Case No.: IT-95-14-A


Judge Fausto Pocar, Presiding

Judge David Hunt
Judge Mehmet Güney
Judge Asoka de Zoysa Gunawardana
Judge Theodor Meron

Mr. Hans Holthuis

Order of:
16 October 2002





Counsel for the Prosecutor:

Mr. Norman Farrell

Counsel for the Appellant:

Mr. Anto Nobilo
Mr. Russell Hayman
Mr. Andrew Paley


THE APPEALS 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 (“the International Tribunal ”),

BEING SEISED of “Appellant Dario Kordic’s Supplemental Request for Assistance of Appeals Chamber in Gaining Access to A Non-Public Post-Appeal (sic( Pleadings and Hearings Transcripts filed in The Prosecutor v. Blaskic” (the “Supplemental Request”);

PURSUANT TO the Statute and the Rules of Procedure and Evidence of the International Tribunal (the “Statute” and the “Rules” respectively);

HEREBY RENDERS its Decision.

  1. On 3 April 2002 the Appellant Blaskic filed confidentially the “Appellant’s Motion for Protective Measures for New Witnesses on Appeal” (“Motion for Protective Measures ”), where he requested the imposition of five protective measures for three new witnesses, whose statements he intended to proffer as additional evidence on appeal pursuant to Rule 115 of the Rules. On 27 May 2002, the Appeals Chamber issued confidentially the “Decision on Appellant’s Motion for Protective Measures for New Witnesses on Appeal,” (“Decision on Motion for Protective Measures”) granting inter alia, the imposition of the following protective measure:

    “…no information regarding the fact that the witness offered testimony to the Tribunal , or information regarding the substance of their testimony shall be disclosed to any third party, including parties to any other proceeding before the Tribunal, without the witness’ prior consent…”

  2. On 21 June 2002, the Appellant Dario Kordic (“Applicant Kordic”) filed the Supplemental Request which submits that for the reasons stated in his previous submissions on this issue, and for the reasons stated in the Appeals Chamber’s 16 May 2002 Decision 1, he is entitled to access Appellant Blaskic’s Third Rule 115 Motion2 to the extent that any of the materials submitted therein bear in any way upon the arguments advanced in his appeal. He further asserts that such materials may materially assist him in his appeal, and does not deem it necessary to repeat previous arguments advanced on the issue, incorporating all of the arguments made in his prior submissions .3 He further submits that although the Appeals Chamber ordered the Registry to grant Applicant Kordic and Mario Cerkez (“Applicant Cerkez) access to the non-public, post-trial submissions and appellate briefs filed in the present appeal “up to and including the 16 May 2002 Decision ”, no such materials had yet been provided to him.4

  3. On 21 June 2002, Applicant Cerkez filed his notice of joinder to the Supplemental Request where he incorporates, mutatis mutandis, all arguments presented by the Applicant Kordic.

  4. On 28 June 2002, the Prosecution filed its response to the Supplemental Request (“Prosecution’s Response to Supplemental Request”) in which it acknowledges that “a party should have access to any information likely to assist his case materially in the preparation of his appeal” and does not oppose the application for access , but recognizes that the third Rule 115 Motion has been filed confidentially and is subject to restrictive protective measures as requested by the Appellant Blaskic . It submits that “in light of the protective measures, the fair determination of the Supplemental Request must be made on the basis of the representations of all the parties concerned.”5

  5. On 2 July 2002, Appellant Blaskic filed his response to the Supplemental Request . He opposes the Supplemental Request, and states that the bases for his opposition are set out in his Motion for Protective Measures for New Witnesses on Appeal, confidentially filed on 3 April 2002, and in his Brief in Reply filed on 19 April 2002 in relation to this motion.

  6. In his previous request for assistance in gaining access to appellate briefs and non-public, appellate submissions and hearing transcripts filed in the Blaskic case, submitted on 5 February 2002, Applicant Kordic asserted that he was entitled to know which arguments have been put forward by Appellant Blaskic to the extent that those arguments bear materially upon issues that are presented in Dario Kordic’s and Mario Cerkez’s appeals, as well as in the Prosecution’s appeal. In addition , he submitted that since Appellant Blaskic was trying to shift responsibility to others for crimes committed by military units under his command, he wished to know which arguments have been raised. He also claimed that access was necessary to assess the consistency of the arguments advanced by the Prosecution in both appeals and to “frame arguments appropriately during the oral argument.” With respect to the equality of arms principle, Applicant Kordic asserted that it would be unfair to permit the Prosecution to have access to confidential submissions in the Blaskic appeal which may contain material that could be useful in the presentation of oral argument before the Appeals Chamber, and yet to deny similar access to him.6

  7. In his Motion for Protective Measures, the Appellant asserted that the witnesses have expressed significant concerns for their physical safety, as well as the safety of their families, if it becomes known that they have offered to testify before the Tribunal. He stated that the witnesses requested assurances that their identities and/or the fact that they have proffered testimony would not be disclosed without their consent, as a condition to their agreement to provide testimony to the International Tribunal.7 The protective measures sought by the Appellant are aimed at protecting the witnesses from what the Appellant called “a very real threat” of retaliation from the individuals identified as responsible for the crimes in question, and from their supporters who still wield significant power in Central Bosnia.

  8. The witnesses’ fears of retaliation relate to the power that some of the persons named in their statements such as Ljubicic and Kordic, still exert in Central Bosnia . The witnesses are prepared to testify that the crimes committed in Ahmici and Busovaca were planned by Dario Kordic, Ignac Kostroman, and Anto Sliskovic, and to name the individuals that carried them out. One of the witnesses currently lives in the Busovaca municipality and all three witnesses have immediate family members who live in Central Bosnia. One of the witnesses claims to be personally acquainted with Sliskovic and Kordic, and others in the hard-line Busovaca faction. The witnesses believe that, if information regarding their testimony were disclosed to other individuals indicted by the Tribunal specifically to the parties to the other Lasva Valley cases , or their supporters, the witnesses would be subjected to retaliation, including assassination attempts.8

  9. As the Appeals Chamber stated in its Decision on Motion for Protective Measures , the Tribunal has a statutory obligation under Article 21 of the Statute to ensure that the Applicants Kordic and Cerkez have a fair and public hearing, and under Article 22, to protect the witnesses from, inter alia, interference or intimidation where it is possible to do so.9

  10. The present decision is not concerned with whether the applicants are entitled to access the material sought in the Supplemental Request. The Appeals Chamber found in its previous decision authorizing the disclosure of confidential appellate submissions , that the Applicants Kordic and Cerkez had satisfied the relevant conditions for being granted the access sought, since they had: (a) described the material sought by their general nature, and (b) shown a legitimate forensic purpose for such access . The Appeals Chamber stated that the Applicants Kordic and Cerkez are entitled to be informed about the arguments advanced in the present appeal to the extent that those arguments bear materially upon issues that are presented in their own appeals.10

  11. The present decision concerns the Appeals Chamber’s duty to safeguard the right of the Appellant to offer evidence material to his defence, and the affirmative obligation to protect the witnesses that come to testify at this International Tribunal . The witnesses whose statements have been proffered as additional evidence on appeal by the Appellant Blaskic have been accorded certain protective measures that cannot be lifted in order to grant Applicants Kordic and Cerkez access to confidential material that is in fact inculpatory to at least one of the applicants. If the protective measures granted by the Appeals Chamber were to be lifted, the witnesses would rescind the authorisation given to the Appellant Blaskic to submit their statements for admission under Rule 115, and refuse to testify were the Appeals Chamber to decide to call them.

  12. The Appeals Chamber has not yet issued a decision on the admissibility of the witness statements, which are the object of the Supplemental Request. The Prosecution has submitted that the Appellant’s Third Rule 115 Motion should be rejected in its entirety . In its response to the Appellant’s Third Rule 115 Motion the Prosecution argues that the statements are not reliable since they are not accompanied by a declaration under penalty or perjury, and that they are essentially, documents “prepared” by counsel for the Appellant for the purposes of the current appellate litigation.11 In light of the position taken by the Prosecution in the Blaskic appeal, it seems unlikely that the Prosecution would use the material contained within the Appellant’s Third Rule 115 Motion in its case against Kordic.

  13. If the Prosecution were required to disclose any part of the material covered by the Appellant’s Third Rule 115 Motion pursuant to Rule 68, the Appeals Chamber has already set out a procedure for this purpose.12 Hence the right of another appellant or accused to access exculpatory material would not be hampered.


THE APPEALS CHAMBER DENIES the Supplemental Request.

Fausto Pocar
Presiding Judge

Dated this sixteenth day of October 2002
At The Hague,
The Netherlands.

[Seal of the Tribunal]

1 - Decision on Appellants Dario Kordic and Mario Cerkez’s Request for Assistance of the Appeals Chamber in Gaining Access to Appellate Briefs and Non-Public Post Appeal [sic] Pleadings and Hearing Transcripts filed in the Prosecutor v. Blaskic, 16 May 2002.
2 - Appellant’s Third Motion to Admit Additional Evidence on Appeal Pursuant to Rule 115 (confidential), 10 June 2002.
3 - Ibid, at para.7.
4 - Supplemental Request, at para.3. The Appeals Chamber was informed that a member of the Office of Legal Aid mailed the material to the Appellant’s counsel on 20 September 2002, and the defence confirmed via e-mail that they received the material on 25 September 2002.
5 - Prosecution’s Response to Supplemental Request, at para.2.
6 - Supplemental Request at para. 8.
7 - Motion for Protective Measures at page 1.
8 - Ibid, at page 2.
9 - The Appeals Chamber’s decision refers to the Trial Chamber in Tadic, “the Tribunal has to interpret these provisions within the context of its own legal framework in determining where the balance lies…” Where the likelihood that witnesses may be in danger has been established, it would be reasonable to order measures to ensure their protection. Prosecutor v. Dusko Tadic, Decision on the Prosecution’s Motion Requesting Protective Measures for Witness R, Case No.: IT-94-1-T, 31 July 1996, at para.4.
10 - “Decision on Appellants Dario Kordic and Mario Cerkez’s Request for Assistance of the Appeals Chamber in Gaining Access to Appellate Briefs and Non-Public Post Appeal [sic] Pleadings and Hearing Transcripts filed in the Prosecutor v. Blaskic”, 16 May 2002, paras. 14-17.
11 - Prosecution Response to Appellant’s Third Motion to Admit Additional Evidence on Appeal Pursuant to Rule 115, Confidential, 12 August 2002, at paras 17,18.
12 - See Decision on Motion for Protective Measures, paras 22-24.