Case No.: IT-02-54-T


Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy

Mr. Hans Holthuis

Decision of:
1 March 2006







Office of the Prosecutor

Ms. Carla Del Ponte
Mr. Geoffrey Nice

The Accused

Mr. Slobodan Milosevic

Court Assigned Counsel

Mr. Steven Kay
Ms. Gillian Higgins

Amicus Curiae

Prof. Timothy McCormack


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 ("Tribunal"),

NOTING that Professor Audrey Budding testified as an expert witness for the Prosecution in this case on 23 and 24 July 2003, and that her expert report was admitted into evidence on 23 July 2003;

NOTING the memorandum from the Deputy Pro Se Legal Liaison Officer of 16 December 2005,1 submitting the translation of an expert witness report by Mr. Kosta Cavoski entitled “Budding versus Budding”, with two alternative subtitles—“The Two Faces of the Same Author in the Case of Slobodan MILOSEVIC" and "The Double Face of Budding In the Case of Slobodan MILOSEVIC" (“Cavoski Report”);

BEING SEIZED of a "Prosecution’s Notice Pursuant to Rule 94 bis (B) Challenging the Qualifications of Kosta Cavoski as an Expert and the Relevance of the Expert Report, Filed 16 December 2005", filed on 16 January 2006 ("Motion"),2 in which the Prosecution requests that the Chamber exclude the Cavoski Report in its entirety and refuse to allow the Accused to call Professor Cavoski as a witness, or, in the alternative, that the Prosecution be granted the right to cross-examine him;

NOTING the Assigned Counsel Response to the Motion ("Response"), filed on 26 January 2006,3 in which Assigned Counsel contest the Prosecution’s assertions about Professor Cavoski’s qualifications, and present their own alternative requests for relief: either that the Chamber rule the expert report and testimony of Professor Audrey Budding inadmissible, or that it allow the Accused to call Professor Cavoski as an expert witness for the Defence;

NOTING the "Prosecution’s Reply to Assigned Counsel Response Filed 26 January 2006 to Prosecution’s Notice Pursuant to Rule 94 bis (B) relating to Kosta Cavoski Filed 16 December 2005”, filed on 1 February 2006 (“Reply”);4

NOTING that the Trial Chamber granted the Prosecution leave to reply in the “Preliminary Order on Admissibility of Expert Report of Kosta Cavoski”, issued on 6 February 2006 ("Preliminary Order");

NOTING that Rule 94 bis (B) of the Rules of Procedure and Evidence of the Tribunal ("Rules") provides for the Prosecution to file a notice indicating whether

    1. it accepts the expert witness statement; or

    2. it wishes to cross-examine the expert witness; and

    3. it challenges the qualifications of the witness as an expert or the relevance of all or parts of the report and, if so, which parts.

CONSIDERING that, as the Prosecution has invoked subparagraphs (ii) and (iii) of Rule 94 bis(B), the Trial Chamber must consider the relevance of the Cavoski Report and determine whether the qualifications of the proposed witness as an expert have been established;

CONSIDERING that, because "StChe purpose of Professor Cavoski’s report is to provide a critique of the evidence and report of Professor Budding",5 it is at least as relevant to the proceedings as Professor Budding’s expert report;

NOTING that among the Prosecution’s objections to Professor Cavoski and his report is his alleged "bias and lack of ‘disinterestedness’ toward the Accused";6

CONSIDERING that this Trial Chamber has already held, in the context of similar objections by the then-Amici Curiae and the Accused to an expert witness for the Prosecution, that an allegation of bias "is not a matter of admissibility but one which affects the weight to be granted to the witness’s evidence";7

NOTING the terms of the Preliminary Order, in which the Trial Chamber noted that "it does not appear that SProfessor CavoskiC is sufficiently qualified to testify as a witness with expertise in the field that is the subject of his report", and ordered the Defence to “file, by 13 February 2006, a copy of Professor Cavoski’s curriculum vitae and a list of any scholarly articles or other publications he has written, as well as any other information that may assist the Chamber in determining his expertise";8

NOTING the "Decision on Assigned Counsel Request for an Extension of Time", issued on 14 February 2006, in which the Trial Chamber granted Assigned Counsel’s request for an extension of time until 20 February 2006 to comply with the Preliminary Order;9

NOTING the "Assigned Counsel Response to Preliminary Order on Admissibility of Expert Report of Kosta Cavoski and Attachment A", filed on 20 February 2006, by which the Assigned Counsel complied with the Preliminary Order and provided both the curriculum vitae of Professor Cavoski and a list of his publications;

CONSIDERING that the Trial Chamber is now satisfied that Professor Cavoski is sufficiently qualified to be considered an expert witness under Rule 94 bis;

CONSIDERING, however, that during Professor Budding’s testimony in July 2003, the Prosecution spent less than 40 minutes in examination in chief and re-examination; and that the Accused and an Amicus Curiae spent almost four and half hours in cross-examination;10

PURSUANT TO Rules 54, 89, 90, and 94 bis of the Rules;


  1. The Cavoski Report will be admitted into evidence under Rule 94 bis;
  2. Professor Cavoski will be permitted to appear as an expert witness for the Defence;
  3. If the Defence wishes to lead evidence from Professor Cavoski in an examination in chief, such examination shall not exceed 45 minutes.
  4. The Prosecution’s alternative request to cross-examine Professor Cavoski is granted.


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

Patrick Robinson

Dated this first day of March 2006
At The Hague
The Netherlands

[Seal of the Tribunal]

1. This memorandum was initially filed confidentially, but the Trial Chamber has ordered that the status of this submission be changed to public. Prosecutor v. Milosevic, Case No. IT-02-54-T, Preliminary Order on Admissibility of Expert Report of Kosta Cavoski, 6 February 2006 ("Preliminary Order"), p. 3
2.The Motion, initially filed confidentially, is now a public document. Preliminary Order, supra note, p. 3.
3. The Response, initially filed confidentially, is now a public document. Preliminary Order, supra note, p. 3.
4. The Reply, initially filed confidentially, is now a public document. Preliminary Order, supra note, p. 3.
5. Response, para. 6.
6. Reply, para. 7.
7. Milosevic, Transcript, T. 9966 (9 September 2002) (oral ruling rejecting the arguments from the Amici and the Accused on that ground and eventually permitting the Prosecution to call Philip Coo as an expert witness); see also ibid. (concurring with the opinion of the Court of Appeal of England and Wales in R (on the application of Factortame Ltd) v. Secretary of State for Transport, Local Government and the Regions, 3 July 2002, [2002] 4 All E.R. 97, para. 70, in which it was noted that, although it is "always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings … such disinterest is not automatically a precondition to the admissibility of his evidence").
8. Preliminary Order, supra note, pp. 2–3.
9. Milosevic, Assigned Counsel Request for an Extension of Time Pursuant to Rule 127(A)(i) of the Rules of Procedure and Evidence in order to File a Response to the Trial Chamber’s Preliminary Order on Admissibility of Expert Report of Kosta Cavoski, 13 February 2006.
10. See also Reply, para. 5 (asserting that "[t]wo of [the] three experts [already called by the Defence] have already dealth with Dr. Budding’s Expert Report, and [the] defence has thus had the opportunity numerous times to confront her evidence").