Case No. IT-02-54-T
Before:
Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon
Registrar:
Mr. Hans Holthuis
Decision:
26 January 2004
PROSECUTOR
v.
SLOBODAN MILOSEVIC
_________________________________________
DECISION ON PROSECUTION SUBMISSION OF ADDENDUM TO THE EXPERT REPORT OF PHILIP COO
_________________________________________
Office of the Prosecutor:
Mr. Geoffrey Nice
Ms. Hildegaard Uertz-Retzlaff
Mr. Dermot Groome
Amici Curiae:
Mr. Steven Kay
Mr. Branislav Tapuskovic
Prof. Timothy McCormack
The Accused:
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 a “Prosecution’s Submission of an Addendum to the Expert Report of Philip Coo”, filed by the Office of the Prosecutor (“Prosecution”) on 08 December 2003 (“Motion”), requesting that the Trial Chamber admit into evidence, under Rule 94bis of the Rules of Procedure and Evidence (“Rules”) (or, in the alternative, Rule 89 of the Rules), documentation in the form of an addendum to the expert report of Witness Philip Coo (“witness”), consisting of further opinions, research, and materials relating to the Joint Command for Kosovo and Metohija,1
NOTING the “Amici Curiae Reply to Prosecution Submission of an Addendum to the Expert Report of Philip Coo Dated 8 December 2003”, filed 12 December 2003 (“ Response”),
NOTING the “Prosecution Reply to Amici Curiae Response to Prosecution Submission of an Addendum to the Expert Report of Philip Coo”, filed 17 December 2003 (“Reply ”), which was filed without authorisation of the Trial Chamber under Rule 126bis of the Rules,
CONSIDERING the Prosecution’s arguments, as set forth in the Motion and the Reply, including the following: (1) the material in the addendum was made available to the Prosecution only after the relevant deadline set out in the Trial Chamber’s “Scheduling Order”, issued 24 May 2002;2 (2) some of the material was only provided in the Summer of 2003 as a result of the on-going Rule 54bis litigation with the Government of Serbia and Montenegro ; (3) some of the material was only permitted to be used as evidence pursuant to Rule 70 of the Rules in November 2003; and (4) some of the material was only translated (and thus available for expert analysis) in August 2003,
CONSIDERING the Amicorum arguments, as set out in the Response, including the following: (1) the addendum is inadmissible under the Rules; and (2) the Motion is inconsistent with the Trial Chamber’s jurisprudence3 and Scheduling Order,
NOTING prior decisions by the Trial Chamber on the admission of “additional ” material relating to expert witnesses,4
CONSIDERING that the addendum consists of (1) material that has been admitted into evidence (“admitted material”);5 (2) material that has not been admitted into evidence (“additional material”); and (3) the witness’ analysis of material from both of the foregoing categories,
CONSIDERING that (1) the Prosecution has demonstrated sufficient grounds for the admission into evidence of some of the additional material,6 but not of the remainder of the additional material;7 and (2) it is thus appropriate for the witness to (a) submit a revised report, which excludes reference to and/or analysis of the additional material denied admission, and (b) appear for cross-examination on the revised report and any material upon which it relies,
PURSUANT to Rules 54, 89, and 126bis of the Rules,
HEREBY ORDERS as follows:
1. The Prosecution may, within seven (7) days from the date of this Decision, file a revised report of the witness, which excludes reference to and/or analysis of tabs 4, 8, and 9 of the addendum, provided that the witness appear for cross-examination on the revised report and any material upon which it relies.
2. The Prosecution is granted leave to file the Reply.
Done in both English and French, the English text being authoritative.
__________
Richard May
Presiding
Dated this 26th day of January 2004
At The Hague
The Netherlands
[Seal of the Tribunal]