IN THE TRIAL CHAMBER
Before:
Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon
Registrar:
Mr. Hans Holthuis
Decision of:
22 January 2004
PROSECUTOR
v.
SEFER HALILOVIC
_________________________________________________
DECISION ON PROSECUTION’S REQUEST FOR ORDER OF NON-DISCLOSURE
_________________________________________________
The Office of the Prosecutor
Mr. Ekkehard Withopf
Mr. Vladimir Tochilovsky
Ms. Maria Tuma
Counsel for the Accused
Mr. Stefan Kirsch
Mr. Guénaël Mettraux
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 SEISED of the "Prosecution’s Request for Order of Non-Disclosure" filed by the Office of the Prosecutor ("Prosecution") on 11 December 2003 ("Motion"), requesting an order for non-disclosure and seeking the following measures:
NOTING the "Defence Response to Prosecution Motion for Non-Disclosure Order" filed by the counsel for the accused, Sefer Halilovic, on 23 December 2003 ("Response"), stating that the Prosecution failed to establish any basis upon which the order sought could be made,2
NOTING HOWEVER that the Defence responds that it is willing voluntarily to undertake not to disclose such material except to the extent necessary for the preparation of its case, and that counsel has instructed members of the Defence to keep a record of those to whom such material is being shown in the course of the preparation of its case,3
NOTING that, if requested by witnesses, the Prosecution intends to seek specific measures in separate applications, but that at the present stage of the proceedings, the Prosecution requests a blanket order for non-disclosure "given the sensitive nature of much of the evidence and material and that many of proposed Prosecution witnesses are well known,"4
CONSIDERNG that Article 20 of the Statute of the International Tribunal ("Statute") requires the Trial Chamber to ensure that proceedings are conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses,
CONSIDERING the rights of the accused under Article 21, paragraph 2, of the Statute to a fair and public hearing, subject to Article 22 of the Statute, which addresses the protection of victims and witnesses,
CONSIDERING that this Trial Chamber has not generally required the defence to obtain non-disclosure agreements from third parties or to maintain a record of all the disclosure of the protected information, on the basis that they are not generally useful or appropriate where protective orders are in place,
CONSIDERING that, save as otherwise provided in this Decision, the protection sought is necessary and appropriate, while still remaining consistent with the rights of the accused,
CONSIDERING that the non-disclosure obligations contained in this Decision apply to all members of the Defence such that it is the obligation of lead counsel to ensure compliance by all members of the Defence, both during their participation and upon withdrawal from the case, such that the relief sought by the Prosecution is unnecessary,
PURSUANT TO Articles 20, 21, paragraph 2, and 22 of the Statute and Rules 53 (A), 54 and 75 of the Rules,
HEREBY GRANTS the Motion in part and ORDERS as follows:
For the purpose of this Decision, "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, the accused in this case, the defence counsel, legal assistants and other members of the defence team, their agents or representatives, "The public" also includes, without limitation, family, friends, associates of the accused; accused in other cases or proceedings before the International Tribunal; defence counsel in other cases or proceedings before the International Tribunal and the media and journalists.
The "Defence" means only the accused, Sefer Halilovic, his defence counsel, their legal assistants and other members of the defence team, their agents or representatives.
Done in English and French, the English text being authoritative.
____________
Richard May
Presiding
Dated this twenty-second day of January 2004
At The Hague
The Netherlands
[Seal of the Tribunal]