Case No. IT-02-60-T


Judge Liu Daqun, Presiding
Judge Volodymyr Vassylenko
Judge Carmen Maria Argibay

Mr. Hans Holthuis

Decision of:
13 June 2003







The Office of the Prosecutor:

Mr. Peter McCloskey

Counsel for the Accused:

Mr. Michael Karnavas and Ms. Suzana Tomanovic for Vidoje Blagojevic
Mr. Miodrag Stojanovic and Ms. Cynthia Sinatra for Dragan Jokic

TRIAL CHAMBER I, SECTION A, (“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”),

BEING SEISED of “Vidoje Blagojevic’s Expedited Motion to Compel the Prosecution to Disclosure its Notes from its Discussions with the Nikolic Defense Team and During the Negotiating & Debriefing Sessions with Accused Nikolic Resulting in the Agreed Facts in Support of the Guilty Plea Arrangement of Accused Nikolic & Request for an Expedited Open Session Hearing”, filed partly confidentially on 19 May 2003 (“ Motion”),

NOTING the “Prosecution’s Response to Vidoje Blagojevic’s Expedited Motion to Compel the Prosecution to Disclosure [Sic] its Notes From its Discussions With the Nikolic Defense Team”, filed confidentially by the Office of the Prosecutor (“Prosecution”) on 30 May 2003 (“Response”),

NOTING “Vidoje Blagojevic’s Leave to Reply & Reply to Prosecution’s Response to Vidoje Blagojevic’s Expedited Motion to Compel the Prosecution to Disclosure [Sic] its Notes from its Discussions with the Nikolic Defense Team”, filed confidentially on 6 June 2003 (“Reply”)

NOTING that the Trial Chamber grants Vidoje Blagojevic leave to file a reply to the Prosecution’s Response as the Reply provides additional submissions to the Motion,

NOTING the “Joint Motion for Consideration of Amended Plea Agreement between Momir Nikolic and the Office of the Prosecutor” with the “Statement of Facts and Acceptance of Responsibility” attached to it, filed on 7 May 2003, and the guilty plea of Momir Nikolic to the charge of Persecutions as a crime against humanity in count 5 of the Indictment1 at a public hearing on 7 May 2003, which was accepted by the Trial Chamber and a conviction entered there under,

NOTING that the Prosecution intends to call Momir Nikolic to testify in this case,2

NOTING that lead counsel for Mr. Blagojevic (“Defence”) requested by letter dated 7 May 2003 that the Prosecution disclose “all notes, tape, and/or video recordings, draft agreements, and any and all other material concerning with and in regards to the discussions, meetings and negotiations between Momir Nikolic and/or his counsel and any representatives of the OTP”,3

NOTING that the Prosecution responded by letter dated 8 May 2003 that there is no audio or video tape of the plea discussions with Momir Nikolic, but that handwritten notes taken by the Prosecution (“Notes”) exist, which the Prosecution views as work product protected under Rule 70 (A) of the Rules of Procedure and Evidence of the Tribunal (“Rules”),

NOTING FURTHER that in the Prosecution’s letter of 8 May 2003, the Prosecution stated that it would review the notes “to determine whether there is any information in them that may be considered exculpatory within the meaning of Rule 68” and that any such material would be provided to the Blagojevic Defence “at the earliest possible time”,4

NOTING that the Defence raised this matter during the Rule 65 ter Conference held with the Senior Legal Officer of the Trial Chamber on 13 May 2003, and was instructed by the Trial Chamber to file a written motion,

NOTING that the Motion requests an open session hearing “in order to fully address the issues raised herein, to establish a requisite and transparent record, and to determine, in addition to the remedies sought herein, whether any sanctions are warranted pursuant to Rule 68 bis”,

NOTING that the Defence argues that (i) the Motion is “made in light of the method and manner in which the [plea] discussions were held, and the “Statement of Facts and Acceptance of Responsibility” (Statement of Facts) negotiated and drafted, and, the intentional failure, in violation of Rule 63, to record the negotiating/questioning sessions”;5 (ii) pursuant to Rule 43 and 63 (B) the questioning of suspects and accused shall be audio- or video-recorded to provide “a transparent record, which, as in this case, is essential to afford an accused his fair-trial rights as provided under the Statute”;6 (iii) “Mr. Blagojevic has been severely prejudiced by the Prosecution’s failure to scrupulously memorialize its meeting with Mr. Nikolic when the agreed Statements of Facts were negotiated and drafted,” wherefore “Mr. Blagojevic is left with no alternative but to seek the handwritten notes taken by the Prosecution”;7 (iv) the Notes are not work product as protected under Rule 70 (A), but are subject to disclosure as “[t]he Defence does not seek to invade the Prosecution’s zone of privacy within which it is entitled to think, plan, weigh facts and legal theories, and prepare its case”;8 and (v) “[h]ad the Prosecution conducted the … [plea discussions] in a transparent manner (as Rule 63 clearly provides), the request for the notes would be superfluous – albeit subject to disclosure nonetheless under the Rules”,9

NOTING that the Prosecution argues in the Response that (i) the Notes are protected from disclosure under the Rules, and specifically Rule 70 (A);10 (ii) the “disclosure of such notes is against the public interest in that it would violate the confidentiality of plea discussions and have a chilling effect upon the consideration of pleas by future accused”;11 (iii) because the Notes were prepared in anticipation of Mr. Nikolic’s testimony in this case, the Notes fall within ‘the investigation or preparation of the case’ as provided for in Rule 70 (A);12 (iv) the Defence “attempts to carve out a disclosure exception [to the Rules] based on the fact that the Prosecution’s discussions with Mr. Nikolic were not recorded”;13 (v) Rule 43 and Rule 63 (B) are designated to protect “the suspect or accused being questioned, and not co-accused or other unnamed suspects”;14 (vii) the Prosecution is well aware of its obligations under Rules 66 and 68 of the Rules, and has every intention of meeting those obligations;15 and (viii) disclosing the Notes without the explicit permission of Momir Nikolic would constitute an express violation by the Prosecution of its obligations under the agreement signed by the Prosecution, Momir Nikolic and his counsel at the start of the plea discussions,16

NOTING that the Defence argues in the Reply that (i) the notes fall under both Rules 66 and 68 as “the manner in which the deal was conceived, negotiated and executed is a matter that goes to the essence of Momir Nikolic’s credibility, and therefore, any information concerning the deal making process is exculpatory material”17; (ii) “[w]hen Momir Nikolic was questioned he was not an ordinary ’witness’ dispossessed of the fundamental rights accorded to suspects and accused under the Rules, such as, the advisement of the right to remain silent and the right to counsel”;18 (iii) “the Prosecution is incorrect in asserting that the tape-recording of the questioning sessions with suspects or accused is exclusively for the benefit of the suspect or the accused being questioned” as “the Trial Chamber has a vested interest, particularly given its mandate under Rule 98” and “the co-accused have a vested interest, particularly given their guaranteed fair trial rights under the Statute”;19 (iv) “while there may be some merit for the actual deal-making not to be audio-recorded or video-recorded, the questioning of the accused, i.e., the taking of a statement, must be audio-recorded or video-recorded, as required under Rule 63” because “once an accused has entered into an agreement… and agrees as part of the deal to testify as a witness, then the manner and method of the plea negotiations do become subject to scrutiny by those against whom the accused will be testifying”;20 and (vi) “[t]o suggest that the Prosecution needs Momir Nikolic’s permission before it can reveal its own notes is, quite simply, utterly silly”,21

NOTING that the Trial Chamber considers the written submissions to be sufficient to decide on the Motion,

NOTING that pursuant to Rule 63 (B) questioning by the Prosecutor of an accused shall be audio-recorded or video-recorded in accordance with the procedure provided for in Rule 43,22 which requires the audio-recording or video-recording of questioning by the Prosecutor of a suspect,

CONSIDERING that the protections set forth in Rules 43 and 63 (B) are provided for the suspects and accused being questioned, not third persons,

FINDING therefore that in relation to the plea discussions between the Prosecution and Momir Nikolic, should such plea discussions be considered as “questioning” within the meaning of Rules 43 and 63 (B), Vidoje Blagojevic is not an interested party who could raise the complaint of non-performance of any obligations set out under the respective Rules,

CONSIDERING furthermore that Rules 43 and 63 (B) were adopted to have an authentic record of the questioning of a suspect or accused in order to guarantee that the rights of the suspect or accused were respected during such questioning 23 as well as to provide a reliable record of the questioning as everything that the suspect or accused says during the questioning can be used against him as evidence,24

CONSIDERING that plea discussions serve to explore the possibility of a future plea agreement and consequently, for the purposes of the discussions, nothing an accused says during the discussions will be used against him at trial should the plea negotiations fail,25

CONSIDERING therefore that Rules 43 and 63 (B) do not apply to plea discussions, as the protections set forth in said Rules are not applicable,

NOTING pursuant to an agreement between the parties, Mr. Nikolic waived his right to have the meetings related to the possibility of a plea agreement audi-taped or video-taped,

FINDING therefore the non-recording of the plea negotiations between Momir Nikolic and the Prosecution was not in violation of the Rules of the Tribunal,

NOTING that according to Rule 66 (A) (ii) of the Rules copies of the statements of all witnesses whom the Prosecution intends to call to testify at trial shall be made available to the Defence when a decision is made to call those witnesses,

NOTING that Rule 70 (A) of the Rules provides that “notwithstanding the provisions of Rules 66 and 67, reports, memoranda, or other internal documents prepared by a party, its assistants or representatives in connection with the investigation or preparation of the case, are not subject to disclosure or notification under those Rules”,

NOTING that Rule 70 (A) aims to protect work product from disclosure, as it is in the public interest that information related to the internal preparation of a case, including legal theories. strategies and investigations, shall be privileged and not subject to disclosure to the opposing party,

CONSIDERING that the Prosecution took the Notes in preparation of a potential plea agreement with Momir Nikolic and his testimony in this case,

CONSIDERING that the Trial Chamber views the Notes as privileged, as they are internal documents made by the Prosecution in connection with the preparation of the case,

CONSIDERING FURTHER that the Trial Chamber finds that it is in the public interest that plea negotiations be protected from disclosure to any third parties, as the confidentiality of any negotiations is an essential element to both their occurrence and their success,

CONSIDERING the oral ruling of the Trial Chamber on 22 May 2003 ordering the Prosecution to submit the statements of Momir Nikolic and Dragan Obrenovic26 to the Blagojevic and Jokic Defence twenty-five days prior to the testimony of each witness, which provides the Defence with sufficient time to adequately prepare for the cross-examination of Momir Nikolic,

CONSIDERING that pursuant to Rule 68 of the Rules, the Prosecution is under a continuing obligation to “disclose to the defence the existence of material known to the Prosecutor which in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence”,

NOTING that according to Rule 68 bis the Trial Chamber may decide proprio motu, or at the request of either party, on sanctions to be imposed on a party which fails to perform its disclosure obligations pursuant to the Rules,

CONSIDERING that the Prosecution acknowledges its obligation under Rule 68 of the Rules to disclose exculpatory material to the Defence, and agreed to review the Notes to provide the Blagojevic Defence with any information falling under Rule 68,27

CONSIDERING that in the view of the Chamber there is no indication of a failure by the Prosecution to comply with its disclosure obligations pursuant to Rule 68 of the Rules.


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

Judge Liu Daqun

Dated this thirteenth day of June 2003,
At The Hague
The Netherlands

[Seal of the Tribunal]

1 - Prosecutor v. Vidoje Blagojevic, Dragan Obrenovic, Dragan Jokic and Momir Nikolic, Case. No. IT-02-60, Amended Joinder Indictment, 27 May 2002.
2 - See, Statement of the Prosecution during the Motion Hearing on 6 May 2003, T. 268, 274 and the Joint Motion for Consideration of Amended Plea Agreement between Momir Nikolic and the Office of the Prosecutor, Annex A, Amended Plea Agreement, paras 9-11, filed on 7 May 2003.
3 - Motion, Attachment 2 (confidential).
4 - Id., Attachment 1.
5 - Id., p. 1.
6 - Id., paras 10-11.
7 - Motion, para. 12.
8 - Id., para. 14.
9 - Id., para. 15.
10 - Response, paras 8, 10-11.
11 - Id., para. 8. See also, paras 17-20.
12 - Id., para. 11.
13 - Id., para. 12.
14 - Response., para. 13 (emphasis in original).
15 - Id., para. 14.
16 - Id,. Para. 20.
17 - Reply, para. 1 (d) (emphasis in original).
18 - Id., para. 2.
19 - Id., para. 5.
20 - Reply, para. 8 and para. 9 (emphasis in original).
21 - Id., para. 10.
22 - Rule 63 (B) (“Questioning of Accused”) further provides that the Prosecution “shall at the beginning of the questioning caution the accused in accordance with Rule 42 (A)(iii).” Rule 42 (A)(iii) provides: “the right to remain silent, and to be cautioned that any statement the suspect makes shall be recorded and may be used in evidence.”
23 - Rule 42 (“Rights of Suspects during Investigation”) provides that the suspect shall be informed prior to questioning, in a language the suspect speaks and understands that he has the right to be assisted by counsel and to be assisted by an interpreter.
24 - Rule 43(vi) provides for the transcription of the audio statement of a suspect if the suspect becomes an accused.
25 - Upon commencing the plea discussion, the Prosecution, Momir Nikolic and his counsel signed an agreement, in which the Prosecution undertakes not to use any statement Mr. Nikolic makes against him, except to pursue leads or to develop additional information or evidence. See generally, Rule 410 (4) of the U.S. Fed. Rules of Evidence: “Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was participant in the plea discussions … (4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn […]”.
26 - As the Response submits the Prosecution also received a request from the Blagojevic Defence for similar materials related to the plea discussions with Dragan Obrenovic on 21 May 2003. The Chamber is not seised of a Motion at this stage, but wishes to make clear that its view expressed in this Decision applies generally to plea discussions.
27 - See, Response, para. 14. See also, Motion, Attachment 1, Letter from Peter McCloskey (Senior Trial Attorney, Prosecution) to Michael Karnavas, 8 May 2003.