IN TRIAL CHAMBER II
Judge David Hunt, Pre-Trial Judge
Mr Hans Holthuis
20 June 2001
RADOSLAV BRDANIN & MOMIR TALIC
DECISION ON SECOND MOTION BY RADOSLAV BRDANIN
FOR ACCESS TO CONFIDENTIAL DOCUMENTS
The Office of the Prosecutor:
Ms Joanna Korner
Mr Andrew Cayley
Mr Nicolas Koumjian
Ms Anna Richterova
Ms Ann Sutherland
Counsel for Accused:
Mr John Ackerman for Radoslav Brdanin
Maître Xavier de Roux and Maître Michel Pitron for Momir Talic
1. The accused Radoslav Brdanin ("Brdanin") has applied to this Trial Chamber for an order that all confidential material to date in the trial of Prosecutor v Sikirica (Case IT-95-8), presently being heard by Trial Chamber III, be disclosed to him. He has also sought an order that "there be a continuing duty upon the Registrar to supply to Shimc all public and confidential transcripts and exhibits in the Sikirica case until its conclusion". 1
2. Such applications relating to confidential material are governed by Rule 75(D), which provides that jurisdiction to alter protective measures ordered by a Trial Chamber is given only to that Trial Chamber or, where that Trial Chamber can no longer be reconstituted, to the President. This was made clear to Brdanin when he made his previous application for such disclosure, at a time when Prosecutor v Sikirica was in its pre-trial stage.2 Rule75(D) has not since been amended. This Trial Chamber still has no jurisdiction to make any order in relation to any confidential material which may have been tendered in Prosecutor v Sikirica. The application must be made to Trial Chamber III in accordance with that Rule. 3
3. The prosecution has responded to the Motion, objecting to the jurisdiction of this Trial Chamber to hear it.4 This objection must necessarily be upheld. The question then arises as to the course to be followed.
4. When both Brdanin and his co-accused Momir Talic ("Talic") previously made these applications in relation to Prosecutor v Sikirica and other cases, the Trial Chamber - in order to save time and trouble - invited the Registrar to transfer the application relating to Prosecutor v Sikirica to Trial Chamber III, and the applications relating to the other cases to the President because the Trial Chambers which had granted the protective measures in those cases could no longer be reconstituted.5 Trial Chamber III refused the application upon the basis that the only confidential documents at that stage were personal to the accused such as the conditions of detention, which it considered would not be "of significant value" to the parties in the present case.6 The President subsequently granted the applications in the other cases.7 The prosecution, which had made no submissions before this Trial Chamber based upon the merits concerning the documents sought in those cases, unsuccessfully filed an application to the President to reconsider any decision on the ground, inter alia, that it had not been given the opportunity to be heard.8
5. The prosecution has again made no submissions before this Trial Chamber relating to the merits of Brdanin's Motion, and the absence of such submissions may lead to the same unfortunate result as before if this Trial Chamber merely invited the Registrar to transfer this Motion to Trial Chamber III. The Trial Chamber believes that the prosecution should have the opportunity to be heard on the merits concerning the documents sought in the particular case. The only course, therefore, is to reject the Motion so far as it relates to the confidential material to which access is sought. Brdanin can then follow the correct procedure by making his application to Trial Chamber III, thus permitting the prosecution to make its submissions to that Trial Chamber in the ordinary way.
6. Insofar as the Motion seeks an order placing a continuing duty upon the Registrar to supply Brdanin with all public transcripts and exhibits in Prosecutor Sikirica, this too can be dealt with by Trial Chamber III, although it will no doubt merely refer Brdanin to the relevant provisions of the Directive for the Registry-Judicial Department-Court Management and Support Services (IT/121), set out in the annex hereto, which provide for public access to such materials. The public transcripts of all proceedings before the Tribunal are in any event available on the Internet.
7. The Motion is rejected.
Done in English and French, the English text being authoritative.
Dated this 20th day of June 2001,
At The Hague,
Judge David Hunt
[Seal of the Tribunal]
DIRECTIVE FOR THE REGISTRY
COURT MANAGEMENT AND SUPPORT SERVICES
PART IX : REGISTRY CHARGES
1. Fees may be imposed upon Registry acts or services which involve cost to the Registry; such as certifying copies of judgements, orders, minutes, transcripts, official documents, or extracts from the Record Book and making copies of non-confidential audio-visual materials.
2. The charges referred to in this Article shall be determined by decision of the Registrar.
3. Upon written request to the Registrar, all of the above-mentioned services may be provided after payment of Registry charges, and subject to technical feasibility.
PART XII : PUBLIC ACCESS TO JUDICIAL ARCHIVES OF THE TRIBUNAL
Principles of publicity
In conformity with the principle of public access to the work of the Tribunal, the Registrar shall provide public access to documents. This access shall be free and complete with two reservations: the provisions of Article 20 concerning Registry charges, and Article 30, of the present Directive, concerning public access to the judicial archives of the Tribunal.
Public access to the judicial archives
of the tribunal
1. Motion for Access to Confidential Information, 13 June 2001
("Motion"), pars 4-5.
2. Decision on Motion by Radoslav Brdanin for Access to Confidential Documents, 22 Aug 2000 ("Brdanin Decision"), par 2.
3. This Trial Chamber has made orders in relation to the disclosure of confidential material which has been the subject of protective measures ordered by other Trial Chambers only when that task had been specifically delegated to it by the Trial Chamber (or the President) upon whom jurisdiction was conferred by Rule 75(D): Second Decision on Motions by Radoslav Brdanin and Momir Talic for Access to Confidential Documents, 15 Nov 2000; Decision on Further Motion by Prosecution for Protective Measures, 2 May 2001; Second Decision on Further Motion by Prosecution for Protective Measures, 23 May 2001. No such delegation has been made in relation to Prosecutor v Sikirica, nor would it appear to be appropriate for such a delegation to be made when Trial Chamber III is in the course of hearing that case.
4. Prosecution Response to Motion for Access to Confidential Information Filed by the Accused Radoslav Brdanin, 20 June 2001.
5. Brdanin Decision, par 6; Decision on Motion by Momir Talic for Access to Confidential Documents, 31 July 2000, par 11.
6. Prosecutor v Sikirica, Order on Request for Release of Confidential Materials, 4 Aug 2000.
7. Order on the Motions of Momir Talic and Radoslav Brdanin for Access to Confidential Information in the Cases The Prosecutor v Tadic and The Prosecutor v Kovacevic, 11 Sept 2000, p 4.
8. Prosecution's Motion for Reconsideration of the Order Issued by the President dated 11 September 2000, 22 Sept 2000, par 11-14; Order on the Prosecution's Motion for Reconsideration of the Order Issued by the President dated 11 September 2000, 11 Jan 2001.