Case No.: IT-01-47-T

TRIAL CHAMBER II

Before:
Judge Jean-Claude Antonetti, Presiding

Judge Vonimbolana Rasoazanany
Judge Bert Swart

Registrar:
Mr Hans Holthuis

Decision of:
10 November 2005

THE PROSECUTOR

v.

ENVER HADZIHASANOVIC
AMIR KUBURA

________________________________________________________

DECISION ON DEFENCE MOTION ON BEHALF OF RASIM DELIC SEEKING ACCESS TO ALL CONFIDENTIAL MATERIAL

________________________________________________________

The Office of the Prosecutor:

Mr Daryl Mundis

Defence Counsel in Case No. IT-01-47-T :

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

Defence Counsel in Case No. IT-04-83-PT :

Ms Vasvija Vidovic

TRIAL CHAMBER II (“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”);

SEIZED of the Defence Motion on Behalf of Rasim Delic Seeking Access to All Confidential Material in the Hadzihasanovic and Kubura Case, filed by Counsel for Rasim Delic (“Defence for Mr Delic”) on 13 October 2005 (“Defence Motion”), including transcripts, exhibits and filings in The Prosecutor v. Hadzihasanovic and Kubura case1;

NOTING that in support of its motion, the Defence for Mr Delic argues that : i) according to the well-established jurisprudence of the Tribunal, a party is entitled to seek material from any source to assist in the preparation of its case if the material sought has been identified or described by its general nature and if a legitimate forensic purpose for such access has been shown2; ii) the material sought will significantly assist the Defence in the preparation of its case since there is a geographic and temporal overlap between the events in The Prosecutor v. Hadzihasanovic and Kubura case and The Prosecutor v. Delic case3, the accused Enver Hadzihasanovic and Amir Kubura are respectively prosecuted as member of the Supreme Command Staff of the Army of the Republic of Bosnia and Herzegovina (“ARBiH”), Commander of the 3rd Corps, and member of the 7th Muslim Mountain Brigade of the 3rd Corps on the basis of the command responsibility doctrine pursuant to Article 7(3) of the Statute of the Tribunal (“Statute”)4 and, finally, since the Indictments in both cases allege that certain Mujahedins, supposedly members of the 3rd Corps of ARBiH, were involved in the perpetration of the crimes alleged in both cases5; and iii) the Defence for Mr Delic undertakes to comply with any protective measures to be ordered with regard to the material the Defence seeks access to6;

NOTING the Response to the Request of Rasim Delic for Access to Confidential Material in the Hadzihasanovic and Kubura Case, filed by the Office of the Prosecutor (“Prosecution”) on 21 October 2005 (“Prosecution Response”), in which the Prosecution states that, in general terms, it does not object to the contents of the Defence Motion7;

NOTING, however, that the Prosecution makes certain reservations and requests that: i) the names and any information that would tend to identify the witnesses , as well as their current whereabouts, be redacted from all the non-public transcripts prior to their disclosure; ii) the disclosure of non-public transcripts and related exhibits be subject to the protective measures ordered in The Prosecutor v. Hadzihasanovic and Kubura case; iii) no testimony or exhibit obtained under Rule 70 of the Rules of Procedure and Evidence (“Rules”) be disclosed unless prior consent from the provider of the exhibit has been obtained; iv) although the Defence Motion makes no specific reference in this respect, that no confidential or ex parte material be disclosed to the Defence for Mr Delic8;

NOTING that in its Response to Motion on Behalf of Rasim Delic Seeking Access to All Confidential Material in the Hadzihasanovic and Kubura Case, filed by the Defence for Enver Hadzihasanovic (“Defence for Mr Hadzihasanovic”) on 7 November 2005 (“Hadzihasanovic Defence Response”), the Defence for Mr Hadzihasanovic requests the Chamber to grant it leave to file the Response pursuant to Rule 127(A)(ii) of the Rules;

NOTING that in the Applicant’s Motion Seeking Leave to Reply to the Prosecution Response to the Request of Rasim Delic for Access to All confidential Material in the Hadzihasanovic and Kubura Case, filed by the Defence for Mr Delic on 7 November 2005 (“Delic Defence Reply”), the Defence for Mr Delic requests the Chamber to grant it leave to reply to the Prosecution Response pursuant to Rule 127(A)(ii ) of the Rules;

CONSIDERING that the Defence for Amir Kubura (“Defence for Mr Kubura”) did not file any submission in connection with the Defence Motion;

CONSIDERING that the Hadzihasanovic Defence Response was filed 25 days after the filing of the Defence Motion, i.e. well beyond the 14-day time-limit prescribed by Rule 126 bis of the Rules;

CONSIDERING also that the Delic Defence Reply was filed 17 days after the filing of the Prosecution Response, i.e. well beyond the 7-day time-limit prescribed by Rule 126 bis of the Rules;

CONSIDERING that the reasons put forward by the Defence for Mr Hadzihasanovic and the Defence for Mr Delic to justify a variation of the time-limit have failed to satisfy the Chamber under Rule 127(A)(ii) of the Rules;

CONSIDERING that events linked to the simultaneous conduct of proceedings in two cases9 are foreseeable and cannot affect the diligence required in either case;

CONSIDERING also that the Chamber can place no reliance on a claim that counsel for an accused is unable to meet with his client unless minimum justification is given10;

CONSIDERING that a party is always entitled to seek material from any source to assist in the preparation of its case if the material sought has been identified or described by its general nature and if a legitimate forensic purpose for such access has been shown11;

CONSIDERING that “[t]he relevance of the material sought by a party may be determined by showing the existence of a nexus between the applicant’s case and the cases from which such material is sought, i.e. if the cases stem from events alleged to have occurred in the same geographic area and at the same time”12;

CONSIDERING, as stated by the Trial Chamber in a decision dated 27 April 2005, that there is substantial geographical and temporal overlap between The Prosecutor v. Hadzihasanovic and Kubura case and The Prosecutor v. Delic case as the charges brought against Rasim Delic, on the one hand, and Enver Hadzihasanovic and Amir Kubura, on the other hand, cover crimes that were allegedly committed in Maline (Bosnia and Herzegovina) in June 199313;

CONSIDERING that there is a material overlap between the two above-mentioned cases since the crimes committed in Maline in June 1993 were allegedly committed by subordinates of Enver Hadzihasanovic and Amir Kubura and would entail the responsibility of Rasim Delic as the superior of Enver Hadzihasanovic and Amir Kubura pursuant to Article 7(3) of the Statute;

CONSIDERING that it is in the interests of justice that the non-public documents and transcripts produced by the Prosecution in this case under Rule 70 of the Rules not be disclosed without the consent of the person or entity which provided them ;

CONSIDERING also that although the Defence Motion does not appear to seek access to ex parte material, it is recalled for the sake of clarity that, as ex parte material requires the highest degree of confidentiality, it should not be disclosed unless a legitimate forensic purpose is shown;

CONSIDERING that, in addition, to the above-mentioned protective measures, all protective measures covering the documents and witness statements in this case shall remain in force;

CONSIDERING that the Prosecution request for the protective measure of redacting the names and any information that would tend to identify the witnesses, as well as their current whereabouts, is not justified as the existing protective measures in this case are sufficient to guarantee the safety of all protected witnesses and safeguard the interests of all the parties to the proceedings14;

CONSIDERING that the Defence Motion describes the general nature of the requested non-public documents and transcripts as much as possible given the scarcity of information available to the Defence for Mr Delic on the subject;

CONSIDERING, in addition, that the Defence Motion has now stated a legitimate forensic purpose justifying access to the requested non-public exhibits, transcripts and material, excluding the information covered by Rule 70 of the Rules and ex parte material;

FOR THE FOREGOING REASONS,

PURSUANT TO Rules 54 and 75 of the Rules,

REJECTS the requests made in the Hadzihasanovic Defence Response and the Delic Defence Reply for leave to respond to the Defence Motion and reply to the Prosecution Response respectively;

GRANTS the Defence Motion in part and ORDERS that the non-public documents , transcripts and material in this case be disclosed to the Defence Counsel for Mr Delic, subject to the following provisions:

1. For the purposes of this disposition:

a. the “Prosecution” shall mean the Prosecutor of the Tribunal and all her staff ;

b. the “Defence” shall mean the accused Rasim Delic and his counsel and immediate legal assistants and staff, and others specifically assigned by the Tribunal to the defence of the Accused. The name of every member of the Defence shall appear on a list maintained by the lead counsel. This list shall be filed under seal and ex parte within ten days of the date of this decision. Any addition or deletion to this list in respect of any of the above persons duly authorised to work for the defence shall be notified to this Chamber in accordance with the above provisions ;

c. the “public” shall mean all persons, governments, organisations, entities, clients , associations and groups, other than the judges of the Tribunal and the staff of the Registry (whether assigned to a Chamber or to the Registry), the Prosecution and the Defence. The “public” shall include family, friends and associates of the Defence, the accused in other cases before the Tribunal and their respective counsel ;

d. the “media” shall mean all video, audio and print media personnel, including journalists, authors, television and radio personnel, their agents and representatives ;

2. The non-public documents and transcripts referred to under Rule 70 of the Rules shall not be disclosed to the Defence unless the Prosecution, the Defence for Mr Hadzihasanovic or the Defence for Mr Kubura obtain prior authorization to do so. Accordingly, the Prosecution, the Defence for Mr Hadzihasanovic or the Defence for Mr Kubura shall be responsible for identifying the non-public documents or transcripts referred to under Rule 70 of the Rules and shall inform the Registry that authorization has been granted;

3. Ex parte material shall be disclosed to the Defence only with the leave of this Chamber, upon the filing of a motion showing legitimate forensic purpose for such disclosure;

4. The Defence shall not disclose to the media any material disclosed to the Defence pursuant to this decision;

5. Save as directly and specifically necessary for the preparation and presentation of its case and subject to the prior consent of the Chamber, the Defence shall not disclose to the public or to the media the following information:

a. the names of the witnesses in this case who were granted protective measures, their whereabouts, the copies and contents of their statements, transcripts of their testimony and the contents thereof or any other information which would enable them to be identified and would breach the confidentiality of the existing protective measures, unless it is absolutely necessary for the preparation of the Defence case and with the leave of the Chamber; or

b. any evidence (including documentary, audio-visual, physical or other evidence ) or any written statement of a witness or a potential witness, or the contents, in whole or in part, of any evidence, statement or prior testimony disclosed to the Defence pursuant to this decision;

6. If the Defence deems it directly and specifically necessary for the preparation and presentation of its case to disclose to a member of the public the information or material the Defence obtained pursuant to this decision and if it obtained leave from the Chamber to do so, the Defence shall inform this member of the public that he may not copy, reproduce or publicise, such information or material either in full or in part, nor may he show it or disclose it to any other person. Any person who receives such an exhibit, be it an original or a duplicate, shall return it to the Defence when it is no longer necessary for the preparation and presentation of the Defence case;

7. If a member of the defence team withdraws from The Prosecutor v. Delic case, any material in his possession obtained pursuant to this decision shall be returned to the lead counsel for the relevant defence team;

8. The Defence shall have no contact with the witnesses referred to in the documents and witness statements disclosed pursuant to this decision, unless the Chamber rules otherwise;

9. In addition to the measures laid down in this disposition, all protective measures covering the existing documents and witness statements shall remain in force.

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

_______________
Jean-Claude Antonetti,
Presiding Judge

Done this tenth day of November 2005
At The Hague,
The Netherlands

[Seal of the Tribunal]


1 - Defence Motion, paras. 1 and 17.
2 - Defence Motion, para. 8.
3 - Defence Motion, paras. 11 and 12.
4 - Defence Motion, para. 13.
5 - Defence Motion, para. 14.
6 - Defence Motion , paras. 9-10.
7 - Prosecution Response, para. 3.
8 - Prosecution Response, paras. 3-6.
9 - Delic Defence Reply, paras. 9-12.
10 - Hadzihasanovic Defence Response, para. 9.
11 - The Prosecutor v. Enver Hadzihasanovic and Amir Kubura, Case No. IT-01-47-PT, Decision on Motion by Mario Cerkez for Access to Confidential Supporting Material, 10 October 2001, para. 10; The Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-A, Decision on Appelants Dario Kordic and Mario Cerkez’s Request for Assistance of the Appeals Chamber in Gaining Access to Appellate Briefs and Non-public Post-Appeal Pleadings and Hearing Transcripts Filed in The Prosecutor v. Blaskic, 16 May 2002, para. 14; The Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-A, Decision on Pasko Ljubicic’s Motion for Access to Confidential Material, Transcripts and Exhibits, 4 December 2002, para. 13; The Prosecutor v. Kvocka et. al., Case No. IT-98-30/1-A, Decision on Momcilo Gruban’s Motion for Access to Material, 13 January 2003, para. 5; The Prosecutor v. Enver Hadzihasanovic and Amir Kubura, Case No. IT-01-47-PT, Decision on the Accused Slobodan Praljak’s Motion for Access to Confidential Testimony and Documents, 11 April 2005, p. 4.
12 - The Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-A, Decision on Appelants Dario Kordic and Mario Cerkez’s Request for Assistance of the Appeals Chamber in Gaining Access to Appellate Briefs and Non-public Post Appeal Pleadings and Hearing Transcripts Filed in The Prosecutor v. Blaskic, 16 May 2002, para. 15, quoting The Prosecutor v. Radoslav Brdjanin and Momir Talic, Case No. IT-99-36-PT, Decision on Motion by Momir Talic for Access to Confidential Documents, 31 July 2000, para. 8.
13 - The Prosecutor v. Rasim Delic, Case No. IT-04-83-PT, Decision on Joint Defence (Hadzihasanovic and Kubura) Motion for Access to All Confidential Indictment Supporting Materials in the Delic Case, 27 April 2005, p. 2.
14 - The Chamber notes to this effect that the Registry outlined the difficulties arising from requests for the redaction of sensitive confidential information: see Submission of the Registry Pursuant to Rule 33(B) of the Rules of Procedure and Evidence Regarding Defence Motions Seeking Access to Confidential Material in Several Cases - Cases No. IT-01-47-T, IT-02-54-T, IT-02-60-A, IT-03-68-T, IT-04-74-PT, IT-04-83-PT, IT-05-88-PT - 28 October 2005, para. 9.