Case No. IT-95-9-A
IN THE APPEALS CHAMBER
Before:
Judge Mehmet Güney, Presiding
Judge Mohamed Shahabuddeen
Judge Liu Daqun
Judge Andrésia Vaz
Judge Wolfgang Schomburg
Registrar:
Mr. Hans Holthuis
Order of:
3 February 2006
PROSECUTOR
v.
BLAGOJE SIMIC
______________________________________________
ORDER PROPRIO MOTU GRANTING ACCESS TO CONFIDENTIAL MATERIAL
______________________________________________
Counsel for the Prosecutor:
Mr. Peter Kremer
Counsel for the Appellant:
Mr. Igor Pantelic
Mr. Peter Murphy
Interested Party:
Mr. Stevan Todorovic
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 ("Appeals Chamber" and "International Tribunal", respectively),
NOTING the Amended Notice of Appeal filed by Blagoje Simic ("Appellant") on 22 September 2004,1 and the Appellant’s Brief filed on 17 June 2004;2
NOTING that the Appellant in his sixteenth ground of appeal challenges the Trial Chamber’s decision denying him access to medical reports filed confidentially before the Trial Chamber seised of the Todorovic case3 relating to the psychiatric examination of Stevan Todorovic ("Medical Reports"), a former co-accused who pled guilty and subsequently testified as a witness in the Prosecution’s case against the Appellant;4
NOTING the Appellant’s Motion for Disclosure,5 whereby the Appellant requested that the Appeals Chamber obtain and review the Medical Reports on a confidential basis, following which, if satisfied that Stevan Todorovic’s medical condition or medication may have adversely affected his reliability or credibility as a witness, it should, according to the Appellant, refer the Medical Reports to a panel of qualified practitioners and, at the same time, provide the Medical Reports to the Appellant;6
NOTING that, in his Motion for Disclosure, “the Appellant [was] not seeking to obtain [the 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";7
NOTING further that in the Decision on Motion for Disclosure, the Appeals Chamber held that it was premature to decide whether it needed to consult the Medical Reports for the determination of the Appellant’s sixteenth ground of appeal;8
NOTING that the Appellant has not been provided with access to the Medical Reports;
NOTING that, pursuant to Rule 75(F)(i) of the Rules of Procedure and Evidence of the International Tribunal ("Rules"), "[o]nce protective measures have been ordered in respect of a victim or witness in any proceedings before the Tribunal (the "first proceedings"), such protective measures shall continue to have effect mutatis mutandis in any other proceedings before the Tribunal (the "second proceedings") unless and until they are rescinded, varied or augmented in accordance with the procedure set out in this Rule";
NOTING that, pursuant to Rule 75(G)(ii) of the Rules, if no Chamber remains seised of the first proceedings, the Chamber seised of the second proceedings may rescind, vary or augment the protective measures ordered in the first proceedings;
NOTING that, pursuant to Rule 75(H) of the Rules, before determining whether to rescind, vary or augment the protective measures pursuant to Rule 75(G)(ii), the Chamber seised of the second proceedings shall obtain all relevant information from the first proceedings, and shall consult with any Judge who ordered the protective measures in the first proceedings, if that Judge remains a Judge of the International Tribunal;
CONSIDERING that, as no Chamber remains seised of the Todorovic case (the first proceedings), the Appeals Chamber, being seised of the Appellant’s case (the second proceedings), may rescind, vary or augment the protective measures ordered in the Todorovic case;
CONSIDERING that the Appeals Chamber has obtained all relevant information from the first proceedings and has consulted the only Judge of the Todorovic case who remains a Judge of the International Tribunal, namely Judge Patrick Robinson;
CONSIDERING that, pursuant to Rule 54 as read together with Rule 107 of the Rules, the Appeals Chamber may proprio motu issue such orders as may be necessary for the preparation or conduct of the appeal;
FINDING that, out of an abundance of caution and for the purpose of being able to fully assess the merits of the Appellant’s sixteenth ground of appeal in the event that the Appeals Chamber were to find that the Trial Chamber erred in denying the Appellant access to the Medical Reports, it is necessary that the Appellant be provided with access to the Medical Reports at this juncture;
FINDING further that the Medical Reports "are likely to be of material assistance" in the preparation of the Appellant’s case;9
EMPHASIZING that whether the Trial Chamber erred in denying the Appellant access to the Medical Reports is an issue on the merits before the Appeals Chamber and that the present order in no way expresses the Appeals Chamber’s view on the Appellant’s sixteenth ground of appeal, which issue will be finally determined in the Appeal Judgement;
CONSIDERING that because this order grants access to the Medical Reports, it affects the interests of Stevan Todorovic and therefore it allows him to apply for additional protective measures or redactions;
PURSUANT TO Rules 54, 75(G)(ii), 75(H) and 107 of the Rules;
HEREBY GRANTS proprio motu the Appellant and his Defence access, subject to the conditions set forth below, to the Medical Reports;
ORDERS that:
FURTHER ORDERS that:
Done in English and French, the English text being authoritative.
Done this 3rd day of February 2006,
At The Hague,
The Netherlands.
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Judge Mehmet Güney
Presiding Judge
[Seal of the Tribunal]