Case: IT-95-17-PT

BEFORE TRIAL CHAMBER I

Before:
Judge Liu Daqun, Presiding
Judge Amin El Mahdi
Judge Alphons Orie

Registrar:
Mr. Hans Holthuis

Decision of:
7 March 2005

PROSECUTOR

v.

Miroslav BRALO

___________________________________________

DECISION ON ACCESS TO CONFIDENTIAL TESTIMONY AND DOCUMENTS

___________________________________________

The Office of the Prosecutor:

Mr. Mark Harmon

Counsel for the Defence:

Ms. Virginia Lindsay

 

TRIAL CHAMBER I (the "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 (the "Tribunal");

BEING SEISED of the "Defence Motion for Access to Confidential Testimony and Documents", filed on 18 January 2005 ("First Motion"), of the "Amended (Reduced) Motion for Access to Confidential Testimony and Documents" filed on 20 January 2005 ("Second Motion"), and of the "Defence Motion for Access to Excerpts of Confidential Testimony" filed on 1 February 2005 ("Third Motion");

NOTING that, by the First Motion and Second Motion, the Defence seeks access to closed session testimonies and related exhibits referring to the accused Miroslav Bralo ("Accused") Prosecutor v. Tihomir Blaskic (IT-95-14), Prosecutor v. Zlatko Aleksovski (IT-95-14/1), Prosecutor Dario Kordic and Mario Cerkez (IT-95-14/2), Prosecutor v. Anto Furundzija (IT-95-17/1), Prosecutor v. Zoran Kupreskic et al. (IT-95-16);

NOTING that by its Third Motion the Defence limits the scopes of material sought by identifying the exact transcript pages it seeks access to;

NOTING that the excerpts identified by the Defence in the case Prosecutor v. Dario Kordic and Mario Cerkez (T. 23784 and 24233-4) are not confidential;

NOTING the "Prosecution’s Response to Defence Motion for Access to Excerpts of Confidential Testimony" filed on 4 February 2005, whereby the Prosecution does not oppose the Motions, provided that measures for non-disclosure are imposed on the Defence;

CONSIDERING that a party is entitled to seek material from any source to assist in the preparation of its case if the material sought has been sufficiently identified or described by its general nature and if a legitimate forensic purpose for such access has been shown;

CONSIDERING that the Defence has sufficiently identified the material it seeks access to and limited its request to material related to the Accused;

PURSUANT TO Rules 54 and 75 of the Rules of Procedure and Evidence,

HEREBY GRANTS the Defence’s motions for access to confidential material and ORDERS:

  1. the Prosecution to provide access to the Defence to the confidential material identified in the Third Motion;

  2. the Prosecution to provide the Defence access to the exhibits discussed in the material, should the Defence indicate so;

  3. the Defence to:

    1. not disclose to any third party, the transcripts, names of protected witnesses, the contents of their testimony, or any information which would enable them to be identified and would breach the confidentiality of the protective measures already in place unless absolutely necessary for the preparation of Defence case, and always with leave of the Chamber;

    2. not contact any of the witnesses to which the transcripts relate from without first demonstrating to the Chamber that the witness may materially assist the Defence case in some identified way and that such assistance is not otherwise reasonably available to them. Should the Defence make such application and the Chamber authorize such contact, the Chamber allows the Prosecution – upon request by the witness – to be present during any contact or interview;

    3. if, for the purposes of preparing the Defence case, confidential material is disclosed to third parties - provided that the conditions set out in paragraph (i) above are met - any person to whom disclosure of the confidential material in this case is made shall be informed that he or she is forbidden to copy, reproduce or publicise, in whole or in part, any non-public information or to disclose it to any other person, and further that, if any such person has been provided with such information, he or she must return it to the Bralo Defence as soon as it is no longer needed for the preparation of the case.

    For the purposes of the above paragraphs, third parties exclude: (i) the applicant, (ii) persons authorised by the Registrar to assist Counsel for the applicant, (iii) personnel from the Tribunal, including members of the Office of the Prosecutor.

 

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

Dated this 7th day of March 2005,
At The Hague,
The Netherlands.

____________________
Judge Liu Daqun
Presiding

[Seal of the Tribunal]