Decision on Prosecution Application for Oral Hearing of Rule 66 (C) Motion

IN TRIAL CHAMBER II

Before:
Judge David Hunt, Pre-Trial Judge

Registrar:
Mr Hans Holthuis

Decision of:
1 June 2001

PROSECUTOR

RADOSLAV BRDANIN & MOMIR TALIC

__________________________________________________________________

DECISION ON PROSECUTION APPLICATION FOR ORAL HEARING
OF RULE 66(C) MOTION
__________________________________________________________________

The Office of the Prosecutor:

Ms Joanna Korner
Mr Nicolas Koumjian
Mr Andrew Cayley
Ms Anna Richterova
Ms Ann Sutherland

Counsel for Accused:

Mr John Ackerman for Radoslav Brđanin
Maître Xavier de Roux and Maître Michel Pitron for Momir Talic

1. The prosecution has filed a motion pursuant to Rule 66(C) of the Tribunal’s Rules of Practice and Procedure ("Rules"), seeking an order that it be relieved of its obligation to disclose certain information in its possession which it would otherwise be obliged to disclose to the defence.¹ The Motion is described as having been filed "Ex Parte – Under Seal" and on a "Confidential" basis.

2. Rule 66(C) refers to such an application being made to "the Trial Chamber sitting in camera", and it requires the prosecution to provide the information which is sought to be kept confidential "only to the Trial Chamber". A hearing "in camera" was originally one conducted in the judge’s private room, which is often called the judge’s Chambers (latin, camera), rather than in a courtroom. It now means no more than a hearing in the absence of the public, as provided in Rule 79 ("Closed Sessions"). It does not mean an ex parte hearing. The distinction drawn in Rule 66(C) between the application (which would normally have to be made on notice to the defence) and the material in question (which must be provided only to the Trial Chamber, and not to the defence) contemplates that such an application need not necessarily be an ex parte one.

3. The Trial Chamber has already discussed, in the present case, the circumstances in which it is appropriate for proceedings to be heard on an ex parte basis.² It was held that ex parte proceedings should be entertained only where the disclosure to the other party or parties in the proceedings of the information conveyed by the application, or of the fact of the application itself, would be likely to prejudice unfairly either the party making the application or some person or persons involved in or related to that application.³ The party seeking relief on an ex parte basis must identify with some care why the disclosure of the detail of the application to the other party to the proceedings would cause such unfair prejudice.⁴

4. Nothing has been demonstrated to suggest that the disclosure of the fact that this application has been made would prejudice anyone related to this case, and the prosecution has indeed very properly given written notice to each of the accused of its intention to make this application. Brief reference was also made to the existence of the application, and to some aspects of it, during the recent Status Conference.⁵ But it is clear from the material in question that, from a practical point of view, any submissions made in relation to the contents of the documents which are the subject of this application would be impossible without disclosing the very information which the prosecution seeks not to disclose. In those circumstances, it is appropriate that the present Rule 66(C) application should proceed upon an ex parte basis.⁶

5. In its Motion, the prosecution says that the application is for a "hearing" before the Trial Chamber.⁷ The Trial Chamber was informed that the hearing sought is an oral one.⁸ However, the general practice of the Tribunal is not to hear oral argument on motions prior to the trial unless good reason is shown for its need in the particular case.⁹ In its Order for Filing of Motions in the present case,¹⁰ the Trial Chamber ordered that there will be no oral argument in any motion unless approved by the Trial Chamber, taking into account the need to ensure a fair and expeditious trial. In accordance with this practice of the Tribunal, it is necessary for the party seeking an oral hearing to demonstrate good cause why the general practice in relation to the disposal of pre-trial motions should not be followed.

6. It has not been demonstrated in the present case that the prosecution cannot adequately put its arguments in support of its Motion in writing. The issue to be decided does not, on its face, suggest that oral argument will be of greater assistance to the Trial Chamber than written argument. Such is the quantity of the material to be considered, it would be infinitely more convenient for the Trial Chamber to have the arguments in writing when it considers that material. A transcript of oral argument rarely has the precision of written argument. If written arguments are provided, a consideration of the material in question would also be possible without interrupting the trial which the Trial Chamber is currently hearing. The application for an oral hearing will therefore be refused.

7. If the prosecution believes that its present Motion does not adequately express its arguments, it is granted leave to file a supplementary Motion within fourteen days from the date of this decision, on an ex parte basis. The material in the Motion presently filed may be excluded for the purposes of the limitation on the length of motions imposed by par 5 of the Practice Direction on the Length of Briefs and Motions.11

8. There is nothing said in this decision which would make it appropriate for it to be given on an ex parte basis. As it does discuss an issue of general relevance, the procedure contemplated by Rule 66(C), and as it does not reveal anything which needs to be kept confidential to the parties, there is no need for the decision to be filed on a confidential basis.

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

Dated this 1^st day of June 2001,
At The Hague,
The Netherlands.

________________________
Judge David Hunt
Pre-Trial Judge

[Seal of the Tribunal]

1. Prosecution’s Motion Pursuant to Rule 66(C), 8 May 2001 ("Motion").
2. Decision on Second Motion by Prosecution for Protective Measures, 27 Oct 2000 ("Second Protective Measures Decision").
3. Ibid, par 11, following the statement of general principle in Prosecutor v Simic, Case IT-95-9-PT, Decision on (1) Application by Stevan Todorovic to Re-Open the Decision of 27 July 1999, (2) Motion by ICRC to Re-Open Scheduling Order of 18 November 1999, and (3) Conditions for Access to Material, 28 Feb 2000 ("Simic Decision"), par 41.
4.Simic Decision, pars 42-43; Second Protective Measures Decision, par 11.
5. Status Conference, 18 May 2001, Transcript pp 312-313, 326-327.
6. cf Simic Decision, par 40.
7. Motion, par 10.
8. Status Conference, 18 May 2001, Transcript pp 313, 328.
9. Prosecutor v Krnojelac, Case IT-97-25-PT, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 Feb 1999. See also the practice in relation to interlocutory motions adopted by the Appeals Chamber: Prosecutor v Delalic, Case it-96-21-A, Order Regarding Esad Landžo’s Request for Oral Argument, 26 Mar 1999, p 2.
10. Order for Filing of Motions, 31 Aug 1999, Order (4).
11. IT/84, 19 Jan 2001.