Case No.: IT-01-48-PT

IN THE TRIAL CHAMBER

Before:
Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon

Registrar:
Mr. Hans Holthuis

Decision of:
22 January 2004

PROSECUTOR

v.

SEFER HALILOVIC

_________________________________________________

DECISION ON PROSECUTIONíS REQUEST FOR ORDER OF NON-DISCLOSURE

_________________________________________________

The Office of the Prosecutor

Mr. Ekkehard Withopf
Mr. Vladimir Tochilovsky
Ms. Maria Tuma

Counsel for the Accused

Mr. Stefan Kirsch
Mr. Guénaël Mettraux

 

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 ("International Tribunal"),

BEING SEISED of the "Prosecutionís Request for Order of Non-Disclosure" filed by the Office of the Prosecutor ("Prosecution") on 11 December 2003 ("Motion"), requesting an order for non-disclosure and seeking the following measures:

  1. the supporting material disclosed to the Defence pursuant to Rules 66 (A)(i) and 66 (A)(ii) of the Rules of Procedure and Evidence of the International Tribunal ("Rules"), and material disclosed pursuant to Rules 66 (B) and 68 of the Rules, not be disclosed to the public by the Defence, except to the limited extent such disclosure to members of the public is directly and specifically necessary for the preparation and presentation of its case;

  2. the witnessesí identities and whereabouts, to the extent they are known to the Defence, and any evidence or written statement of a witness or potential witness, or the substance, in whole or in part, of any such non-public evidence, statement or prior testimony disclosed to the Defence pursuant to Rules 66 (A)(i) and 66 (A)(ii) of the Rules, not be disclosed to the public by the Defence save as is directly and specifically necessary for the preparation and presentation of its case;

  3. in the event that the Defence may find it directly and specifically necessary to disclose such information for the preparation and presentation of its case, a Non-Disclosure Agreement from each person to whom the Defence discloses such information be obtained, and a record of all the disclosure of the protected information, including to whom disclosed, when and for what purpose be kept;

  4. in the event a member of the Defence withdraws from the case, all material in his or her possession be returned to the lead defence counsel; and

  5. the "public" be defined in a particular manner set out in the Motion,1

NOTING the "Defence Response to Prosecution Motion for Non-Disclosure Order" filed by the counsel for the accused, Sefer Halilovic, on 23 December 2003 ("Response"), stating that the Prosecution failed to establish any basis upon which the order sought could be made,2

NOTING HOWEVER that the Defence responds that it is willing voluntarily to undertake not to disclose such material except to the extent necessary for the preparation of its case, and that counsel has instructed members of the Defence to keep a record of those to whom such material is being shown in the course of the preparation of its case,3

NOTING that, if requested by witnesses, the Prosecution intends to seek specific measures in separate applications, but that at the present stage of the proceedings, the Prosecution requests a blanket order for non-disclosure "given the sensitive nature of much of the evidence and material and that many of proposed Prosecution witnesses are well known,"4

CONSIDERNG that Article 20 of the Statute of the International Tribunal ("Statute") requires the Trial Chamber to ensure that proceedings are conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses,

CONSIDERING the rights of the accused under Article 21, paragraph 2, of the Statute to a fair and public hearing, subject to Article 22 of the Statute, which addresses the protection of victims and witnesses,

CONSIDERING that this Trial Chamber has not generally required the defence to obtain non-disclosure agreements from third parties or to maintain a record of all the disclosure of the protected information, on the basis that they are not generally useful or appropriate where protective orders are in place,

CONSIDERING that, save as otherwise provided in this Decision, the protection sought is necessary and appropriate, while still remaining consistent with the rights of the accused,

CONSIDERING that the non-disclosure obligations contained in this Decision apply to all members of the Defence such that it is the obligation of lead counsel to ensure compliance by all members of the Defence, both during their participation and upon withdrawal from the case, such that the relief sought by the Prosecution is unnecessary,

PURSUANT TO Articles 20, 21, paragraph 2, and 22 of the Statute and Rules 53 (A), 54 and 75 of the Rules,

HEREBY GRANTS the Motion in part and ORDERS as follows:

  1. the Defence shall not disclose to the public any confidential or non-public material disclosed by the Prosecution pursuant to Rules 66 (A)(i), 66 (A)(ii), 66 (B) and 68 of the Rules, including the names, identifying information or whereabouts of any witness or potential witness, or any evidence or written statement of any witness or potential witness, or the substance thereof, except to the limited extent that such disclosure to members of the public is directly and specifically necessary for the preparation and presentation of its case; and
  2. all confidential or non-public material disclosed to the Defense shall be returned to the Registry or destroyed following the close of these proceedings.

For the purpose of this Decision, "the public" means and includes all persons, governments, organisations, entities, clients, associations and groups, other than the Judges of the International Tribunal, the staff of the Registry, the Prosecutor and her representatives, the accused in this case, the defence counsel, legal assistants and other members of the defence team, their agents or representatives, "The public" also includes, without limitation, family, friends, associates of the accused; accused in other cases or proceedings before the International Tribunal; defence counsel in other cases or proceedings before the International Tribunal and the media and journalists.

The "Defence" means only the accused, Sefer Halilovic, his defence counsel, their legal assistants and other members of the defence team, their agents or representatives.

 

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

____________
Richard May
Presiding

Dated this twenty-second day of January 2004
At The Hague
The Netherlands

[Seal of the Tribunal]


1. Motion, paras 7-10.
2. Response, para. 3.
3. Ibid, para. 4. Paragraph 4 of the Response appears to have been inadvertently numbered as paragraph 5.
4. See supra note 1, para. 3.