Case No.: IT-95-14-A


Judge Fausto Pocar, Presiding

Judge Florence Mumba
Judge Mehmet Güney
Judge Wolfgang Schomburg
Judge Inés Mónica Weinberg de Roca

Mr. Hans Holthuis

Decision of:
3 March 2004







Prosecutor v. Hadzihasanovic et al

Counsel for the Prosecutor:

Mr. Ekkehard Withopf

Counsel for the Defence:

Ms. Edina Residovic and Mr. Stéphane Bourgon for Enver Hadzihasanovic
Mr. Fahrudin Ibrisimovic and Mr. Rodney Dixon for Amir Kubura

Prosecutor v. Blaskic

Counsel for the Prosecutor:

Mr. Norman Farrell

Counsel for the Appellant:

Mr. Anto Nobilo
Mr. Russell Hayman
Mr. Andrew Paley


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"),

BEING SEISED of the "Joint Defence Motion for Access to Further Confidential Material in the Appeal Proceedings of the Blaskic Case" filed on 19 December 2003 ("Request") by Enver Hadzihasanovic and Amir Kubura ("Applicants"), in which the Applicants seek to extend the Appeals Chamber's Order of 27 January 2003, granting access to confidential material in the Blaskic case, to cover all confidential material until the date of any new order or, if deemed appropriate and convenient, until the conclusion of the appellate proceedings;

RECALLING the "Decision on Joint Motion of Enver Hadzihasanovic, Mehmed Alagic1 and Amir Kubura for Access to all Confidential Material, Transcripts and Exhibits in the Case Prosecutor v. Tihomir Blaskic" of 24 January 2003 ("Decision I") and the "Decision on Prosecution's Preliminary Response and Motion for Clarification Regarding Decision on Joint Motion of Hadzihasanovic, Alagic and Kubura of 24 January 2003" ("Decision on Clarification") rendered on 23 May 2003;

NOTING the Applicants’ submission that they are entitled to confidential material in any new proceedings in the same case, involving the same facts and which take place after the initial order granting access;2

NOTING that the Applicants request, in particular, access to the transcripts and materials of the hearing that commenced on 8 December 2003 in which new testimony was given, in respect of the armed conflict and incidents that took place in Central Bosnia in 1993 which also constitute the subject matter of the Applicants’ case;3

NOTING the “Prosecution’s Response to Joint Defence Motion for Access” filed on 29 December 2003 (“Prosecution’s Response”), wherein the Prosecution does not oppose the Request, provided that the materials sought by the Applicants fall into the categories to which they were previously granted access and remain subject to the same terms and conditions as set out by the Appeals Chamber in Decision I and the Decision on Clarification;4

NOTING the Prosecution’s submission that the Appeals Chamber may wish to consider granting further protective measures in respect of material relating to the witnesses who testified at the evidentiary portion of the hearing commencing on 8 December 2003;5

NOTING that the Prosecution further submits that it would be inappropriate to extend the reach of any further access order beyond the date of this decision, as an open-ended order would effectively preclude the capacity of this Chamber to respond to protection issues that may arise in respect of any future material in this case;6

NOTING the “Appellant’s Response to Joint Motion of Applicants Hadzihasanovic and Kubura for Access to Further Confidential Material” filed on 31 December 2003 (“Appellant’s Response”) by Tihomir Blaskic (“Appellant”), wherein the Appellant does not generally oppose the Request, provided that the conditions of the Appeals Chamber’s prior decision remain in effect;7

NOTING, however, that the Appellant does object to the disclosure of any confidential information regarding the Appellant’s medical condition, as well as to the Applicants’ request for access to confidential information beyond the date of the Appeals Chamber ruling on this Request;8

NOTING that the Applicants have previously been granted access to all non -public documents, materials, and exhibits from the Blaskic case including non-public post-trial submissions, appellate briefs, and Rule 115 motions, until the date of the issuing of Decision I, on the condition that the consent of Rule 70(C) providers is obtained, and that the “Appellant’s Third Motion to Admit Additional Evidence on Appeal Pursuant to Rule 115” and related submissions are excluded, along with the Prosecution’s rebuttal filing of 7 January 2003 and any ex parte motions and decisions filed in the appeal;9

NOTING that certain protective measures have been imposed by both the Appeals 10 and Trial Chambers in respect of the non-public materials to which the Applicants have been granted access;

REITERATING that the Applicants have satisfied the materiality test for being granted access to confidential materials in the Blaskic case in that they have (a) described the material sought by its general nature, and (b) shown a legitimate forensic purpose for such access;

CONSIDERING that the parties to the present Request have not moved to vary the protective measures or the exclusions and conditions for access currently in place;

RECALLING that the Prosecution has, however, submitted that the Appeals Chamber may wish to consider granting additional protective measures in respect of material relating to the witnesses who testified as part of the evidentiary hearing, commencing on 8 December 2003, on the basis that several of those witnesses expressed specific concerns regarding the disclosure of their testimony to parties outside the Blaskic appeal;11

MINDFUL of the Tribunal's responsibility to strike an appropriate balance between the rights of the accused (or Applicants) and the rights of witnesses as set forth in Articles 21 and 22 of the Statute, respectively;

HEREBY ORDERS the Appellant to indicate to the Appeals Chamber in respect of which witnesses who testified as part of the evidentiary hearing commencing on 8 December 2003, additional protective measures are sought within 7 days of the issuing of this Decision;

GRANTS IN PART the Applicants’ Request for access to further confidential materials in the appeal proceedings of the Blaskic case until the date of this Decision, and subject to the conditions set out in Decision I and the protective measures ordered in the confidential “Decision on the Appellant’s Motion for Protective Measures For New Witnesses on Appeal” of 27 May 2002; and

EXCLUDES access by the Applicants to information concerning the Appellant’s medical condition, as well as the transcripts of the hearing commencing on 8 December 2003, until a decision on the granting of additional protective measures is rendered.


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

Done this 3rd day of March 2004,
At The Hague,
The Netherlands.

Fausto Pocar
Presiding Judge

[Seal of the Tribunal]

1 - Appellant Mehmed Alagic died on 7 March 2003. By its order of 21 March 2003, the Trial Chamber terminated the proceedings against him.
2 - Request, para. 5.
3 - Ibid. at paras. 4, 6.
4 - Prosecution’s Response, paras. 4-5.
5 - Ibid. at para. 6.
6 - Ibid. at para. 7.
7 - Appellant’s Response, para. 2.
8 - Ibid. at para. 3.
9 - See Decision I, p. 5 (disposition).
10 - Decision I provided protective measures in the following terms:
The Applicants, their Counsel and any employees who have been instructed or authorised by Counsel to have access to the confidential material in the present case as described in paragraph (b) shall:

  1. not disclose to any third party, the names of witnesses, their whereabouts, copies of witness statements, the contents of the witness statements, transcripts of witness testimonies, the contents thereof, or any information which would enable them to be identified and would breach the confidentiality of the protective measures already in place unless absolutely necessary for the preparation of Applicants’ case, and always with leave of the Appeals Chamber;
  2. not disclose to any third party, any documentary 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; and
  3. not contact any witness without first demonstrating to the Appeals Chamber, that the witness may materially assist Applicants’ case in some identified way and that such assistance is not otherwise reasonably available to them. If the Appeals Chamber authorizes such contact, the Prosecution will be given a right to be present during any contact or interview, if the witness requests such presence.

If, for the purposes of preparing Applicants’ case, confidential material is disclosed to third parties provided that the conditions set out in paragraph (i) are met - any person to whom disclosure of the confidential material in this case is made should be informed that he or she is forbidden to copy, reproduce or publicise, 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 Applicants or their Counsel as soon as it is no longer needed for the preparation of their case.
For the purposes of the above paragraphs, third parties exclude: (i) the Applicants, (ii) persons authorised by the Registrar to assist Counsel for the Applicants (iii) and personnel from the International Tribunal, including (iv) members of the Office of the Prosecutor.

11 - Prosecution’s Response, para. 6.