Case No.: IT-04-81-PT

IN THE TRIAL CHAMBER

Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy

Registrar:
Mr. Hans Holthuis

Order of:
7 February 2006

PROSECUTOR

v.

MOMCILO PERISIC

__________________________________

SECOND ORDER ON DEFENCE MOTION FOR ACCESS TO ALL CONFIDENTIAL MATERIAL IN THE PROSECUTOR V. KRSTIC CASE

__________________________________

Office of the Prosecutor

Ms. Susan Somers
Mr. Philip Weiner

Counsel for Radislav Krstic

Mr. Nenad Petrusic

Counsel for Momcilo Perisic

Mr. James Castle

 

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") is seized of a "Prosecutorís Request for Certification of Interlocutory Appeal of Order on Defence Motion for Access to All Confidential Material in the Prosecutor v. Krstic case and in the Alternative Prosecutionís Motion for Reconsideration of Order Granting Confidential Ex Parte Material to Accused" and hereby renders a decision thereon.

  1. On 16 November 2005 counsel for the Accused Momcilo Perisic (the "Defence") filed a motion seeking access to "all confidential material"1 in the Krstic trial and appeals case, including "exhibits, transcripts of closed sessions and the filings" for both the trial and appellate stages of the case ("Motion").

  2. On 28 November 2005 the Prosecution filed a response to the Motion ("Response").2

  3. On 25 January 2006 the Trial Chamber issued an order granting the Defence access to all confidential material, including ex parte confidential material, in the Krstic trial and appeals case ("Original Order for Access").3

  4. On 1 February 2006 the Prosecution filed a motion for certification or, in the alternative, reconsideration of the part of the Trial Chamberís order that granted the Accused access to ex parte confidential material.4

  5. A trial chamber has the "inherent power" to reconsider its own decisions inter alia if it is satisfied that "its previous decision was erroneous" and that this error has "caused prejudice."5 The Chamber is satisfied that ex parte material was not specifically requested in the original Motion and it therefore considers that its decision was made in error.6 In addition, giving effect to the Original Order for Access could result in protected material being inappropriately disclosed to a third party and therefore this error causes prejudice.

    Disposition

  6. PURSUANT TO Rules 54 and 75 of the Rules, the Trial Chamber hereby ORDERS as follows:

    1. The motion for reconsideration is GRANTED and this Order supersedes the Original Order for Access in its entirety.

    2. The motion for a stay and for certification is DISMISSED as unnecessary.

    3. The Registry shall give the Defence access to inter partes confidential material in the Krstic trial and appeals case but shall not give the Defence access to any ex parte material filed in the case.

    4. The Registry shall give the Defence access to inter partes confidential material in the Kstic trial and appeals case that was acquired pursuant to Rule 70 only if and when the consent of the provider(s) has been obtained by the relevant party. The Registry shall contact the Prosecution and Counsel for Radislav Krstic to determine which confidential material in the case, if any, is covered by Rule 70, and shall withhold disclosure of such material until such time as the relevant party informs the Registry that consent for disclosure has been obtained. The relevant party shall determine as expeditiously as possible whether any of the requested material falls under Rule 70, and shall contact the providers of such material without delay to seek their consent for disclosure of that material, even in respect of those providers who consented to the use of the relevant material in a prior case. The parties shall be responsible for informing the Registry as appropriate.

    5. The Registry shall give the Defence access to all non-Rule 70 inter partes confidential material from the Krstic trial and appeals case without awaiting the partiesí responses in respect of permission to disclose the Rule 70 material identified by them.

    6. The protective measures which have already been ordered in relation to the material to be made accessible to the Defence shall remain in place.

    7. The Accused and the Defence shall not contact any witness whose identity was subject to protective measures in Krstic trial and appeals case.

    8. The Accused and the Defence shall not disclose to the public any confidential or non-public material disclosed to it from the Krstic trial and appeals case, except to the limited extent that disclosure to members of the public is directly and specifically necessary for the preparation and presentation of the Accusedís case. If any confidential or non-public material is disclosed to the public, any person to whom disclosure is made shall be informed that he is forbidden to copy, reproduce, or publicise confidential or non-public information or to disclose it to any person, and that he must return the material to the Defence as soon as it is no longer needed for the preparation of the Accusedís case.

For the purpose of this Order, "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, and the Accused, the Defence, and any employees who have been instructed or authorised by the Defence to have access to the confidential material. "The public" also includes, without limitation, families, friends, and associates of the Accused; Accused and defence counsel in other cases or proceedings before the International Tribunal; the media; and journalists.

 

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

_____________
Judge Patrick Robinson
Presiding

Dated this seventh day of February 2006
At The Hague
The Netherlands

[Seal of the Tribunal]


1. Applicantís Motion Seeking Access to Confidential Material in the Krstic Case with Appendix A, Case No. IT-04-81-PT, 16 November 2005, paras. 1 and 14.
2.Prosecution Response to the Request of Momcilo Perisic for Confidential Material in the Radislav Krstic Case, Case No. IT-04-81-PT, 28 November 2005.
3. Order on Defence Motion for Access to All Confidential Material in the Prosecutor v. Krstic Case, Case No. IT-04-81-PT, 25 January 2006.
4. Prosecutorís Request for Certification of Interlocutory Appeal of Order on Defence Motion for Access to All Confidential Material in the Prosecutor v. Krstic case and in the Alternative Prosecutionís Motion for Reconsideration of Order Granting Confidential Ex Parte Material to Accused, Case No. IT-04-81-PT, 6 February 2006.
5. Prosecutor v. Delalic, Mucic, Delic, and Landzo (ďCelebici Sentencing Appeal JudgementĒ), Case No. IT-96-21-Abis, Judgement on Sentence Appeal, 8 April 2003, para. 49; See also Prosecutor v. Kvocka, Radic, Zigic, and Prcac, Case No. IT-98-30/1-A, Decision, 22 March 2004 ("Kvocka et al. Appeal Decision"); Prosecutor v. Blaskic, Case No. IT-95-14-A, Decision on "Prosecutionís Preliminary Response and Motion for Clarification Regarding Decision on Joint Motion of Hadzihasanovic, Alagic and Kubura of 24 January 2003Ē, 26 May 2003 (ďBlaskic Appeal Decision"); Prosecutor v. Milosevic, Case No. IT-02-54-T, Decision on Prosecution Motion for Reconsideration of Decisions Concerning Supreme Defence Council Documents and Implementation of Appeals Chamber Review Decision, para. 27.
6. See Prosecutor v. Blagojevic and Jokic, Case No. IT-04-81-PT, Decision on Momcilo Perisicís Motion Seeking Access to Confidential Material in the Blagojevic and Jokic Case, 18 January 2006, para. 6.