Case No.: IT-95-17-A

IN THE APPEALS CHAMBER

 

Before:
Judge Andrésia Vaz, Presiding
Judge Mohamed Shahabuddeen
Judge Mehmet Güney
Judge Theodor Meron
Judge Wolfgang Schomburg

 

Registrar:
Mr. Hans Holthuis

Decision of:
2 May 2006

MIROSLAV BRALO

v.

THE PROSECUTOR

_____________________________________________________________

DECISION ON MOTION OF MIROSLAV BRALO FOR ACCESS TO CERTIFIED TRIAL RECORD

_____________________________________________________________

The Office of the Prosecutor:

Mr. Peter Kremer Q.C.
Mr. Xavier Tracol

Counsel for Appellant:

Mr. Jonathan Cooper
Ms. V. C. Lindsay

The Appeals 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 ("Appeals Chamber" and "International Tribunal", respectively),

NOTING the Sentencing Judgement rendered in this case by Trial Chamber III on 7 December 2005;

NOTING the "Notice of Appeal against Sentence on Behalf of Miroslav Bralo", filed by Miroslav Bralo ("Appellant") on 5 January 2006;

BEING SEIZED OF the "Motion of Miroslav Bralo for Access to Certified Trial Record" filed by the Appellant on 20 March 2006 ("Motion"), in which he requests the Appeals Chamber to grant him "access to documents D1 to D182 of the certified trial record that forms the basis of the appeal";1

NOTING that the Appellant justifies his request on the ground that these documents were before the Trial Chamber at the time of sentencing and "therefore should be reviewed by appellate counsel as part of the appeal proceedings, both in fairness and in order to provide for equality of arms";2

FURTHER NOTING that the Appellant submits that his written request to the Registry of 13 February 2006 for copies of documents D1 to D182 was denied on the grounds that these documents were under seal and could not be communicated to the Appellant without leave of a Chamber;3

NOTING the "Prosecution’s Response to Motion of Miroslav Bralo for Access to Certified Trial Record" filed by the Prosecution on 28 March 2006 together with the confidential and ex parte Annex A ("Response" and "Annex A", respectively), in which the Prosecution requests the Appeals Chamber to reject the Motion;4

NOTING that the Prosecution believes the requested disclosure to be unnecessary at this time and submits that none of the documents in question is relevant to the present appeal of sentence following a guilty plea, since these materials "relate to the earliest phase of this case";5

NOTING that the Prosecution divides the documents at stake into three general categories: "(1) documents where no privacy concerns remain; (2) documents concerning the relations between the Tribunal and States; (3) documents where privacy concerns remain"6 and attaches a list of the documents grouped by category;7

NOTING that the Prosecution does not object to the disclosure of documents placed in the first category,8 but does object to disclosing the documents pertaining to the second and third categories9 and requests the Appeals Chamber to order for appropriate redactions to be made by the Registry should the Appellant’s request be granted in respect of the documents of the latter categories;10

NOTING "Miroslav Bralo’s Reply to the Prosecution’s Response to his Motion for Access to Certified Trial Record" filed by the Appellant on 31 March 2006 ("Reply"), in which he submits that "it is for Defence Counsel to determine whether the record on appeal is relevant to grounds being raised on appeal";11

NOTING that, with respect to the three categories identified by the Prosecution, the Appellant requests the Appeals Chamber to "facilitate" the disclosure of documents relating to categories (1) and (2) and specifies that the Defence "does not press for disclosure of category 3) materials at this time";12

CONSIDERING that it falls within the Appeals Chamber’s discretion to strike a balance between the right of a party to have access to confidential material to prepare its case and its obligation to guarantee the protection and the integrity of confidential information;13

NOTING that the Appellant applies for access to documents that include inter partes confidential material (documents D114 to D168) in his own case;14

CONSIDERING that these documents were not communicated to the Appellant at the time of their issuance only because he was not in the custody of the Tribunal and no Defence team had been formed to represent him;

NOTING that the Prosecution does not object to the disclosure of documents D134ter-D133; recommends the redacted disclosure of documents D115-D112, D119-D117, D123-D121, D128-D125 for reasons of other indictees’ privacy; and objects to the disclosure of documents D164-D135 and D167-D166 on the grounds that they pertain to confidential relations between the Tribunal and the States, and of document D131-D130 for reasons of other indictees’ privacy;15

CONSIDERING, however, that the Appellant has a right to access all inter partes confidential documents in his own case;

FINDING that access to the inter partes confidential documents D114 to D168 should be granted to the Appellant with immediate effect;

CONSIDERING that, with respect to the other documents to which access is sought, the Appellant effectively seeks a variation of the protective measures granted at trial;

CONSIDERING that, in general, ex parte material, being of a higher degree of confidentiality, by nature contains information which has not been disclosed inter partes because of security interests of a State, other public interests, or privacy interests of a person or institution;16

FURTHER CONSIDERING that the party on whose behalf ex parte status has been granted enjoys a protected degree of trust that the ex parte material will not be disclosed;17

NOTING, however, that the Prosecution does not object to unredacted disclosure of ex parte confidential documents D77ter-D74 and D134ter-D133, as they pertain only to the Appellant, and recommends redacted disclosure (for the reasons of privacy of other indictees) of ex parte confidential documents D110-D94A/B, D1-D50ter, D54-D51, D57ter-D55, D61bis-D58, D66ter-D62, D71-D70, and D73bis-D72;18

FINDING consequently that, in light of the above-mentioned Prosecution submissions, ex parte status is no longer merited for documents D77ter-D74 and D134ter-D133; and that ex parte status is not merited for the redacted versions of D1-D50ter, D54-D51, D57ter-D55, D61bis-D58, D66ter-D62, D71-D70, D73bis-D72, and D110-D94A/B;

FINDING accordingly that the ex parte status of these documents should be lifted;

NOTING the Prosecution submission that redactions of these documents should be carried out by the Registry;

FINDING however that the Prosecution is best placed to identify and carry out the necessary redactions;

FOR THE FOREGOING REASONS,

GRANTS the Motion in part;

ORDERS the Prosecution to provide the Registry with redacted copies of ex parte confidential documents D1-D50ter, D54-D51, D57ter-D55, D61bis-D58, D66ter-D62, D71-D70, D73bis-D72, and D110-D94A/B;

LIFTS the ex parte status of confidential documents D77ter-D74 and D134ter-D133, as well as of redacted copies of ex parte confidential documents D1-D50ter, D54-D51, D57ter-D55, D61bis-D58, D66ter-D62, D71-D70, D73bis-D72, and D110-D94A/B;

DIRECTS the Registry to provide access to all inter partes confidential documents requested by the Appellant (documents D114 to D168) as well as to confidential documents D77ter-D74 and D134ter-D133, and to confidential redacted documents D110-D94A/B, D1-D50ter, D54-D51, D57ter-D55, D61bis-D58, D66ter-D62, D71 – D70 and D73bis-D72;

ORDERS that, save as otherwise required by this decision, the material to which access is granted shall remain subject to the protective measures imposed by the Trial Chamber.

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

Dated this 2nd day of May 2006,
At The Hague,
The Netherlands.

__________________________
Judge Andrésia Vaz,
Presiding

[Seal of the Tribunal]


1. Motion, para. 1.
2.Ibid., para. 6.
3. Ibid., para. 5.
4. Response, para. 8.
5. Ibid., paras 2, 4.
6. Ibid., para. 4.
7. Annex A.
8. Response, para. 5.
9. Ibid., paras 6-7.
10. Ibid., paras 6, 8.
11. Reply, para. 3.
12. Ibid., para. 3.
13. Prosecutor v. Vidoje Blagojevic and Dragan Jokic, Case No. IT-02-60-A, confidential Decision on Prosecution Request for Redactions of Confidential Filings Disclosed to Momcilo Perisic, 9 March 2006, p. 1; Prosecutor v. Stanislav Galic, Case No. IT-98-29-A, Decision on Momcilo Perisic’s Motion Seeking Access to Confidential Material in the Galic Case, 16 February 2006, para. 10; Prosecutor v. Vidoje Blagojevic and Dragan Jokic, Case No. IT-02-60-A, confidential Decision on Prosecution request for Redactions, 17 January 2006, p. 6; Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-A, Decision on Appellants Dario Kordic and MarioCerkez’s Request for Assistance of the Appeals Chamber in Gaining Access to Appellate Briefs and Non-Public Post Appeal Pleadings and Hearing Transcripts Filed in the Prosecutor v. Blaskic Case, 16 May 2002, para. 29.
14. The Appeals Chamber notes that in the Annex A, the Prosecution mistakenly identifies some of these documents as being ex parte.
15. Annex A.
16. Prosecutor v. Mladen Naletilic, aka “Tuta” and Vinko Martinovic, aka “Stela”, Case No. IT-98-34-A, Decision on "Slobodan Praljak’s Motion for Access to Confidential Testimony and Documents in Prosecutor v. Naletilic and Martinovic” and “Jadranko Prlic’s Notice of Joinder to Slobodan Praljak’s Motion for Access", 13 June 2005 ("Naletilic Decision of 13 June 2005"), p. 6; Prosecutor v. Blagoje Simic, Case No. IT-95-9-A, Decision on defence Motion by Franko Simatovic for Access to Transcripts, Exhibits, Documentary Evidence and Motions Filed by the Parties in the Simic et al., Case, 12 April 2005 ("Simic Decision of 12 April 2005"), p. 4.
17. Naletilic Decision of 13 June 2005, p. 7; Simic Decision of 12 April 2005, p. 4.
18. Annex A.