Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy
Mr. Hans Holthuis
2 December 2005
Office of the Prosecutor
Mr. Daryl Mundis
Ms. Tecla Henry-Benjamin
Counsel for the Accused Jadranko Prlic
Mr. Michael G. Karnavas
Ms. Suzana Tomanovic
Counsel for Rasim Delic
Ms. Vasvija Vidovic
THIS 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 (“International Tribunal”),
BEING SEIZED, by virtue of Rule 75(G)(i) of the Rules of Procedure and Evidence (“Rules”), of “Jadranko Prlic’s Motion for Access to All Confidential Materials in Prosecutor v. Rasim Delic”, filed on 27 October 2005 (“Motion”), in which the Defence of Jadranko Prlic (“Applicant”) argues that the requirements for access to confidential material from other proceedings have been met,
NOTING the “Prosecution Response to the Request of Jadranko Prlic for Confidential Material in the Delic Case”, filed on 1 November 2005 (“Prosecution Response”),
NOTING the “Defence Response on behalf of Rasim Delic to Jadranko Prlic’s Motion for Access to All Confidential Material in the Delic Case”, filed on 11 November 2005 (“Delic Response”),
NOTING 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”, filed on 28 October 2005 and addressing, inter alia, the case of Prosecutor v. Jadranko Prlic et al.,
NOTING the “Prosecutor’s Response to 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”, filed on 11 November 2005,
NOTING that the Motion seeks access to “all confidential materials” in the Delic case,1 on the following grounds: (1) since “the Prlic Indictment covers areas and events specifically referenced in the Delic Indictment”, all the confidential materials in Delic are “exceedingly relevant” to the Applicant’s defence;2 and (2) since the Indictment alleges the Applicant’s co-participation in a joint criminal enterprise to subjugate and ethnically cleanse Bosnian Muslims and other non-Croats, “it is paramount for the Defence to be given an opportunity to present all the events in their proper context”,3
NOTING that the Prosecution does not object to the Applicant gaining access to the material sought,4 subject to the following conditions: (1) that the identities and other identifying information of witnesses, along with their current whereabouts, are redacted from any non-public transcripts before they are disclosed;5 (2) that any non-public testimony or exhibits admitted pursuant to Rule 70 not be disclosed unless the Rule 70 provider in question consents to such disclosure;6 and (3) that Prosecution filings made on a confidential and ex parte basis not be disclosed,7
NOTING that the Delic Response does not object to the Applicant gaining access to the material sought8 and that it agrees that a nexus exists between the two cases,9 but that it opposes the characterisation of the case against Delic as set out in the Motion, including any suggestion that Delic had effective control over the El Mujahed unit of the Army of the Republic of Bosnia and Herzegovina (“ABiH”),10
NOTING that the Amended Indictment in Prosecutor v. Prlic et al. (“Prlic Indictment”) charges the Applicant with responsibility for crimes committed by forces of the Croatian Defence Council (“HVO”) and other members of Bosnian Croat entities in a number of central Bosnian municipalities—including Mostar,11 Vares,12 Novi Travnik,13 Gornji Vakuf,14 Busovaca,15 Jablanica,16 and Prozor17— from November 1991 to April 1994;18 and that the Indictment discusses the underlying conflict between the HVO and the ABiH on several occasions,19
NOTING that the Indictment in Prosecutor v. Delic (“Delic Indictment ”) charges the Accused with responsibility for failing to prevent or punish crimes committed by ABiH troops under his effective control in Travnik and Zavidovici;20 that these two municipalities lie in the vicinity of many of those mentioned in the Prlic Indictment;21 that the Delic Indictment alleges that such crimes were committed from mid-1993 to 1995;22 and that the Delic Indictment discusses the underlying conflict between the ABiH and the HVO,23
NOTING the “Decision on Motion by Hadzihasanovic, Alagic, and Kubura for Access to Confidential Supporting Material, Transcripts and Exhibits in the Kordic & Cerkez Case” of 23 January 2003, in which the Appeals Chamber granted access to confidential material to three accused ABiH leaders in part because “the Hadzihasanovic et al SsicC proceedings are essentially the ‘“flipside” of the HVO prosecutions’ of which the Kordic & Cerkez case is one example”,24
CONSIDERING that a party is always entitled to seek material from any source to assist in the preparation of its case if the document sought has been identified or described by its general nature, and if a legitimate forensic purpose for such access has been shown,25
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,26 and that access to material may therefore be granted if the party seeking it demonstrates a “geographical, temporal or otherwise material overlap” between the two proceedings,27
CONSIDERING that access to inter partes confidential material from another case is granted if the party seeking it can demonstrate “a good chance that access to the materialSC will materially assist the applicant in preparing his case ”, and that the party seeking the material need not establish that it would likely be admissible evidence or applicable legal precedent in the party’s own case,28
CONSIDERING, however, that because ex parte material, “being of a higher degree of confidentiality, by nature contains information which has not been disclosed inter partes solely because of security interests of a State, other public interests, or privacy interests of a person or institution”,29 such material shall not be disclosed except upon a showing of legitimate forensic necessity,30
CONSIDERING that, if the material sought is covered by Rule 70, the party that obtained such material in the earlier proceedings must seek the consent of the Rule 70 provider or providers before disclosing such material,31 even in respect of a Rule 70 provider who consented to the use of the relevant material in the earlier proceedings,
CONSIDERING that the general nature of the material sought has been adequately identified or described in light of the Applicant’s lack of knowledge about the form and nature of the material sought,
CONSIDERING that, while the geographical, temporal, and substantive overlap between the Applicant’s case and the Delic case is not overwhelming, the Applicant has nonetheless demonstrated a good chance that access to the requested material will materially assist him in preparing his case,
CONSIDERING, therefore, that the Applicant has demonstrated the existence of a nexus between his case and the Delic case, and that he has consequently established a legitimate forensic purpose justifying access to all inter partes confidential material from Delic,
CONSIDERING, however, that no legitimate forensic necessity has been shown for access to any ex parte confidential material from Delic,32
CONSIDERING that the redaction of the identities, whereabouts, and other identifying information of witnesses from non-public transcripts prior to disclosure is not necessary—particularly in light of the Trial Chamber’s orders in the Disposition, infra—given that the existing protective measures in Delic are sufficient to safeguard the security of all protected witnesses,
PURSUANT TO Rules 54, 75, and 127 of the Rules,
HEREBY GRANTS THE MOTION IN PART, AND ORDERS AS FOLLOWS:
(1) Counsel for Rasim Delic is granted leave to file the Delic Response.
(2) Subject to the condition in paragraph 3, infra, the Registry shall give the Applicant access to all inter partes confidential material from the Delic case.
(3) The Registry shall give the Applicant access to inter partes confidential material obtained pursuant to Rule 70 only if and when the consent of the providers has been obtained by the parties. The relevant party shall determine as expeditiously as possible whether any of the requested material falls under Rule 70, and shall contact the providers of such material without delay to seek their consent for disclosure of that material, even in respect of those providers who consented to the use of the relevant material in a prior case. The parties shall be responsible for informing the Registry as appropriate.
(4) The protective measures which have already been ordered in relation to the material to be made accessible to the Applicant shall remain in place.
(5) The Applicant and his defence counsel shall not contact any witness whose identity was subject to protective measures in Delic.
(6) The Applicant and his defence counsel shall not disclose to the public any confidential or non-public material disclosed to it from the Delic case, except to the limited extent that disclosure to members of the public is directly and specifically necessary for the preparation and presentation of the Applicant’s case. If any confidential or non-public material is disclosed to the public, any person to whom disclosure is made shall be informed that he is forbidden to copy, reproduce, or publicise confidential or non-public information or to disclose it to any person, and that he must return the material to the Applicant or his counsel as soon as it is no longer needed for the preparation of the Applicant’s case.
(7) The Motion is otherwise denied.
For the purpose of this Order, “the public” means and includes all persons, governments, organisations, entities, clients, associations, and groups, other than the Judges of the International Tribunal, the staff of the Registry, the Prosecutor and her representatives, and the Applicant, his counsel, and any employees who have been instructed or authorised by the Applicant’s counsel to have access to the confidential material. “The public” also includes, without limitation, families, friends, and associates of the Applicant; Accused and defence counsel in other cases or proceedings before the International Tribunal; the media; and journalists.
Done in English and French, the English text being authoritative.
Judge Patrick Robinson
Dated this second day of December 2005
At The Hague
[Seal of the Tribunal]