Case No. IT-02-60-A

BEFORE THE APPEALS CHAMBER

Before:
Judge Fausto Pocar, Presiding
Judge Mohamed Shahabuddeen
Judge Mehmet Güney
Judge Andrésia Vaz
Judge Theodor Meron

Registrar:
Mr. Hans Holthuis

Decision:
18 January 2006

PROSECUTOR

v.

Vidoje BLAGOJEVIC
Dragan JOKIC

______________________________________________________

DECISION ON MOMCILO PERISIC’S MOTION SEEKING ACCESS TO CONFIDENTIAL MATERIAL IN THE BLAGOJEVIC AND JOKIC CASE

______________________________________________________

The Office of the Prosecutor:

Mr. Norman Farrell
Mr. Chester Stamp
Ms. Sureta Chana

Counsel for the Accused:

Mr. Vladimir Domazet for Vidoje Blagojevic
Ms. Cynthia Sinatra for Dragan Jokic

Counsel for Applicant Momcilo Perisic:

Mr. James Castle

  1. 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 (“International Tribunal”) is seized of appeals by all parties against the Judgement of Trial Chamber I in this case, rendered orally on 17 January 2005 and in writing on 24 January 2005 (“Judgement ”). It is also presently seized of the “Applicant’s Motion Seeking Access to Confidential Material in the Blagojevic and Jokic Case with Appendix A” (“Motion”), filed on 16 November 2005 by Momcilo Perisic (“Applicant”), an accused in another case before the International Tribunal, Prosecutor v. Perisic.1 The Motion seeks access to all confidential material in the Blagojevic and Jokic case.

  2. In its “Response to Momcilo Perisic’s Request for Confidential Material in the Blagojevic and Jokic Case”, filed on 28 November 2005 (“Response”), the Prosecution does not oppose the Motion. It does, however, request that the release of material provided to the Prosecution pursuant to Rule 70 of the Rules of Procedure and Evidence (“Rules”) be conditioned on the authorization of the providers.2 The Prosecution also interprets the Motion to request only inter partes materials, and notes that it would oppose a request for access to ex parte confidential materials.3 No response has been filed by the other parties to the Blagojevic and Jokic proceedings. The Applicant did not reply to the Prosecution’s Response.

  3. Pursuant to Rule 75(F) of the Rules, protective measures ordered by the Trial Chamber in any “first proceedings” (here, the Blagojevic and Jokic case) 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”. The Applicant, being party to a “second proceedings” (his own case, Prosecutor v. Perisic), properly applied to the Appeals Chamber, the chamber currently seized of the first proceedings, for a variation of protective measures, as is required by Rule 75(G).

  4. The Appeals Chamber has held that an accused in a case before the International Tribunal may be granted access to confidential material in another case if he shows a legitimate forensic purpose for such access.4 With respect to inter partes confidential material, it is sufficient for an applicant to demonstrate that “the material sought is likely to assist the applicant’s case materially, or at least that there is a good chance that it would”.5 This standard can be met “by showing the existence of a nexus between the applicant’s case and the case from which such material is sought, for example, if the cases stem from events alleged to have occurred in the same geographical area at the same time”.6

  5. This standard is satisfied here. As the Applicant explains, the events in the Blagojevic and Jokic case are closely related to the charges against him. The indictment against the Applicant identifies Vidoje Blagojevic and Dragan Jokic as the Applicant’s subordinates and charges the Applicant with command responsibility for their acts in relation to crimes that occurred in Srebrenica in July 1995 and after.7 Moreover, in support of the confirmation of the Applicant’s indictment, the Prosecution tendered to the Court a document titled “Prior Judgements and Decisions the Prosecution Relies Upon for Confirmation of the Indictment”, a copy of which is attached as Appendix A to the Applicant’s Motion. This document states that the Prosecution in the Applicant’s case intends to rely on certain Trial Chamber findings in the Blagojevic and Jokic case. Moreover, the Applicant also submits—and the Prosecution does not dispute—that at the first status conference in the Perisic case, the Prosecution specifically acknowledged that the Applicant should have access to the confidential materials in the Blagojevic and Jokic case, and requested that the Defence seek such access through the present Motion rather than seeking disclosure directly from the Prosecution under Rule 68 of the Rules.8

  6. The above-described circumstances amount to a legitimate forensic purpose for access to inter partes confidential materials. The Motion does not specify that the Applicant seeks access to ex parte materials, and the Applicant filed no reply to the Prosecution’s assertion in its Response that the Applicant did not seek such access. The Appeals Chamber will therefore assume that the Applicant does not seek access to ex parte materials.9

  7. Having determined “that confidential material filed in another case may materially assist an applicant, the Appeals Chamber shall determine which protective measures shall apply to said material as it is within the Appeals Chamber’s discretionary power to strike a balance between the rights of a party to have access to material to prepare its case and guaranteeing the protection and the integrity of confidential information”.10 As is its practice, and in view of the vital objective of protecting the safety of witnesses, the Appeals Chamber will permit the parties to the Blagojevic and Jokic case an opportunity to file submissions, if they so choose, addressing the appropriate protective measures to be undertaken here as well as identifying any Rule 70 material for which consent of the provider must be sought prior to disclosure.

    Disposition

  8. Pursuant to Rule 75 of the Rules, the Appeals Chamber hereby GRANTS the Motion, and allows the Applicant and his Defence team access, subject to the conditions set forth below, to all materials classified as inter partes and confidential in the Blagojevic and Jokic case.

  9. The Appeals Chamber ORDERS that:

    (a) the Prosecution, Vidoje Blagojevic and Dragan Jokic apply to the Appeals Chamber for additional protective measures or redactions, if required, within fifteen working days from this decision, including identification of any Rule 70 material that cannot be disclosed without the consent of the provider;

    (b) upon identifying any such Rule 70 material, the Prosecution, Vidoje Blagojevic, or Dragan Jokic should seek the provider’s consent to the disclosure and inform the Appeals Chamber in its submissions as to whether such consent has been obtained;

    (c) where no additional protective measures or redactions are requested either by the Prosecution, Vidoje Blagojevic or Dragan Jokic within fifteen working days, the Registry shall provide the Applicant and his Counsel and any employees who have been instructed or authorized by the Counsel with all inter partes confidential material described above, in electronic format where possible;

    (d) where additional protective measures or redactions are requested for any of the inter partes confidential material described above, either by the Prosecution, Vidoje Blagojevic or Dragan Jokic, the Registry shall withhold that material until the Appeals Chamber has issued a decision on the request(s):

    (i) if the Appeals Chamber denies the request(s), the Registry shall be ordered to provide the Applicant and his Counsel and any employees who have been instructed or authorized by the Counsel, with the inter partes confidential material to which the Appeals Chamber grants access, in electronic format where possible;

    (ii) if the Appeals Chamber grants the request(s), the party or parties applying for redactions shall be ordered to proceed with the authorized redactions and, thereafter, shall provide the redacted inter partes confidential material to the Registry for provision to the Applicant and his Counsel and any employees who have been instructed or authorized by the Counsel, in electronic format where possible; and

    (e) save for the disclosure required by this decision, the inter partes confidential material provided by the Registry shall remain subject to any protective measures previously imposed by the Trial Chamber.

    The Applicant and his Counsel and any employees who have been instructed or authorized by the Counsel to have access to the inter partes confidential material described above shall not, without express leave of the Appeals Chamber based on a finding that it has been sufficiently demonstrated that third-party disclosure is necessary for the preparation of the defence of the Applicant:

    (a) disclose to any third party, the names of witnesses, their whereabouts, transcripts of witness testimonies, exhibits, or any information which would enable them to be identified and would breach the confidentiality of the protective measures already in place;

    (b) disclose to any third party, any documentary evidence or other evidence, or any written statement of a witness or the contents, in whole or in part, of any non- public evidence, statement or prior testimony; or

    (c) contact any witness whose identity was subject to protective measures.

    If, for the purposes of preparing the defence of the Applicant non-public material is disclosed to third parties – pursuant to the authorization of the Appeals Chamber – any person to whom disclosure of the confidential material in this case is made shall be informed that he or she is forbidden to copy, reproduce or publicize, in whole or in part, any non-public information or to disclose it to any other person, and further that, if any such person has been provided with such information, he or she must return it to the defence team of the relevant accused, as applicable, as soon as it is no longer needed for the preparation of his defence.

    For the purposes of the above paragraphs, third parties exclude: (i) the Applicant ; (ii) his Counsel; (iii) any employees who have been instructed or authorized by their Counsel to have access to confidential material; and (iv) personnel from the International Tribunal, including members of the Prosecution.

    If Counsel for the Applicant, or any members of the Defence team who are authorized to have access to confidential material should withdraw from the case, any confidential material to which access is granted in this decision that is in their possession shall be returned to the Registry of the International Tribunal.

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

Dated 18 January 2006
At The Hague
The Netherlands.

________________________
Judge Fausto Pocar
Presiding

[Seal of the International Tribunal]


1 - Case No. IT-04-81-PT.
2 - Response, para. 5.
3 - Response, para. 6 & fn. 3.
4 - Prosecutor v. Kvocka et al., Case No. IT-98-30/1-A, Decision on Momcilo Gruban’s Motion for Access to Material, 13 January 2003, para. 5; Prosecutor v. Blaskic, Case No. IT-95-14-A, Decision on Appellant’s Dario Kordic and Mario Cerkez’s Request for Assistance of the Appeals Chamber in Gaining Access to Appellate Briefs and Non-Public Post Appeals Pleadings and Hearing Transcripts Filed in the Prosecutor v. Blaskic, 16 May 2002 (“Blaskic Decision”), para. 14.
5 - Blaskic Decision, para. 15.
6 - Prosecutor v. Naletilic and Martinovic, Case No. IT-98-34-A, Decision on “Slobodan Praljak’s Motion for Access to Confidential Testimony and Documents in Prosecutor v. Naletilic and Martinovic” and “Jadranko Prlic’s Notice of Joinder to Slobodan Praljak’s Motion for Access”, 13 June 2005 (“Naletilic Decision”), p. 6; Decision on Motion by Radivoje Miletic for Access to Confidential Information, 9 September 2005 (“Decision of 9 September 2005”), p. 4; Decision on Motions for Access to Confidential Material, 16 November 2005 (“Decision of 16 November 2005”), para. 8.
7 - Prosecutor v. Perisic, Case No. IT-04-81-PT, Amended Indictment, 26 September 2005, paras. 58-62.
8 - Motion, para. 13.
9 - See Decision of 9 September 2005, p. 5.
10 - Naletilic Decision, p. 7; Decision of 9 September 2005, p. 5; Decision of 16 November 2005, para. 16.