Case No.: IT-04-83-PT


Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy

Mr. Hans Holthuis

Decision of:
27 April 2005







The Office of the Prosecutor

Mr. Daryl A. Mundis

Defence for Rasim Delic

Mr. Stéphane Bourgon, Duty/ Temporary Counsel

Defence for Enver Hadzihasannovic and Amir Kubura

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


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 a "Joint Defence Motion for Access to All Confidential Indictment Supporting Materials in the Delic Case" filed on 4 April 2005 ("Motion") by the defence of Enver Hadžihasanovic and Amir Kubura ("Applicants"), in which the Applicants seek disclosure of all confidential indictment supporting materials in the case of Prosecutor v. Delic, "subject to the necessary and reasonable protective measures that have to be imposed to ensure the protection of victims and witnesses",1

NOTING the "Prosecution Response to Joint Defence Motion for Access to All Confidential Indictment Supporting Materials in the Delic Case" filed on 7 April 2005 ("Response") by the Office of the Prosecutor ("Prosecution"), in which the Prosecution states that it does not object to the Motion "in light of the overlap between these two cases",2

NOTING that the Trial Chamber ordered, inter alia, (i) the Prosecution to disclose the supporting materials to Rasim Delic (“Accused"); and (ii) the Accused to respond to the Motion no later than 26 April 2005,3

NOTING "Rasim Delic’s Response to Joint Defence Motion for Access to All Confidential Indictment Supporting Materials” filed on 26 April 2005 (“Delic Response"), in which the Accused "confirms that he does not object to the Applicants being granted access to all confidential Indictment Supporting Material in this case",4

NOTING that the Motion submits that "there is substantial material, geographical, and temporal overlap between the two indictments",5

CONSIDERING that a "party is always entitled to seek material from any source to assist in the preparation of his case if the material sought has been identified or described by its general nature and if a legitimate forensic purpose for such access has been shown",6

CONSIDERING that there is material overlap between the case against the Accused and the case against the Applicants in that (i) the charges against the Applicants and the Accused include crimes that allegedly occurred in Maline/Bikoši in June 1993; (ii) these crimes are alleged to have been perpetrated by subordinates of the Applicants; and (iii) the Accused is charged with command responsibility, as a superior of the Applicants, for these crimes,7

CONSIDERING that the Applicants have (i) identified the material sought by its general nature and (ii) shown a legitimate forensic purpose for such access,

CONSIDERING that the supporting materials remain under seal,8 and pseudonyms are used for three victims of rape who are mentioned in the Indictment against the Accused,

PURSUANT TO Articles 20, 21, and 22 of the Statute of the International Tribunal and Rules 53, 54, 69 and 75 of the Rules of Procedure and Evidence of the International Tribunal,

HEREBY GRANTS the Motion and ORDERS as follows:

(1) Prosecution shall immediately disclose the confidential indictment supporting materials of the Accused to the Applicants;

(2) Applicants shall not disclose to the public any confidential or non-public material disclosed pursuant to this Decision, including, inter alia, the names, identifying information and whereabouts of any witness, 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 case of the Applicants; and

(3) If a member of the defence teams of the Applicants withdraws from the case, all confidential or non-public material disclosed pursuant to this Decision in his or her possession shall immediately be returned to the Lead Defence counsel or Registry of the International Tribunal ("Registry").

For the purpose 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 Applicants and their defence teams. "The public" also includes, without limitation, families, friends, and associates of the Applicants; accused and defence counsel in other cases or proceedings before the International Tribunal; the media; and journalists.


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

Patrick Robinson

Dated this twenty-seventh day of April 2005
At The Hague
The Netherlands

[Seal of the Tribunal]

1. Motion, para. 11.
2. Response, para. 2.
3. Confidential “Omnibus Decision on (i) Joint Defence (Hadzihasanovic and Kubura) Motion for Access to All Confidential Indictment Supporting Materials in the Delic Case; (ii) Rasim Delic’s Notification Concerning Disclosure of the Indictment Supporting Material; and (iii) Urgent Motion Seeking the Trial Chamber to Assign Stéphane Bourgon as Counsel to Rasim Delic Until the Assignment of a Permanent Counsel and Request for an Extension of Time to File Preliminary Motions Pursuant to Rule 72 (A)", Prosecutor v. Delic, Case No. IT-04-83-PT, 22 April 2005.
4. Delic Response, para. 5..
5. Motion, para. 8.
6. “Decision on Motion by Hadzihasanovic, Alagic, and Kubura for Access to Confidential Supporting Material, Transcripts and Exhibits in the Kordic and Cerkez Case", Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2-A, 23 Jan. 2003, p. 3 (footnote omitted).
7. According to the indictments, Amir Kubura was the 7th Muslim Mountain Brigade of the 3rd Corps of the Army of Bosnia and Herzegovina ("ABiH"); Enver Hadžihasanovi} was the Commander of the 3rd Corps of the ABiH; and Rasim Delic was the Commander of the Main Staff of the ABiH.
8. "Order to Vacate in Part the Order For Non-Disclosure", Prosecutor v. Delic, Case No. IT-04-83-I, 23 Feb. 2005.