Case No: IT-01-47-PT
IN TRIAL CHAMBER II
Judge David Hunt, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Patricia Wald
Mr Hans Holthuis
7 November 2001
ORDER ON PROTECTIVE MEASURES TO BE OBSERVED BY MARIO CERKEZ
The Office of the Prosecutor:
Mr Ekkehard Withopf
Ms Cynthia Fairweather
Counsel for the Applicant:
Mr Bozidar Kovacic and Mr Goran Mikulicic for Mario Cerkez
Counsel for the Accused:
Ms Edina Residovic for Enver Hadzihasanovic
Mr Vasvija Vidovic for Mehmed Alagic
Mr Fahrudin Ibrisimovic for Amir Kubura
- The Trial Chamber issued a decision on 10 October 2001 granting the
motion by Mario Cerkez ("Applicant") for access to confidential supporting
material filed with the indictment in the present case1.
The Prosecution was to file a submission identifying the confidentiality measures
that it seeks to have imposed on the Applicant2. The Chamber
is now seised of those submissions3 and the Applicant’s response
- The Applicant objects to only one of the confidentiality measures identified
by the Prosecution5, namely, the return to the Registry of
all materials not included in any public record upon conclusion of his appeal6.
The Applicant asserts that this measure appears to be unnecessary and impractical,
for various reasons7. The Chamber expresses no view on the
submission by the Applicant, which is not set sufficiently argued or backed
up by any authority, that complying with such an order may be in breach of
Croation bar regulations and law8. Generally, such a measure
is fraught with practical and potentially serious legal problems; it should
be granted only if the Prosecution demonstrates a justification for it and
in exceptional circumstances9. The Prosecution made no submission
on why this particular measure is required in the instant case. The Chamber
will therefore not order the return of the said materials upon conclusion
of the appeal.
- For the reasons set out above, pursuant to Rules 54 and 75 and
the Decision, the Trial Chamber hereby orders that the access granted to the
Applicant to confidential supporting material in the present case which has
not already been disclosed to him, is subject to the following protective
The Applicant, his counsel and his representatives who are acting pursuant to his instructions shall:
- Not disclose to the public, to the media or to family members and associates of the Applicant the names of witnesses, their whereabouts, copies of witness statements, the contents of their witness statements or any information which would permit or enable them to be identified and would breach the confidentiality of the court proceedings unless absolutely necessary for the preparation of his appeal, and always with leave of the Trial Chamber.
- Not disclose to the public, to the media or to family members and associates any documentary or other evidence, or any written statement of a witness or the contents, in whole or in part, of any non-public evidence, statement or prior testimony.
- Not contact any witness without first demonstrating to this Trial Chamber the justification for contacting the witness, that the witness may materially assist him in some identified way and that such assistance is not otherwise reasonably available to him, and further, that if such contact is granted by this Trial Chamber, that the Prosecution be given a right to be present at any contact or interview, if the witness requests such presence.
- Inform any person to whom disclosure of the confidential supporting material in this case is made for the purposes of preparing the appeal that he or she is forbidden to copy, reproduce or publicise, in whole or in part, any non-public information or to disclose them to any other person, and further that, if any such person has been provided with such information, he or she must return to the Applicant and his counsel as soon as it is no longer needed for preparing and presenting his appeal.
Done in both English and French, the English version being authoritative.
Done this the seventh day of November 2001
At The Hague
[Seal of the Tribunal]
1 - Decision on Motion by Mario Cerkez for Access
to Confidential Supporting Material, 10 Oct 2001 ("Decision"), par 16(a).
The background to that motion and the reasons for having granted it are set out
in the Decision and requires no repetition (Decision, pars 1-15).
2 - Decision, par 16.
3 - Prosecution's Submission in Respect of Confidentiality Measures
Pursuant to the Decision on Motion by Mario Cerkez for Access to Confidential
Supporting Material, 25 Oct 2001 ("Motion").
4 - Defendant Mario Cerkez's Response to Prosecution's Submission
in Respect of Confidentiality Measures Pursuant to the Decision on Motion by Mario
Cerkez for Access to Confidential Supporting Material, 29 Oct 2001 ("Response").
5 - The confidentiality measures identified by the Prosecution
are set out in the Motion, par 14.
6 - Response, pars 3-10.
7 - Response, pars 4-10.
8 - Response, par 7.
9 - See also Prosecutor v Brdjanin and Talic, Case IT-99-36-PT,
Decision on Motion by Prosecution for Protective Measures, 3 July 2000, pars 39-44.
10 - The measures ordered are those submitted by the Prosecution,
with some variation.