Case No. IT-01-47-T

IN TRIAL CHAMBER II

Before:
Judge Jean-Claude Antonetti
Judge Vonimbolana Rasoazanany
Judge Albertus Swart

Registrar:
Mr. Hans Holthuis

Decision:
15 December 2003

PROSECUTOR

v.

ENVER HADZIHASANOVIC
AMIR KUBURA

___________________________________

DECISION ON DEFENCE MOTION FOR ACCESS TO EUMM ARCHIVES

___________________________________

The Office of the Prosecutor:

Mr. Ekkehard Withopf
Mr. David Re
Mr. Daryl Mundis

Counsel for the Accused:

Ms. Edina Residovic and Mr. Stéphane Bourgon for Enver Hadzihasanovic
Mr. Fahrudin Ibrisimovic and Mr. Rodney Dixon for Amir Kubura

 

TRIAL CHAMBER II ("Trial 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 ("Tribunal"),

BEING SEISED of a "Joint Motion Seeking an Order for Access to EUMM Archives", and Annexes A-E attached to it, filed jointly by the Defence for both accused ("Defence") on 9 December 2003, in which the Defence requests the Trial Chamber to order "the EUMM, the members States of the European Community at the time of establishment of ECMM, the Presidency of the European Council and the Commission of the European Community/European Union to provide the Defence access to its archives" as detailed in Annex B ("Motion"),

NOTING the response to the Motion filed by the Office of the Prosecutor ("Prosecution") on 12 December 2003 ("Response"), as ordered orally by the Trial Chamber on 10 December 2003, which does not take a position on the Defence Motion,

NOTING that the Defence Motion is based on Articles 21 and 29 of the Statute of the Tribunal, and on Rules 54bis and 73 of the Rules,

NOTING the arguments set out in the Motion, among others, that the Trial Chamber is competent to issue an order for the production of documents, pursuant to Article 29 of the Statute and Rule 54bis of the Rules, to the EUMM, "a mission jointly established by the member States of the European Union",1

NOTING the Defenceís submissions that its Motion meets the requirements set out in Rule 54bis of the Rules, in particular that (1) the Defence has more than adequately described the identity of the EUMM material to which access is sought, that (2) it has indicated how the EUMM documents requested are both relevant to the charges against the accused in the Amended Indictment, as ECMM monitors were present throughout Bosnia during the period relevant to the indictment, i.e. January to December 2003, and necessary for the preparation of the Defence case and a fair assessment of the responsibility of the accused, and (3) that the Defence has acted with due diligence and has taken all possible steps to secure the assistance of the EUMM,

NOTING the Defenceís submission that it has been granted access by the United Nations to similar UNPROFOR material, and by the United Kingdom to Britbat material,

NOTING the EUMMís position as expressed in the latest letter sent by Mr. Javier Solana, Secretary General of the Council of the European Union and High Representative for the Common Foreign and Security Policy, to the Defence on 3 December 2003, attached as Annex A to the Motion, in which it is submitted that Rule 54bis of the Rules is not applicable to the EUMM, the request of the Defence is "still generic" and it is for the Defence to give further precision on the documents to which access is sought, and stating that the EUMM may wish to make use of the procedure set out in Rule 70 of the Rules,

NOTING the Trial Chamberís confidential "Request for Access to EUMM Archives" of 28 March 2003 ("Trial Chamberís Request"), and the "Decision on Defence Access to EUMM Archives" issued on 12 September 2003, in which the Trial Chamber rejected a Defence request to implement the Trial Chamberís Request,

NOTING Rule 54 of the Rules of Procedure and Evidence of the Tribunal ("Rules") which provides that "[a] t the request of either party or proprio motu, a Judge or Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the [Ö] conduct of the trial",

NOTING Rule 54bis of the Rules, entitled "Orders Directed to States for the Production of Documents",

CONSIDERING that the member States of the EUMM are under an obligation to cooperate with the Tribunal pursuant to Article 29 of the Statute,

CONSIDERING that Mr Javier Solana, in his capacity as Secretary General of the Council of the European Union and High Representative for the Common Foreign and Security Policy, is competent to decide on whether access should be granted to the EUMM archives,

CONSIDERING that Rule 54 is sufficient for the purposes of the present decision and that there is no need to have recourse to Rule 54bis at this stage,

CONSIDERING that Rule 98 of the Rules empowers the Trial Chamber to "proprio motu summon witnesses and order their attendance",

CONSIDERING that the Trial Chamber finds that the documents to which access is required are sufficiently identified by the Defence in Annex B to the Motion (in paragraphs 6, 8, 10, 12, 14 and 16), as they are described by general category, date, location, source, and that short of having seen the documents it does not appear reasonable to require more details,

CONSIDERING that the time-period of January to December 1993 does not appear to be overly broad or imprecise when considering that the geographical area, central Bosnia, and the sources of the documents, various ECMM units, are identified,

CONSIDERING that the material described in Annex B appears to be highly relevant to the charges against the accused, as ECMM monitors were present in central Bosnia throughout the period covered in the Amended Indictment, had access to all actors involved in the events, and produced a number of reports,

CONSIDERING the numerous steps taken by the Defence as described in Annex E of their Motion, and that two decisions on this matter have already been issued by the Trial Chamber, as well as the assistance provided by the Prosecution, and the position of the EUMM as expressed in its correspondence with the Defence,

CONSIDERING that a number of witnesses listed by the Prosecution in its list of witnesses who will be called at trial are former ECMM monitors or heads,

CONSIDERING that the trial and the presentation of the Prosecution case commenced on 2 December 2003,

CONSIDERING therefore that Defence access to selected portions of the EUMM archives, as described in Annex B, is necessary to guarantee a fair trial to the accused,

CONSIDERING that the procedure agreed upon in relation to the Defence access to UNPROFOR material,2 namely that the Defence was granted access to the relevant archives, and "selected relevant documents from the archives which were then vetted by the United Nations, and where necessary, redacted to ensure that the interests of the Organisation and its member States would not be compromised", appears to be both reasonable and capable of meeting the interests of the Defence and of the entity providing access to its archive, in particular in addressing potential confidentiality concerns of the entity providing access,

CONSIDERING therefore that it would be appropriate to follow a similar procedure to allow the Defence access to parts of the EUMM archives,

CONSIDERING that Rule 70 of the Rules provides for the confidentiality of specific material in the possession of the accused or defence counsel,

PURSUANT TO Rules 54 of the Rules,

HEREBY DENIES the Motion; HOWEVER,

INVITES Mr. Javier Solana, Secretary General of the Council of the European Union and High Representative for the Common Foreign and Security Policy, to grant access to the Defence to selected portions of the EUMM archives in Zagreb to the Defence and authorise the Defence to review the material identified in Annex B to the Motion (in paragraphs 6, 8, 10, 12, 14 and 16), and select the documents that it wished to be provided with;

REQUESTS Mr. Javier Solana, at this stage, in consultation with the founding member States of the ECMM as the case may be, to review the documents selected by the Defence, and redact them before providing them to the Defence to protect any confidentiality concern EUMM may have, and requests Mr. Javier Solana to report to the Trial Chamber before 30 January 2004; AND

REQUESTS the Registrar to attach the Defence Motion and Annexes when serving this Decision on Mr. Javier Solana.

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

Dated this fifteenth day of December 2003,
At The Hague
The Netherlands

____________
Judge Jean-Claude Antonetti
Presiding

[Seal of the Tribunal]


1. The Trial Chamber has noted the Motionís references to the "Decision on Motion for Judicial Assistance to be provided by SFOR and Others" delivered in Prosecutor v. Blagoje Simic et al., case no. IT-95-9-, on 18 October 2000, and the ex parte partly confidential "Order for the production of documents by the European Community Monitoring Mission and its Member States" issued in Prosecutor v. Dario Kordic and Mario Cerkez, case no. IT- 95-14/2, on 4 August 2000.
2. The Defence states in its Motion that a similar procedure will be followed on 12 December 2003 in relation to Britbat archives.