Case No. IT-01-42-T

IN TRIAL CHAMBER II

Before:
Judge Kevin Parker, Presiding
Judge Krister Thelin

Judge Christine Van Den Wyngaert

Registrar:
Mr. Hans Holthuis

Decision of:
26 May 2004

PROSECUTOR

v.

PAVLE STRUGAR

_____________________________

DECISION ON MOTION FILED ON BEHALF OF MR. MIODRAG JOKIC FOR ACCESS TO CERTAIN CONFIDENTIAL PORTIONS OF THE TRIAL TRANSCRIPT IN THE CASE OF THE PROSECUTOR V. PAVLE STRUGAR

_____________________________

The Office of the Prosecutor:

Ms. Susan Somers
Mr. Philip Weiner

Counsel for the Accused:

Mr. Goran Rodic
Mr. Vladimir Petrovic

 

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 ("Tribunal");

NOTING the "Motion Filed on Behalf of Mr. Miodrag Jokic for Access to Certain Confidential Portions of the Trial Transcript in the Case of the Prosecutor v. Pavle Strugar", filed on 21 May 2004 ("Motion"), in which defence counsel for Miodrag Jokic ("Defence") requests access to the confidential portions of the transcript of his testimony as identified in the Motion, for use in the appellate sentencing proceedings against him as evidence of his cooperation with the Office of the Prosecutor ("Prosecution");

NOTING the Prosecutionís response to the Motion, dated 25 May 2004, whereby the Prosecution indicated that it has no objection to the release of the materials sought on the condition that the same protective measures, including retention under seal of exhibits currently enjoying such status, remain in place;

CONSIDERING that while the Rules of Procedure and Evidence ("Rules") do not explicitly deal with the procedure for granting access to documents under seal in a separate proceedings, there is an analogous procedure with respect to protective measures granted to witnesses pursuant to Rule 75 of the Rules, which requires that protective measures granted in one proceedings shall have effect in other proceedings and may be modified by the chamber seized of the first proceedings, or if no chamber remains seized of the first proceedings, by the chamber seized of the second proceedings;

CONSIDERING furthermore that according to the jurisprudence of the Appeals Chamber, "a party is always entitled to seek material from any source to assist in the preparation of its case if the material sought has been identified or described by its general nature and if a legitimate forensic purpose for such access has been shown";1

CONSIDERING that in the present case, the Defence has indicated that it intended to offer the transcript of the testimony of Miodrag Jokic in the trial of Pavle Strugar in the sentencing appellate proceedings against Miodrag Jokic as evidence of his cooperation with the Prosecution in the context of the assessment of mitigating circumstances;

CONSIDERING that the Trial Chamber is satisfied that the material sought has been properly identified and that the legitimate forensic purpose for the requested access has been shown by the Defence;

PURSUANT to Rules 54 and 75 of the Rules;

HEREBY GRANTS the Motion and ORDERS as follows:

  1. the portions of Miodrag Jokicís testimony heard in private session shall be disclosed to the Defence, namely the transcripts dated 2 and 16 April 2004; and

  2. this material shall remain confidential in the appellate proceedings against Miodrag Jokic until further order.

Done in English and French, the English version being authoritative.

Dated this twenty-sixth day of May 2004
At The Hague
The Netherlands

___________________
Judge Kevin Parker
Presiding

[Seal of the Tribunal]


1. Prosecutor v. Tihomir Blaskic, Decision on Appellants Dario Kordic and Mario Cerkezís 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, Case No. IT-95-14-A, 16 May 2002, para. 14. See also Prosecutor v. Dario Kordic and Mario Cerkez, Order on Pasko Ljubicicís Motion for Access to Confidential Supporting Material, Transcripts and Exhibits in the Kordic and Cerkez Case, IT-95-14/2-A, 19 July 2002, p. 4; Prosecutor v. Mladen Naletilic and Vinko Martinovic, Decision on Joint Defence Motion by Enver Hadzihasanovic and Amir Kubura for Access to All Confidential Material, Filings, Transcripts and Exhibits in the Naletilic and Martinovic Case, IT-98-34-A, 7 November 2003, p. 3.