THIS 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 ("International Tribunal");

BEING SEISED OF (1) "Gojko Jankovic’s Defence Motion for Access to Confidential and Under Seal Material in the Milosevic Case Relating to the Municipality of Foca", filed on 27 May 2005 ("Jankovic Motion"), and (2) "Savo Todovic’s Defence Motion for Access to Confidential and Under Seal Material in the Milosevic Case Relating to the Foca Penitentiary and Correction Facility", filed on 26 May 2005 ("Todovic Motion") (collectively, "Motions"), in which the Defence of Gojko Jankovic and Savo Todovic (collectively, "the Applicants") argues that the requirements for access to confidential material from other proceedings have been met;

NOTING that both Motions seek access "on a continuous basis, where applicable", to four categories of material from the Milosevic case, limited in the Jankovic Motion to material relating to the Municipality of Foca between April 1992 and February 1993, and in the Todovic Motion to material relating to the Foca Penitentiary and Correction Facility (“Foca KP Dom”) between April 1992 and October 1994:

1. All confidential supporting material that accompanied the indictment, with the temporal and geographical limitations described above;

2. All closed and private session transcripts, with the temporal and geographical limitations described above;

3. All confidential and under seal trial exhibits with the temporal and geographical limitations described above, including but not limited to witness statements, documentary evidence, audio and video CDs and tapes, photographs, Rule 92 bis material, and other relevant tangible objects admitted by the Trial Chamber; and

4. All confidential filings by the Parties in the Milosevic case, with the temporal and geographical limitations described above;

NOTING that the Applicants also specifically seek access to any Rule 70 material that falls within the four categories listed above;¹

NOTING that the amended indictment in Prosecutor v. Jankovic et al. charges Applicant Jankovic with torture and rape as crimes against humanity and violations of the laws or customs of war, and alleges that he was "involved in the military attack on Fo[c]a town and various surrounding villages and the arrest of civilians in leading positions", and that "[a]ll these acts are said to have taken place in the Buk Bijela complex, Fo[c]a High School, Partizan Sports Hall and elsewhere on the territory of the Municipality of Fo[c]a in the period between April 1992 and February 1993";²

NOTING that the original indictment against Applicant Todovic charges him with, inter alia, the following crimes arising from the operation of the KP Dom between April 1992 and October 1994: persecution as a crime against humanity; and torture, inhumane treatment, murder or wilful killing, imprisonment, and unlawful detention as grave breaches of the Geneva Conventions, crimes against humanity, and violations of the laws or customs of war;³ and that the proposed joint indictment recently filed in Prosecutor v. Rasevic and Todovic seeks to charge Applicant Todovic as a participant in a joint criminal enterprise, the purpose of which “was to imprison Muslim and other non-Serb civilians from Foca and the surrounding areas in inhumane conditions and subject them to beatings, torture, enslavement, deportations and forcible transfers";⁴

NOTING that the amended Bosnia indictment against Accused Milosevic charges him with genocide, crimes against humanity, grave breaches of the Geneva Conventions and violations of the laws or customs of war arising from, inter alia, the persecution, extermination, murder, wilful killing, unlawful confinement, imprisonment under inhumane conditions, torture, forcible transfer, or deportation of non-Serbs in Foca,⁵

CONSIDERING that a party is always entitled to seek material from any source to assist in the preparation of its case if the document sought has been identified or described by its general nature, and if a legitimate forensic purpose for such access has been shown; and that access to confidential material from another case is granted if the party seeking it can establish that it may be of material assistance to its case;⁶

CONSIDERING that 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 case from which such material is sought,⁷ and therefore that access to material may be granted if the party seeking it demonstrates a "geographical, temporal or otherwise material overlap" between the two proceedings;⁸

CONSIDERING that the significant similarities in the facts giving rise to the charges against the Applicants and the Accused Slobodan Milosevic, with regard to events in Foca between April 1992 and October 1994, constitute a clear geographical and temporal overlap between the two proceedings;

CONSIDERING, however, that no legitimate forensic purpose has been shown for access to the confidential filings of the Parties in this case;

CONSIDERING that the Simic Appeals Chamber has ruled that "ex parte material, being of a higher degree of confidentiality, by nature contains information which has not been disclosed inter partes solely because of security interests of a State, other public interests, or privacy interests of a person or institution", and that, like the Applicant in Simic, the Applicants in this matter "cannot demonstrate a legitimate forensic purpose in relation to such ex parte material";⁹

CONSIDERING that some of the material to which access is sought contains information that may identify protected witnesses, and that the Applicants have undertaken "to fully comply and abide by any and all limitations, redactions, and protective measures regarding identity of any protected person, as well as any and all orders of this Trial Chamber regarding non-disclos[ure] to the public [of] any confidential or non-public material disclosed";¹⁰

PURSUANT TO Rules 54 and 75 of the Rules,

1. The Prosecution shall determine whether any of the confidential material in the first three categories listed above falls under Rule 70, and shall contact the providers of such material to seek their consent for disclosure of that material;
2. Gojko Jankovic and his defence counsel shall have access to the following categories of inter partes confidential material, after the Prosecution has redacted any information that may reveal the identity of any protected person:

1. All confidential supporting material, relating to the Municipality of Foca between April 1992 and February 1993, which accompanied the indictment;
2. All closed and private session transcripts relating to the Municipality of Foca between April 1992 and February 1993; and

3. All confidential and under seal trial exhibits relating to the Municipality of Foca between April 1992 and February 1993;
3. Savo Todovic and his defence counsel shall have access to the following categories of inter partes confidential material, after the Prosecution has redacted any information that may reveal the identity of any protected person:

1. All confidential supporting material, relating to the Foca KP Dom between April 1992 and October 1994, which accompanied the indictment;

2. All closed and private session transcripts relating to the Foca KP Dom between April 1992 and October 1994; and
3. All confidential and under seal trial exhibits relating to the Foca KP Dom between April 1992 and October 1994;
4. The Applicants’ request for continuous access to these materials is denied without prejudice to future periodic requests for access to material corresponding to the geographical and temporal specifications in the Motions;

5. The Applicants and their defence counsel shall not disclose to the public any confidential or non-public material disclosed to it from the Milosevic case except to the limited extent that such disclosure to members of the public is directly and specifically necessary for the preparation and presentation of the Applicants’ cases; and

6. The Motions are otherwise denied.

For the purposes of this decision, "the public" means and includes, all persons, governments, organizations, entities, clients, associations and groups, other than the Judges of the International Tribunal, the staff of the Registry, the Prosecutor and her representatives, and the Applicant and his defence team. "The public" also includes, without limitation, families, friends, and associates of the Applicant; accused and defence counsels in other cases or proceedings before the International Tribunal; the media; and journalists.

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

___________________________
Judge Robinson
Presiding

Dated this twenty-first day of June 2005
At The Hague
The Netherlands