Case No: IT-01-47-PT

IN TRIAL CHAMBER II

Before:
Judge Wolfgang Schomburg, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Carmel Agius

Registrar:
Mr Hans Holthuis

Decision of:
28 January 2002

PROSECUTOR

v

ENVER HADZIHASANOVIC
MEHMED ALAGIC
AMIR KUBURA

________________________________________________________________________________

DECISION TO REMAIN SEIZED OF MATTER OF RELEASE OF RULE 68 MATERIAL TO TIHOMIR BLASKIC

________________________________________________________________________________

The Office of the Prosecutor:

Mr Ekkehard Withopf

Counsel for Tihomir Blaskic:

Mr Russell Hayman
Mr Andrew Paley
Mr Robert Perrin
Mr Anto Nobilo

Counsel for the Accused:

Ms Edina Residovic and Stéphane Bourgon for Enver Hadzihasanovic
Mr Vasvija Vidovic and Mr John Jones for Mehmed Alagic
Mr Fahrudin Ibrisimovic and Mr Rodney Dixon for Amir Kubura

 

THIS 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,

BEING SEIZED of the "Prosecutionís Request for Protective Measures in Order to Release Confidential Supporting Material as Rule 68 Evidence in Prosecutor v Tihomir Blaskic (Case No IT-95-14-A)", filed by the Prosecution on 22 November 2001 ("Request");

BEING SEIZED of the "Appellant Tihomir Blaskicís Application for Extension of Time to Respond to Prosecutorís Request for Protective Measures in Order to Release Confidential Supporting Material as Rule 68 Evidence", dated 3 December 2001 and filed on 22 January 2002 by the Applicant, Tihomir Blaskic ("Application");

NOTING the under seal "Order on Review of the Indictment Pursuant to Article 19 of the Statute and Order for Non-Disclosure", issued by the confirming Judge on 13 July 2001 ("Order of 13 July");

NOTING the "Order to Modify Warrants of Arrest and Orders for Surrender", issued ex parte and confidentially by the confirming Judge on 26 July 2001 ("Order of 26 July");

NOTING that following a request by the Defence for access to the Order of 26 July, the confirming Judge on 8 November 2001 agreed to make public the Order of 26 July in the light of the accused being in the custody of the Tribunal;

NOTING that the Registry subsequently, on 9 November 2001, made public the Order of 26 July;

NOTING that both the Order of 13 July and the Order of 26 July include an order that the supporting material in the present case shall not be disclosed to the public until further order;

NOTING that the Prosecution on 23 October 2001 disclosed to the Applicant, who is not a party in this case, thirty documents ("documents") from the supporting material in this case pursuant to Rule 68;

NOTING that the said disclosure to the Applicant was done without the Prosecution having obtained an order permitting such disclosure, in accordance with the Order of 23 July and the Order of 26 July;

NOTING the confidential "Prosecutionís Motion for Protective Measures", filed by the Prosecution in this case on 5 December 2001;

NOTING that the Prosecution on 16 November 2001 requested the then Vice-President Florence Ndepele Mwachande Mumba to order specific protective measures if the Applicant was to be granted access to non-public materials in the cases of Prosecutor v Kupreskic, Prosecutor v Furundzija and Prosecutor v Kordic and Cerkez ("Other Request") on the basis of serious allegations of non-compliance with protective measures previously ordered by other Chambers levelled against one of the Applicantís counsel;

NOTING the "Decision to Stay Matter of Access to Non-public Materials", issued by Judge Mumba on 24 January 2002 ("Decision of 24 January 2002"), in which Judge Mumba held that the imposition of protective measures with respect to the possible disclosure to the Applicant of non-public materials depends on an assessment of the serious allegations made against one of the counsels of the Applicant, that she was not vested with jurisdiction to undertake such an assessment, and that the Prosecution should determine with respect to the allegations how best to have them assessed;

NOTING that Judge Mumba, in the Decision of 24 January 2002, ordered the Prosecution to indicate to her not later than Thursday, 7 February 2002 at 12 a.m. the course of action it determined to undertake concerning the allegations against one of the counsels of the Applicant;

NOTING that in the Request, the Prosecution submits that considerations identical to those underpinning its Other Request apply to the present case, thereby requiring the imposition of protective measures on the Applicant in addition to and stricter than those imposed on his co-appellant, Mario Cerkez by the "Order on Additional Protective Measures to be Observed by Mario Cerkez", issued by the Trial Chamber on 29 November 2001;

NOTING that the serious allegations of non-compliance against one of the counsels of the Applicant made by the Prosecution in the Request are essentially the same as in the Other Request;

NOTING that the protective measures sought to be imposed on the Applicant in this case are for the most part essentially the same as those sought in the Other Request;

NOTING that the Applicant, in the Application, requests a reasonable period of time to respond to the serious allegations made by the Prosecution, allegations that are strongly denied;

CONSIDERING that the protective measures sought are particularly stringent;

CONSIDERING that such measures cannot ordinarily be justified;

CONSIDERING that the imposition of such measures appear to depend on an assessment of the serious allegations made against one of the counsels of the Applicant;

CONSIDERING, however, that in the light of the Decision of 24 January, it is in the interests of the administration of justice for this Trial Chamber to defer a decision on whether such measures ought to be imposed on the Applicant pending the outcome of the matter concerning these allegations and measures before Judge Mumba;

CONSIDERING, therefore, that a decision on whether to grant the Application should be deferred until such later stage;

PURSUANT TO Rule 54 of the Rules, hereby

ORDERS the Prosecution to inform the Trial Chamber not later than Monday, 11 February 2002 of the course of action it has determined to take in the matter before Judge Mumba concerning the allegations made against one of the counsels of the Applicant; and

DECIDES to remain seized of the Request and Application until further order.

 

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

Done the twenty-eighth day of January 2002
At The Hague
The Netherlands

________________________________
Wolfgang Schomburg
Presiding Judge

[Seal of the Tribunal]