Case No.: IT-02-54-T
IN THE TRIAL CHAMBER
Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy
Registrar:
Mr. Hans Holthuis
Decision of:
1 March 2006
PROSECUTOR
v.
SLOBODAN MILOSEVIC
___________________________________________________________________________
DECISION ON ADMISSIBILITY OF EXPERT REPORT OF KOSTA CAVOSKI
___________________________________________________________________________
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
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;
HEREBY GRANTS the Motion IN PART, and ORDERS AS FOLLOWS:
Done in English and French, the English text being authoritative.
________________________
Patrick Robinson
Presiding
Dated this first day of March 2006
At The Hague
The Netherlands
[Seal of the Tribunal]