Case: IT-98-29-T


Judge Alphons Orie, Presiding
Judge Amin El Mahdi
Judge Rafael Nieto-Navia

Mr Hans Holthuis

Decision of:
2 August 2002





Office of the Prosecutor:

Mr. Mark Ierace

Counsel for the Defence:

Ms. Mara Pilipovic
Mr. Stephane Piletta-Zanin


TRIAL CHAMBER I Section B ("the 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 Tribunal");

NOTING the "Prosecutor’s Submission Pursuant to Rule 94 bis of Expert Report of Lieutenant Colonel Dr. Vilmos Kovacs" filed on 14 May 2002 (" the Report");

NOTING that Dr. Vilmos Kovacs ("the Witness") testified viva voce on 9 and 10 July 2002; that during the examination-in-chief, the expert witness was handed a copy of the Report, which he recognised as being an English translation of his report, and that he was invited by the Prosecution to make any changes he deemed necessary to make this translation more accurate; that the witness proceeded to make these changes; that at the end of the testimony of the witness, the Prosecution provided the Defence, at its request, with a copy of the original Hungarian version of the expert witness’ report; that the Prosecution indicated that it did not seek to rely on this version of the report; that the Chamber then instructed the Defence to submit its observations in relation to the Hungarian version and to indicate, in particular, whether it intended to tender this version of the report into evidence1;

NOTING the "Objection of the Defence on Report of the Expert Witness Dr. Vilmos Kovacs" filed on 13 July 2002 ( "the Objections"), whereby the Defence requested that, in view of the translation discrepancies that existed between the Hungarian and English versions, the admission into evidence of the Report and of Dr. Kovacs’ oral testimony be denied, the expert-witness be recalled " to explain the circumstances in which the written report was given", and the Prosecution be heard in relation to the translation discrepancies that existed between both versions;2

NOTING that on 17 July 2002, the Prosecution indicated in court that, after going through the Objections, it had realised that, by mistake, the Defence had been provided with an earlier rough draft of the expert report in the Hungarian language ("the early Hungarian version"); that it provided the Defence with the final draft of the Hungarian version on that day ("the final Hungarian version"); that the Defence complained that it had received this final version at such a late stage; that the Chamber then instructed the Defence, for the sake of clarity, to submit its complaints in writing;3

NOTING the "Defence Submissions concerning the Late Production of an Expert Report in Hungarian (Dr. Kovacs)" filed on 18 July 2002 ("the Submissions"), in which the Defence indicated that it had been provided with the final Hungarian version only on 17 July 2002, while the cross-examination of this witness had taken place on an earlier date; that it argued that, while it stood by the Objections, if the Chamber were not to accept them, it would then require more time to translate the final Hungarian version and to compare it with the English version; that the Defence further indicated that the final Hungarian version contained additional pages of conclusions that had not been translated into English; that the Report was dated 18 February 2002, while the final Hungarian version was dated 30 April 2002; that it requested that, for these reasons, the Report be dismissed;4

NOTING that on 19 July 2002, the Prosecution explained the nature of the problem in closed session and submitted the final drafts of both the English and Hungarian versions of the expert report;5 that it requested that the Witness be recalled to be subjected to further cross-examination;

CONSIDERING that this final English version contained two additional pages that were not contained in the Report;6 that the Chamber, after having carefully examined the contents of this final version, decided to accept the recall of the Witness so that the Defence would have the opportunity to cross-examine him on the new pages;

CONSIDERING that on 25 July 2002, the Witness was further examined and cross-examined; that on this occasion, the Prosecution was allowed to further examine the Witness on the "history" of his statement; that the Defence was allowed to put questions to him on "every aspect that was not known to the parties at the conclusion of the previous examination", including the "history" of the statement and the additional pages in the last version of the report;

CONSIDERING that the Defence submits that it is has been disadvantaged by these developments, since it was not granted enough time to prepare for the cross-examination of the Witness on the basis of the new text; that it requested the Chamber for a written decision stating the reasons for re-calling him, since the Prosecution, when filing the final version of the report, did not respect the time-limit established in Rule 94 of the Rules;7 and that it thus objected to the admission into evidence of Dr. Kovacs’ report;8

CONSIDERING that, pursuant to Rule 94 bis (A) of the Rules, "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"; that Rule 94 bis (B) further indicates that "the Defence has either a time-limit of thirty days or any other time-limit prescribes by the Chamber, as of the filing of the witness statement, to indicate to the Chamber whether it accepts the statement or wishes to conduct cross-examination";

NOTING the "Decision on the Defence Request Based on Rule 94 bis (A) of the Rules" rendered on 12 April 2002 ("the Decision"), in which the Chamber, inter alia, ordered the Prosecution to file the expert statements it intended to present at the latest by 25 May, set a time-limit of 30 days maximum between the filing of the expert statement and the time when the Defence should indicate to the Chamber whether it accepted the statement or if it wished to cross-examine the expert witness, and ordered the Prosecution to respect a time-limit of 45 days between the filing of the expert witness statement and the appearance of that witness;9

CONSIDERING that, in relation to the differences in dates on the drafts, the Chamber notes that Witness provided the Prosecution with the early Hungarian version in February of this year and with the final Hungarian version at the end of April; that this final version, after being translated into English, was filed on 14 May 2002; that inadvertently, however, the date of the early version was incorrectly posted on it, so that the Report was dated 18 February instead of 30 April 2002; that the Chamber is satisfied that this situation was the consequence of an error and has now been sufficiently clarified;

CONSIDERING that the Defence was provided by mistake with the early Hungarian version, on the basis of which the Defence made the Objections; that the Chamber considers that this unfortunate situation gave the Defence the opportunity to have access to an early version of the Witness’s report and to test the consistency of his findings in relation to the final version; that thus the rights of the accused do not appear to have been affected by this situation;

CONSIDERING that the Chamber also takes due count of the fact that the Report was incomplete; that a complete English version was only submitted on 19 July 2002 and that the Defence had to conduct the further cross-examination of the witness on 25 July 2002; that the Chamber understands this was highly inconvenient for the Defence, since it had limited time to prepare for this further cross-examination due to a mistake made by the Prosecution in the filing of the Report;

CONSIDERING that, however, the final English version contains only two additional pages and that these do not contain new issues as to greatly impact the text as a whole; that the narrow scope of this new material does not seem to require a considerable time of study and preparation for additional cross-examination; that, on the basis of these considerations, and in order to ensure the respect of the right of the Defence to fully cross-examine the Witness in relation to his report, the Chamber decided to accept the recall of the Witness for further cross-examination; that the Defence has been allowed to put questions to the Witness in relation to these additional pages, as well as in relation to the "history" of the statement; that the Chamber thus considers that the possible disadvantageous situation in which the Defence was put has now been remedied;


GIVES the reasons in writing, as set out above, for allowing the Prosecution to recall the expert witness, Dr. Vilmos Kovacs;

ADMITS exhibits P3725A and P3725A.1 into evidence.


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

Done this second day of August 2002
At The Hague,
The Netherlands.

Alphons Orie
Presiding Judge, Trial Chamber

[Seal of the Tribunal]

1 - T.11522-11524.
2 - The Objections, p.6.
3 - T.11846-11847.
4 - The Submissions, p.2-3.
5 - Exhibits P3725A and P3725A.1.
6 - The additional text begins in the bottom-middle part of page 30 and ends on page 32.
7 - T.12136-12137.
8 - T.12421.
9 - The Decision, p.4-5.