The Trial Chamber ordered two psychological examinations of the Accused which it then relied upon to convict him. It held that because the reports were ordered under Rule 74 bis of the Rules, they did not fall within the scope of Rule 94 bis of the Rules.

22. The Appeals Chamber considers that the Trial Chamber erred in finding that Rule 94 bis of the Rules was inapplicable in the particular circumstances of the case on the basis that the Chamber Expert’s reports were filed pursuant to Rule 74 bis of the Rules. The Appeals Chamber recalls that Article 21(4) of the Statute provides that:

In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:

[…]

(e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; […]

Rule 94 bis of the Rules expresses this right to challenge evidence more specifically with regard to expert witnesses and their reports and sets out the procedure to be followed. In the present case, the Chamber Expert was asked to report on Jokić’s state of mind when he refused to testify in the Popović et al. case, which goes to a central issue in the case against him, and the Trial Chamber then relied on this evidence in convicting him.[1] Thus while the reports were ordered pursuant to Rule 74 bis of the Rules rather than Rule 94 bis of the Rules, they should be properly understood as expert evidence in the case within the meaning of Rule 94 bis of the Rules and subject to cross-examination by Jokić. The Appeals Chamber notes that in a number of other cases where the Trial Chamber has ordered psychological reports pursuant to Rule 74 bis of the Rules, the parties have been given the opportunity to examine the expert.[2] It further notes that while Rule 94 bis is not directly applicable to the case as the Trial Chamber is not “a party” within the meaning of Rule 94 bis(A), the guarantees for the preservation of the procedural rights of the Accused provided under this Rule were applicable. Hence, in the circumstances of this case, the fact that the Trial Chamber ordered the reports pursuant to Rule 74 bis of the Rules does not place them beyond the scope of Rule 94 bis of the Rules.