Case No.: IT-00-39-T
IN TRIAL CHAMBER I
Judge Alphons Orie, Presiding
Judge Amin El Mahdi
Judge Joaquín Martín Canivell
Mr Hans Holthuis
31 March 2004
DECISION ON TWO EXPERT WITNESSES (NIELSEN & RIEDELMAYER)
Office of the Prosecutor
Mr Mark Harmon
Mr Alan Tieger
Mr Nicholas Stewart
Ms Chrissa Loukas
1. Christian Nielsen
- On 17 December 2003 this Trial Chamber (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") received from
the Prosecution, pursuant to Rule 94 bis of the Tribunal’s Rules of
Procedure and Evidence (the "Rules"), the expert report and curriculum
vitae of one of its proposed expert witnesses, Christian Nielsen.1
- Rule 94 bis (A) states that the full report of an expert witness
must be disclosed within the time-limit prescribed by the Trial Chamber. As
noted by the Prosecution, the time-limit set by the previous Trial Chamber
to be seized of the present case was 30 July 2002. At that time the trial
was expected to start in November 2002.
- While the July 2002 deadline has not been formally lifted, it no longer
corresponds to the actual state of the proceedings. The commencement of the
trial was postponed to February 2004 as a result of the replacement of the
Defence team. Thus the Chamber agrees with the Prosecution that the filing
on 17 December 2003 of the documents relating to Nielsen – whose name was
notified to the Defence already in the March 2003 list of witnesses – is not
to be considered out of time by operation of the July 2002 deadline. Moreover
the Defence states, in its response to the Prosecution’s submission on Nielsen,2
that it takes no position on the question of the time-limit. It also makes
no complaint about late disclosure. Thus the matter is considered settled.
- Rule 94 bis (B) states that within 30 days of disclosure of the report
of the expert witness, or by such other time prescribed by the Trial Chamber,
the opposing party must file a notice indicating whether it accepts the expert
report, wishes to cross-examine the expert witness, or challenges the qualifications
of the witness as an expert, or the relevance of all or parts of the report.
The Chamber allowed the Defence until the end of March 2004 to respond to
the submission on Nielsen (as well as to the submission on Riedlmayer – see
below), and therefore its response (filed on 25 March) is in time.
- The Defence states that it does not challenge the qualifications of Nielsen
as an expert, nor does it contend that any part of his report should be excluded
on the grounds of irrelevance. In accordance with Rule 94 bis (B) (ii),
the Defence declares that it wishes to cross-examine Nielsen.
2. Andras Riedlmayer
- On 26 January 2004 the Chamber received from the Prosecution, pursuant to
Rule 94 bis of the Rules, the expert report and curriculum vitae of
another proposed expert witnesses, Andras Riedlmayer.3
This submission included a request, pursuant to Rule 92 bis (D) of
the Rules (which concerns the admission of transcripts of testimony from another
proceedings), to admit into evidence excerpts of Riedlmayer’s testimony in
the case of Prosecutor v. Slobodan Milošević dealing with destruction
of cultural heritage in the time period and municipalities relevant to the
indictment in the present case and going to proof of matters other than the
acts and conduct of the Accused.
- Riedlmayer’s status as a proposed expert witness was notified to the Defence
in the Prosecution’s March 2003 list of witnesses. The Prosecution once again
notes that the 30 July 2002 disclosure deadline for expert reports should
be regarded as inoperative. It also provides an explanation as to why Riedlmayer’s
report was filed on the late date that it was. It proposes to call Riedlmayer
towards the end of its case. The Defence makes no complaint about late disclosure,
and thus the matter is considered settled.
- The Defence does not challenge the qualifications of Riedlmayer as an expert,
nor does it contend that any part of his report should be excluded for irrelevance.
It states its wish to cross-examine him. Lastly, the Defence does not object
to the admission into evidence of the excerpts of Riedlmayer’s testimony in
the Milosevic case identified by the Prosecution, on the understanding
that they too are subject to cross-examination.
FOR THE FOREGOING REASONS,
PURSUANT TO RULE 94 BIS OF THE RULES:
FINDS that the Prosecution’s submissions relating to
its expert witnesses Christian Nielsen and Andras Riedlmayer were not filed
out of time;
NOTES that the two expert witnesses shall be called
to testify before the Chamber;
ADMITS INTO EVIDENCE their reports and curricula vitae;
PURSUANT TO RULE 92 BIS (D) OF THE RULES:
ADMITS INTO EVIDENCE the identified excerpts of Riedlmayer’s
testimony in the Milosevic case, which shall be open to cross-examination.
Done in English and French, the English text being authoritative.
Dated this 31st day of March 2004
At The Hague
[Seal of the Tribunal]
1. "Submission of Statement of Dr Christian
Nielsen," filed on 17 December 2003.
2. "Defence Response to the Prosecution’s Submission of Statement of Dr.
Christian Nielsen and the Prosecution’s Filing of Statement of
Andreas Riedlmayer and Motion for Admission of Evidence Pursuant to Rule 92 bis,"
filed on 25 March 2004.
3. "Prosecution’s Filing of Statement of Andras Riedlmayer and Motion for
Admission of Evidence Pursuant to Rule 92 bis," filed on 26 January