Judge Wolfgang Schomburg, Presiding
Judge Fausto Pocar
Judge Florence Mumba
Judge Mehmet Güney
Judge Weinberg de Roca
Mr Hans Holthuis
13 October 2003
Dario KORDIC & Mario CERKEZ
DECISION ON MOTION FOR CLARIFICATION AND MOTIONS FOR PROTECTIVE MEASURES
Counsel for the Prosecutor:
Mr Norman Farrell
Counsel for the Defence in the Kordic & Cerkez case:
Mr Mitko Naumovski, Mr Turner T Smith Jnr and Mr Stephen M Sayers for
Mr Bozidar Kovacic and Mr Goran Mikulicic for Mario Cerkez
Counsel for the Defence in the Hadzihasanovic et al case:
Ms Edina Residovic and Mr Stéphane Bourgon for Enver Hadzihasanovic
Mr Fahrudin Ibrisimovic and Mr Rodney Dixon for Amir Kubura
1. On 6 September 2001,1 the Defence for Enver Hadzihasanovic, Mehmed Alagic (†) and Amir Kubura (“Applicants”) filed a “Joint Motion of Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura for Access to All Confidential Material—Transcripts and Exhibits from the Prosecutor v Dario Kordic and Mario Cerkez (Case No IT-95-14/2-T)”. On 25 September 2001, the President issued the “Ordonnance du Président relative à la Requête conjointe de la Défense dans l’Affaire Le Procureur c/Hadzihasanovic et consorts aux fins d’autoriser l’accès à des pièces confidentielles de l’affaire le Procureur c/Kupreskic et consorts”, whereby he rejected the Motion. On 29 October 2001,2 the President issued the “Order of the President on Defence Counsel’s Joint Motion in the case the Prosecutor v Hadzihasanovic et al for Access to all Confidential Material in the case the Prosecutor v Kordic and Cerkez”, whereby he stayed a decision on the Motion with respect to the confidential material in the Kordic & Cerkez case until the Appeals Chamber had ruled on the Application for Leave to Appeal from the President’s Order dated 25 September 2001 filed by Hadzihasanovic.
2. On 23 April 2002, the Appeals Chamber rendered its “Decision on Appeal from Refusal to Grant Access to Confidential Material in Another Case”, in which it found that the President had erred in law when he refused to grant access to the material sought. The Appeals Chamber remitted the case to the President for him to grant access to the material sought and to indicate any appropriate protective measures.
3. On 28 May 2002, the President issued an “Order of the President on the Defence Motion for Access to Confidential Material in the Case The Prosecutor v Dario Kordic and Mario Cerkez”, whereby he said that, once an Appeals Chamber had been constituted to hear the appeal in the Kordic & Cerkez case, it was authorised to rule on requests to vary protective measures even though the Motion was filed before the amendment to Rule 75(D) of the Rules of 28 December 2001. The President invited the Registrar to transmit the Motion to the Appeals Chamber in the Kordic & Cerkez case.
4. On 12 July 2002, the Prosecution filed its “Prosecution’s Response to the Motion of Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura for Access to All Confidential Material-Transcripts and Exhibits from the Prosecutor v Dario Kordic and Mario Cerkez (Case No IT-95-14/2-T) and Request for Extension of Time Limit”,3 in which the Prosecution sought an extension of time. On 18 July, the Defence filed its “Defence Response to Prosecution Filing of 12 July 2002”, in which it objected to the Prosecution’s application for an extension of time on the basis that it had been filed out of time, but requested that, should it be granted, the Defence be granted leave to reply to that response.4 On 29 July 2002, the Defence filed its “Joint Defence Reply to Prosecution’s Response dated 12 July 2002”.
5. On 23 January 2003, the Appeals Chamber rendered its “Decision on Motion by Hadzihasanovic, Alagic and Kubura for Access to Confidential Supporting Material, Transcripts and Exhibit in the Kordic & Cerkez Case” (“Original Decision”), whereby it held that the Applicants had (a) described the material sought by its general nature, and (b) shown a legitimate forensic purpose for such access.5 The Appeals Chamber also made the following orders:6
(a) the Prosecution and the Defence in the Kordic & Cerkez case to seek the consent of the providers before disclosing to the Applicants the non-public material which falls under Rule 70(C), and, if the consent of the provider has been given, to provide the material in un-redacted form to the Applicants or to apply for redaction with 14 days.
(b) subject to any application by either party in the Kordic & Cerkez case for additional protective measures within 14 days, the Registry to grant the Applicants access to all public and non-public documents, materials and exhibits from the Kordic & Cerkez case including non-public post-trial submissions, appellate briefs, and motions pursuant to Rule 115 filed in the Kordic & Cerkez appeal until the date of the issuing of this decision.
(c) The material to which access is granted shall remain subject to the same protective measures as were imposed by the Trial Chamber.
(d) The Applicants, their Counsel and any employees who have been instructed or authorised by their Counsel to have access to the confidential material in the present case shall:
(i) not disclose to any third party, the names of witnesses, their whereabouts, copies of witness statements, the contents of the witness statements, transcripts of witness testimonies, the contents thereof, or any information which would enable them to be identified and would breach the confidentiality of the protective measures already in place unless absolutely necessary for the preparation of Applicants’ case, and always with leave of the Appeals Chamber;
(ii) not disclose to any third party, any documentary or other evidence, or any written statement of a witness or the contents, in whole or in part, of any non-public evidence, statement or prior testimony; and
(iii) not contact any witness from the Kordic & Cerkez case whose identity was subject to protective measures without first demonstrating to the Appeals Chamber that the witness may materially assist the Applicants’ case in some identified way and that such assistance is not otherwise reasonably available to them. If the Appeals Chamber authorizes such contact, the Prosecution will be given a right to be present during any contact or interview, if the witness requests such presence.
(e) If, for the purposes of preparing the Applicants’ case, confidential material is disclosed to third parties - provided that the conditions set out in paragraph ( i) are met - any person to whom disclosure of the confidential material in this case is made shall be informed that he or she is forbidden to copy, reproduce or publicise, in whole or in part, any non-public information or to disclose it to any other person, and further that, if any such person has been provided with such information, he or she must return it to the Applicants or their Counsel as soon as it is no longer needed for the preparation of the case.
(f) For the purposes of the above paragraphs, third parties exclude: (i) the Applicants, (ii) persons authorised by the Registrar to assist Counsel for the Applicants, (iii) personnel from the International Tribunal, including members of the Office of the Prosecutor.
6. On 28 January 2003, Cerkez filed his “Mario Cerkez’s Notice Re. 23 January 2003 Appeals Chamber Decision on Motion by Hadzihasanovic, Alagic and Kubura for Access to Confidential Supporting Material, Transcripts and Exhibits in the Kordic & Cerkez case”, in which he stated that he did not need to seek the consent of any witness or entity pursuant to Rule 70(C) in order to enable the Applicants to gain access to the material in question, and he said that he would not apply for additional protective measure in relation to that material.
7. On 6 February, Kordic sought additional protective measures in relation to some of the material.7 On 10 February, a letter from the Senior Legal Officer of the Appeals Chamber was sent to the parties in this case inviting Kordic to make further submissions in relation to the protective measures sought by him. On 14 February, Kordic responded to the letter. On 20 February, the Applicants filed a joint response to the application by Kordic.8
8. On 6 February, the Prosecution filed a “Prosecution’s Motion for Additional Protective Measures, Clarification and Extension of Time Regarding Access Decision of 23 January 2003” (“Prosecution’s Motion”), seeking what it calls “clarification” on a number of issues and additional protective measures. On 17 February, Kordic filed its response to the Prosecution’s Motion.9 On 20 February, the Applicants filed a joint response to the Prosecution’s Motion and to Kordic’s Application.10
9. The Prosecution requested the following relief:11
10. The “clarification” sought by the Prosecution in relation to a number of orders made in the Original Decision do in fact appear to amount to a request for reconsideration. Those instances where reconsideration, and not clarification, is sought will be dealt with as such.13
11. The Prosecution also seeks leave in its Motion for an extension of two pages pursuant to the Practice Direction on the Length of Briefs and Motions (IT/184 Rev 1) “in light of the significant issues to be clarified”.14 Neither Kordic nor the Applicants have objected to the extension of pages being granted. The Appeals Chamber accepts that the number of issues which the Prosecution needs to address in its Motion constitutes good cause.
12. In addition, because of its inability to meet the deadline imposed by the Appeals Chamber in this case, the Prosecution seeks leave for an extension of time to comply with the Original Decision. Kordic did not object to the decision being stayed, nor to the extension of time being granted. The Applicants, on the other hand, object that the Prosecution has failed to comply with the Appeals Chamber’s Decision and that it has failed to show any basis upon which the Decision should be stayed.15
13. The Original Decision provided that either party in the Kordic & Cerkez case could seek additional protective measures within 14 days. The Prosecution and Kordic have done so within that timeframe. Insofar as ordering the Prosecution to comply immediately with the Original Appeals Chamber’s Decision or refusing a stay of this Decision would render its present application for protective measures meaningless, leave for an extension of time must be granted until the issue of protective measures has been resolved. That will depend, in turn, on the time which, the Prosecution estimates, it will need to comply with the Decision of the Appeals Chamber as “clarified ” by the present Decision. In view of the number of matters with which the Prosecution will have to deal in order to comply with this Decision, and taking into consideration the fact that it must have started to comply with the Original Decision insofar as it did not require any “clarification”, the Appeals Chamber will order the Prosecution to comply with the present Decision as well as the Original Decision to the extent that it is being amended or clarified by this Decision within 14 days.
14. The Prosecution next seeks clarification as to the scope of the original order. The Original Decision was limited to the material to which the Applicants had sought access. The prosecution says that, as the applicants made no express mention of pre-trial and trial filings, those filings fall outside of the scope of the original request for “all confidential material” or “non-public documents”, and the applicants should not be granted access to that material.16 It is preferable that a party identify with precision the material to which it seeks access to and the original motion did not specifically request access to either the confidential pre-trial or trial filings. It has now been made clear that it was intended that these materials be included.17 As the legitimate forensic purpose in these materials is the same, and to avoid a further application being made, the Applicant’s request for access to confidential material pursuant to Rule 70 will be interpreted as including a request to access all confidential material including pre-trial and trial filings.18
15. The original order did not, however, cover ex parte filings. Although ex parte filings are confidential materials which may fall within the scope of a request for “all confidential material” under Rule 70, they are to be distinguished from other confidential materials due to their specific nature as filings made confidentially between a party and a Trial Chamber. In case for good reason a party was and still is denied access to specific filings, a fortiori third parties cannot have access to the requested material.19
16. The Appeals Chamber accepts the Prosecution’s next submission, that, as official custodian of the Court Record, it is for the Registry to provide material to which access has been granted to a party, and not for either party to do so,20 and it notes the Applicants’ agreement on that point.21
17. The Original Decision provided that either party in the Kordic & Cerkez case could seek additional provisional measures in relation to the material to which access is being granted. The Prosecution has now moved to have the same protective measures as those ordered in the Ljubicic Access Order being ordered in this case.22 The Prosecution submits that “the protection of these same witnesses remains equally pressing” in the present case as they were in relation to the Ljubicic motion for access to this material.23
18. The necessity to order protective measures and the nature of the measures being ordered depends on the circumstances of each case. Protective measures which may be required in one case may not necessarily be needed in a different, although connected, case. In the present instance, the Prosecution claims that:24 (i) there is no reason to distinguish between the protective measures required in relation to Ljubicic as opposed to the Applicants; (ii) it is important to ensure that the protection of the Kordic & Cerkez witnesses is consistently recognised in all proceedings; (iii) access should be granted equally to Ljubicic and the present Applicants; and (iv) resource considerations should not be permitted to over-ride the priority accorded to the protection of witnesses. Those points – particularly point (ii) – are indeed relevant, and access shall be granted to this material under the same conditions as were granted to Ljubicic. Once they have reviewed that material and determined that they need all or part of it in a non-redacted form, the applicants must identify those parts of the material which they claim may assist them in the conduct of their defence and which is not otherwise available to them and file a motion justifying the removal of redactions. Should the need arise, consideration will then be given to additional protective measures.
19. The Appeals Chamber accepts the submissions of the parties that it is preferable for the Registry, as official custodian of the Court Record, as opposed to the parties themselves, to make such redactions. However, the Registry cannot be expected to make the redactions without detailed submissions being made in writing by the parties as to what redactions should be made. Therefore, the parties will be ordered to do so.
20. The Appeals Chamber will not at this stage deal with the procedure to be adopted where Rule 70(C) providers have not consented to disclosure of material in another case, as this problem has not arisen in the present case.
21. Finally, the Appeals Chamber rejects the Prosecution’s submission that the Victims and Witnesses Section, rather than the Prosecution or the Defence, should contact the witnesses whom they called at trial. Those witnesses were called by the parties and they have had, in many cases, no or very limited interaction with the Victims and Witnesses Section. Due to their relationship with these witnesses, each party is in a much better position to contact the witnesses which that party called and to ascertain their security concerns, if they have any.
22. In his application, Kordic sought additional protective measures in relation to six Defence witnesses whom he called at trial. During the Status Conference of 7 February 2003, the at that time acting Pre-Appeal Judge drew the attention of counsel for Kordic to the fact that the reasons put forward by him in support of further protective measures for these witnesses did not appear on their face to warrant further protective measures. In his letter of 10 February, the Senior Legal Officer of the Appeals Chamber drew the attention of counsel to the fact that any fears expressed by witnesses themselves that they may be in danger or at risk are not in themselves sufficient to establish any real likelihood that they may in fact be in danger or at risk. Kordic was invited to make further submissions upon this matter. In response to this letter, Kordic said that he had nothing to add to his submissions and that the views of the affected witnesses had been accurately recited in his previous submission. The Prosecution informed the Appeals Chamber orally that it would make no further submission upon this matter.
23. The Appeals Chamber is not satisfied that Kordic has shown that additional protective measures for the six Defence witnesses are warranted. As was made clear to Kordic by the at that time acting Pre-Appeal Judge at the Status Conference, and by the letter of the Senior Legal Officer, protective measures will only be granted where the victim or witness “may be in danger or risk”. This has always been interpreted as requiring something more than the mere expression of fears by that person; some objective basis is required to demonstrate a real likelihood that such person may be in danger or risk.25 As Kordic has failed to demonstrate that there is an objective basis to the fears of the six defence witnesses no additional measures to those ordered by the Trial Chamber are justified and the application has to be refused.
24. The Appeals Chamber makes the following orders:
(i) GRANTS the extension of pages sought by the Prosecution in relation to its Motion and accepts the Motion as having been validly filed.
(ii) GRANTS the extension of time sought by the Prosecution and STAYS the Original Decision for 14 days within which time the Prosecution must contact its Rule 70(C) providers. Once the Prosecution has obtained the consent of the providers of Rule 70(C) material, it must file a notice concerning the conditions, if any, under which the providers have agreed to the material being disclosed to the Applicants. The Appeals Chamber regards as premature the prosecution’s request for guidance as to the procedure to be followed in case such access is refused by the provider. Further orders shall be made in case the providers oppose such access being granted or if they set conditions thereto.
(iii) GRANTS the protective measures sought by the Prosecution and ORDERS the Prosecution to make detailed submissions in writing as to what redactions they consider should be made to the material being disclosed within 14 days of this decision. Once they have reviewed that material and determined that they need all or part of it in a non-redacted form, the applicants must identify those parts of the material which they claim may assist them in the conduct of their defence and which is not otherwise available to them and file a motion by which they seek to justify the removal of the redaction. Should the need arise, consideration will then be given to additional protective measures.
(iv) Subject to detailed submissions of the prosecution, ORDERS the Registry to give access to the Applicants to the material mentioned above under the conditions set out in the present Decision and the Original Order.
(v) Kordic is to contact his Rule 70(C) providers. Once he has obtained the consent of the providers of Rule 70(C) material, he must file a notice concerning the conditions, if any, under which the providers have agreed to the material being disclosed to the Applicants.
(vi) The Appeals Chamber REJECTS Kordic’s application for additional protective measures for the six defence witnesses he called at trial.
(vi) The Appeals Chamber REJECTS the Prosecution’s requests for “clarification ” concerning the responsibility to carry out the redactions in future applications as premature.26
Done in English and French, the English text being authoritative.
Dated this 13th day of October 2003,
At The Hague,
Judge Wolfgang Schomburg
[Seal of the Tribunal]