Case No. IT-04-74-PT

BEFORE THE TRIAL CHAMBER

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

Registrar:
Mr. Hans Holthuis

Decision of:
9 March 2005

PROSECUTOR

v.

JADRANKO PRLIC
BRUNO STOJIC
SLOBODAN PRALJAK
MILIVOJ PETKOVIC
VALENTIN CORIC
BERISLAV
PUSIC

______________________________________________

DECISION ON DEFENCE’S MOTION FOR ACCESS TO CONFIDENTIAL MATERIAL

______________________________________________

The Office of the Prosecutor:

Mr. Kenneth Scott

Counsel for the Accused:

Mr. Camil Salahovic for the accused Mr. Jadranko Prlic
Mr. Zeljko Olujic for the accused Mr. Bruno Stojic
Mr. Bozidar Kovacic 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 ("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 Accused Slobodan Praljak’s Motion for Access to Confidential Testimony and Documents" filed on 8 February 2005, whereby the Defence for the accused Praljak ("Applicant") requests the Chamber to issue an order for access to confidential testimony and documents related to the conflict between Bosnian Muslim and Bosnian Croats or between the Army of BiH and HVO on the territory of the BiH in 1992/93 in the following cases: Prosecutor v. Zlatko Aleksovski, Prosecutor v. Tihomir Blaskic, Prosecutor v. Anto Furundzija, Prosecutor v. Zoran Kupreskic et al., Prosecutor v. Dario Kordic and Mario Cerkez to the extent that the confidential material sought, including ex-parte submissions on the grounds that (1) the material sought, which is sufficiently described, will materially assist the Defence, (2) a legitimate forensic purpose for such access has been shown, and (3) all original or new protective measures attached to the material sought will be accepted ("Motion");

NOTING the "Prosecution’s Response to the Accused Praljak’s Motion for Access to Confidential Testimony and Documents Filed on 8 February 2005" dated 22 February 2005 whereby the Prosecution does not oppose the Motion provided that (1) "the disclosed materials are limited to those that relate to the "conflict between Bosnian Muslim and Bosnian Croats or between the Army of BiH and HVO on the territory of the BiH in 1992/93", (2) the original protective measures remain, (3) Rule 70 material is not to be disclosed except on the provider’s consent, (4) the "sensitive witness" material is not to be disclosed, and (5) no ex-parte pleadings or submissions should be disclosed unless showing of a legitimate need is made ("Response");1

NOTING the Prosecution’s corrigendum filed on 23 February 2005, whereby the Prosecution attaches an annex listing certain decisions by the Chambers previously seised of the Aleksovski, Blaskic, Furundzija, Kupreskic et al., and Kordic and Cerkez cases;

NOTING "Jadranko Prlic’s Notice of Joinder to the Accused Praljak’s Motion for Access to Confidential Testimony and Documents Filed on 8 February 2005" dated 4 March 2005, whereby the accused Prlic ("Applicant") joins to the Motion;

CONSIDERING that disclosure of confidential material from another case and not falling under Rules 66 and 68 is limited by the fact that a party may not engage in a fishing expedition but must establish that (1) the material sought has been identified or described by its general nature as clearly as possible, and (2) a legitimate forensic purpose for such access has been shown;2

CONSIDERING that the relevance of the material sought by a party may be determined by showing the existence of a nexus between the applicant’s case and the case(s) from which such material is sought;3 that it is sufficient if the material sought is likely to be of assistance to the applicant’s case or, at least, that there is a good chance that it may assist the defence of the applicant;4

CONSIDERING that there is a substantive, geographical and temporal overlap between the Prosecutor v. Zlatko Aleksovski, Prosecutor v. Tihomir Blaskic, Prosecutor v. Anto Furundzija, Prosecutor v. Zoran Kupreskic et al., Prosecutor v. Dario Kordic and Mario Cerkez cases and the present case;

CONSIDERING that it is in the interests of justice that Rule 70 material is not disclosed except upon the provider’s consent, that "sensitive witness" material (which is in principle closely connected the facts of a specific case and not available to the opposing party but about 30 days before the sensitive witness is due to testify)5 and ex-parte pleadings or submissions (not available to the opposing party in the previous proceedings) should not be disclosed to the Applicants except upon showing of a legitimate need;

FINDING that the nature of the material sought has been described by its general nature as clearly as it is possible considering the lack of knowledge of the seeking party about the form and nature of the material sought and that a legitimate forensic purpose for access to material providing information has been shown except – at this stage- for Rule 70 material, "sensitive witness" material and ex-parte submissions or pleadings;

CONSIDERING that it is in the interests of justice when granting access to confidential material in other cases to the accused Prlic and Praljak, to grant similar access to the other co-accused in this case;

PURSUANT TO Rules 54 and 75 of the Rules of Procedure and Evidence;

HEREBY GRANTS the Motion in part and ORDERS that access to the confidential material in the Prosecutor v. Zlatko Aleksovski, Prosecutor v. Tihomir Blaskic, Prosecutor v. Anto Furundzija, Prosecutor v. Zoran Kupreskic et al., Prosecutor v. Dario Kordic and Mario Cerkez cases concerning the conflict between Bosnian Muslim and Bosnian Croats or between the Army of BiH and HVO on the territory of the BiH in 1992/93 is granted to the co-accused in this case, 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 Jadranko Prlic, Slobodan Praljak, Bruno Stojic, Milivoj Petkovic, Valentin Coric and Berislav Pusic, their defence counsels 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 this Chamber 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;

  2. since the Prosecution is familiar with the material, it shall redact it as required; and it shall provide it to the Registry for disclosure to the Applicants;

  3. material which fall under Rule 70 of the Rules shall not be disclosed unless prior authorization is obtained by the Prosecution from the relevant authorities; the Prosecution shall be responsible for informing the Registry as appropriate;

  4. "sensitive witness" material6 and ex-parte pleadings or submissions shall not be disclosed unless on leave granted by the Chamber upon showing of a legitimate need;

  5. the Applicants shall not disclose to the media any confidential or non-public materials provided by the Prosecution;

  6. 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;

  7. 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, the Applicants 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 the defence;
  8. if a member of the defence teams withdraws from the case, all material in his or her possession shall be returned to the lead defence counsel for the relevant defence team;

  9. 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;

  10. 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 9th Day of March 2005,
At The Hague
The Netherlands

_______________________________
Judge Liu Daqun
Presiding

[Seal of the Tribunal]


1. Motion, para. 25.
2. Prosecutor v. Enver Hadzihasanovic et al., Case No. IT-01-47-AR73, Decision on Appeal from Refusal to Grant Access to Confidential Material in another Case, 23 April 2002, p. 3.
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. 15.
4. See Prosecutor v. Enver Hadzihasanovic et al., Case No. IT-01-47-AR73, Decision on Appeal from Refusal to Grant Access to Confidential Material in Another Case, 23 April 2002, p. 3.
5. The Chamber understands to be a "Sensitive Witness" a witness whose existence and prior statement was disclosed to the opposing party in the first proceedings shortly before the sensitive witness was due to testify by virtue of a Chamber’s decision.
6. As defined supra in footnote 5.