Case No: IT-02-54
IN THE TRIAL CHAMBER
Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon
Mr. Hans Holthuis
27 March 2003
DECISION ON ADMISSIBILITY OF MORTEN TORKILDSEN’S EVIDENCE
Office of the Prosecutor:
Ms. Carla Del Ponte
Mr. Geoffrey Nice, QC
Amici Curiae :
Mr. Steven Kay, QC
Mr. Branislav Tapuskovic
Mr. Timothy McCormack
Mr. Slobodan Milosevic
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 ("International Tribunal"),
BEING SEISED of two applications1 made by the Office of the Prosecutor ("Prosecution") to admit as expert evidence two reports prepared by Mr. Morten Torkildsen, a "Financial Investigator" with the Prosecution, under the provisions of Rule 94bis of the Rules of Procedure and Evidence of the International Tribunal ("Rules"),
NOTING the hearings held on 25 February and 3 March 2003, during which the Trial Chamber heard further oral submissions on the applications by the Prosecution, the Amici Curiae and the Accused,
NOTING that, in support of its applications, the Prosecution submits, inter alia, that:
NOTING the Amici Curiae’s objections to the reports submitting, inter alia, that
NOTING that the Accused challenges the relevance of the evidence arguing, inter alia, that no single document in the evidence submitted indicates that the resources were allocated "in the function of perpetrating a crime of any kind"13, and he agrees with the Amici’s objections in relation to the statements which, he says, "cannot be (…) admitted until all those individuals are subjected to cross-examination"14, and ultimately, "Mr. Torkidlsen himself will have to take the chair"15,
NOTING FURTHER that the Prosecution has sought the admission of three written statements under Rule 92bis without cross-examination16, arguing, inter alia, that the three written statements are offered into evidence for the purpose of corroborating the facts and conclusions contained in the Amended Kosovo Report and the attachments to it; that the Amici do not object to the Application provided that the witnesses appear for cross-examination17,
CONSIDERING that the evidence sought to be admitted concerns banking transactions and the movement of funds, a topic which, contrary to the Amici’s submission, the witness has, by means of study and practice, the necessary expertise to give the evidence about, and which is appropriate for expert evidence,
CONSIDERING that Part A of the First Report consists of what is in effect a summary of a series of interviews with third parties and of statements made by them, and, as pointed out by Amici, the role of the witness is a summariser of this evidence; analysis of the remaining statements and documentation is another summary,
CONSIDERING that Part B of the First Report is also based on interviews and consists of a review of banking documents relating to them,
CONSIDERING that the Trial Chamber in rulings on the evidence of Kevin Curtis18 and Barney Kelly19, has rejected this type of evidence, in the latter case in a ruling upheld by the Appeals Chamber20,
CONSIDERING FURTHER that the report covers only a small part of the transactions involved in what may have been a massive fraud, and, as the conclusions makes it clear, the witness cannot say what happened to a lot of the money, and as such his evidence can only be a partial account of what may be a distraction from the central issues in this part of the case, requiring the defendant to make a considerable effort to meet and for the Trial Chamber to determine,
CONSIDERING however that the statements by the accused to the investigating judge in Belgrade21, and his statement opposing continued detention22 are admissible as public documents containing statements by the accused, and the Trial Chamber notes that their admission has not been opposed by the Amici,
CONSIDERING, therefore, that the First Report is not admissible, save in respect of the statements by the accused,
CONSIDERING that it is unnecessary for Trial Chamber to further consider the Prosecution’s application to admit into evidence the written statements in corroboration of facts contained in the First Report, pursuant to Rule 92bis of the Rules,
CONSIDERING that, contrary to the Amici’s submission, the Second Report consists of an analysis of financial aspects of military and other official documents, a great number of which have already been admitted in this case,
CONSIDERING that the evidence goes to show the financial support given by the leadership of the Republic of Serbia to Republika Srpska and the Serb Republic of Krajina, a topic about which evidence has been given and which is relevant to the issues in this case,
CONSIDERING that the Amici object to the production of a book23 through this witness on the grounds that the Accused should be given an opportunity to cross-examine the author as to its contents; a submission which the Trial Chamber accepts finding that the book is not admissible, nor the portions of the Second Report based upon the book,
CONSIDERING that, in the Chamber’s view, the conclusions expressed in the Second Report24, and objected to by the Amici, are opinions on facts that the witness has analysed, based on his professional knowledge and experience, and which – as an expert - he is entitled to give,
CONSIDERING that complaints of inadequate referencing and footnoting are matters of weight which can properly be addressed in cross-examination,
CONSIDERING all the other arguments of the parties as set out in the pleadings,
HEREBY ORDERS AS FOLLOWS:
Done in both English and French, the English version being authoritative._____________________________
Dated this twenty-seventh day of March 2003
At The Hague
[Seal of the Tribunal]
background to these applications is as follows. On 29 May 2002, the Prosecution
filed a “Prosecution’s notice of filing of expert report of Morten Torkildsen”
- the report mainly relates to the Kosovo portion of the trial (“Kosovo Report”)
-, followed by the “Prosecution’s Submission of Attachments to Expert Report
of Morten Torkildsen” filed on 30 May 2002 (“Attachments to the Kosovo Report”).
On 7 June 2002, the Prosecution filed a “Prosecution’s Submission of Amended
Expert Report of Morten Torkildsen” and indicated that it wished to replace
the earlier Kosovo Report (“Amended Kosovo Report” or “First Report”). A “Prosecution’s
Corrigendum of Amended Expert Report of Morten Torkildsen” was filed on 10 June
2002. On 1 July 2002, the Prosecution filed a “Prosecution’s Notice of Confidential
Designation of Attachments to Expert Report of Morten Torkildsen” thereby notifying
all parties that, although initially filed publicly, the Attachments to Torkildsen
Report were to be designated “Confidential”. On 12 June 2002, the Amici Curiae
filed their written “Observations by the Amici Curiae on the Amended
Expert Report of Morten Torkildsen filed 29th May 2002” (“Amici Curiae Observations”).
The “Prosecution’s Response to Observations by the Amici Curiae on the
Amended Expert Report of Morten Torkildsen filed 29th May 2002” was filed on
21 June 2002 (“Prosecution’s Response”). On 18 November 2002, the Prosecution
filed a “Partly Confidential Prosecution’s Submission of Morten Torkildsen’s
Second Expert Report” (“Croatia/Bosnia Report” or “Second Report”). A “Prosecution’s
Corrigendum of the Second Expert Report of Morten Torkildsen” was filed on 10
December 2002. On 16 December 2002, the Amici Curiae filed the “Amici
Curiae’s Schedule of Objections to the Amended Expert Report of Morten
Torkildsen filed 7 June 2002 and Morten Torkildsen’s Second Expert Report filed
18 November 2002” (“Amici Curiae Schedule of Objections”). On 16 January
2003, the Prosecution filed the “Prosecution’s Response to Amici Curiae’s
Schedule of Objections filed on 16 December 2002 and Submission of Additional
Attachments to Amended Expert Report of Morten Torkildsen” (“Prosecution’s Second
Response” and “Additional Attachments to the Amended Kosovo Report”). On 14
February 2003, the Prosecution filed a “Corrigendum to “Prosecution’s Response
to Amici Curiae’s Schedule of Objections filed on 16 December 2002 and Submission
of Additional Attachment to Amended Expert Report of Morten Torkildsen”.
2 The Prosecution has claimed support from the Celebici case in which the Trial Chamber noted that “an expert witness is one specially skilled in the field of knowledge about which he is required to testify.” Prosecutor v Delalic et al. (“Celebici”), Decision on the Motion by the Prosecution to Allow the Investigators to Follow the Trial During the Testimonies of the Witnesses, Case No. IT-96-21-T, 20 March 1997, para. 10, and Kovacevic, Prosecutor v Kovacevic Case No. IT-97-24, 6 July 1998, Transcript (“T.”), pp. 59-61.
3 Prosecution’s Response, para 17.
4 Prosecution Second Response, para. 1.
5 T., p. 17225.
6 Ibid, pp. 17224-17225.
7 Amici Curiae Observations, paras 14-16, T., p. 17206.
8 Ibid, para. 22, T., pp. 17210, 17214.
9 T., pp. 17214-17215.
10 Amici Curiae Schedule of Objections, and T., pp. 17210, 17213.
11 Amici Curiae Observations, para. 13, and, generally, Amici Curiae Schedule of Objections.
12 Amici Curiae Observations, para. 24.
13 T., p. 17221.
14 Ibid, p. 17220.
15 Ibid, p. 17221.
16 Prosecution’s Submission of Three Written Statements provided pursuant to Rule 92bis, Case No. IT-02-54-T, 21 June 2002.
17 Observations by the Amici Curiae on the Prosecution’s Request to Adduce the Evidence of Mr. George Georgiou, Mr. Andreas Iacovou and Mr. Yiannakis Tsiartis pursuant to Rule 92bis Without cross-examination by the Accused, Case No. It-02-54-T, 17 July 2002; see also Prosecution Motion for Admission of Written Statements of George Georgiou, Mr. Andreas Iacovou and Mr. Yiannakis Tsiartis pursuant to Rule 92bis and Response to Observations of Amici Curiae concerning Adducement of their Evidence without cross-examination, Case No. It-02-54-T, 29 July 2002.
18 T., pp. 672-673.
19 Ibid, pp. 5941-5944.
20 Prosecutor v. Miloševic, Decision on Admissibility of Prosecution Investigator’s Evidence, Case No. IT-02-54-AR73.2, 30 Sept. 2002.
21 Attachments to the Kosovo Report, Attachment R4(b) Statement provided by Slobodan Miloševic in domestic criminal proceeding, 1 April 2001.
22 Ibid, Attachment R4(c) Statement provided by Slobodan Milosevic in domestic criminal proceeding, 2 April 2001.
23 Second Report, Attachment C4832, Mladan Dinkic, The Economics of Destruction, 1995.
24 Ibid, para. 30, p. 11; para. 37, p. 13; para. 51, p. 19, para. 98, p. 35, paras 122-124, p. 44.