Case No. IT-04-74-PT


Judge Liu Daqun, Presiding
Judge Amin El Mahdi
Judge Alphons Orie

Mr. Hans Holthuis

Order of:
5 October 2004







The Office of the Prosecutor:

Mr. Kenneth Scott

The Applicants :

Mrs. Edina Residovic and Mr. Stéphane Bourgon for Enver Hadzihasanovic
Mr. Fahrudin Ibrisimovic and Mr. Rodney Dixon for Amir Kubura

Counsel for the Accused:

Mr. Camil Salahovic and Mr. Zelimir Par for the accused Mr. Jadranko Prlic
Mr. Zeljko Olujic for the accused Mr. Bruno Stojic
Mr. Bozidar Kovacic and Ms. Nika Pinter for the accused Mr. Slobodan Praljak
Ms. Vesna Alaburic for the accused Mr. Milivoj Petkovic
Mr. Tomislav Jonjic for the accused Mr. Valentin Coric
Mr. Marinko Skobic for the accused Mr. Berislav Pusic


TRIAL CHAMBER I ("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"),

NOTING the Trial Chamber’s "Decision on Hadzihasanovic and Kubura’s Motion for Access to Confidential Supporting Material" dated 3 September 2004 granting access to the accused Enver Hadzihasanovic and Amir Kubura ("Applicants") to the confidential supporting material relating to the indictment against the accused in the case Prosecutor v. Prlic et al. and ordering the Prosecution to file a motion for protective measures ("Decision");

NOTING the ""Prosecution’s Motion for Protective Measures Concerning Disclosure of Confidential Material to Enver Hadzihasanovic and Amir Kubura" dated 15 September 2004 ("Motion"), whereby the Prosecution seeks to be allowed to redact all information concerning the identities and whereabouts of witnesses included or mentioned in such material, the additional information concerning a particular witness should only be disclosed if the Applicants make a significant, particularised showing of a substantial and bona fide basis and reason why the disclosure of this information is actually warranted";1

NOTING the "Applicants’ Joint Response to Prosecution Motion for Protective Measures" dated 20 September 2004 ("Response"), whereby the Applicants (1) "do not object to obtaining access to the confidential material sought with the names, addresses and whereabouts and other identifying information of witnesses named or mentioned in such material being redacted; (2) requests that "such redactions be limited to those witnesses who have required protective measures or who already benefit from protective measures granted to them in other cases", (3) for material covered by Rule 70, request the Trial Chamber to order the Prosecution to seek authorization from the providers and to report to the Trial Chamber when such consent is refused;2

CONSIDERING that it falls within the Chamber’s discretion to strike a balance between the right of a party to have access to confidential material to prepare its case and guaranteeing the protection and the integrity of confidential information;3 that protective measures granted to witnesses whose material is to be disclosed to the Applicant must remain fully effective; that at this stage the Applicants do not need to know the details of the protected victims or witnesses in order to determine whether the material sought will in fact assist them in the preparation of their defence;4 that it is therefore appropriate that the material concerning those victims or witnesses is redacted before being disclosed to the Applicants;

CONSIDERING however that the Prosecution may have to disclose the details of the protected victims or witnesses at a later stage if their revelation can be justified by the Applicants having considered the material;

CONSIDERING that in relation to material, subject to the general confidentiality order imposed on the Prlic et al. defence by this Chamber5, concerning or identifying witnesses who have not required protective measures or who do not already benefit from protective measures granted to them in other cases, the Trial Chamber is not convinced that disclosure of such material in a non-redacted form to the Applicants will pose any danger to the integrity of the information if appropriate protective orders are made;

PURSUANT TO Articles 20, 21 and 22 of the Statute and Rules 54 and 75 of the Rules of Procedure and Evidence ("the Rules"),

HEREBY GRANTS the Motion in part and ORDERS that access to the Applicants to the confidential supporting material in the Prlic et al. case is made subject to the following orders and protective measures:

  1. For the purposes of this disposition:

    1. the "Prosecution" means the Prosecutor of the Tribunal and her staff;
    2. the "Applicants" means the accused Enver Hadzihasanovic and Amir Kubura, their respective defence counsel and immediate legal assistants and staff, and others specifically assigned by the Tribunal to their defence team and identified in a list to be maintained by the lead counsel and filed with the Chamber seized of the Applicants’ case ex parte and under seal within ten days of the entry of this order. Any and all additions and deletions to the initial list in respect of any of the above categories of persons who are necessarily identified and properly involved in the preparation of the defence shall be notified to that Chamber in similar fashion within seven days of such additions or deletions;
    3. the "public" means all persons, governments, organisations, entities, clients, associations and groups, other than the judges of the Tribunal and the staff of the Registry (assigned to either Chambers or the Registry), the Prosecution and the Applicants, as defined above. The "public" specifically includes, without limitation, family, friends and associates of the Applicants, the accused in other cases or proceedings before the Tribunal and defence counsel in other cases or proceedings before the Tribunal;
    4. the "media" means all video, audio and print media personnel, including journalists, authors, television and radio personnel, their agents and representatives;

  1. Since the Prosecution is familiar with the material it shall redact it as requested; and it shall provide it to the Registry for disclosure to the Applicants;
  2. Material which fall under Rule 70 of the Rules shall not be disclosed unless prior authorization asked as soon as practicable is obtained by the Prosecution from the relevant authorities; the Prosecution shall be responsible for informing the Registry as appropriate;
  3. The Applicants shall not disclose to the media any confidential or non-public materials provided by the Prosecution;
  4. Save as is directly and specifically necessary for the preparation and presentation of their case and only on leave being first granted by the Chamber, the Applicants shall not disclose to the public, to the media or to the family members and associates of the Applicants:

    1. the names, identifying information or whereabouts of any witness or potential witness identified by the Prosecution, copies of witness statements, the contents thereof, or any other 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 the Applicants’ case and always with the leave of the Chamber; or
    2. any evidence (including documentary, audio-visual, physical 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 disclosed to the Applicants;

  1. If the Applicants find it directly and specifically necessary to disclose such information for the preparation and presentation of their case and having obtained leave from the Chamber to do so, they shall inform each person among the public to whom non-public material or information (such as witness statements, transcripts of testimonies, exhibits, prior testimony, videos, or the contents thereof), is shown or disclosed, that he or she is forbidden to copy, reproduce or publicise such non-public material or information, and is not to show or disclose it to any other person. If provided with the original or any copy or duplicate of such material, such person shall return it to the Applicants when such material is no longer necessary for the preparation and presentation of their defence;
  2. If a member of the defence teams concerned withdraws from the case, all material in his or her possession shall be returned to the lead defence counsel for the relevant defence team;
  3. The Applicants shall have no contact with the witnesses concerned with the material to be disclosed, unless otherwise decided by the Chamber under the conditions set by the latter;
  4. Subject to the protective measures and orders prescribed above, the protective measures that are already in place in relation to the material disclosed should remain in place.


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

Dated this 5th Day of October 2004,
At The Hague
The Netherlands

Judge Alphons Orie
Pre-trial judge, Trial Chamber I

[Seal of the Tribunal]

1. Motion, para. 13.
2. Response, paras 5-7.
3. Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-A, 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 Pleadings and Hearing Transcripts Filed in the Prosecutor v. Blaskic”, 16 May 2002, para. 29.
4. Prosecutor v. Brdjanin & Talic, Case No. IT-99-36-PT, Second Decision on Motion by Radoslav Brđanin and Momir Talic for Access to Confidential Documents, 15 November 2000, para. 10.
5. "Order for protective measures" 30th of July 2004.