Case No: IT-95-14-A
Before: Judge Florence Ndepele Mwachande Mumba
Registrar: Mr Hans Holthuis
Order of: 24 January 2002
The Office of the Prosecutor:
Mr Norman Farrell
Counsel for the Applicant:
Mr Anto Nobilo
Mr Russell Hayman
Mr Andrew M Paley
1. I, Florence Ndepele Mwachande Mumba, Judge of the International Criminal Tribunal for the former Yugoslavia (“Tribunal”), am seized of the “Prosecution’s Supplementary Response on Protective Measures and Disclosure of Rule 70(C) Material”, filed by the Prosecution on 16 November 2001 (“Supplementary Response”); the public redacted version of the “Prosecution’s Response to Appellant’s Motion for Access to Non-public Transcripts and Exhibits in Response to 11 October 2001 Order and Further Application for an Extension of Time”, dated 31 October 2001, but filed by the Prosecution on 16 November 2001 (“Redacted Response”);1 the confidential and ex parte “Appellant’s Consolidated Reply to Prosecutor’s Supplementary Responses on Protective Measures and Disclosure of Rule 70(C) Material ”, filed by the Applicant on 10 January 2002 (“Reply”); and the confidential and ex parte “Declaration of Anto Nobilo in Support of Appellant’s Consolidated Reply to Prosecutor’s Supplementary Responses on Protective Measures and Disclosure of Rule 70(C) Material”, filed by Mr Anto Nobilo, co-counsel for the Applicant on 10 January 2002 (“Declaration”).
2. The present matter before me concerns the Prosecution’s request for the imposition of particularly stringent protective measures with respect to non-public materials in Prosecutor v Kupreskic,2 Prosecutor v Furundzija3 and Prosecutor v Kordic and Cerkez4, in the event that I order the disclosure of those materials to the Applicant. As I have stated in my “Order for Submissions on Specific Protective Measures Required ” (“Order”),5 it is my prima facie view that the Applicant has satisfied the requirements for the access sought .6 The Prosecution has made serious allegations of non-compliance with previous orders on protective measure against co-counsel for the Applicant, Mr Anto Nobilo, in support of the request for the particularly stringent protective measures. These allegations are set out in the Supplementary Response.7 The Applicant and Mr Anto Nobilo strongly deny the said allegations.8
3. Before dealing with the main matter, the Applicant complains that by having filed the annexes to the Supplementary Response confidentially, the Prosecution has in effect forced counsel to respond to the allegations in a confidential document.9 A request is made for permission to file publicly a non-redacted version of the Reply and Declaration.10 I do not agree that the Prosecution in effect forced the Applicant to file a confidential response – for example, the Applicant could have filed a confidential annex in support of a publicly filed denial. In the event, to lift the confidentiality of the Reply and Declaration may very well result in a breach of existing protective measures .
4. As I have stated in the Order, the imposition of protective measures with respect to the possible disclosure to the Applicant of non-public materials appears to depend on an assessment of the serious allegations made against co-counsel for the Applicant , Mr Anto Nobilo. The Applicant and Mr Anto Nobilo’s response to the allegations confirms my view that such an assessment is necessary. On the one hand, it would be unfair to the Applicant, whose defence team includes Mr Anto Nobilo, to grant him the access to the non-public materials sought on the particularly stringent terms requested by the Prosecutor without an assessment of the allegations made against Mr Anto Nobilo. I am not in a position to grant access to the non-public materials to the Applicant to the exclusion of Mr Anto Nobilo, seeing that he is part of the Applicant’s defence team. On the other hand, Article 22 of the Tribunal’s Statute implores me to protect the interests of victims and witnesses. With that protection in mind, and in the light of the allegations levelled against Mr Anto Nobilo, I do not consider it appropriate in the circumstances to grant the Applicant the access sought to the non-public materials with no protective measures or with such measures as are “usually” granted.
5. However, the nature of the allegations and response thereto is such that it is impossible for the necessary assessment to be fairly made on the face of the Supplementary Response, Reply and Declaration, save perhaps for one of the three allegations levelled against Mr Anto Nobilo. The said allegation concerns the handing over of a witness statement to representatives of the then Croatian government, leading to its publication in the Croatian press.11 As the Applicant and Mr Anto Nobilo point out,12 the relevant Trial Chamber already considered this matter, and held, inter alia , that the relevant witness was not covered by any protective measures at the time , thereby rejecting the request for an examination into the matter.13 It is not obvious why the Prosecution repeated this allegation which has already been held to be unfounded by a Trial Chamber. With respect to another allegation , namely, the disclosure of closed and private session hearings on an internet web site, the matter is technically still pending before the Blaskic Trial Chamber .14 I should, therefore, not express my views on whether or not there is a need for a comprehensive assessment of this particular allegation. With respect to the remaining allegation, concerning the publication of portions of closed session trial testimony in two Croatian newspapers ,15 a comprehensive assessment appears to be warranted. Considering the Tribunal’s Rules, Rule 77 appears to be the most appropriate basis for such an assessment. However, I do not have jurisdiction to act pursuant to Rule 77.
6. In the circumstances, the Prosecution should determine with respect to these allegations how best to have them comprehensively assessed. I, therefore, consider it necessary to stay the decision on whether or not to grant access to the non-public materials to the Applicant and on what terms, pending the outcome of a comprehensive assessment of the allegations, if undertaken, bearing in mind that the appeal proceedings involving the Applicant should not be unduly delayed.
7. Pursuant to Rule 54 of the Rules, I hereby
(a) Deny the request to lift the confidentiality of the Reply and Declaration.
(b) Stay the decision on whether or not to grant access to the non-public materials to the Applicant and on what terms.
(c) The Prosecution is to indicate to me not later than Thursday, 7 February 2002 at 12 a.m. the course of action to be taken concerning the allegations against Mr Anto Nobilo.
Done in both English and French, the English version being authoritative.
Done the twenty-fourth day of January 2002
At The Hague
Florence Ndepele Mwachande Mumba
[Seal of the Tribunal]