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:
25 September 2003
PROSECUTOR
v
ENVER HADZIHASANOVIC
AMIR KUBURA
_________________________________
DECISION ON JOINT DEFENCE APPLICATION FOR CERTIFICATION OF DECISION ON ACCESS TO EUMM ARCHIVES OF 12 SEPTEMBER 2003
_________________________________
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 Ibrisimovic 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"),
BEING SEIZED OF the "Confidential Joint Defence Application for Certification of the Trial Chamber’s Decision on Defence Access to EUMM Archives of 12 September 2003", filed jointly by the Defence on 18 September 2003 ("Application"),
CONSIDERING the Trial Chamber’s "Request for Access to EUMM Archives", of 28 March 2003,
CONSIDERING the EUMM letter of 9 May 2003 wherein the EUMM inter alia replied that the full disclosure of the full archives would cause prejudices to the security of EUMM monitors, but that it 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,
CONSIDERING the Prosecution’s meeting with the Head of EUMM on 24 July 2003, during which he 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"), the Prosecution’s response to this letter, filed confidentially on 28 August 2003 and 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,
CONSIDERING the "Decision on Defence Access to EUMM Archives" by the present Chamber of 12 September 2003 ("Decision"),
NOTING that the Application submits that the EUMM archives "are unmistakeably relevant to matters in issue in the proceedings and it is unfair to deny the Defence access to them",
NOTING furthermore that the Application submits that the principle of equality of arms implies that "when the Prosecution have had access to a relevant archive of documents, the Defence should be afforded the same access to prepare for trial",
CONSIDERING that the principle of equality of arms does not automatically imply that the Defence should have access to exactly the same material as to which the Prosecution has access and that, e.g., Rule 70 (B) of the Rules of Procedure and Evidence expressly allows for exceptions,
CONSIDERING furthermore that, although the Defence does not have full access to the full archives of the EUMM, the Defence is at the same time not denied access to these archives as the EUMM has clearly stated its willingness to provide identifiable and relevant material to the Defence,
CONSIDERING that the Defence’s request of documents, as already established in the Decision, "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",
CONSIDERING therefore that the Decision already provides the Defence clear guidance as to how to seek access to relevant documents in the archives of the EUMM,
CONSIDERING that the Defence has failed to show that it has even attempted to identify and get access to the relevant documents in accordance with the guidance provided,
CONSIDERING therefore that the Defence has thereby clearly failed to identify how "the fair and expeditious conduct of the proceedings or the outcome of the trial" can be considered affected, as required by Rule 73 (B),
CONSIDERING that against this background the Application is considered frivolous,
HEREBY DENIES the Defence’s Application.
Done in French and English, the English version being authoritative.
____________
Wolfgang Schomburg
Presiding Judge
Dated this twenty-fifth day of September 2003
At The Hague
The Netherlands
[Seal of the Tribunal]