Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy
Mr. Hans Holthuis
7 December 2005
Office of the Prosecutor
Mr. Daryl Mundis
Ms. Tecla Henry-Benjamin
Counsel for the Accused Rasim Delic
Ms. Vasvija Vidovic
Counsel for Dario Kordic
Mr. Mitko Naumovski
Mr. Turner T. Smith
Mr. Stephen M. Sayers
Counsel for Mario Cerkez
Mr. Bozidar Kovacic
Mr. Goran Mikulcic
Counsel for Tihomir Blaskic
Mr. Anto Nobilo
Mr. Russell Hayman
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”),
NOTING (1) “Defence Motion on behalf of Rasim Delic Seeking Access to All Confidential Material in the Kordic and Cerkez Case”, filed on 14 October 2005 (“Delic Kordic and Cerkez Motion”), and (2) “Defence Motion on behalf of Rasim Delic Seeking Access to All Confidential Material in the Blaskic Case”, filed on 26 October 2005 (“Delic Blaskic Motion”) (collectively, “ Motions”), in which the Defence of Rasim Delic (“Applicant”) argues that the requirements for access to confidential material from other proceedings have been met,
NOTING (1) the Prosecution’s “Response to the Requests of Rasim Delic for Confidential Material in the Kordic and Cerkez Case”, filed on 21 October 2005 (“Prosecution Kordic and Cerkez Response”), and (2) the Prosecution’s “Response to the Requests of Rasim Delic for Confidential Material in the Blaskic Case”, filed on 28 October 2005 (“Prosecution Blaskic Response”),
NOTING (1) “Applicant’s Motion Seeking Leave to Reply to the Prosecution Response to the Request of Rasim Delic for Access to Confidential Material in the Kordic and Cerkez Case”, filed on 7 November 2005 (“Delic Kordic and Cerkez Reply”), and (2) “Applicant’s Motion Seeking Leave to Reply to the Prosecution Response to the Request for Rasim Delic for Access to Confidential Material in the Blaskic Case”, filed on 7 November 2005 (“Delic Blaskic Reply”) (collectively, “Replies”), in which the Applicant seeks leave to file the Replies notwithstanding having exceeded the seven-day time limit set out in Rule 126 bis of the Rules 1 and to which the Applicant appends his substantive Replies,2
NOTING (1) “Response of Tihomir Blaskic to Request of Rasim Delic for Access to All Confidential Materials in the Blaskic Case”, filed on 28 November 2005 and re-filed in modified form on 1 December 2005 (“Blaskic Defence Response”); (2) “ Addendum to Tihomir Blaskic’s Response to Request of Rasim Delic for Access to All Confidential Materials in the Blaskic Case”, filed confidentially and ex parte on 1 December 2005 (“Blaskic Defence Response Addendum”); and (3) “Tihomir Blaskic’s Motion to Extend Time to File Response to Request of Rasim Delic for Access to All Confidential Materials in the Blaskic Case”, filed on 1 December 2005 (“Blaskic Defence Motion to Extend Time to File”), in which Counsel for Tihomir Blaskic seeks leave to file the Blaskic Defence Response and the Blaskic Defence Response Addendum notwithstanding having exceeded the 14-day time limit set out in Rule 126 bis of the Rules,3
NOTING the “Submission of the Registry Pursuant to Rule 33(B) of the Rules of Procedure and Evidence Regarding Defence Motions Seeking Access to Confidential Material in Several Cases”, filed simultaneously in a number of cases, including Prosecutor v. Delic, on 31 October 2005 (“Registry Submission”), in which the Registry requests, inter alia, that if a Chamber grants less than complete access to confidential material, “the parties whose evidence is in question should compile the material to be provided—subject to those limitations—and convey the material to the Registry to provide to the party seeking access”,4
NOTING the “Prosecutor’s Response to the Submission of the Registry Pursuant to Rule 33(B) of the Rules of Procedure and Evidence Regarding Defence Motions Seeking Access to Confidential Material in Several Cases”, filed simultaneously in a number of cases, including Prosecutor v. Delic, on 11 November 2005 (“Prosecution Response to Registry”), in which the Prosecution “agrees that, in many instances the solution is for the Registry to provide those materials in their entirety but subject to the continuation of the original protective measures”,5 but notes, in the context of a discussion of responsibility for redaction, that “it should not necessarily fall to parties to ensure that the resulting record complies with the Chamber’s ruling” and that “StChese documents are records officially maintained by the Registry”,6
NOTING that the Motions seek access to “all confidential material” in the Kordic and Cerkez and Blaskic cases, respectively,7 on the following grounds:
(1) Certain events and facts alleged in the respective Kordic and Cerkez and Blaskic Indictments are closely related to the charges brought against the Applicant and access to all confidential material in these cases “would be of great assistance for the preparation of the case for the defence of the Applicant”,8
(2) There is a material, geographical, and temporal overlap between the Delic case on the one hand, and the Kordic and Cerkez and Blaskic cases on the other,9
(3) At all times relevant to the Indictment against the Applicant, there was a state of armed conflict between the Army of the Republic of Bosnia and Herzegovina (“ABiH ”) and the Croatian Defence Council (“HVO”),10
(4) The Applicant and the three Accused in the two cases from which confidential material is sought all occupied leadership positions during this armed conflict: the Applicant was a member of the Supreme Command Staff of the ABiH;11 Dario Kordic was part of the “highest circle” of political and military leaders of the HVO and several other Bosnian Croat organisations; and Mario Cerkez and Tihomir Blaskic were HVO Commanders,12
(5) Public material in both Kordic and Cerkez and Blaskic reveals that these cases discussed the activities of the Mujahedin, whom the Indictment against the Applicant alleges perpetrated crimes in the course of the conflict between the ABiH and the HVO for which the Applicant is charged with responsibility,13 and
(6) Since the Applicant’s case deals with his Article 7(3) responsibility as a commander in the ABiH, information relating to the structure and control of the HVO, as well as its relationship with the ABiH, are important to the preparation of his defence,14
NOTING that the Prosecution does not object to the Applicant gaining access to the material sought in either case,15 subject to the following conditions: (1) that the identities and other identifying information of witnesses, along with their current whereabouts, are redacted from any non-public transcripts before they are disclosed;16 (2) that any non-public testimony or exhibits admitted pursuant to Rule 70 not be disclosed unless the Rule 70 provider in question consents to such disclosure;17 and (3) that Prosecution filings made on a confidential and ex parte basis not be disclosed,18
NOTING that the Applicant’s Replies contest the conditions proposed by the Prosecution on the following grounds: (1) to grant the Prosecution’s request for the “blanket redaction” of the identities of all witnesses, absent a discrete justification for doing so in respect of each witness, would defeat the purpose of motions for access to confidential material;19 (2) once Rule 70 material has been admitted as evidence in one case, there is no need for the Prosecution to re-contact the Rule 70 provider before access can be granted to the requesting party in the second case;20 (3) while the Prosecution’s request for the non-disclosure of filings made on a confidential and ex parte basis is in conformity with the jurisprudence of the International Tribunal, the Prosecution’s inconsistent position in other cases may result in confusion and unnecessary litigation,21
NOTING that the Blaskic Defence Response requests that, if the Trial Chamber allows the Applicant access to confidential material in Blaskic, such access be subject to the following conditions:
(1) That the Applicant comply with all protective measures imposed in Blaskic,22
(2) That the identities and other identifying information of witnesses, along with their current whereabouts, be redacted from any nonpublic transcripts before they are disclosed,23
(3) That the Applicant “provide a written undertaking that counsel will not disclose the identities of protected individuals …, their whereabouts, and will not, absent authorization from the Tribunal contact any witnesses or disclose the contents of protected material to any third parties”,24
(4) That any nonpublic testimony or exhibits admitted pursuant to Rule 70 not be disclosed unless the Rule 70 provider in question consents to such disclosure,25
(5) That Blaskic Defence filings made on a confidential and ex parte basis not be disclosed,26 and
(6) That the following materials not be released:
(a) information regarding Blaskic’s Third Motion to Admit Additional Evidence on Appeal Pursuant to Rule 115,27
(b) any information, including any testimony, regarding Blaskic Defence witnesses BA3 and DV,28 and
(c) any information described in the Blaskic Defence Response Addendum,29
NOTING that the Indictment in Prosecutor v. Delic charges the Applicant with superior responsibility for failing to prevent or punish murder, rape, and cruel treatment as violations of the laws or customs of war committed by ABiH troops under his effective control—including foreign Muslim fighters known as Mujahedin —in the central Bosnian municipalities of Travnik and Zavidovici from mid-1993 to 1995;30 and that the Indictment alleges that the Mujahedin were incorporated into the 7th Muslim Mountain Brigade of the ABiH 3rd Corps sometime after 19 November 1992,31
NOTING that the Amended Indictment in Prosecutor v. Kordic and Cerkez charges the respective Accused with responsibility for crimes committed by HVO forces and other members of Bosnian Croat entities in a number of central Bosnian municipalities, including several which neighbour Travnik and Zavidovici,32 from November 1991 to March 1994;33 that the Trial and Appeal Judgements make brief mention of the activities of the Mujahedin;34 and that the Mujahedin,35 the Applicant Rasim Delic,36 Travnik and Zavidovici, and villages in those two municipalities are referred to on various occasions in the Kordic and Cerkez trial transcripts,37
NOTING the “Decision on Motion by Hadzihasanovic, Alagic, and Kubura for Access to Confidential Supporting Material, Transcripts and Exhibits in the Kordic & Cerkez Case” of 23 January 2003, in which the Appeals Chamber granted access to confidential material to three accused ABiH leaders in part because “the Hadzihasanovic et al proceedings are essentially the ‘flipside’ of the HVO prosecutions of which the Kordic & Cerkez case is one example”,38
CONSIDERING that, as no Chamber currently “remains seised of the first proceedings ” in respect of Kordic and Cerkez, this Trial Chamber is properly seized, by virtue of Rule 75(G)(ii) of the Rules, of the Delic Kordic and Cerkez Motion, the Prosecution Kordic and Cerkez Response, and the Delic Kordic and Cerkez Reply,
CONSIDERING, however, that the Appeals Chamber is the Chamber “remaining seised of the first proceedings” in respect of Blaskic by virtue of Rule 75(G)(i) of the Rules,39 and that this Trial Chamber is therefore not properly seized of the Delic Blaskic Motion, the Prosecution Blaskic Response, the Delic Blaskic Reply, the Blaskic Defence Motion to Extend Time to File, the Blaskic Defence Response, or the Blaskic Defence Response Addendum,
CONSIDERING that a party is always entitled to seek material from any source to assist in the preparation of its case if the document sought has been identified or described by its general nature, and if a legitimate forensic purpose for such access has been shown,40
CONSIDERING that the relevance of the material sought by a party may be determined by showing the existence of a nexus between the applicant’s case and the case from which such material is sought,41 and that access to material may therefore be granted if the party seeking it demonstrates a “geographical, temporal or otherwise material overlap” between the two proceedings,42
CONSIDERING that access to inter partes confidential material from another case is granted if the party seeking it can demonstrate “a good chance that access to the material will materially assist the applicant in preparing his case”, and that the party seeking the material need not establish that it would likely be admissible evidence or applicable legal precedent in the party’s own case,43
CONSIDERING, however, that because ex parte material, “being of a higher degree of confidentiality, by nature contains information which has not been disclosed inter partes solely because of security interests of a State, other public interests, or privacy interests of a person or institution”,44 such material shall not be disclosed except upon a showing of legitimate forensic necessity,45
CONSIDERING that, if the material sought is covered by Rule 70, the party that obtained such material in the earlier proceedings must seek the consent of the Rule 70 provider or providers before disclosing such material,46 even in respect of a Rule 70 provider who consented to the use of the relevant material in a prior case,47
CONSIDERING that the general nature of the material sought has been adequately identified or described in light of the Applicant’s lack of knowledge about the form and nature of the material sought,
CONSIDERING that, while the geographical, temporal, and substantive overlap between the Applicant’s case and Kordic and Cerkez is not overwhelming, the Applicant has nonetheless demonstrated a good chance that access to the requested material will materially assist him in preparing his case,
CONSIDERING, therefore, that the Applicant has demonstrated the existence of a nexus between his case and the Kordic and Cerkez case, and that he has consequently established a legitimate forensic purpose justifying access to all inter partes confidential material from Kordic and Cerkez,
CONSIDERING, however, that no legitimate forensic necessity has been shown for access to any ex parte confidential material from Kordic and Cerkez,48
CONSIDERING that the redaction of the identities, whereabouts, and other identifying information of witnesses from non-public transcripts prior to disclosure is not necessary—particularly in light of the Trial Chamber’s orders in the Disposition, infra—given that the existing protective measures in Kordic and Cerkez are sufficient to safeguard the security of all protected witnesses, and that the Applicant has affirmed that “all original or new protective measures attached to the material sought will be complied with”.49
PURSUANT TO Rules 54, 75, 126 bis, and 127 of the Rules, the Trial Chamber hereby ORDERS as follows:
(1) The Delic Blaskic Motion, the Prosecution Blaskic Response, the Delic Blaskic Reply, the Blaskic Defence Motion to Extend Time to File, the Blaskic Defence Response, and the Blaskic Defence Response Addendum are DISMISSED.
(2) The Applicant is granted leave to file the Delic Kordic and Cerkez Reply.
(3) The Delic Kordic and Cerkez Motion is GRANTED in part.
(4) The Registry shall give the Applicant access to inter partes confidential material from Kordic and Cerkez that was acquired pursuant to Rule 70 only if and when the consent of the providers has been obtained by the parties. The Registry shall contact the Prosecution, Counsel for Dario Kordic, and Counsel for Mario Cerkez to determine which confidential material in the case, if any, is covered by Rule 70, and shall withhold disclosure of such material until such time as the relevant party informs the Registry that consent for disclosure has been obtained. The relevant party shall determine as expeditiously as possible whether any of the requested material falls under Rule 70, and shall contact the providers of such material without delay to seek their consent for disclosure of that material, even in respect of those providers who consented to the use of the relevant material in a prior case. The parties shall be responsible for informing the Registry as appropriate.
(5) The Registry shall give the Applicant access to all non-Rule 70 inter partes confidential material from the Kordic and Cerkez case without awaiting the parties’ responses in respect of permission to disclose the Rule 70 material identified by them.
(6) The protective measures which have already been ordered in relation to the material to be made accessible to the Applicant shall remain in place.
(7) The Applicant and his defence counsel shall not contact any witness whose identity was subject to protective measures in Kordic and Cerkez.
(8) The Applicant and his defence counsel shall not disclose to the public any confidential or non-public material disclosed to it from the Kordic and Cerkez case, except to the limited extent that disclosure to members of the public is directly and specifically necessary for the preparation and presentation of the Applicant’s case. If any confidential or non-public material is disclosed to the public, any person to whom disclosure is made shall be informed that he is forbidden to copy, reproduce, or publicise confidential or non-public information or to disclose it to any person, and that he must return the material to the Applicant or his counsel as soon as it is no longer needed for the preparation of the Applicant’s case.
(9) The Delic Kordic and Cerkez Motion, the Prosecution Kordic and Cerkez Response, and the Delic Kordic and Cerkez Reply are otherwise denied.
For the purpose of this Order, “the public” means and includes all persons, governments, organisations, 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 Applicant, his counsel, and any employees who have been instructed or authorised by the Applicant’s counsel to have access to the confidential material. “The public” also includes, without limitation, families, friends, and associates of the Applicant; 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.
Judge Patrick Robinson
Dated this seventh day of December 2005
At The Hague
[Seal of the Tribunal]