Case: IT-95-14-A

Before:
Judge Fausto Pocar, Presiding
Judge Florence Mumba
Judge Mehmet Güney
Judge Wolfgang Schomburg
Judge Inés Mónica Weinberg de Roca

Registrar:
Mr. Hans Holthuis

Decision of:
8 March 2004

Prosecutor v. Blaskic

Counsel for the Prosecutor:

Mr. Norman Farrell

Counsel for the Appellant:

Mr. Anto Nobilo
Mr. Russell Hayman
Mr. Andrew Paley

Prosecutor v. Pasko Ljubicic

Counsel for the Prosecutor:

Mr. Mark Harmon

Counsel for the Defence:

Mr. Tomislav Jonjic

1. On 3 June 2002, Pasko Ljubicic filed a “Motion for Access to Confidential Supporting Material, Transcripts and Exhibits” (“Ljubicic’s Motion”) pursuant to Rule 75 (D ) of the Rules of Procedure and Evidence (“Rules”) on the basis that the indictment and judgement against Tihomir Blaskic (“Appellant”) were directly connected to the charges in the amended indictment against Pasko Ljubicic (“Applicant”).¹

2. On 4 December 2002, the Appeals Chamber issued the “Decision on Pasko Ljubicic’s Motion for Access to Confidential Material, Transcripts and Exhibits” (“4 December Decision”), wherein it held that the Applicant had described the materials sought by their general nature, and had shown a legitimate forensic purpose for access. Hence it partly granted Ljubicic’s Motion and ordered:

(a) the Prosecution to seek the consent of the providers before disclosing to the Applicant the non-public material which falls under Rule 70(C) as identified by the Prosecution and the Appellant Blaskic in their confidential submissions filed before the Appeals Chamber;

(b) the Registry to grant the Applicant access to all non-public documents, materials and exhibits from the Blaskic case including non-public post-trial submissions, appellate briefs, and motions pursuant to Rule 115 filed in the Blaskic appeal until the date of the issuing of this decision, - with the exception of: (a) the “Appellant’s Third Motion to Admit Additional Evidence on Appeal Pursuant to Rule 115” filed on 10 June 2002, (b) any submissions related to the said motion, and (c) any ex parte motions and decisions which have been filed in the present appeal.

3. On 21 February 2003, the Prosecution filed the “Preliminary Response and Motion for Clarification Regarding Decision on Pasko Ljubicic’s Access Motion of 4 December 2002” (“Prosecution’s Motion for Clarification”).

4. On 6 March 2003, the Applicant filed the “Defence Response to Prosecution’s Preliminary Response and Motion Regarding Decision on Pasko Ljubicic Access Motion of 4 December 2002” (“Applicant’s Response”).

5. On 10 March 2003, the Prosecution filed the “Prosecution’s Reply to the Motion for Clarification of Pasko Ljubicic’s Access Motion” (“Prosecution’s Reply”).

6. The Prosecution’s Motion for Clarification requests: (1) clarification of the Appeals Chamber on issues concerned with points (a) and (b) of the 4 December Decision, and (2) guidance from the Appeals Chamber regarding the appropriate procedure governing the increasing number of motions for access being filed “before this Tribunal.”² Further, the Prosecution seeks the following relief:

(i) Clarification as to whether the tasks set out in point (a) of the disposition of the 4 December Decision need to be carried out only in relation to the appeals proceedings or in relation to the pre-trial and trial proceedings as well.

(ii) An order that Counsel for the Appellant carry out the task of identifying Rule 70 (C) material in the Appellant’s case, contact the providers if necessary and inform the Registry of the outcome.

(iii) Clarification as to whether point (b) of the disposition of the 4 December Decision grants the Applicant access to inter partes confidential pleadings and inter partes confidential decisions prior to the appeal proceedings as well, or whether the Applicant’s access is restricted to Supporting Material, Witness Transcripts and Exhibits in the Blaskic case.

(iv) Clarification as to whether point (b) of the disposition of the 4 December Decision, which excludes access to ex parte filings on appeal, equally excludes access to any ex parte pleadings and ex parte decisions prior to the appeals procedure.

(v) An order that the same protective measures specified in the Ljubicic Access Order³ apply in the present case, namely that: (a) the confidential witnesses be contacted by the Victims and Witness Section of the International Tribunal (“VWS”); (b) that any relevant governments or entities be contacted by the parties to ascertain their views concerning the provision of access to the Applicant; (c) that the material relating to these witnesses be redacted by the Registry to remove any identifying information that would indicate that they have testified before the Tribunal; and (d) that after receiving the material in redacted form, it is for the Applicant to provide cogent reasons as to why they are entitled to access these materials in unredacted form.

(vi) An order that the VWS is responsible for making any required contact with confidential Prosecution, Defence and Court witnesses, with the exception of those witnesses which the parties wish to contact themselves.⁴

(vii) An order that the Registry should provide the Applicant with access to the material requested, once it has carried out (a) any necessary redactions that would lead to the identification of persons as witnesses before the Tribunal and (b) any further redactions in accordance with the representations provided by parties and the VWS.

(viii) Clarification of the procedure to be adopted where confidential witnesses in the Blaskic case have not consented to disclosure of material relating to them to the Applicant on any terms.

(ix) The opportunity for parties to make further submissions regarding redactions and additional protective measures in respect of material to be made available to the Applicant, following the Appeals Chamber’s determination of the Prosecution’s Motion for Clarification.

7. The Prosecution claims that the language of point (a) of the 4 December Decision’s disposition “appears to limit the Rule 70 (C) related obligations to the material identified in earlier confidential filings before the Appeals Chamber,” and submits that the 4 December Decision “does not appear to require, nor permit, the identification of Rule 70 material at trial prior to disclosure to the Applicant.” ⁵ The Prosecution states that in footnote 6 of the 4 December Decision reference is made to pleadings in relation to another case that was limited to material filed on appeal, and thus there might be some uncertainty as to the scope of the Rule 70 (C) related obligations as a result of the 4 December Decision.⁶ The Prosecution requests the Appeals Chamber to clarify for the benefit of the parties as well as the Registry, that the obligations set out in part (a) of the 4 December Decision’s disposition include pre-trial, trial and post-trial confidential material of the Blaskic case.⁷

8. The Applicant does not address Rule 70 (C) related obligations in his response. He further submits that the Prosecution’s Motion for Clarification be dismissed.⁸ In reply, the Prosecution asserts that “it makes no sense to dismiss the Prosecution’s Motion outright.” ⁹

9. The Prosecution indicates that Ljubicic’s Motion “seems to apply not only to the ongoing appeals proceedings, but also to the pre-trial and trial phases of the Blaskic case.”¹⁰ The 4 December Decision uses the expression “non-public material” which falls under Rule 70 (C) in point (a) of the disposition. Rule 70(C) provides:

If, after obtaining the consent of the person or entity providing information under this Rule, the Prosecutor elects to present as evidence any testimony, document or other material so provided, the Trial Chamber, notwithstanding Rule 98, may not order either party to produce additional evidence received from the person or entity providing the initial information, nor may the Trial Chamber for the purpose of obtaining such additional evidence itself summon that person or a representative of that entity as a witness or order their attendance. A Trial Chamber may not use its power to order the attendance of witnesses or to require production of documents in order to compel the production of such additional evidence.

10. The 4 December Decision states that the Applicant should be granted access to all confidential documents, supporting materials, transcripts, exhibits as well as post-trial submissions, appellate briefs and motions filed pursuant to Rule 115 in the Blaskic case. What constitutes the material is clear from the context in which the non-public material is referred to in the 4 December Decision. The Appeals Chamber considers that there is no indication in Rule 70 that the rule applies only to the pre-appeal stage in a case. By its nature, the material envisaged in Rule 70 and Rule 70 (C) may arise at the pre-trial, trial or appeal stage. The Appeals Chamber considers, therefore, that the expression of “non-public material which falls under Rule 70 (C)” applies to material falling under Rule 70 and introduced into the proceedings at all stages of the case.

11. Point (a) of the disposition of the 4 December Decision orders the Prosecution to seek the consent of the providers before disclosing to the Applicant non-public material which falls under Rule 70. However, the Prosecution submits that the Appeals Chamber should clarify that Counsel for the Appellant should also identify Rule 70(C) related material in the Blaskic case and inform the Registry, since the Prosecution is not aware of the contacts and arrangements made between the Appellant and the providers of any Rule 70 material for the Defence in the Blaskic case.¹¹ The Applicant does not address this issue in his response.

12. In its reply the Prosecution informs the Appeals Chamber that the Registry had already granted access to the Applicant to the transcripts and exhibits in the Blaskic trial.¹² The Prosecution submits that its interpretation of the 4 December Decision is that the Registry could grant access to confidential trial material without the consent of any Rule 70 providers. It adds that the 4 December Decision does not permit Counsel for the Appellant to seek consent from Rule 70 providers of evidence tendered by the Appellant at trial or on appeal.¹³ The Prosecution’s has erred in its interpretation of the 4 December Decision, which clearly does not allow the Registry to grant access to confidential material submitted under Rule 70 prior to obtaining the consent of the providers.

13. The Appeals Chamber notes that Rule 70 is not limited to relevant information in the possession of the Prosecution. Rule 70 (F) gives the accused the right to confidential treatment of specific material in his possession:

The Trial Chamber may order upon an application by the accused or defence counsel that, in the interests of justice, the provisions of this Rule shall apply mutatis mutandis to specific information in the possession of the accused.

14. Point (a) of the disposition of the 4 December Decision shall apply to the Appellant as well. The Appellant must make submissions on whether any of the non-public material for which access was sought falls under Rule 70. If there is any material covered by Rule 70(F) within the trial and post trial materials filed in this case, the Appellant should seek the consent of the providers of the Rule 70(F) related information for its disclosure to the Applicant.

15. The Prosecution submits that while both parties to the Blaskic case should identify Rule 70 (C) material in their case and contact the providers, “it is the Registry who should ‘disclose’ the Blaskic trial and appeal record to the Applicant, not the Prosecution.”¹⁴ It adds that it is desirable if all the material subject to disclosure is “provided by one source in order to avoid confusion and unintended violations of protective measures or redactions that may be ordered.”¹⁵ The Prosecution submits that the Appeals Chamber should clarify that the responsibility for providing all relevant material, including Rule 70 (C) material, falls to the Registry as the official custodian of the court record. In this regard the Prosecution recognizes that the language of point (b) of the disposition of the 4 December Decision is clear, but states that the language of point (a) of the disposition “reads differently.”¹⁶ In his response, the Applicant does not address the issue of the role of the Registry with respect to point (a) of the disposition.

16. The disclosure of “all non public documents, materials and exhibits from the Blaskic case” is to be implemented by the Registry in accordance with point (b) of the disposition of the 4 December Decision. ¹⁷ Under Rule 70, the consent to disclosure by the providers of material falling under Rule 70 (B) is to be obtained by the parties. In accordance with point (b) of the disposition of the 4 December Decision, it is for the parties to seek the consent from the providers of the Rule 70 material, but access to the material after consent has been obtained is to be sought through the Registry; thus the material is to be provided by the Registry.

17. The Prosecution submits that it is unclear whether the 4 December Decision has granted the Applicant access to inter partes confidential pleadings, and confidential decisions of the Blaskic Trial Chamber and the Appeals Chamber.¹⁸ The Prosecution submits that the 4 December Decision cannot be read to mean that “the Applicant has been granted access to all (inter partes) [sic] confidential pleadings such as motions, responses, replies, etc, in addition to all inter partes [sic] decisions rendered by the Trial Chamber and the Appeals Chamber,”¹⁹ because Ljubicic’s Motion did not request access to such material.²⁰ The Prosecution requests the Appeals Chamber to confirm whether the Prosecution’s understanding of the scope of access granted is correct.²¹ The Prosecution requests additional time to review the confidential pleadings and decisions prior to the appeal proceedings – in order to determine whether there is a need to request additional protective measures - should the Appeals Chamber clarify that the Prosecution’s understanding is incorrect.²²

18. The Applicant submits that the Prosecution’s interpretation of the scope of the decision is incorrect, since the Applicant explicitly sought access to “the whole confidential supporting material, transcripts and exhibits, including the post-trial materials,” and thus the notion “materials” cannot possibly be limited to the supporting material and evidence on record.²³ The Applicant further submits that the decision cannot be clearer and any “subsequent restricting of its effect even if it were purposeful would insult the Applicant’s right to a fair trial”.²⁴

19. The Prosecution replies that it has read the 4 December Decision in light of the material requested by the Applicant in his original motion. Its arguments in reply are as follows:

In its original motion, the Defence requested access to supporting material, transcripts and exhibits including the post-trial materials. In light of the material requested the Prosecution did not interpret the Decision to mean that trial pleadings ( inter partes and ex parte) were included in material to which access has been granted.²⁵
The Defence has responded by indicating that the original access motion stated ‘including post-trial materials.’ The Prosecution fails to see how this wording in the original access motion demonstrates that the Applicant Ljubicic requested access to such material from trial.²⁶

20. The Prosecution’s interpretation of the 4 December Decision appears to be somewhat confusing. In Ljubicic’s Motion the Applicant sought access to “confidential supporting material, transcripts and exhibits including post-trial materials in the Blaskic case.”²⁷ The relief sought leaves no doubt that the Applicant sought more than just the material from the appeal stage in the Blaskic case. It was also clear from the Prosecution’s previous submissions in response to Ljubicic’s Motion that, the Prosecution characterized such a motion as one that sought access to all confidential materials in the Blaskic case, and the Prosecution itself recognized that the Applicant had shown a legitimate forensic purpose for access to trial material:

In relation to confidential supporting material, transcripts and exhibits at trial in the Blaskic case…the Prosecution accepts that Ljubicic has satisfied the test for access to confidential material which is relevant to his case.²⁸

21. The Prosecution’s understanding of the scope of access granted is not correct. Point (b) of the disposition of the 4 December Decision states that Registry shall grant the Applicant access to all non-public documents, materials and exhibits from the Blaskic case including, among others appellate briefs and motions for additional evidence, subject to certain exceptions. The 4 December Decision is not confined to non-public post-trial submissions, as it concluded that the Applicant has a legitimate forensic purpose to access all the confidential materials sought. The 4 December Decision grants the Applicant access to inter partes confidential pleadings and confidential decisions issued by the Blaskic Trial Chamber.

22. It is not clear why the Prosecution would need more time to review pre-appeal motions and decisions once the materiality test has been met and access has been granted to the Applicant. Those documents, filed inter partes in the Blaskic case, were to be disclosed by the Registry to the Applicant pursuant to point (b ) of the disposition of the 4 December Decision and as part of the record on appeal (which includes the trial record). The disclosure of the material sought is not to be made by the Prosecution. The process of providing access was subject to certain protective measures provided for in the 4 December Decision. This argument by the Prosecution is rejected.

23. The Prosecution’s position is that “the Applicant has not requested access to parties’ pleadings or decisions of the Trial Chamber and the Appeals Chamber” in the Blaskic case, and therefore he is not entitled to any pleadings and decisions in the case at hand, whether inter partes or ex parte. The Prosecution requests the Appeals Chamber to “clarify that the Applicant is not entitled to any ex parte pleadings and decisions at all, whether on appeal or prior to the appeals proceedings.” ²⁹

24. The Prosecution requests additional time to review all the pre-trial and trial ex parte filings and decisions - in order to determine whether there is a need to apply for any additional protective measures or redactions in relation to the material contained therein - in case the Appeals Chamber were to clarify that the denial of access to ex parte filings applies to the appeal proceedings only.³⁰

25. In response to the Prosecution’s request for time to review ex parte pleadings and decisions prior to the appeals proceedings, the Applicant submits:

Although aware that the scope of the material makes some of the Prosecution’s comments appropriate, especially the one on his need to be given additional time to review the pre-trial and trial ex parte filings and decisions, the Defence also expresses its concern that possible acceptance of the Prosecution’s request may lead to the prolongation of the proceedings and the violation of the Accused’s right to an expeditious trial.³¹

26. The Appeals Chamber considers that the terms of point (b) of the disposition of the 4 December Decision are clear in this regard. Point (b) of the disposition denies the Applicant access to ex parte filings during the appellate proceedings only. The reason behind such an instruction is that the ex parte filings in the present appeal are not of material assistance to the Applicant’s case. With respect to the trial material in the case at hand, the Applicant had shown the existence of a legitimate forensic purpose. The Appeals Chamber ignores whether the disclosure of trial material to the Applicant, might be at an advanced stage. However, if the Prosecution still so wishes, it can file, within ten days of the date of this decision, an ex parte submission setting out all the ex parte filings from the Blaskic trial which the Prosecution considers should not be disclosed to the Applicant, explaining the reasons.

27. With respect to the procedure to be followed when applications for access to confidential witnesses’ transcripts are granted, the Prosecution points out that it is concerned that there might exist “potential inconsistencies with regard to the treatment of protected witnesses in the cases to which access has been granted.”³² It further submits:

(a) that the witnesses concerned should be contacted to ascertain whether they have additional security concerns justifying additional protective measures and (b) that any reference in the transcripts to the witnesses’ identity which would reveal that these witnesses have testified before the Tribunal, should be redacted.³³

28. The Prosecution has now moved to have the same protective measures as those set out in the Ljubicic Order³⁴ ordered in the Blaskic case.³⁵ The Prosecution submits that “the protection of the witnesses remains equally pressing ” in the Blaskic case as it was in relation to the Applicant’s request for access to material in the Kordic and Cerkez case.³⁶

29. The Prosecution requests that the witnesses who testified confidentially in the Blaskic trial, as well as any government or entity, which may have testified confidentially, be contacted by the VWS to ascertain their views on the provision of access to their testimonies to the Applicant.³⁷ After stating that in certain circumstances the parties might prefer to contact the witnesses themselves, e.g. in the case of material covered by Rule 70 (C), the Prosecution notes that there are two witnesses who testified in closed session on behalf of the Prosecution in the Blaskic case, which the Prosecution proposes to contact itself.³⁸ It further submits that with respect to those witnesses who have granted consent for disclosure, the Applicant should be granted access to their testimony only after the Registry has redacted it and removed any reference to the witness’s identity that would reveal that the witness testified before this Tribunal.³⁹ The Prosecution suggests that the exhibits, supporting material for the indictment and any other material in the trial or appeal records that may reveal the identity of the confidential witnesses should only be disclosed in a redacted form, and that Counsel for the Appellant should be given an opportunity to make submissions on this issue.⁴⁰ The Prosecution further submits that the responsibility for redacting the relevant material rests with the Registry, as the “official custodian of the Court Record” and that removing any reference to the identity of the witnesses does not require any particular knowledge or familiarity with the proceedings.⁴¹ In relation to the witnesses who refuse to give consent for the disclosure of their transcripts in any form, the Prosecution suggests that the VWS should contact the witnesses to inform them of the Appeals Chamber’s decision in this regard, and that their transcripts “should then be redacted to remove any reference to their identity prior to being made available to the Applicant” who will have to provide cogent reasons as to why disclosure of the transcripts in unredacted form is warranted.⁴²

30. The Prosecution requests additional time to review all of the Prosecution’s witnesses’ testimony and exhibits in order to determine whether additional protective measures are necessary, “should the Appeals Chamber decide that, as a general principle, the material should be made available to the Applicant in unredacted form from the outset.” ⁴³ In addition, the Prosecution requests that, if the Applicant applies for a variation of the protective measures in place in the case at hand, or requests permission to contact the witnesses, the Prosecution be notified of this application and be given an opportunity to respond.⁴⁴

31. The Applicant responds that he is aware of the need to protect the interests of victims and witnesses, and submits the following:

…it does not make any difference to the Defence whether the… Decision will be enforced by the Prosecution… or its execution will be entrusted to the Registry or the Victims and Witnesses Section. The only issue the Defence would like to point out is the need for a uniformed, principled approach…The Prosecution’s suggestion that ‘Victims and Witnesses Section should contact all the Prosecution witnesses who testified in closed session in the Blaskic trial, except for two witnesses, whom the Prosecution submits it will contact itself’ implies exactly that the Prosecution makes a difference among the witnesses who testified in closed session. The Defence respectfully notes that it does not understand how the difference may be explained by the need for the protection of victims and witnesses.⁴⁵

32. In reply, the Prosecution states that it does not “fully comprehend” what the Applicant means and clarifies that it “is not making a difference between witnesses who testified in closed session or the protective measures required” and adds that in any event “the issue of who contacts the witnesses is a matter of procedure.” ⁴⁶

33. The Appeals Chamber considers that the submissions of the Prosecution have gone beyond a request for clarification. Clarification is directed at the terms of the 4 December Decision if they are vague or confusing. Submissions that are not covered by the decision because the parties did not plead them before the decision was made should have been the subject of a separate motion. Even though such submissions need not be considered, those which raise issues of relevance, will be considered in the present decision.

34. The Appeals Chamber considers that when issuing the Ljubicic Order and the 4 December Decision the Appeals Chamber in the Kordic and the Blaskic cases shared the same concern, namely, striking a reasonable balance between the rights of the accused and the protection of the witnesses and victims. To further such a balance different degrees of protection were afforded by both decisions. The necessity of ordering protective measures and the nature of such measures depends on the circumstances of each case. In the case at hand the protective measures indicated in the 4 December Decision are in addition to existing protective measures indicated by the Trial Chamber. This combination of protective measures, currently in force, is sufficient to protect witnesses from having their identity revealed to the public or third parties as defined by the 4 December Decision. Consequently, the Appeals Chamber reiterates that the Applicant has been granted access to the confidential material in an unredacted form, and denies the Prosecution’s request for additional time to review all of the Prosecution’s witnesses’ testimony and exhibits in order to determine whether additional protective measures are necessary. Once testimony is given in court it becomes part of the trial record, thus part of the record of the Tribunal. The use of such record in other proceedings before the Tribunal, is subject to existing protective measures imposed by the Chambers pursuant to the Rules after having considered the legitimate concerns of the witnesses prior to their testimony. Upon request the existing protective measures can be varied pursuant to Rule 75, and the Prosecution has a right to be heard in relation to an application under Rule 75 filed by an accused. In this case the Applicant has not applied for a variation of the protective measures in place, so there is no need to rule on the Prosecution’s request in this respect.⁴⁷

35. The Appeals Chamber accepts that as official custodian of the Court Record, it is for the Registry to provide the material to which access has been granted to a party, and not for either party to do so. The Appeals Chamber will not consider the Prosecution’s submission that the responsibility for redacting the relevant material rests with the Registry, since no further redactions need to be made to the material to which access has been granted to the Applicant. The Appeals Chamber reiterates that absent the consent of the provider - either before consent is sought, or when consent has been denied - the Applicant is not entitled to the disclosure of material falling under Rule 70. In sum, access would be granted only if and when consent of the providers has been obtained.

36. The Appeals Chamber rejects the Prosecution’s request that the witnesses who testified confidentially in the Blaskic trial, as well as any government or entity, which may have testified confidentially, be contacted by the VWS to ascertain their views on the provision of access to their testimonies to the Applicant. The Appeals Chamber rejects the Prosecution’s submission that the VWS is responsible for making any required contact with confidential Prosecution, Defence and Court witnesses. Due to their relationship with their witnesses, each party is in a much better position to contact the witnesses which that party called to testify in its case. Moreover subparagraph (C) of Rule 75 already imposes on the VWS the task of “ensur[ing] that the witness has been informed before giving evidence that his or her identity may be disclosed at a later date in another case, pursuant to Rule 75(F).”

37. The rest of the Prosecution’s submissions that go beyond the scope of the 4 December Decision are rejected.

38. The Prosecution’s suggested procedure for dealing with applications for access to confidential material elaborates and expands on its previous submissions. The Prosecution submits that the suggested procedure “might assist to formulate a common procedure for all access cases in order to foster consistency and to avoid confusion that might result in unintentional disclosure of material without adequate protective measures.”⁴⁸ The Appeals Chamber considers that with respect to the Rule 75 application in question (Ljubicic’s Motion), the protective measures in place are sufficient and adequate.

39. The balancing of the rights of the accused with other mandated interests, such as the duty to protect victims and witnesses, must be performed within the context of each particular case.⁴⁹ A similar decision on the same issues emphasizes that: “the endorsement by the Appeals Chamber of a practice in one appeal is always given in the light of the circumstances of the appeal.”⁵⁰ The Appeals Chamber is not persuaded by the Prosecution’s argument that a common procedure should be imposed, uniformly, to deal with all applications for access to confidential material. Consequently, there is no need to consider the Prosecution’s submissions on this point any further.

Done in both English and French, the English text being authoritative.

______________________
Fausto Pocar
Presiding Judge

Done this eighth day of March 2004
At The Hague,
The Netherlands.