IN THE TRIAL CHAMBER

Before: Judge Claude Jorda, Presiding

Judge Fouad Riad

Judge Mohamed Shahabuddeen

Registrar: Mr. Jean-Jacques Heintz, Deputy Registrar

Decision of: 21 July 1998

 

 

THE PROSECUTOR

v.

TIHOMIR BLASKIC

 


ORDER TO THE REPUBLIC OF CROATIA

FOR THE PRODUCTION OF DOCUMENTS


 

 

 

 

Office of the Prosecutor The Counsel of the Republic of

Croatia :

Mr. Mark Harmon Mr. David B. Rifkin Jr.

Mr. Andrew Cayley Mr. Lee A. Casey

Mr. Gregory Kehoe

TRIAL CHAMBER I 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 (hereinafter "the Tribunal"),

NOTING the order to produce documents of 15 January 1997, issued by Judge McDonald, and the Prosecutorís request for assistance addressed to Croatia, dated 19 February 1997,

NOTING the Judgment of the Appeals Chamber of 29 October 1997 "on the request of the Republic of Croatia for review of the decision of Trial Chamber II of 18 July 1997", in respect of the Tribunalís authority to issue orders for the production of documents (hereinafter "the Judgement of the Appeals Chamber"),

NOTING the Prosecutorís motion of 13 January 1998 and the subsequent order of 30 January 1998 on "the motion of the Prosecutor for the issuance of a binding order on the Republic of Croatia for the production of documents", issued confidentially and ex parte (hereinafter "the Order"),

NOTING the request of the Republic of Croatia (hereinafter "Croatia") for the review and stay of the Order, filed on 13 February 1998, and the Decision of the Appeals Chamber on that request, dated 26 February 1998,

NOTING the hearing of 22 April 1998 and the status conference of 5 May 1998 held under the authority of the Legal Officer of Trial Chamber I delegated by the Judges (hereinafter "the Trial Chamber"),

NOTING the Prosecutorís request for the issuance of an additional order to the Republic of Croatia for the production of documents, filed ex parte and under seal on 17 July 1998, (hereinafter "the Request"),

PURSUANT to Article 29 of the Statute of the Tribunal and Rule 54 of the Rules of Procedure and Evidence (hereinafter "the Rules"),

CONSIDERING that the issue of the production of documents by Croatia has been pending in the present case since 15 January 1997, the date when a Judge issued an order to Croatia for the production of documents,

CONSIDERING that, in its Judgement of 29 October 1997, the Appeals Chamber decided that neither States nor their officials acting as such may be the subject of an order to produce documents, and, in the same Judgement, specified the conditions under which orders compelling a State to submit documents or other material could be issued; that those criteria are (1) a specific statement of the documents requested and not broad categories; (2) the relevance of the documents to the trial; (3) the relative ease of execution of the order; (4) sufficient time given to the State for compliance,

CONSIDERING that, pursuant to Rule 39 of the Rules, on 19 February 1997, the Prosecutor sent an official request for assistance to Croatia in respect of those same documents,

CONSIDERING that the Order, attached to which was a list of documents similar to the list attached to the request for assistance, indicated that it found that the Prosecutorís Motion of 13 January 1998 appeared "well-founded, precise and reasonable, within the meaning of the Decision of the Appeals Chamber",

CONSIDERING that, as of 13 February 1998, the date of its request for review and stay of the Order, Croatia had not produced a single relevant document,

CONSIDERING that, in its Decision of 26 February 1998, the Appeals Chamber referred the Parties and Croatia back to Trial Chamber I in order to present their arguments and stayed the execution of the Order until such time as that Trial Chamber had ruled,

CONSIDERING that the Trial Chamber held a hearing on 22 April 1998 during which the Parties and Croatia were able to present their arguments; that it ordered that a status conference be held on 5 May 1998 under the authority of the Legal Officer of the Trial Chamber during which the Prosecutor and Croatia were to attempt to find points of agreement on the contents of the requested documents as well as on the manner they should be produced and the deadline to be respected,

CONSIDERING that, despite the commitments it had made to produce documents and/or to provide precise responses by 18 or 25 May 1998 at the latest, Croatia did not submit documents to the Prosecutor until 24 June 1998; and that those documents concerned only items II, III, and VI of the annex to the Order,

CONSIDERING that, according to the Prosecutorís description of those documents, it appeared that the responses were totally insufficient, specifically in respect of items II and III,

CONSIDERING that, in her Request of 17 July 1998, while maintaining her demand that Croatia comply fully with the Order, the Prosecutor requested that the Trial Chamber order the production of documents specifically listed in a confidential annex, by 27 July 1998 at 14.00 hours,

CONSIDERING that the requested documents in that confidential annex are an integral part of the documents, the list of which is attached to the Order; that that new list is more detailed and more precise and requests the production of a limited number of documents, far fewer than those on the list attached to the Order,

CONSIDERING that the Chamber is in possession of all the information permitting it to assess the relevance of the requested documents,

CONSIDERING that the documents referred to in paragraphs 1 to 6 of the annex to the Request correspond to documents in item VII of the annex to the Order; that those paragraphs relate to information or reports on specific entities and refer to specific periods in late 1993; that they are specific documents and are relatively few in number,

CONSIDERING that, in respect of the documents referred to in paragraph 7 of the annex to the Request, they concern a clearly identified person and a well-defined period in the life of that person,

CONSIDERING that the documents listed in paragraph 8 of the annex to the Request are all particularly specific in respect of their author and the time period; that, moreover, they correspond exactly to the documents in item XI(E) of the annex to the Order,

CONSIDERING that the documents in paragraphs 9 and 10 of the annex to the Request correspond to item X of the annex to the Order; that those in paragraph 11 correspond to item XI; that the Prosecutor here linked her Request to two specific dates and, at the same time, reduced the number of persons concerned,

CONSIDERING that the documents referred to in paragraphs 12 and 13 of the annex to the Request are identical to those in items II and III of the annex to the Order; that, although Croatia did produce some information in this regard, according to the Prosecutorís description, that information did not correspond to what had been specifically requested,

CONSIDERING that, in order to prepare its responses further to the hearing and the conference, Croatia must, by necessity, have conducted searches which, at least in part, concerned those documents,

CONSIDERING that, under those conditions, the execution of the production of the documents sought in the Request will present no difficulty,

CONSIDERING that, in principle, the Prosecutor must conclude the presentation of her evidence on 29 July 1998,

CONSIDERING that, in view of the above, it appears appropriate to set the deadline of 29 July at noon,

FOR THE FOREGOING REASONS,

ORDERS the Republic of Croatia to disclose to the Office of the Prosecutor the documents, the confidential list of which is attached to the present decision, as soon as possible and no later than 29 July at noon.

Done this twenty-first day of July 1998,

At The Hague,

The Netherlands

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

A separate opinion by Judge Mohamed Shahabuddeen is attached to the present decision.

 

 

 

 

(Signed)

______________________________

Claude Jorda

Presiding Judge, Trial Chamber I

 

 

 

 

(Seal of the Tribunal)