Case No.: IT-02-54-T
IN THE TRIAL CHAMBER
Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy
Registrar:
Mr. Hans Holthuis
Decision of:
1 March 2005
PROSECUTOR
v.
SLOBODAN MILOSEVIC
_________________________________________________
ORDER ON RECALLING DR. KRISTAN
__________________________________________________
Office of the Prosecutor:
Ms. Carla Del Ponte
Mr. Geoffrey Nice
The Accused:
Mr. Slobodan Milosevic
Court Assigned Counsel:
Mr. Steven Kay, QC
Ms. Gillian Higgins
Amicus Curiae:
Prof. Timothy McCormack
THIS 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 ("the International
Tribunal"),
HAVING issued an oral Order to the Prosecution,
on 25 January 2005 ("Order"), "to make a filing identifying
the areas in respect of which [the Prosecution] wish[es] to
adduce evidence from Dr. Kristan should [he Prosecution] wish
to recall him, and also to comment on his availability",
NOTING the relevant history of this
matter, as follows:
- The Prosecution sought to introduce expert evidence on matters
relating to the revocation of the autonomy of Kosovo and to
the constitutional right of self-determination and secession
of Kosovo from the Republic of Serbia, amongst other matters,
through the expert witness, Dr. Kristan;
- On 23 May 2003, the Trial Chamber issued an oral ruling1
with respect to Dr. Kristan’s expert report concerning these
matters, in which it determined that since Dr. Kristan was
a judge of the Constitutional Court of the SFRY at the time
when these issues were discussed and had expressed a dissenting
opinion, his testimony would be "quite influenced by his participation
in the court proceedings".2 Therefore,
it was held that those parts of Dr. Kristan’s report dealing
with (a) the autonomy of Kosovo and its revocation, and (b)
Kosovo’s constitutional right of self-determination ("the
two areas"), could not be admitted into evidence.3
Nevertheless, the Chamber determined that the other parts
of his report were admissible and Dr. Kristan could give evidence
with respect to the issues contained in those parts;4
- The Prosecution subsequently submitted that it was unable
to find experts willing or able to testify on issues of constitutional
law of the former Yugoslavia.5
Finally, the Prosecution submitted that an additional difficulty
with identifying an appropriate constitutional law expert
was that the issue is "controversial … in the former Yugoslavia;
[I]t is not necessarily an easy legal issue, may be it is
an issue that [requires] different approaches depending on
where you come from";6
- In Order (15) of the Trial Chamber’s Omnibus Order of 17
June 2004, the Trial Chamber stated that, "Having regard to
the difficulties experienced by the Prosecution in securing
a constitutional expert, the Trial Chamber will issue an order,
requiring submissions from the parties on certain constitutional
issues in due course";
- Subsequently, the Accused called Dr. Markovic as a fact
witness who testified, inter alia, on the two areas;
- During the testimony of Dr. Markovic, the Trial Chamber
considered whether Dr. Kristan might be recalled to testify
as a fact witness on the two areas he was prohibited from
testifying on as an expert, and the abovementioned order was
in turn issued,
NOTING the "Prosecution’s Motion in
Response to Trial Chamber Oral Order of 25 January 2005 Regarding
Potential Additional Evidence to be Given by Dr. Kristan", filed
on
1 February 2005 ("Motion"), in which the Prosecution identifies
a number of matters set out in paragraphs 5, 13 and 15 of its
Motion, preferably on the basis of Dr. Kristan’s initial expert
report, or on such other terms as the Chamber may decide,
NOTING the "Assigned Counsel Reply to
Prosecution Motion in Response to Trial Chamber Oral Order of
25 January 2005 Regarding Potential Additional Evidence to be
Given by Dr. Kristan", filed on 8 February 2005 ("Reply"), in
which Assigned Counsel submit that the Prosecution should be
restricted to calling any further evidence from Dr. Kristan
as part of its rebuttal case, and that any such evidence should
be restricted to evidence given as a fact witness,
CONSIDERING that the intention of the
Trial Chamber in issuing its Order was to obtain a complete
picture of the evidence concerning the status of Kosovo and
the relevant constitutional matters that attach to this issue
within a reasonable period of hearing the evidence of Dr. Markovic,
so that the matters are fresh in the minds of the Chamber and
parties,
CONSIDERING FURTHER that the Trial Chamber
wishes only to hear evidence of fact from Dr. Kristan on the
two areas on which the Trial Chamber had ruled it was inappropriate
for Dr. Kristan to testify,
PURSUANT TO Rule 54 of the Rules of
Procedure and Evidence of the International Tribunal,
HEREBY ORDERS AS FOLLOWS:
- The Prosecution shall be permitted to recall Dr. Kristan
in respect of (a) Kosovo’s autonomy and its revocation, and
(b) its right to self-determination, to testify, to the extent
possible, on those matters as a fact witness; and
- The Trial Chamber will, after consulting the Accused and
the Prosecution, identify a suitable time for Dr. Kristan
to be recalled to testify.
Done in English and French, the English text
being authoritative.
___________________________
Judge Robinson
Presiding
Dated this first day of March 2005
At The Hague
The Netherlands
[Seal of the Tribunal]
1. T. 21160 (23 May 2003).
2. T. 21162 (23 May 2003).
3. T. 21162 (23 May 2003).
4. T. 21162 (23 May 2003).
5. T. 22799 (19 June 2003). Even when they were able to find people
with the required credentials to serve as a constitutional law
expert in the Court those people were "on several occasions, afraid
to do so." (T. 30701,
17 December 2003).
6. T. 30702 (17 December 2003). In support of the difficulties
faced by the Prosecution, two documents were produced: (1) "Constitutional
law expert for Kosovo issues: contacted legal experts from the
former Yugoslavia (Sept-Dec 2003)", and (2) a letter from a contacted
expert declining to testify (dated 12 January 2004).