Case No. IT-03-68-T

IN TRIAL CHAMBER II

Before:
Judge Carmel Agius, Presiding
Judge Hans Henrik Brydensholt
Judge Albin Eser

Registrar:
Mr. Hans Holthuis

Decision of:
23 November 2005

PROSECUTOR

v.

NASER ORIC

________________________________________________

DECISION ON MOTION FOR CERTIFICATION OF THE DECISION ON THE DEFENCE MOTION ON BEHALF OF DRAGO NIKOLIC SEEKING ACCESS TO ALL CONFIDENTIAL MATERIAL IN THE ORIC CASE

________________________________________________

The Office of the Prosecutor:

Mr. Jan Wubben
Ms. Patricia Sellers Viseur
Mr. Gramsci di Fazio
Ms. JoAnne Richardso

Counsel for the Accused:

Ms. Vasvija Vidovic
Mr. John Jones

Counsel for the Accused Nikolic:

Ms. Jelena Nikolic
Mr. Stéphane Bourgon

 

TRIAL CHAMBER II ("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 ("Tribunal"):

BEING SEISED OF the "Motion for Certification of the Decision on the Defence Motion on Behalf of Drago Nikolic Seeking Access to All Confidential Material in the Oric Case" filed by counsel for Drago Nikolic in the Case No. IT-05-88-PT1 ("Nikolic Defence") on 15 November 2005 ("Request for Certification");

NOTING the "Defence Motion on Behalf of Drago Nikolic Seeking Access to All Confidential Material in the Oric Case" filed by the Nikolic Defence on 17 October 2005 ("Nikolic Motion"), in which it sought to have access to all confidential material (including the transcripts, exhibits and filings) in the Case No. IT-03-68-T2 ("Requested Material");

NOTING the "Response on Behalf of Naser Oric to Defence Motion on Behalf of Drago Nikolic Seeking Access to All Confidential Material in the Oric Case" filed by counsel for Naser Oric ("Oric Defence") on 25 October 2005 ("Oric Response"), in which the Oric Defence did not take a position on the Nikolic Motion, left it to the discretion of the Trial Chamber to rule on the Nikolic Motion but submitted that it did not accept i) the characterisation of the case against Naser Oric made by the Nikolic Defence and thus did not accept the existence of the required nexus between the two cases, and ii) the forensic purpose for requesting disclosure of the identities of protected witnesses called by the Oric Defence;

NOTING the "Order on the Defence Motion on Behalf of Drago Nikolic Seeking Access to All Confidential Material in the Oric Case" issued by the Trial Chamber on 26 October 2005 ("Order"), in which the Trial Chamber invited the Office of the Prosecutor ("Prosecution") in the case against Naser Oric to respond to the Nikolic Motion and the Nikolic Defence to reply to the Prosecution Response no later than Wednesday 2 November 2005;

NOTING further the "Prosecutionís Response to Defence Motion on Behalf of Drago Nikolic Seeking Access to All Confidential Material in the Oric case" filed by the Prosecution in the Oric case on 28 October 2005 ("Prosecution Response"), in which the Prosecution submitted that the Nikolic Defence failed to demonstrate i) a sufficient link between the case against Naser Oric and the case against Drago Nikolic, and ii) a sufficient forensic purpose to warrant the disclosure of any confidential information, including the identities of protected witnesses;

NOTING further the "Submission of the Registry Pursuant to Rule 33(B) of the Rules of Procedure and Evidence Regarding Defence Motions Seeking Access to Confidential Material in Several Cases" issued by the Registry on 28 October 2005, in which the Registry presented a number of considerations with regard to the practical aspect of disclosing confidential information from one case to another case, namely the meaning of "access", the manner in which the material should be provided, the entity responsible for identifying the confidential information to be provided and the issue of ex parte material;

NOTING the "Applicantís Reply to the Response on Behalf of Naser Oric to Defence Motion on Behalf of Drago Nikolic Seeking Access to All Confidential Material in the Oric Case" filed on 2 November 2005 by the Nikolic Defence ("Reply), which merely reiterated the arguments put forward in the Nikolic Motion;

NOTING that, on 8 November 2005, the Trial Chamber issued its "Decision on Defence Motion on Behalf of Drago Nikolic Seeking Access to All Confidential Material in the Oric Case" ("Impugned Decision"), denying the Nikolic Motion in light of the fact that the Nikolic Defence failed to establish a sufficient nexus between the case against Drago Nikolic and the case against Naser Oric and to substantiate how the disclosure of the identity of the witnesses for whom protective measures were granted in the Oric case would assist in the preparation of the case for Drago Nikolic;

NOTING further the "Prosecutionís Response to the Nikolic Defenceís Motion for Certification of the Decision on the Defence Motion on Behalf of Drago Nikolic Seeking Access to All Confidential Material in the Oric Case" filed by the Prosecution in the case against Naser Oric on 21 November 2005, in which the Prosecution submits that the Nikolic Defence has failed to establish either criterion set out in Rule 73(B) of the Rules and thus that the Request for Certification should be denied;

NOTING that, during the hearing of Tuesday 22 November 2002 in the case against Naser Oric, the Oric Defence stated that it would not respond to the Request for Certification;

NOTING that the Nikolic Defence submits, in the Request for Certification, that the Trial Chamber "(1) erred in law by applying the wrong test for parties seeking access to confidential material in other cases; and (2) erred in its assessment of the arguments put forward by the Applicant in the Motion for Access with a view to obtaining access to confidential material in the Oric case"3;

NOTING Rule 73(B) of the Rules of Procedure and Evidence ("Rules") which sets out two cumulative criteria to be satisfied before the Trial Chamber can exercise its discretion to certify a decision for interlocutory appeal:

  1. the decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial; and

  2. for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings;

NOTING that the Request for Certification has been made within the seven-day time-limit from the issuing of the Impugned Decision set under Rule 73(C) of the Rules;

CONSIDERING, in the exercise of the Trial Chamberís discretion to grant certification, that the Impugned Decision does not involve issues that would "significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial" in particular because the Trial Chamber previously found that the nexus between the case against Drago Nikolic and the case against Naser Oric was not sufficient to be of assistance to Drago Nikolic, but also because the Nikolic Defence failed to substantiate how the disclosure of the identity of witnesses for whom protective witnesses were granted in the Oric case would materially assist in the preparation of the case for Drago Nikolic;

NOTING furthermore that, although strictly speaking the Trial Chamber would not need to review the second of the two cumulative criteria provided for in Rule 73(B) of the Rules as the first criterion is not fulfilled, the second criterion is also not fulfilled in that there is no visible way in which an immediate resolution of the issue decided upon in the Impugned Decision may materially advance the proceedings in the case against Drago Nikolic;

FOR THE FOREGOING REASONS,

PURSUANT TO Rule 54, 73(B) of the Rules and Article 20(1), 21(2) and 22 of the Statute of the Tribunal

HEREBY DENIES the Request for Certification.

 

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

Dated this twenty-third day of November 2005,
At The Hague
The Netherlands

________________________
Carmel Agius
Presiding Judge

[Seal of the Tribunal]


1. Prosecutor v. Vujadin Popovic, Ljubisa Beara, Drago Nikolic, Ljubomir Borovcanin, Zdravko Tolimir, Radivoje Tolimir, Milan Gvero, Vinko Pandurevic and Milorad Trbic, Case No. IT-05-88-PT.
2. Prosecutor v. Naser Oric, Case No. IT-03-68-T ("Oric case").
3. Request for Certification, p. 2.