic
Defence also clarified why it objects to the expert reports of Helge Brunborg
(initial report and updated report) and Martin Ols and wants to cross-examine
the two experts. Concerning Helge Brunborg it put into question his objectivity
on the ground that he worked for the Prosecution as an in-house expert. It further
argued that his testimony is very critical to the genocide charge, that he was
not thoroughly cross-examined in the Krstic Trial and that, particularly
in light of the fact that he submitted an updated report, he needs to be cross-examined.
As regards Martin Ols, the Blagojevic Defence challenged the relevance of his
testimony. Hearing, T. 1438-1442; 1451-1454.
30 - Helge Brunborg, see Hearing (T. 1449).
31 - Hearing, T. 1442.
32 - The Jokic Defence argued originally in its 92 bis
Response that because of the ‘joint criminal enterprise’ theory in the Indictment
“[…] each and every witness statement and morsel of evidence proposed to be presented
for consideration by the Trial Chamber becomes relevant to an ‘act and/or conduct
of the accused’.” See, Jokic’s 92 bis Response, para. 9. However,
during the Hearing, the Jokic Defence changed their submissions and limited its
objections to specific reports. See, Hearing, T. 1442-1443.
33 - Hearing, (T. 1437-1438).
34 - Stephanie Frease, see Hearing (T. 1443). The Jokic
Defence also stated that it wishes to cross-examine the proposed live witness
experts Richard Butler and Dean Manning. Hearing, T. 1443.
35 - Expert report of General Patrick Cordingley: “[…] we ask
that the Court order that a more formal expert report be issued and that, of course,
it not be admitted in evidence in any form except if the witness will appear in
Court to testify.” Hearing, T. 1450.
36 - These were the witnesses C.H.W. Ten Camp, W.P.F. Fagel,
S. E. Maljaars, Michael Brown and Michael Maloney. Hearing, T. 1442. Concerning
Michael Brown and Michael Maloney the Jokic Defence argued that they would have
personal information regarding Dragan Jokic, wherefore it would require them for
cross-examination. Hearing, T. 1442-1443. With regard to C.H.W. Ten Camp and W.P.F.
Fagel the Jokic Defence argued that their forensic document analysis of one exhibit
in the Krstic Trial that deals with Krstic’s takeover of the Drina Corps
command would be irrelevant for this case. Hearing, T. 1445.
37 - Prosecution’s Notice of Rule 94 bis Disclosure of Expert
Report of Kate Barr (Handwriting Expert).
38 - Vidoje Blagojevic’s Response to Prosecution’s Notice of
Rule 94 bis Disclosure of Expert Report of Kate Barr, filed on 28 July
2003.
39 - Hearing, T. 1447.
40 - Dragan Jokic’s Notification to the Trial Chamber of his
Intent to Cross Examine, Pursuant to Rule 94 bis, Michael Maloney and Dr.
W.P.F. Fagel (“Jokic’s Notification”).
41 - The Prosecution asks to withdraw the expert reports of
W.P.F. Fagel and C.H.W. Ten Camp from its 94 bis submission and the expert
report of Martin Ols from its 92 bis list. The Prosecution still wants
to introduce the expert report of Martin Ols as supporting material with the live
testimony of expert Dean Manning. Regarding the expert J.A. de Koeijer the Prosecution
wishes to withdraw his report “Examination of Stamp Impressions”, dated 9 May
2001, but not his report “Analysis of documents from the Tribunal for the Former
Yugoslavia”, dated 15 November 1999, dealing with alterations made to entries
contained in the Zvornik Brigade military police log book, wherefore expert J.A.
de Koeijer is not requested to be removed from the witness list.
42 - Two further reports of José Baraybar (Forensic Anthropologist)
and a report written by Michael Hedley (Scene of Crime Officer).
43 - Prosecution’s Notice of Disclosure of Expert Witness Statements
under Rule 94 bis. The Prosecution informs the Trial Chamber in its notice
of disclosure that José Baraybar’ s reports were disclosed to the Defence in English
on 25 August 2003 and in BCS on 17 September 2003; and that Michael Hedley’s report
was disclosed in both English and BCS on 30 September 2003. The Defence did not
file responses. As the Defence did not file responses within 30 days of disclosure
provided for by Rule 94 bis (B) the Trial Chamber interprets the Defence’s
lack of filing responses that it does not object to these reports. In the “Prosecution’s
Motion to Amend Witness List”, filed as well on 10 October 2003, the Prosecution
states that the report of Michael Hedley (Scene of Crime Officer) is one of the
reports on which Dean Manning’s summary reports are based on and that there is
no need for Michael Hedley’s live testimony; instead his findings will be included
in Dean Manning’s testimony.
44 - Rules 94 bis and 92 bis have to be applied
together with the general provisions of Rule 89 which provides in relevant part:
“[…] (C) A Chamber may admit any relevant evidence which it deems to have probative
value. (D) A Chamber may exclude evidence if its probative value is substantially
outweighed by the need to ensure a fair trial. (E) […] (F) A Chamber may receive
the evidence of a witness orally or, where the interests of justice allow, in
written form.”
45 - “[...] all our expert reports were filed under 94 to see
if Defence would object or not object, and if they don’t, then the reports come
in. And those experts that we felt did not necessarily go to the acts or conducts
of the accused we filed under 92 bis as another means of allowing them
into evidence based on, of course, the Trial Chamber’s view on the 92 bis
ruling.” Status Conference, 27 March 2003, T. 134.
46 - Prosecutor v. Stanislav Galic, Case No. IT-98-29-T,
Decision Concerning the Expert Witnesses Ewa Tabeau and Richard Philipps, 3 July
2002, page 2 (“Galic Trial Decision”).
47 - Id.
48 - See, e.g., Galic Trial Decision and Prosecutor
v. Slobodan Milosevic, Case No. IT-02-54-T, Decision on Prosecution’s Application
for Admission of Written Statement of Dr. Berko Zecevic Pursuant to Rule 92 bis
(A), 9 September 2003.
49 - Prosecutor v. Stanislav Galic, Case No. IT-98-29-AR73.2,
Decision on Interlocutory Appeal Concerning Rule 92bis(C), 7 June 2002
(“Galic Appeals Decision”),
50 - Galic Appeals Decision, para. 39.
51 - “[i]n this sense, there is a clear distinction made in
Rule 92 bis between expert witnesses and other witnesses.” Id.
52 - Galic Appeals Decision, para. 40.
53 - Id.
54 - The Galic Appeals Decision does not deal with the
application of 92 bis (E), but only with 92 bis (C). Therefore it
does not provide a finding in regard to the discretionary provision of Rule 92
bis (E) in light of Rule 94 bis (C).
55 - The Trial Chamber will decide on the admission of the
expert reports exclusively submitted under Rule 94 bis only pursuant to
Rule 94 bis and on the admission of transcripts of former witness testimony
submitted exclusively under Rule 92 bis (D) only pursuant to Rule 92 bis
(D).
56 - See, e.g., Prosecutor v. Stanislav Galic, Case
No. IT-98-29-T, Decision on the Expert Witness Statements Submitted by the Defence,
27 January 2003.
57 - See “VRS Brigade Command Responsibility Report”,
disclosed on 31 October 2002 and “Srebrenica Military Narrative (Revised) Operation
“Krivaja 95”, disclosed 1 November 2002.
58 - Guidelines on the Standards Governing the Admission of
Evidence, issued by the Trial Chamber on 23 April 2003.
59 - The Prosecution submits that the ballistic expert report
of Martin Ols “[...] provides evidence linking primary and secondary graves by
comparing shell casings found in those graves (thereby suggesting common perpetrators)”
that supports Dean Manning’s testimony and report. See Motion to Amend
Witness List, para. 2.
60 - Motion to Amend Witness List, para. 2.
61 - The Blagojevic Defence, in its 92 bis Response,
opposed the admission of certain expert statements submitted under Rule 92 bis,
including the transcript testimony of the Prosecution Analyst, “[…] on the basis
that they are either unreliable as such, or that it would be in the interest of
justice to have the witnesses appear for cross-examination.” See, Blagojevic’s
92 bis Response, para. 5.
62 - To assess the reliability of the intercepts they were
looking for internal consistency by comparing the intercept printouts with the
notebooks they received; they analyzed intercepts coming from different locations;
they interviewed some of the intercept operators to understand the intercepting
process and compared their findings with documents provided by third sources.
See Krstic Trial, T. 8929-8932.
63 - Krstic Trial, T. 8938-8939.
64 - For a determination of the scope of Rule 92 bis
see the Trial Chamber’s “First Decision on Prosecution’s Motion for Admission
of Witness Statements and Prior Testimony Pursuant to Rule 92 bis”, issued
on 12 June 2003. In its Decision the Trial Chamber referred to the finding in
the Galic Appeals Decision that Rule 92 bis (A) excludes a written
statement which goes to proof of any act or conduct of the accused which the Prosecution
relies upon to establish: (a) that the accused committed (that is, that he personally
physically perpetrated) any of the crimes charged himself, or (b) that he planned,
instigated or ordered the crimes charged, or (c) that he otherwise aided and abetted
those who actually commit the crimes in their planning, operation or execution
of those crimes, or (d) that he was a superior to those who actually did commit
the crimes, or (e) that he knew or had reason to know that those crimes were about
to be or had been committed by his subordinates, or (f) that he failed to take
reasonable steps to prevent such acts or to punish those who carried out those
acts. See Galic Appeals Decision, para. 10.
65 - See, First 92 bis Decision.
66 - Id., para. 26.
67 - See, Blagojevic’s 94 bis Response, Blagojevic’s
92 bis Response, Jokic’s 94 bis Response and Jokic’s 92 bis
Response. The Prosecution argues that “[f]or the most part, the testimony of these
witnesses goes to forensic evidence of the mass executions, burials and reburials
that took place after the fall of Srebrenica in July 1995” which, it asserts,
is crime-base evidence not disputed by the Defence. The Prosecution submits that
it therefore goes to proof of a matter other than the acts and conduct of the
accused. The Prosecution further asserts that the testimony of the experts was
subject to cross-examination during the Krstic Trial and that the qualifications
of the experts and the reliability of their testimony were assessed by the Krstic
Trial Chamber. See, 92 bis Motion, para 16.
68 - Hearing, T. 1438, 1451. See also, Hearing T. 1441:
“And I want to stress again, he is a Prosecution’s paid employee at the time that
he makes this report. Hardly someone that I would consider or anyone else would
consider, at least from the Defence bar, an objective, qualified expert witness.
He may be a qualified expert witness, but objective, that’s the part that I take
exception to.”
69 - Id. T. 1440, 1451. The Prosecution stated that
they may well use this report in making their arguments regarding genocide. (T.
1452)
70 - Hearing, T. 1440-1441. The Blagojevic Defence stresses
that “[…] the attorney in that particular case [the Krstic Trial] indicated
that he did not have all of the material prior to commencing the cross. I do believe
it violates Mr. Blagojevic’s right to confrontation, especially if the Court,
the Trial Chamber, is going to be relying on this particular report in making
a decision whether there was genocide or complicity to commit genocide.” (T. 1452-1453)
71 - Hearing, T. 1449. The Trial Chamber notes that the Defences
Counsel in the Krstic Trial did not claim being not well enough prepared
for the cross-examination because of the late disclosure of documents. See,
Krstic Trial, T. 4085.
72 - See, Galic Trial Decision, page 3: “the mere fact
that the expert witness is employed by or paid by a party or a party related agency
does not disqualify him or her to be called and testify as an expert witness.”
73 - See, Footnote 64.
74 - Krstic Trial, T. 4085.
75 - “Analysis of documents from the Tribunal for the Former
Yugoslavia”, dated 15 November 1999.
76 - The Trial Chamber notes that during the hearing the Jokic
Defence informed the Trial Chamber that it had agreed to revisit five witnesses:
C.H.W. Ten Camp and W.P.F. Fagel, whom the Prosecution asks in its Motion to Amend
witness list to be withdrawn from the witness list; S. E. Maljaars, Michael Brown
and Michael Maloney. After reviewing these five witnesses the Jokic Defence, in
Dragan Jokic’s Notification, only continues to require cross-examination of W.P.F.
Fagel and Michael Maloney.
77 - Hearing, T. 1443.
78 - Hearing, T. 1447. “But I would also request that Ms. K.
Barr be called as a witness in the courtroom. Once her document is analysed by
our expert, then we would like to have the opportunity to cross-examine her on
her techniques and the facilities that they use and authenticate its reliability
or disprove the reliability of the report.”
79 - “Report on Excavations at Glogova 2, Bosnia and Herzegovina,
1999-2001” and “Report on Excavations at the Site of Zelani Jadar 6, Bosnia and
Herzegovina 2001”.
80 - The Trial Chamber admits Michael Hedley to be added to
the witness list.
81 - See, Footnote 43.
82 - These are the reports dealt with under para. 41.
83 - This is the report dealt with under para. 38.
84 - The Trial Chamber notes that it will only consider the
factual findings in the exhumation reports of William Haglund while legal findings
regarding the manner of death will not be taken into account.
85 - This is the report dealt with under para. 35.