Case No. IT-00-41-PT

Decision of:
28 June 2002

TRIAL CHAMBER I (the "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 (the "Tribunal");

BEING SEISED of "Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura’s Joint Motion for Access to Confidential Supporting Material Transcripts and Exhibits," filed by the three parties named therein (the "Moving Parties") on 4 March 2002 (the "Motion");

NOTING the "Prosecution’s Response to Motion from Hadzihasanovic, Alagic and Kubura for Access to Confidential Supporting Material Transcripts and Exhibits," and the "Response to Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura’s Joint Motion for Acces [sic] to Confidential Supporting Material, Transcripts and Exhibits," filed by the Prosecution and the defence for the accused, Pasko Ljubicic (the "Defence") respectively, on 11 March 2002;

NOTING the "Decision on Appeal from Refusal to Grant Access to Confidential Material in Another Case," issued by the Appeals Chamber in the case of The Prosecutor v. Enver Hadzihasanovic et al. ("the Hadzihasanovic case") on 23 April 2002 ("the Decision");

NOTING the "Order Concerning Motion filed by Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura for Access to Confidential Supporting Material Transcripts and Exhibits," issued by the Trial Chamber on 4 June 2002;

NOTING the "Second Response to Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura’s Joint Motion for Access to Confidential Supporting Material, Transcripts and Exhibits," filed by the Defence on 10 June 2002 (the "Defence’s Second Response") and the "Prosecution’s Further Response to Motion from Hadzihasanovic, Alagic and Kubura for Access to Confidential Supporting Material Transcripts and Exhibits," filed on 11 June 2002 (the "Prosecution’s Further Response");

NOTING "Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura’s Reply to the Accused’s Second Response and to the Prosecution’s 'Further Response' to their Joint Motion for Access to Confidential Supporting Material Transcripts and Exhibits," filed on 14 June 2002 (the "Reply");

CONSIDERING that, in the Prosecution’s Further Response, the Prosecution accepts that the criteria laid down in the Decision have been met and that the Motion should be granted with regard to the disclosure of confidential supporting material, subject to the imposition of protective measures, including: in relation to one witness, referred to in paragraph 8 of the Prosecution’s Further Response ("the Witness"), that his "name (and the name of his father) be redacted from the declaration which appears in tab 15 of the confirming materials in order to protect his identity," although it submits that should the Moving Parties wish to consider this declaration further, they may apply at a later date for disclosure of the Witness’s name; that "any contact sought by the Applicants to the victims and witnesses in this case should only be allowed upon leave of the Trial Chamber and with the participation of the Prosecution should a witness so request";

CONSIDERING that the Defence maintains its opposition to the Motion in the Defence’s Second Response, arguing in particular that the Moving Parties "are in fact interested in the confidential material from the Blaskic case" and that their request "does present a fishing expedition";

CONSIDERING that, in the Decision, the Appeals Chamber concluded, inter alia: "that a party may not engage in a fishing expedition, but that, provided it does not do so, it may seek access to confidential material in another case if it is able to describe the documents sought by their general nature as clearly as possible even though it cannot describe them in detail, and if it can show that such access is likely to assist his case materially"; further, "that in view of the geographical, temporal and substantive overlap between the [Hadzihasanovic case] and the Kupreskic case, the material sought is likely to be of assistance to the Defence’s case or, at least, that there is a good chance that it may" assist the defence;

CONSIDERING that in light of the Decision and the criteria laid down therein, the Motion should be granted to the extent specified below;

CONSIDERING that the Motion also seeks access to future confidential material in the case The Prosecutor v. Pasko Ljubicic; that the Prosecution opposes an order disclosing such material; that it is submitted in the Reply inter alia, that this request is directed at confidential exhibits and transcripts that come into the possession of the Registry after the initial appearance of Pasko Ljubicic until the end of trial and aims at avoiding unnecessary duplication by having to continually file the same motion;

CONSIDERING that this case is currently in pre-trial and that no such material yet exists; that the request by the Moving Parties is premature; that any such request should be substantiated and examined in relation to the criteria laid down in the Decision and in particular, only when such material actually exists;

CONSIDERING that with regard to protective measures that should be granted, two of those suggested by the Prosecution in the Prosecution’s Further Response, are opposed in the Reply, while that with regard to the Witness is accepted: that it is submitted generally that no specific reasons have been identified to justify the imposition of these two conditions for the victims and witnesses in this case; that in relation to a proposed restriction on the disclosure of confidential material to the public, it is submitted inter alia, that "it is unnecessary to require the Defence to always have to seek the leave of the Trial Chamber when disclosure is absolutely necessary for the preparation of the defence"; that in relation to a restriction on contact with witnesses, it is submitted inter alia, that "it is unnecessary for the proper protection of victims and witnesses to require the Defence to justify to the Chamber on each and every occasion the reason for contacting witnesses identified through material obtained from other cases" but that "as a matter of courtesy" the Prosecution would always be notified before any such witness was contacted;

CONSIDERING that the protective measures granted in this decision are appropriate measures for the protection of the victims and witnesses and would not impact on the ability of the Moving Parties to prepare their case;

CONSIDERING HOWEVER that, in relation to the Witness, the Prosecution may have to disclose his identity in due course, under the control of the Chamber seized of the Hadzihasanovic case ("the Hadzihasanovic Chamber") and, under at least the same protective measures as hereby ordered;

PURSUANT TO Articles 20, 21 and 22 of the Statute and Rules 53(A), 66 and 75 of the Rules;

HEREBY ORDERS that the Registry grant access to the Moving Parties to the confidential supporting material in this case subject to the following orders and protective measures:

1. For the purposes of this disposition:

1. the "Prosecution" means the Prosecutor of the Tribunal and her staff;
2. the "Moving Parties," means and includes only the accused Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura (the "Accused") and such counsel and their immediate legal assistants, and others specifically assigned by the Tribunal to the Accused’s trial defence teams and specifically identified in a list to be maintained by each lead counsel and filed with the Hadzihasanovic Chamber ex parte and under seal within ten days of the entry of this order. Any and all additions and deletions to the initial list in respect of any of the above categories of persons who are necessarily identified and properly involved in the preparation of the defence shall be notified to that Trial Chamber in similar fashion within seven days of such additions or deletions;
3. the "public" means all persons, governments, organisations, entities, clients, associations and groups, other than the judges of the Tribunal and the staff of the Registry (assigned to either Chambers or the Registry), the Prosecution and the Moving Parties, as defined above. The "public" specifically includes, without limitation, family, friends and associates of all of the Accused, the accused in other cases or proceedings before the Tribunal and defence counsel in other cases or proceedings before the Tribunal;
4. the "media" means all video, audio and print media personnel, including journalists, authors, television and radio personnel, their agents and representatives;

2. The Prosecution shall provide the Registry with the material relevant to the Witness, redacted as requested by the Prosecution, for disclosure to the Moving Parties;
3. Rule 70 material, if any, shall not be disclosed unless prior authorization is obtained by the Prosecution from the relevant authorities; the Prosecution shall be responsible for informing the Registry as appropriate;
4. The Moving Parties shall not disclose to the media any confidential or non-public materials provided by the Prosecution;
5. Save as is directly and specifically necessary for the preparation and presentation of their case and only on leave being first granted by the Hadzihasanovic Chamber, the Moving Parties shall not disclose to the public:

1. the names, identifying information or whereabouts of any witness or potential witness identified to them by the Prosecution; or
2. any evidence (including documentary, physical or other evidence) or any written statement of a witness or potential witness, or the substance, in whole or in part, of any such non-public evidence, statement or prior testimony disclosed to them;

6. If the Moving Parties find it directly and specifically necessary to disclose such information for the preparation and presentation of their case and having obtained leave from the Hadzihasanovic Chamber to do so, they shall inform each person among the public to whom non-public material or information (such as witness statements, prior testimony, or videos, or the contents thereof), is shown or disclosed, that such a person is not to copy, reproduce or publicise such statement or evidence, and is not to show or disclose it to any other person. If provided with the original or any copy or duplicate of such material, such person shall return it to the Moving Parties when such material is no longer necessary for the preparation and presentation of their case;
7. If a member of the defence teams concerned withdraws from the case, all material in his or her possession shall be returned to their lead defence counsel;

FURTHER DECIDES that the Moving Parties shall have no contact with the witnesses concerned with the material to be disclosed, unless otherwise decided by the Hadzihasanovic Chamber under the conditions set by the latter, if any;

DISMISSES the Motion in relation to the request concerning possible future confidential material in the case The Prosecutor v. Pasko Ljubicic.

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

_________________________________
Judge Liu Daqun
Presiding Judge

Dated this twenty-eighth day of June 2002
At The Hague,
The Netherlands.