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:
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]