Court Finds Former Constitutional Court Judge Not Sufficiently Disinterested

Trial Chamber III declined to hear substantial portions of a prosecution expert's testimony on the basis that he wasn't sufficiently disinterested in the issues. The expert on Yugoslav constitutional law, Dr. Ivan Kristan, served on the Constitutional Court of the Socialist People's Republic of Yugoslavia (SFRY) when decisions affecting Kosovo's autonomous status were before the court. Though the court didn't render a decision on the issue, Dr. Kristan expressed his opinion that Serbia violated the SFRY constitution when it revoked Kosovo's autonomous status. The fact that he gave his opinion, the ICTY Trial Chamber felt, undermined his objectivity. The ICTY judges also excluded his assessment of Kosovo?s right to self-determination and secession for similar reasons.

The remaining parts of Dr. Kristan's report concern constitutional powers of the Presidency of the Socialist Federal Republic of Yugoslavia (SFRY), the President of the Republic of Serbia and the President and Supreme Defence Council of the Federal Republic of Yugoslavia (FRY). While he will be allowed to address the Trial Chamber on these matters, his testimony was deferred for another day due to scheduling and translation problems.

The Chamber made clear that it did not question Dr. Kristan's expertise. It was the fact that he had expressed his opinion in the context of a case before the SFRY Constitutional Court on matters now at issue before the Tribunal. Though unclear from the Chamber's ruling, it appears the judges would have considered him sufficiently objective if he had reached the same conclusions in an academic article. That an expert has considered the issue before the court should not in itself be grounds for disqualification. Indeed, in complex issues of constitutional law, it is most beneficial if the expert has spent considerable time researching and analyzing the issues.

In reaching its decision, the Trial Chamber had no clear guidelines from the ICTY statute or rules. As a result, the judges relied on experiences in their home court systems and arguments from the Amici and the Prosecution. Experts are treated somewhat differently in different legal systems. In the Continental or Civil Law System, the expert is viewed almost as a court witness, someone who stands above the fray and dips into his or her store of knowledge to elucidate issues before the court. In the U.S. variant of the Common Law System, each side often puts forward its own expert, someone who will provide an opinion favorable to its case.

In one way, Dr. Kristan is like a treating physician called to testify about a crime victim. The physician is not a disinterested expert, but he is an expert. His expertise derives from his medical training and experience as well as his knowledge of the particular victim in the case. The physician does not testify as an expert, but the physician's expertise is what makes him useful as a witness. Similarly, with regard to the Kosovo issues, Dr. Kristan has direct involvement which may, as the Court found, affect his objectivity. On the other hand, it might just as well enhance his expertise. Moreover, the Court didn't consider the fact that Dr. Kristan, as a judge of the Constitutional Court, was assumed to be objective when he reached the decision that Kosovo's autonomy was unconstitutionally revoked.

At the end of the day, the Chamber's decision denied it significant testimony from a uniquely qualified witness. The three judges are particularly capable of hearing Dr. Kristan's opinions, together with his explanation of how he reached them, and deciding whether they are colored by the context in which he initially arrived at them. Why would that context make them less trustworthy? Dr. Kristan was not a litigant in the cases. He was a judge, in a position to give an opinion precisely because he was considered objective. The Trial Chamber confuses objectivity with neutrality. While Dr. Kristan, having taken a position, is not neutral, it does not follow that he lacks objectivity.

Prosecutor Geoffrey Nice advised the Chamber that experts in the area of Yugoslav constitutional law who are willing to testify have been hard to find. Since the Court did not follow Amicus' Steven Kay's suggestion that they treat Dr. Kristan as an ordinary witness for purposes of the disputed testimony, the Prosecution will have to find another means of introducing it.

There's little question that the evidence would be useful to the Chamber. It includes a review of the Republic of Serbia's legal formalism which it used to provide a cloak for its illegal actions. In Kosovo, that meant revoking the republic's autonomy without authority to do so, followed by adoption of a law establishing special rules that would apply in 'special circumstances,' finding the existence of 'special circumstances' in Kosovo which then allowed the Serbian authorities to dismiss 60,000 people (mostly ethnic Albanians) from their jobs, to abolish the Kosovo Assembly and its Executive Council, to dismiss the Kosovo representative to the Federal Presidency, to abolish the Kosovo Presidency and to take over local media, among other things.

Dr. Kristan's review of the legal measures taken by the Republic of Serbia and his analysis of their constitutionality reveals the implementation of a draconian plan to take over control of Kosovo, through the oppression of its people (other evidence shows oppression was directed mostly at the Albanian population). It is powerful evidence that provides objective support for the testimony of victims and Kosovar Albanian leaders given earlier in the trial. The Court has denied itself this evidence and left it to the Prosecution to find another means of introducing it.

Ironically, if the SFRY Constitutional Court had made a decision on the constitutionality of the Serbian Republic's laws, that decision -- and any dissent -- would have been cognizable by the Tribunal.