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
Order of:
31 October 2005
PROSECUTOR
v.
JADRANKO PRLIC
BRUNO STOJIC
SLOBODAN PRALJAK
MILIVOJ PETKOVIC
VALENTIN CORIC
BERISLAV PUSIC
_________________________________________
DECISION ON RASIM DELIC’S MOTION FOR ACCESS TO CONFIDENTIAL SUPPORTING MATERIAL
_________________________________________
The Office of the Prosecutor:
Mr. Kenneth Scott
Mr. Daryl Mundis
Counsel for the Accused:
Mr Michael Karnavas for the accused Mr. Jadranko Prlic
Mr Tomislav Kuzmanovic for the accused Mr. Bruno Stojic
Mr. Slobodan Praljak representing himself in person
Ms Vesna Alaburic for the accused Mr. Milivoj Petkovic
Mr Tomislav Jonjic for the accused Mr. Valentin Coric
Mr Fahrudin Ibrisimovic for the accused Mr. Berislav Pusic
Applicants’ Counsel:
Ms. Vasvija Vidovic
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 "Defence Motion on Behalf of Rasim Delic Seeking Access to All Confidential Material in the Prlic Case" ("Defence Motion") filed on 13 October 2005, whereby the Defence for the Accused Rasim Delic ("Applicant") requests the Trial Chamber to issue an order for access to the supporting material in the present case;
NOTING the Prosecution’s "Response to the Defence Motion of Rasim Delic Seeking Access to all Confidential Material in the Prlic Case" ("Prosecution Response") filed on 25 October 2005 whereby the Prosecution does not object to the Applicant gaining access to the material sought, on the conditions that (1) the Trial Chamber apply mutatis mutandis all protective measures that apply to the Prlic et al supporting material to the Applicant and his Defence team in this case, (2) that the provider of any Rule 70 material give permission that the said material be disclosed to the Applicant, and (3) that the Applicant does not receive any Prosecution filings that were made on a confidential and ex parte basis in the Prlic et al case;
CONSIDERING that the Applicant requests access to the confidential material supporting the indictment in the case the Prosecutor v. Prlic et al. on the grounds, inter alia, that: (1) a substantial material, geographical and temporal overlap exists between the Delic and the Prlic cases,1 (2)that at the time of the alleged events, the Applicant and the Accused in the Prlic case all occupied leadership positions, the Applicant being the member of the Supreme Command Staff of the Army of the Republic of Croatia (the ARBiH), and the Accused in the Prlic case holding positions within the Croatian Republic of Herceg-Bosna Defence Council (HVO),2 (3) at the time of the events alleged in both Indictments, an armed conflict was occurring involving all Accused in the Prlic case and the Applicant, AND (4) the Applicant’s case deals with his responsibility as a Commander pursuant to Article 7(3) of the Statute, and therefore any information relating to the command structure of the HVO, as well as the policy of the HVO on the whole territory of Bosnia and Herzegovina would be of great importance and relevance for the preparation of the Applicant’s case;3
CONSIDERING that disclosure of confidential supporting material 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;4
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 from which such material is sought;5 that it is sufficient if the material sought is likely to be of assistance to the applicants’ case or, at least, that there is a good chance that it may assist the defence of the applicants;6
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;
PURSUANT TO Articles 20, 21 and 22 of the Statute and Rules 54 and 75 of the Rules;
HEREBY GRANTS the Motion and VARIES the order for non-disclosure on the supporting material in the present case to the extent that access to that material is granted to the accused Rasim Delic and his defence only subject to the following orders and protective measures:
Done in both English and French, the English text being authoritative.
Dated this 31st day of October 2005,
At The Hague
The Netherlands
___________________________
Judge Liu Daqun
Presiding Judge
[Seal of the Tribunal]