Case No. IT-02-60-PT

IN TRIAL CHAMBER II

Before:
Judge Wolfgang Schomburg, Pre-Trial Judge

Registrar:
Mr. Hans Holthuis

Order of:
20 February 2003

PROSECUTOR

v.

VIDOJE BLAGOJEVIC
DRAGAN OBRENOVIC
DRAGAN JOKIC
MOMIR NIKOLIC

___________________________

ORDER FOR FILINGS RELATED TO 92 BIS AND 94 BIS MOTIONS

___________________________

The Office of the Prosecutor:

Mr. Peter McCloskey

Counsel for the Accused:

Mr. Michael Karnavas and Ms. Suzana Tomanovic for Vidoje Blagojevic
Mr. David Wilson and Mr. Dusan Slijepcevic for Dragan Obrenovic
Mr. Miodrag Stojanovic and Ms. Cynthia Sinatra for Dragan Jokic
Mr. Veselin Londrovic and Mr. Stefan Kirsch for Momir Nikolic

 

I, WOLFGANG SCHOMBURG, Judge 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"),

IN RELATION TO the "Prosecutionís Notice of Disclosure of Expert Witness Statements under Rule 94 bis" ("94 bis Notice") and the "Prosecutionís Motion for Admission of Witness Statements and Prior Testimony pursuant to Rule 92 bis and Incorporated Motion in limine to Admit Related Exhibits" ("92 bis Motion"), find it necessary to issue an order for the schedule of filing responses and replies, if any, to these two filings,

94 bis Notice

NOTING that the 94 bis Notice was received by the Registry on 14 February 2003, was filed on 17 February 2003, but was only received by the Trial Chamber on 20 February 2003,

NOTING that delivery of a filing of this size to all Defence counsel may take up to one week after the Trial Chamber has received the filing,

RECALLING that Rule 94 bis of the Rules of Procedure and Evidence of the Tribunal ("Rules") provides in relevant part:

(B) within thirty days of the 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.

NOTING that through 94 bis Notice, the Prosecution provides notice to the Trial Chamber of its disclosure of reports from twenty-one expert witnesses,

NOTING that the Prosecution has already filed Notice1 for the filings of one expert witness included in paragraph one of the 94 bis Notice and that only one Accused in this case, Momir Nikolić, filed a response to the Butler Notice,2

NOTING that four of the "witnesses" listed in paragraph one, for whom expert reports were provided in the 94 bis Notice, do not appear on the Prosecutionís witness list of 8 November 20023 ("Witness List") or among the ten witnesses the Prosecution was permitted to add to the Witness List pursuant to the "Decision on Prosecutionís Motion for Leave to Supplement the Witness List,"4

NOTING that the author of one report, that on Textile Investigation in Annex 45, is not listed among the experts listed in paragraph one of the 94 bis Notice, and is not included in the Witness List or among the ten witnesses added to the Witness List by the 18 February 2003 Decision,

CONSIDERING that the 94 bis Notice consists of a substantial amount of material upon which the Defence need to make certain decisions that may impact upon the trial proceedings,

CONSIDERING that the Defence will be receiving a substantial amount of material at the same time related to potential Rule 92 bis witnesses,

CONSIDERING that the Responses of the Defence will assist the Trial Chamber in making its decision regarding the admissibility of each report pursuant to Rule 89 and Rule 94 bis of the Rules,

FINDING therefore that thirty days from the "disclosure" of the expert reports may be insufficient time for the Defence to review the statements and file a notice of their position in relation to each report, pursuant to Rule 94 bis (B),

92 bis Motion

NOTING that the 92 bis Motion was received by the Registry on 14 February 2003, was filed on 18 February 2003, and the Trial Chamber has received a copy of the motion on 20 February 2003, but has yet to receive the accompanying materials,

NOTING that delivery of a filing of this size to all Defence counsel may take up to one week after the Trial Chamber has received the filing,

RECALLING the two "Order for Filing Motions" of this Trial Chamber dated 26 February 2002 and 5 April 2002, which provide that ď₣uğnless otherwise ordered, the party receiving a written motion has fourteen calendar days from the date that the motion was filed to file its response, if any,Ē and Rule 92 bis (E), which provides in part that ď₣sğubject to Rule 127 or any order to the contrary, a party seeking to adduce a written statement or transcript shall give fourteen days notice to the opposing party, who may within seven days object,"

NOTING that the 92 bis Motion seeks to have admitted: (i) the transcripts of prior testimony for thirty-one witnesses pursuant to Rule 92 bis (D), with the accompanying exhibits that had been admitted during the prior testimony, and (ii) the statements for twenty-one witnesses pursuant to Rule 92 bis, sub-sections (A) and (B),

NOTING that some of the witnesses for whom the Prosecution is seeking to admit prior testimony or statements are among those whose expert reports were submitted pursuant to Rule 94 bis, and discussed above,

CONSIDERING that that the 92 bis Motion consists of a substantial amount of material and that the Defence will require additional time than that foreseen the Order of Filings or Rule 92 bis (E) to review the material and file any Responses,

FINDING therefore that an extension of time to file Responses, if any, must be granted, ex officio,

PURSUANT TO Rules 94 bis, 126 bis and 127, HEREBY ORDER:

  1. In relation to the 94 bis Notice:
    1. The Prosecution shall clarify the status of the five expert "witnesses" who do not appear on the Witness List or in the 18 February Decision, for whom reports were submitted by 27 February 2003;

    2. The Defence shall file Responses, if any, to the 94 bis Notice, including a Response to the Butler Notice, by 31 March 2003; and

    3. The Prosecution shall file its Reply, if any, to the Responses by 17 April 2003.

  2. In relation to the 92 bis Motion:

    1. The Defence shall file Responses, if any, to the 92 bis Motion, by 31 March 2003;

    2. The Prosecution shall file its Reply, if any, to the Responses by 17 April 2003; and
    3. All parties are invited to make submissions on the question of whether the Rule 92 bis Motion can be ruled upon by the bench of permanent judges or the ad litem judges appointed to this case as of 21 April 2003, noting that under the Statute of the Tribunal, Article 13 quarter (2)(b)(iv), ad litem shall not have the power to adjudicate in pre-trial proceedings,

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

_________________
Judge Wolfgang Schomburg
Presiding

Dated this twentieth day of February 2003,
At The Hague
The Netherlands

[Seal of the Tribunal]


1. Prosecutionís Submission of Statement of Expert Witness Rick Butler, "VRS Brigade Command Responsibility Report", 31 October 2002, and Prosecutionís Submissions of Second Statement of Expert Witness Rick Butler, 1 November 2002, (collectively, "Butler Notice").
2. Defence Notice to Object Offer Under Rule 92bis(E) and Notice According [sic] Rule 94bis(B)(ii)Ē, 8 November 2002. Accused Nikolic indicated that he would like to cross-examine the expert witness, Rick Butler, para. 6.
3. Prosecutionís Amended, Redacted Witness Summaries Pursuant to Rule 65 ter (E)(ii), 8 November 2002.
4. 18 February 2003 ("18 February 2003 Decision"). The Trial Chamber notes that one of the ten witnesses was identified as "Handwriting Analysis Expert Ė To be identified shortly" in the Prosecutionís Motion for leave to Supplement Witness List, filed confidentially on 30 January 2003, and that one of the four persons for whom expert reports were submitted is a "Comparative Handwriting Expert" and therefore may be the witness referenced in the Prosecutionís Motion.