Case No. IT-02-54-T

IN THE TRIAL CHAMBER

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]


1 - The addendum of Mr. Coo is dated 26 November 2003, is entitled “Forces of the FRY & Serbia in Kosovo (1998-1999), An Analysis of Their Organisation, Command & Control, and Operations, Addendum for Case No. IT-02-54-T, The Prosecutor of the Tribunal Against Slobodan Milosevic”, and shall be referred to herein as “addendum”.
2 - Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T, “Scheduling Order”, 24 May 2002 (ordering Prosecution “no later than... 29 May 2002... to provide to the Trial Chamber... the identity and statements of all expert witnesses to be called in this case”).
3 - See, e.g., infra, note 4.
4 - See, e.g., Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T, “Decision on Prosecution’s Submission of the Expert Reports of Helge Brunborg Pursuant to Rule 94 bis and Motion for the Admission of Transcripts Pursuant to Rule 92 bis (D)”, 30 October 2003 (admitting expert reports relating to both Kosovo and Srebrenica that had been filed after 29 May 2002 deadline, but prior to expert’s testimony); Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T, “Decision on Prosecutor’s Submission of Corrigendum to Expert Report of Dr. Patrick Ball”, 25 February 2003 (admitting corrigendum to expert report under Rules 54 and 89 of the Rules, provided that expert was made available for additional cross-examination on new material); Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T, “Decision on Prosecution’s Submission of an Addendum to the Expert Report of Colonel Ivan Grujic”, 06 November 2003 (denying permission for Prosecution to file addendum to expert report because expert had already testified, motion for admission was past 29 May 2002 deadline, no legal authority was cited in support of motion, and significance of additional material had not been established).
5 - See addendum, tabs 2, 3, 6, 10, and 11.
6 - See addendum, tab 1 (Order from the Joint Command for Kosovo and Metohija for destroying Albanian terrorist groups in the Region of Rugovo, dated 15 April 1999); tab 5 (Rule on Official Correspondence and Office Administration in the Army of Yugoslavia, dated 04 October 1994); and tab 7 (Federal Republic of Yugoslavia Federal Ministry of Justice response to Prosecution request for assistance No. 174, dated 12 July 2002).
7 - See addendum, tabs 4, 8, and 9.