Case No.: IT-97-24-T

IN TRIAL CHAMBER II

Before:
Judge Wolfgang Schomburg, Presiding
Judge Mohamed Fassi Fihri
Judge Volodymyr Vassylenko

Registrar:
Mr. Hans Holthuis

Decision of:
10 July 2002

PROSECUTOR
v.
MILOMIR STAKIC

__________________________________________________________

DECISION ON DEFENCE MOTION TO EXCLUDE EVIDENCE

__________________________________________________________

The Office of the Prosecutor:

Ms. Joanna Korner
Mr. Nicholas Koumjian

Counsel for the Accused:

Mr. Branko Lukic
Mr. John Ostojic

 

TRIAL CHAMBER II 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 ("International Tribunal"),

BEING SEISED of a confidential motion1 filed by the Defence for Dr. Stakic ("Defence") on 3 July 2002, seeking an order from the Trial Chamber to exclude in its entirety the "opinion testimony" of a witness for the Office of the Prosecutor, Mevludin Sejmenovic, who testified in this case from 12 Ė 24 June 2002 and from 1 Ė2 July 2002, on the grounds that the Defence has been prejudiced by the failure on behalf of the Office of the Prosecutor ("Prosecution") to identify Mr. Sejmenovicís as an expert witness and disclose his expert opinion in a timely fashion,

NOTING the confidential response2 filed by the Prosecution on 8 July 2002,

RECALLING the Order of this Trial Chamber in relation to the filing of motions in which it was stated that "no written motion may be filed on a Ďconfidentialí basis unless the Pre-Trial Judge or another Judge of the Trial Chamber grants leave for it to be so filed"3,

NOTING the arguments of the Defence that:

NOTING that the Defence in its motion has requested the Trial Chamber to "enter an order striking and excluding in its entirety from the evidence and the record the opinion testimony introduced by the Office of the Prosecutor through Mevludin Sejmenovic"4,

NOTING FURTHER that the Defence in its motion has also requested the Trial Chamber to strike or exclude from the evidence and the record "any other improperly disclosed or undisclosed testimony"5,

NOTING the arguments of the Prosecution that:

NOTING this Trial Chamberís Order on the Standards Governing the Admission of Evidence in this case6, and, in particular, paragraph 1 which reads: "SpCarties should always bear in mind the basic distinction that exists between the admissibility of documentary evidence and the weight that documentary evidence is given under the principle of free evaluation of evidence. The practice will be, therefore, in favour of admissibility as the rule",

CONSIDERING that the standards set forth in this Trial Chamberís Order on the admission of evidence in this case apply equally to the admission of testimonial evidence,

CONSIDERING, therefore, that the mere admission of testimonial evidence in this case is no indication of the final weight the Trial Chamber will give to such evidence,

CONSIDERING that Mr. Sejmenovic testified at trial about matters within the scope of his personal knowledge of events in the Prijedor municipality in 1992,

CONSIDERING, therefore, that Mr. Sejmenovicís testimony cannot be considered to be that of an "expert witness" within the meaning of Rule 94 bis of the Rules of Procedure and Evidence of the International Tribunal, applicable only for an expert in the narrow sense, i.e. "SaC person who, through education or experience, has developed skill or knowledge in a particular subject, so that he or she may form an opinion that will assist the fact-finder"7,

CONSIDERING that the Defence has withdrawn its former motion filed pursuant to Rule 95 of the Rules of Procedure and Evidence of the International Tribunal,

CONSIDERING that it ultimately falls to the Trial Chamber to determine, in light of all the relevant factors, the probative value of Mr. Sejmenovicís evidence in this case,

CONSIDERING that the term "any other improperly disclosed or undisclosed testimony"8 is too vague a basis on which to make a decision,

HEREBY FINDS no grounds for excluding testimony provided in this case to date, and DENIES the Defence motion of 3 July 2002 accordingly.

 

Done in both English and French, the English text being authoritative.

____________________
Judge Wolfgang Schomburg
Presiding

Dated this tenth day of July 2002
At The Hague
The Netherlands

[Seal of the Tribunal]


1 - Prosecutor v. Milomir Stakic, Case No. IT-97-24-T, Defendant, Milomir Stakic's Motion to Bar/Exclude Evidence Not Previously or Properly Disclosed by the Office of the Prosecutor, 3 July 2002 (hereinafter "Defence Motion").
2 - Prosecutor v. Milomir Stakic, Case No. IT-97-24-T, Prosecution's Response to "Defendant, Milomir Staki}'s Motion to Bar/Exclude Evidence Not Previously or Properly Disclosed by the Office of the Prosecutor", 8 July 2002.
3 - Prosecutor v. Milomir Stakic, Case No. IT-97-24-T, Order for Filing of Motions and Related Matters, 7 Mar. 2002.
4 - See Defence Motion, page 7.
5- Ibid.
6- Prosecutor v. Milomir Stakic, Case No. IT-97-24-T, Order on the Standards Governing the Admissibility of Evidence, 16 Apr. 2002.
7 - Black's Law Dictionary, 7th Edition.
8 - See Defence Motion, page 7.