Case No.: IT-02-54-T
IN THE TRIAL CHAMBER
Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy
Registrar:
Mr. Hans Holthuis
Order of:
11 January 2006
PROSECUTOR
v.
SLOBODAN MILOSEVIC
_________________________________________________________________________
ORDER ON REQUEST FOR VARIANCE OF PROTECTIVE MEASURES WITH RESPECT TO CONFIDENTIAL ANNEX FILED WITH TRIAL CHAMBER’S DECISION OF 13 DECEMBER 2005
_________________________________________________________________________
Office of the Prosecutor
Ms. Carla
Del Ponte
Mr. Geoffrey Nice
Counsel for Jovica Stanisic
Mr. Geert-Jan Alexander Knoops
Mr. Wayne Jordash
The Accused
Mr. Slobodan Milosevic
Amicus Curiae
Prof. Timothy McCormack
Assigned Counsel
Mr. Steven Kay
Ms. Gillian Higgins
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, pursuant to Rule 75(G)(i) of the Rules of Procedure and Evidence of the International Tribunal ("Rules"), of a "Request for Variance of Protective Measures with respect to Confidential Annex Filed with Trial Chamber’s Decision of 13 December 2005", filed on 21 December 2005 ("Motion"), in which the Defence of Jovica Stanisic ("Applicant") argues that the requirements for access to confidential material from other proceedings have been met, and requests access to the confidential annex to the "Decision on Application for a Limited Re-Opening of the Bosnia and Kosovo Components of the Prosecution Case", issued by this Trial Chamber on 13 December 2005 ("Confidential Annex" and "Decision", respectively);
NOTING that neither the Prosecution nor the Defence filed a response to the Motion;
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; and that access to confidential material from another case is granted if the party seeking it can establish that it may be of material assistance to its case;1
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,2 and therefore that access to material may be granted if the party seeking it demonstrates a "geographical, temporal or otherwise material overlap" between the two proceedings;3
NOTING that the Motion provides two reasons in support of the Applicant’s request: first, it asserts that, since the Applicant "is charged with forming part of a Joint Criminal Enterprise with Slobodan Milosevic, the issue of Mr. Milosevic’s criminal responsibility is of direct relevance" to his case;4 second, it claims that because "the statements and exhibits assessed by the Trial Chamber are listed on the Prosecution’s exhibit and witness list in the [Stanisic] case, any information pertaining to their lack of probative value is potentially exculpatory in accordance with Rule 68";5
NOTING that, as the Decision makes clear, the Trial Chamber’s assessment of the probative value of the proposed items of evidence took place in the specific context of an application to re-open the Prosecution’s case after its case in chief had already concluded, and was guided by the particular circumstances of the proceedings against the Accused Milosevic;6
NOTING, moreover, that Rule 68 of the Rules is inapplicable to the Applicant’s request, because that Rule governs disclosure of exculpatory and other material to the Defence by the Prosecution;
CONSIDERING, nevertheless, that there is a clear material overlap between the two proceedings, as demonstrated by the allegation that the Applicant and the Accused Slobodan Milosevic were participants in the same joint criminal enterprise,7 and the fact that some of the proposed items of evidence or witnesses considered by the Trial Chamber in its evaluation of the Prosecution’s application for re-opening appear on the Prosecution’s exhibit and witness lists for the case against the Applicant;8
CONSIDERING that the Applicant has undertaken "to comply with all protective orders issued by the Trial Chamber in relation to the requested material";9
PURSUANT TO Rules 54 and 75 of the Rules,
HEREBY GRANTS THE MOTION, AND ORDERS AS FOLLOWS:
For the purposes 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 and his defence team. "The public" also includes, without limitation, families, friends, and associates of the Applicant; accused and defence counsels in other cases or proceedings before the International Tribunal; the media; and journalists.
Done in English and French, the English text being authoritative.
___________________________
Judge Robinson
Presiding
Dated this eleventh day of January 2006
At The Hague
The Netherlands
[Seal of the Tribunal]