Case No. IT-95-9-A

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

Registrar:
Mr. Hans Holthuis

Decision:
23 September 2004

Counsel for the Prosecutor:

Mr. Norman Farrell
Mr. Mark J. McKeon

Counsel for the Appellant:

Mr. Igor Pantelic
Mr. Peter Murphy

THE APPEALS 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,

BEING SEISED of the “Motion of Blagoje Simic for Disclosure of Evidence” filed by Blagoje Simic (“Appellant”) on 25 June 2004 (“Motion”), whereby the Appellant requests inter alia that:

(i) “the Appeals Chamber obtain and review on a confidential basis all relevant records pertaining to the medical condition of the witness Stevan Todorovic (“Todorovic”)¹ at the time of his testimony in the trial of this case […] together with the medical report prepared in support of Todorovic’s claim of diminished mental responsibility raised in his sentencing proceedings”;

(ii) “if, after a review of these documents, the Appeals Chamber is satisfied that there is an issue as to whether Todorovic’s credibility or reliability as a witness may have been adversely affected by his medical condition […] the Appeals Chamber refer the records on a confidential basis to a panel of suitably qualified practitioners to be appointed by the Appeals Chamber”;

(iii) “at that stage, the relevant documents be disclosed on a confidential basis to the Parties”;

NOTING that the Appellant submits that it is necessary for the proper adjudication of his sixteenth ground of appeal that the Appeals Chamber obtains these documents ;

NOTING the “Prosecution’s Response to Motion for Disclosure of Evidence with Confidential and Ex Parte Annex A” filed by the Prosecution on 12 July 2004² (“Response”), in which it opposes the Motion on the grounds that, first, the issue raised in the Motion is the subject of the sixteenth ground of appeal and that the Appellant cannot seek a remedy which was denied at trial unless he demonstrates that the Trial Chamber erred and, second, that the Appeals Chamber need not have the reports related to Todorovic’s medical condition before it to decide whether the Trial Chamber committed an error;

NOTING the “Reply of Blagoje Simic to Prosecution’s Response to Motion for Disclosure of Evidence” filed by the Appellant on 16 July 2004;

NOTING that the Appellant, as the Appeals Chamber understands it, requests the Appeals Chamber to obtain the following records:

- the medical reports filed before the Todorovic Trial Chamber relating to Todorovic’s physical and psychological condition (“Todorovic Medical Reports ”)³;

- the medical records from the Spanish prison authorities “and/or” from the United Nations Detention Unit (“Spanish and UNDU Medical Records”);

CONSIDERING that the Appellant is not seeking to obtain the Todorovic Medical Reports himself on the premise that they may be material for the preparation of the defence, but instead requests that the Appeals Chamber itself obtain the said reports confidentially and examine them in order to assess the merits of the sixteenth ground of appeal;

NOTING that the Appellant’s sixteenth ground of appeal reads as follows:

“The Trial Chamber erred in law by denying Dr. Blagoje Simic’s Motion for disclosure of Prosecution witness Stevan Todorovic’s medical records, which may have contained information that substantially affected the credibility of the witness or have resulted in the exclusion of his evidence altogether, thereby denying Dr. Simic his right to examine the witnesses against him as provided for by Article 21(e) of the Statute ; thus, invalidating the decision. ?Judgement, paragraph 21 (pages 7-8); Transcript , pp.11981-86g.”;⁴

CONSIDERING that the Appellant in his sixteenth ground of appeal challenges the Trial Chamber’s decision refusing him access to the Todorovic Medical Reports and that whether the Trial Chamber erred in doing so is an issue on the merits before the Appeals Chamber;

FINDING therefore that it is premature to decide at this stage whether the Appeals Chamber needs to consult the Todorovic Medical Reports;

NOTING, however, that the Todorovic Medical Reports have been provided to the Appeals Chamber by the Prosecution in the confidential ex parte annex to the Response⁵ and that the Appeals Chamber may in due course consult the Todorovic Medical Reports if necessary upon the determination of the sixteenth ground of appeal;

CONSIDERING that the Appellant does not seem to know with certainty whether the Spanish and the UNDU have kept medical records of Todorovic, nor does he know the contents thereof;

CONSIDERING that it does not fall within the role of the Appeals Chamber to inspect documents, including medical records, for the Appellant in order to inform him to what extent those documents could assist him;

CONSIDERING that the Motion does not establish that the Spanish and UNDU Medical Records would materially assist the Appeals Chamber in adjudicating the Appellant’s sixteenth ground of appeal;

FINDING therefore that the Appellant’s request to have the Appeals Chamber obtain the Spanish and UNDU Medical Records is without merit;

FOR THE FOREGOING REASONS,

HEREBY DISMISSES the Motion in its entirety.

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

Dated this 23rd day of September 2004,
At The Hague,
The Netherlands.

_________________
Judge Mehmet Güney
Presiding Judge

[Seal of the Tribunal]