Judge Carmel Agius, Presiding
Judge Kevin Parker
Judge Jean Claude Antonetti
Mr. Hans Holthuis
29 March 2006
Office of the Prosecutor
Mr. Chester Stamp
Counsel for Momcilo Perisic
Mr. James A. Castle
Mr. Dragomir Milosevic
Counsel for the Accused
Mr. Branislav Tapuskovic
Ms. Branislava Isailovic
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 (“Tribunal”);
BEING SEIZED, pursuant to Rule 75(G)(i) of the Rules of Procedure and Evidence of the Tribunal (“Rules”), of an “Applicant’s Motion Seeking Access to Confidential Material in the Dragomir Milosevic Case”, filed on 6 March 2006 (“Motion”), in which the Defence of Momcilo Perisic (“Applicant”) argues that the requirements for access to confidential material from other proceedings have been met, and requests access to all confidential material in the Dragomir Milosevic Case;
NOTING that the Motion specifies that it seeks access to “all confidential material in Dragomir Milosevic case (including the indictment supplementing material pursuant to Rule 66A(i), all Rule 66 and 68 material, transcripts of closed sessions and the filings)”;1
NOTING that the Prosecution filed a response to the Motion within the time specified in the Rules,2 and that it offers no objection to disclosure, provided (i) the material is disclosed precisely as disclosed to the Dragomir Milosevic defence team, subject to the same protective measures, including redactions; and (ii) the providers of the Rule 70 material, if any, consent to the disclosure;3
NOTING FURTHER that, following the Appeals Chamber decision in the Blagojevic and Jokic Case,4 the Prosecution does not object to allowing access to supporting materials, transcripts, and confidential filings in the Dragomir Milosevic case, but that it does so object to the disclosure of any Prosecution filings that were made on an ex parte basis .5
NOTING that no response to the Motion has been filed by the Accused Dragomir Milosevic;
CONSIDERING that the Motion does not specify that the Applicant seeks access to ex parte materials, and that the Trial Chamber considers that the Applicant is not requesting ex parte material;
NOTING that the Motion asserts “geographical, temporal, or otherwise material overlap” between the cases against the Applicant and Accused Dragomir Milosevic with regard to crimes perpetrated in Sarajevo;6
NOTING that the current indictment against the Applicant (“Current Perisic Indictment”)7 charges him with the following crimes for his acts and omissions in relation to events in Sarajevo in the period August 1993 to November 1995: murder and inhumane acts as crimes against humanity; and murder and attacks on civilians as violations of the laws or customs of war;8
NOTING that the Accused Dragomir Milosevic was initially charged jointly with the Accused Stanislav Galic in an Indictment confirmed on 14 April 1998 and made public by an order of the Trial Chamber on 2 November 2001 (“Joint Indictment”),9 but that the Prosecution later filed a redacted version of the Indictment comprised solely of charges relating to the Accused Dragomir Milosevic (“Redacted Indictment”);10
NOTING further that the Redacted Indictment against Accused Dragomir Milosevic charges him with the following statutory crimes arising from the blockade and the shelling of Sarajevo between 10 August 1994 and 21 November 1995: murder and inhumane acts as crimes against humanity, as well as attacks on civilians and infliction of terror as violations of laws or customs of war;11
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; and that access to confidential material from another case is granted if the party seeking it can establish that it may be of material assistance to its case;12
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,13 and therefore that access to material may be granted if the party seeking it demonstrates a “geographical, temporal or otherwise material overlap” between the two proceedings;14
CONSIDERING that the significant similarities in the facts giving rise to the charges against the Applicant and the Accused Dragomir Milosevic, with regard to events in and around Sarajevo between 10 August 1994 and 21 November 1995, constitute a clear geographical and temporal overlap between the two proceedings;
CONSIDERING that in the “Decision on Momcilo Perisic's motion seeking access to confidential material in the Galic case”, issued on 16 February 2006, the Appeals Chamber granted access, upon a substantially similar application by the Applicant , to categories of confidential inter partes material submitted in the case of the Accused Galic, Dragomir Milosevic’s former co-accused;
CONSIDERING that the Simic Appeals Chamber ruled that “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”, and that, like the applicant in Simic, the Applicant in this matter “cannot demonstrate a legitimate forensic purpose in relation to such ex parte material”,15 even if his request could be interpreted to include such material;
CONSIDERING that some of the material to which access is sought contains information that may identify protected witnesses, and that the Applicant has undertaken “to comply with all measures of protection imposed in the Dragomir Milosevic Case” as well as to comply with “any additional protective measures the Appeals Chamber may deem necessary for the protection of witnesses in the Dragomir Milosevic Case”;16
CONSIDERING that, pursuant to Rule 75(F)(i) of the Rules, any protective measures that have been ordered in respect of a witness in the Dragomir Milosevic case continue to have effect in the case against the Applicant, except as they have been varied in accordance with this Order;
CONSIDERING that, as conceded by the Prosecution,17 this Order does not affect the disclosure obligations of the Prosecution under Rules 66 and 68, and that it is the responsibility of the Prosecution to determine whether there is additional material related to the Dragomir Milosevic proceedings that should be disclosed to the Applicant, but that is not covered by the terms of this Order;
CONSIDERING that the Dragomir Milosevic case is at a pre-trial stage and that, as a result, no exhibits have been tendered and no closed session transcripts exist;
PURSUANT TO Rules 54 and 75 of the Rules,
HEREBY GRANTS THE MOTION, AND ORDERS AS FOLLOWS:
(1) In consultation with the Prosecution and Counsel for the Accused, the Registry shall identify the following categories of confidential material:
(a) All confidential supporting material that accompanied the Joint and the Redacted Indictments in the Dragomir Milosevic case, and which pertains to the charges related to Sarajevo for Counts 2 and 9–14 of the Joint Indictment and Counts 1–7 of the Redacted Indictment;
(b) All inter partes confidential filings pertaining to the charges related to Sarajevo for Counts 2 and 9–14 of the Joint Indictment and Counts 1–7 of the Redacted Indictment;
(2) The Prosecution shall determine as expeditiously as possible whether any of this confidential material falls under Rule 70, and shall contact the providers of such material without delay to seek their consent for disclosure of that material.
(3) Subject to the consent of such Rule 70 providers where applicable, the Applicant and his defence counsel shall have access to these four categories of inter partes confidential material.
(4) The Registry shall contact the Prosecution to determine which confidential material in the case, if any, is covered by Rule 70, and shall withhold provision of such material until such time as the Prosecution informs the Registry that consent for disclosure has been obtained.
(5) The Applicant and his defence counsel shall not disclose to the public any confidential or non-public material disclosed to it from the Milosevic case 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 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.
(6) The Motion is otherwise denied.
For the purposes 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 and his defence team. “The public” also includes , without limitation, families, friends, and associates of the Applicant; accused and defence counsels in other cases or proceedings before the International Tribunal ; the media; and journalists.
Done in English and French, the English text being authoritative.
Dated this 29th day of March 2006
At The Hague
[Seal of the Tribunal]