Case: IT-95-14/2-A

IN THE APPEALS CHAMBER

Before:
Judge Theodor Meron, Presiding
Judge Fausto Pocar
Judge David Hunt
Judge Mehmet Güney
Judge Asoka de Zoysa Gunawardana

Registrar:
Mr Hans Holthuis

Decision of:
1 May 2003

PROSECUTOR
v
Dario KORDIC & Mario CERKEZ

_________________________________________

DECISION ON MOTION BY PASKO LJUBICIC FOR REMOVAL OF REDACTIONS

_________________________________________

Counsel for the Prosecutor:

Mr Norman Farrell

Counsel for Pasko Ljubicic:

Mr Tomislav Jonjic

Counsel for Accused Dario Kordic:

Mr Mitko Naumovski

Counsel for Accused Mario Cerkez:

Mr Bozidar Kovacic

1. On 19 July 2002, the Appeals Chamber ordered the prosecution to disclose to Pasko Ljubicic (“Ljubicic”) in redacted form confidential material from the Kordic and Cerkez case which is likely to be of material assistance to his case, on the basis that there is a sufficient temporal or substantive overlap with the issues in his case and the issues in the Kordic and Cerkez case.1

2. As soon as the prosecution disclosed the material in a redacted form to Ljubicic, the Appeals Chamber Order provided that:

Once he has reviewed that material and determined that he needs all or part of it in a non-redacted form, Ljubicic shall identify those parts of the material which he claims may assist him in the conduct of his defence and which is not otherwise available to him and file a motion by which he seeks to justify the removal of the redaction. Should the need arise, consideration will then be given to additional protective measures.2

3. The prosecution complied with that Order on 23 September 2002. Ljubicic has now filed a confidential motion requesting an order from the Appeals Chamber that all "Under Seal" materials which were given to him by the prosecution from the Kordic and Cerkez case on that date be supplied to him in unredacted form.3 He has made no attempt to identify any legitimate forensic purpose which would justify the removal of the redactions.4 Ljubicic has sought, in effect, to re-argue his right to have that material disclosed to him in unredacted form without having to identify any legitimate forensic purpose for the disclosure of the identities presently redacted.5

4. The Appeals Chamber is not prepared to reconsider the terms imposed by its previous Order. The Motion by which Ljubicic has sought the supply in unredacted form of all "Under Seal" materials which were given to him by the prosecution on 23 September 2002 manifestly does not comply with the obligation which the Appeals Chamber imposed upon him by its Order.

5. The Motion is dismissed without prejudice to the right of Ljubicic to file a fresh motion in accordance with that Order, identifying the specific legitimate forensic purpose which justifies the disclosure to him of the identities presently redacted.

Dated this 1st day of May 2003
At The Hague
The Netherlands

______________________________
Judge Theodor Meron
Presiding

[Seal of the Tribunal]

1 - Prosecutor v Pasko Ljubicic, Case IT-00-41-PT, Order on Pasko Ljubicic’s Motion for Access to Confidential Supporting Material, Transcripts and Exhibits in the Kordic and Cerkez Case, 19 July 2002 (“Order”).
2 - Order, par 5.
3 - Confidential Defence Motion Requesting Removal of the Redaction in Relation to the Material Disclosed in Accordance with Pasko Ljubicic’s Motion for Access to Confidential Supporting Material, Transcripts and Exhibits in the Kordic and Cerkez Case” of 19 July 2002, 26 March 2003 (“Motion”), par 3.
4 - In Prosecutor v Blaskic, IT-95-14-A, Decision on Appellants Dario Kordic and Mario Cerkez’s 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, 16 May 2002, pars 14-15, the Appeals Chamber said (omitting citations):
  “14. Access to confidential material may be granted whenever the Chamber is satisfied that a party seeking access has established that such material may be of material assistance to his case. A party is always entitled to seek material from any source in the preparation of his 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.
  “15. 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 cases from which such material is sought, ie if the cases stem from events alleged to have occurred in the same geographic area and at the same time. It is sufficient that access to the material sought is likely to assist the applicant’s case materially, or that there is at least a good chance that it would.”
5 - Ljubicic has sought to say that he is entitled to it because it is related geographically and temporally to the facts of his case; all the materials mention him by name, the military formation of which he was head and the factual events stated in the Amended Indictment, and the principle of equality of arms “presumes” that he will have the same access as the prosecution: Motion, pars 6-7.