Case No: IT-01-47-PT


    Judge David Hunt, Presiding

    Judge Florence Ndepele Mwachande Mumba

    Judge Patricia Wald

    Mr Hans Holthuis

    Order of:
    10 October 2001







    The Office of the Prosecutor:

    Mr Upawansa Yapa

    Mr Ekkehard Withopf

    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


    1. Background

    1. Mario Cerkez, an appellant before the Appeals Chamber (“Applicant”),1 has filed a motion for access to the confidential supporting material filed with the indictment in the present case.2 The confirming judge had ordered its non-disclosure in accordance with Rule 53 of the Rules of Procedure and Evidence (“Rules”).3 The Applicant seeks an order from this Trial Chamber for the disclosure of that material, on the basis that such disclosure will be of assistance to him in his appeal.4

    2. The Applicant asserts that the indictment in the present case deals with events and facts closely related to his case.5 He explains that, at his trial, he attempted but failed to produce evidence that , contrary to the prosecution case, what appears to be ABiH units under the command of one or more of the persons charged in the present case were direct opponents of the HVO units under his command, at the time and at the places in the Lasva Valley area defined in both the indictment against him and the indictment in the present case. One ABiH document recently produced by the prosecution pursuant to Rule 68 , from a different source but emanating from the ABiH involved in the present case , is directly contrary to the evidence given on this issue by a prosecution witness at the Applicant’s trial and which had been accepted by the Trial Chamber.6 The material in the present case, he says, is relevant and important to the issues of, for example, mens rea and the protected person status of the victims, which were found against him.7 It was his case that the forces under his command were involved in an armed conflict with the ABiH forces in the Lasva Valley area, and that they were not engaged in an attack upon the civilian population as alleged by the prosecution and found by the Trial Chamber to have been established.

    3. It is submitted by the Applicant that the supporting material in the present case “must” contain additional evidence relating to these issues, which are on appeal ,8 and he will seek to have that evidence introduced on appeal pursuant to Rule 115.9 An equality of arms argument is also raised as a basis for having the same access to the supporting material as the prosecution has.10 The Applicant states that, if granted access, he will fully respect any order made by the Trial Chamber to ensure the continued confidentiality of the supporting material .11 In its Response to the Motion ,12 the prosecution opposes the relief sought.

    4. The prosecution submits that the Applicant is not entitled to general access to all the supporting material in the present case.13 Pursuant to its continuing obligation under Rule 68, the prosecution says that it has reviewed the supporting material in the present case, but it has found no exculpatory evidence.14 The prosecution has, however, disclosed to the Applicant certain documents – apparently part of the supporting material – “which appear to generally fall within the type of material which Sthe Applicant hasC requested”.15 The prosecution has not explained what that phrase was intended to mean, and its precise meaning remains opaque. This disclosure occurred only after the present Motion had been filed. The prosecution suggested that it had done so because it “may assist in expediting the proceedings”, but made it clear that, by doing so, it was “neither conceding that any of the material falls within the purview of Rule 68, nor adopting a practice that the Prosecution will necessarily follow in other instances”.16

    5. It is submitted by the prosecution that, in order to gain access to documents which do not fall within Rule 68, the Applicant must, first, identify exactly the material of which production is sought and, secondly, clearly state the “legitimate forensic purpose” for which the production of the material is sought.17 With respect to the second criteria, the prosecution has submitted that, where the purposes for which access to the confidential supporting material is sought are the same as or coincide with the purposes for which the Rule 68 review was conducted , the Applicant cannot be granted access to the material unless it is shown that the prosecution has abused its discretion under that Rule.18 The prosecution says that the justification put forward by the Applicant to obtain the access sought is closely connected with arguments which the Applicant may raise on appeal, and that these arguments have already been taken into consideration by the prosecution in the course of its Rule 68 review.19 The prosecution therefore argues that the Applicant’s Motion does not satisfy the requirements for obtaining such access. He has failed to specify the documents or categories of documents, and the reasons he has cited are generic in nature and closely connected with his grounds of appeal, already falling within the purposes of the Rule 68 review conducted by the prosecution.20 Finally, it is submitted that the principle of equality of arms cannot provide any legal basis for the Motion.21

    6. In reply to the Response, the Applicant essentially repeats the submissions made in his Motion. He reiterates that he is not seeking access to the relevant material on the basis of Rule 68,22 but for the purposes of Rule 115.23 He also submits that both the criteria nominated by the prosecution have been met.24 The prosecution has indicated orally that it does not wish to file a further response to that Reply.

    2. Jurisdiction

    7. A preliminary issue which arises is whether the Trial Chamber has jurisdiction to deal with the Motion. Neither Rule 6925 nor Rule 75(D)26 expressly gives to the Trial Chamber jurisdiction to deal with the Motion. These Rules concern protective measures in respect of victims and witnesses issued by a Chamber; they do not concern non-disclosure orders issued by a confirming judge pursuant to Rule 53 in respect of supporting material, which may include witness and victim statements. On its face, Rule 53 does not expressly authorise this Trial Chamber to deal with such orders issued by a confirming judge with a view to varying or rescinding them.

    8. However, common sense dictates that, upon its assignment to a Trial Chamber, the whole of the case, including the supporting material originally put before the confirming judge, comes under its authority. Rule 66 and the practice relating thereto evidence this.27 For example , in disputes relating to the confidentiality of supporting material – in particular , in relation to the redaction of the material in part or in whole – to be disclosed by the prosecution pursuant to Rule 66(A)(i), it has never been suggested that the Trial Chamber has no jurisdiction to deal with that material because the non-disclosure order had originally been made by the confirming judge. To hold that the original confirming judge has or ought to have exclusive power to deal with confidentiality matters relating to supporting materials even after the assignment of the case to a Trial Chamber would lead to an absurd result which would hinder the effective administration of justice. In addition, Rule 53(C), in providing that a Trial Chamber may also deal with non-disclosure matters relating to supporting material, recognises the necessary jurisdiction of an assigned Trial Chamber to deal with non-disclosure matters originally dealt with by a confirming judge.

    3. Discussion

    9. The issues raised by the Applicant in this Motion (as an appellant, rather than an accused person awaiting trial) do not appear to have been dealt with before in the Tribunal. The Trial Chamber is of the view that the principles to be applied are, by analogy, those relating to the granting of access by any accused person awaiting trial to confidential material (whether or not of a supporting nature) in a different case. The entitlement of such an applicant to disclosure as of right from the prosecution of material relating to his own and other cases is defined solely by Rule 68.28 For example, the prosecution would not be obliged automatically to disclose to such an applicant material which, though not falling within the terms of Rule 68, is covered by Rule  115.

    10. However, a party is always entitled to seek material from any source to assist him in his case. If the present case had been concluded before the Applicant’s trial had commenced, he would have been entitled, in the similar circumstances of the two cases, to have sought access to any material which remained confidential in such trial, provided that he was able:

    (i) to identify the documents sought or to describe them by their general nature, and

    (ii) to show a legitimate forensic purpose for such access.

    The position should be no different because the present case has only just been commenced. If the party seeking access to the documents which are presently confidential mainly because the trial has not yet been commenced is able to show a legitimate forensic purpose, he should be granted access to them, subject only to the imposition of appropriate protective measures.29

    11. As to the first of those requirements, the Trial Chamber does not accept the submission of the prosecution that such a party has the onus of identifying “exactly what material he seeks”.30 The obiter remark by the Appeals Chamber upon which the prosecution relies, relating to requirements to be satisfied for a request under Rule 75(D), is inapplicable to an application for access such as the present one. The Trial Chamber is of the view that such a standard is too high for such a purpose. An applicant seeking access who is able to show a legitimate forensic purpose for that access cannot be expected to identify exactly what material he needs if he does not know (due to confidentiality orders) what form that material is in or what its exact nature is. The underlying reason for requiring an identification of the documents or of the nature of the documents sought is to prevent an accused or applicant from conducting a “fishing expedition” – that is, seeking access to material in order to discover whether he has any case at all to make.31 It is a sufficient onus to require the party to identify as clearly as possible the documents or the nature of the documents to which he seeks access. As to the second of those requirements, that the party must show a legitimate forensic purpose for seeking access, he must show that such access would be likely to assist his case materially, or that there is at least a good chance that it will give that assistance.32

    12. Because of the similar circumstances with which the Applicant’s case and the present case deal, and what appears on the face of the two indictments to be directly opposing allegations made by the prosecution in each of them, this is manifestly not a fishing expedition by the Applicant, as the prosecution appears to be arguing.

    13. The prosecution appears to be concerned that the Motion is a disguised attempt to circumvent the prosecution’s initial discretion under Rule 68. The Trial Chamber does not accept that this is so. It rejects the prosecution’s submission that, where the purposes for which access is sought to confidential material are the same or coincide with the purposes of a Rule 68 review, a party cannot be granted access to the remaining material unless it is shown that the prosecution abused its discretion under that Rule. The prosecution does not control the access which a party may have to material available within the Tribunal.33 Nor, unfortunately, has the prosecution always complied with its obligations under Rule 68 in a timely manner.34 In any event, the range of material within the Tribunal to which a party may legitimately seek access may well be wider in the particular case than the class of documents which must be disclosed pursuant to Rule 68. It is certainly not for the prosecution to attempt to categorise them in a way which avoids its obligation, as a Minister of Justice, to assist the defence to present its case where a legitimate forensic purpose has been established.35

    14. The Applicant does not seek access to the confidential supporting material pursuant to Rule 68. This is a complete red herring laid by the prosecution. Access is sought for the purposes of Rule 115, which concerns the admission of additional evidence before the Appeals Chamber. To be considered as additional evidence within the meaning of Rule 115, the material sought to be admitted must relate to facts or issues litigated at the trial. The Trial Chamber is satisfied that the material sought by the Applicant in the present case sufficiently relates to facts and issues litigated at the trial as to warrant access being granted, subject only to the imposition of appropriate protective measures. Indeed, the prosecution emphasises that this is so by arguing, for a different purpose, that the reasons advanced for the access sought are closely related to the grounds of appeal.

    15. For the foregoing reasons, the Trial Chamber considers that the Motion should be granted. In those circumstances, it is unnecessary to deal with the Applicant’s argument based upon his right to an equality of arms. That argument can await another day. However, the prosecution must be given an opportunity to file written submissions on the confidentiality measures that should reasonably be imposed on the Applicant.

    4. Disposition

    16. Pursuant to Rule 54, the Trial Chamber makes the following determinations:

    (a) The Motion is granted. Subject to a determination of the appropriate protective measures to be imposed, the Applicant will be granted access to the confidential supporting material in the present case which has not already been disclosed to him.

    (b) The prosecution is to file within fourteen days a written submission identifying the confidentiality measures which it seeks to have imposed on the Applicant.36 The Applicant is to file a response within seven days of the prosecution’s filing , indicating whether he agrees with the proposed measures or, in the event that he does not, the reasons for his opposition. No reply to that response will be entertained unless leave is granted to file a reply.


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

    Done this the 10th day of October 2001

    At The Hague

    The Netherlands


    Judge David Hunt

    Presiding Judge

    [Seal of the Tribunal]

    1 - Prosecutor v Kordic and Cerkez, Case IT-95-14/2-A.
    2 - Prosecutor v Kordic and Cerkez, Case IT-01-47-PT, Defendant Mario Cerkez’s Motion for Access to Confidential Supporting Material in Hadzihasanovic et al Case, 8 Sept 2001 [filed 10 Sept 2001] (“Motion”). The Motion should have been filed in the present case (using both its title and its number), and not in the case presently before the Appeals Chamber: Prosecutor v Brdjanin and Talic, Case IT-99-36-PT, Decision on Second Motion by Momir Talic for Access to Confidential Documents, 26 June 2001, par 2; Prosecutor v Dragan Nikolic, Case IT-94-2-PT, Decision on Request Pursuant to Rule 75(D) by Prosecution in Prosecutor v Momcilo Krajisnik & Biljana Plavsic (Case IT-00-39&40-PT), 16 July 2001, par 3. The Applicant was directed by the Pre-Appeal Judge in Prosecutor v Kordic and Cerkez, Decision on Application by Mario Cerkez for Access to Confidential Material from Prosecutor v Hadzihasanovic et al and Order Compelling Prosecution to Produce Rule 68 Material, 7 Sept 2001, to seek an order granting him access to the said material from this Trial Chamber.
    3 - Prosecutor v Hadzihasanovic and Others, Case IT-01-47-I, Under Seal, Order on Review of the Indictment Pursuant to Article 19 of the Statute and Order for Non-disclosure, 13 July 2001. Rule 53 (“Non-disclosure”, falling within Part Five: Pre-Trial Proceedings) relevantly provides: “(A)  In exceptional circumstances, a Judge or a Trial Chamber may, in the interests of justice, order the non-disclosure to the public of any documents or information until further order. […] (C)  A Judge or Trial Chamber may, in consultation with the Prosecutor, also order that there be no disclosure of an indictment, or part thereof, or of all or any part of any particular document or information, if satisfied that the making of such an order is required to give effect to a provision of the Rules, to protect confidential information obtained by the Prosecutor, or is otherwise in the interests of justice. […].”
    4 - Motion, p 2.
    5 - Motion, par 2.
    6 - Ibid, par 3; Defendant Mario Cerkez’s Reply to Prosecution Response to Defendant Mario Cerkez’s Motion for Access to Confidential Supporting Material in Hadzihasanovic et al Case, 27 Sept 2001 (“Reply”), par 7.
    7 - Motion, par 3.
    8 - Ibid, par 3.
    9 - Ibid, par 4. Rule 115, relevantly provides: “(A)  A party may apply by motion to present before the Appeals Chamber additional evidence which was not available to it at the trial. […] (B)  The Appeals Chamber shall authorise the presentation of such evidence if it considers that the interests of justice so require.”
    10 - Motion, par 6.
    11 - Ibid, par 5.
    12 - Prosecution’s Response to the Motion entitled “Defendant Mario Cerkez’s Motion for Access to Confidential Supporting Material in Hadzihasanovic et al Case”, 24 Sept 2001 (“Response”).
    13 - Response, par 9.
    14 - Ibid, pars 10, 13-16. Rule 68 (“Disclosure of Exculpatory Material”) provides: “The Prosecutor shall, as soon as practicable, disclose to the defence the existence of material known to the Prosecutor which in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence.”
    15 - Response, pars 10, 16, 19 and Annex A thereto (letters to counsel of the Applicant and his co-Appellant Dario Kordic).
    16 - Ibid, Annex A.
    17 - Response, pars 18, 20-23. It is asserted that the “scope of application of this avenue [outside the confines of Rule 68] should logically be confined to the remaining supporting material”, that is the supporting material which the prosecution has not disclosed to the Applicant because it does not fall within Rule 68 (Response, pars 11 fn 9, 19). The Applicant concedes that this is so (Reply, par 5).
    18 - Response, par 25.
    19 - Ibid, par 27.
    20 - Ibid, par 28.
    21 - Ibid, pars 33-34.
    22 - Reply, pars 2 and 3.
    23 - Ibid, par 8 and 9.
    24 - Ibid, par 6-10.
    25 - Rule 69 (“Protection of Victims and Witnesses”, falling under Part Five: Pre-Trial Proceedings) provides: “(A) In exceptional circumstances, the Prosecutor may apply to a Trial Chamber to order the non-disclosure of the identity of a victim or witness who may be in danger or at risk until such person is brought under the protection of the Tribunal. (B) In the determination of protective measures for victims and witnesses, the Trial Chamber may consult the Victims and Witnesses Section.”
    26 - Rule 75 (“Measures for the Protection of Victims and Witnesses”, falling under Part Six: Proceedings before Trial Chambers) relevantly provides: “(D) Once protective measures have been issued in respect of a victim or witness, only the Chamber granting such measures may vary or rescind them or authorise the release of protected material to another Chamber for use in other proceedings. If, at the time of the request for variation or release, the original Chamber is no longer constituted by the same Judges, the President may authorise such variation or release, after consulting with any Judge of the original Chamber who remains a Judge of the Tribunal and after giving due consideration to matters relating to witness protection.”
    27 - Rule 66 (“Disclosure by the Prosecutor”) relevantly provides: “(A) Subject to the provisions of Rules 53 and 69, the Prosecutor shall make available to the defence in a language which the accused understands (i) within thirty days of the initial appearance of the accused, copies of the supporting material which accompanied the indictment when confirmation was sought […].”
    28 - Rule 66 would of course be irrelevant to an applicant seeking access to supporting material relating to another case.
    29 - The nature of the protective measures which would be appropriate is discussed in some detail in Prosecutor v Brdjanin and Talic, Second Decision on Motions by Radoslav Brdjanin and Momir Talic for Access to Confidential Documents, 15 Nov 2000, pars 8-13. They need not be referred to here, but they provide a powerful protection to witnesses and other persons identified in those documents.
    30 - Response, par 22, in reliance on Prosecutor v Blaskic, Case IT-95-14-A, Decision on the Appellant’s Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, 26 Sept 2000, par 55.
    31 - Prosecutor v Delalic and Others, Case IT-96-21-A, Separate Opinion of Judge David Hunt on Motion by Esad Landzo to Preserve and Provide Evidence, 22 Apr 1999 (appended to Decision on Motion to Preserve and Provide Evidence, 22 Apr 1999) (“Separate Opinion”), par 4, a statement which the prosecution adopts (Response, par 22, fn 18).
    32 - Prosecutor v Brdjanin and Talic, Decision on Motion by Momir Talic for Disclosure of Evidence, 27 June 2000, par 7; Decision on Motion by Momir Talic for Access to Confidential Documents, 31 July 2000, pars 5-8. The prosecution has relied upon these statements in its Response (par 23, fn 20). It also refers to par 4 of the Separate Opinion, which said: “It should be demonstrated that it is likely – or at least ‘on the cards’ – that the material produced will materially assist the case of the party seeking access”.
    33 - Prosecutor v Brdanin and Talic, Decision on Motion by Momir Talic for Access to Confidential Documents, 31 July 2000, par 6.
    34 - The document recently produced by the prosecution pursuant to Rule 68 (see par 2, supra) had been in the possession of the prosecution since October 2000: Prosecutor v Kordic and Cerkez, Decision on Second Motions to Extend Time for Filing Appellant’s Briefs, 2 July 2001, pars 7-10. The documents only now produced, and notwithstanding the disclaimer that they do not fall within Rule 68, have been in the possession of the prosecution at least since the indictment in this present case was filed for confirmation in July of this year, and no doubt for a considerable period beforehand.
    35 - Prosecutor v Blaskic, Decision on the Appellant’s Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, 26 Sept 2000, par 32, footnote 23; Prosecutor v Kordic & Cerkez, Decision on Motions to Extend Time for Filing Appellant’s Briefs, 11 May 2001, par 14, footnote 25; Prosecutor v Brdjanin and Talic, (Confidential and Ex Parte) Decision on Rule 66(C) Application, 3 Oct 2001, par 8.
    36 - See the case cited in fn 29.