Case No. IT-01-47-PT
IN TRIAL CHAMBER II
Before:
Judge Wolfgang Schomburg, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Carmel Agius
Registrar:
Mr. Hans Holthuis
Decision of:
12 September 2003
PROSECUTOR
v
ENVER HADZIHASANOVIC
AMIR KUBURA
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DECISION ON DEFENCE ACCESS TO EUMM ARCHIVES
___________________________________
The Office of the Prosecutor:
Mr Ekkehard Withopf
Mr David Re
Counsel for the Accused:
Ms Edina Residovic and Mr Stéphane Bourgon for Enver Hadzihasanovic
Mr Fahrudin Ibrišimovic and Mr Rodney Dixon for Amir Kubura
TRIAL CHAMBER II ("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"),
CONSIDERING the Trial Chamber’s "Request for Access to EUMM Archives", of 28 March 2003, ("Request") wherein the Trial Chamber requested the Head of EUMM to provide the defence for Enver Hadzihasanovic and Amir Kubura ("Defence") with access to the full archives of the EUMM in Bosnia and Herzegovina, subject to right of the EUMM pursuant to Rule 54bis (E) of the Rules, namely to reply within fifteen days of service of the request by notice to the Trial Chamber to have the request set aside, on the grounds that disclosure would prejudice EUMM security interests,
CONSIDERING the EUMM letter of 9 May 2003 wherein the EUMM replied to the Request that it considers that EUMM cannot be regarded as subject to Rule 54bis (E) of the Rules and that therefore it is not under an obligation to comply with the Request and that the full disclosure of the full archives would cause prejudices to the security of EUMM monitors,
CONSIDERING that in that same letter EUMM stated that they will continue to provide to the Defence identifiable and relevant material on a voluntary basis, provided the procedures governed by Rule 70 of the Rules are applied on a document-by-document basis,
NOTING the Rule 65ter meeting on 30 June 2003 and the Status Conference on 9 July 2003 during which efforts were made to find a practical solution,
CONSIDERING the Prosecution’s meeting with the Head of EUMM, Mr. Mac Unfraidh, on 24 July 2003, reported in a letter to the Defence on 31 July 2003, where all aspects of a possible practical solution to grant the Defence access to EUMM materials that EUMM provided the Prosecutions with, were discussed,
NOTING that during that meeting Mr. Mac Unfraidh raised a number of concerns related to EUMM security if the Defence were to be granted a general access to the archives or if Rule 70 restrictions were to be lifted "en bloc", such as the risk of jeopardising the EUMM Mission and monitors in the field, and the possible misuse of EUMM material;
CONSIDERING the Defence’s letter of 14 August 2003 to Judge Schomburg ("Defence’s letter") wherein the Defence submitted that, since EUMM is not prepared to lift the Rule 70 restrictions on their archives in the possession of the Prosecution in order to make these material available to the Defence in the present case, the Trial Chamber’s Request of 28 March 2003 has to be implemented,
CONSIDERING the Prosecution’s response to the Defence letter, filed confidentially on 28 August 2003, wherein the Prosecution requested the Trial Chamber to dismiss the "Defence Motion", and, given the serious objections raised by the EUMM, suggests that the Request be either set aside or modified taking into account that the Defence in the past has received and will continue receiving EUMM materials as part of the Prosecution’s disclosure obligations under Rule 66 or Rule 68 of the Rules;
NOTING the "Joint Defence Application for Leave and Reply to the Prosecution Response to Defence letter of 14 August 2003", ("Joint Defence Application") filed confidentially on 1 September 2003, in which the Defence submitted, inter alia, that the Defence’s letter was not a motion filed under the Rules "requesting" any relief, order or ruling, and that the Prosecution is not entitled at this stage of the proceedings to request that the Chamber’s Request be set aside or modified,
NOTING that the Trial Chamber, like the Prosecution, considered the Defence’s letter as a motion pursuant to Rule 73 of the Rules as it was addressing the Trial Chamber with a request to implement its previous decision,
CONSIDERING that a party is always entitled to seek material from any source to assist in the preparation of his case (i) if the material sought has been identified or described by its general nature, and (ii) if a legitimate forensic purpose for such access has been shown1; and that in relation to the first requirement a party must describe the documents sought by their general nature as clearly as possible even though it cannot describe them in detail,2
CONSIDERING all the filings of the parties including the EUMM comments made known to the Prosecution,
NOTING that the present Defence’s request of documents is very general, that it fails to identify as clearly as possible the documents or the nature of the documents to which they are seeking access, and that it fails to show how such access would be likely to assist their case materially, or that there is at least a good chance that it will give that assistance,
HEREBY DENIES the Defence’s Motion.
Done in French and English, the English version being authoritative.
Dated this twelfth day of September 2003,
At The Hague
The Netherlands
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Judge Wolfgang Schomburg
Presiding