Case No. IT-98-29-A
Judge Fausto Pocar, Presiding
Judge Mohamed Shahabuddeen
Judge Mehmet Güney
Judge Theodor Meron
Judge Wolfgang Schomburg
Mr. Hans Holthuis
16 February 2006
DECISION ON MOMCILO PERISIC’S MOTION SEEKING ACCESS TO CONFIDENTIAL MATERIAL IN THE GALIC CASE
The Office of the Prosecutor:
Ms. Helen Brady
Mr. Chester Stamp
Ms. Sureta Chana
Counsel for the Defence:
Ms. Mara Pilipovic
Mr. Stephane Piletta-Zanin
Counsel for Applicant Momcilo Perisic:
Mr. James Castle
1. The Appeals 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”) is seized of appeals against the Judgement of Trial Chamber I in this case, rendered on 5 December 2003. The Appeals Chamber is also presently seized of the “Applicant’s Motion Seeking Access to Confidential Material in the Galic Case with Appendix A ” (“Access Motion”), filed on 16 November 2005 by Counsel for Momcilo Perisic (“ Applicant”), an accused in another case before the International Tribunal.1 In the Access Motion the Applicant seeks access to all confidential material presented and used in the case against Stanislav Galic, including exhibits, transcripts of closed sessions and filings.
2. The Prosecution, in the “Prosecution Response to the Request of Momcilo Perisic for Confidential Material in the Stanislav Galic Case” (“Response”), filed on 28 November 2005, explains that it would not object to an order granting the Applicant access to confidential materials, subject to certain conditions, described below. Stanislav Galic has not filed a response to the Access Motion. The Applicant has not filed a reply to the Prosecution’s Response.
3. The Appeals Chamber has held that an Accused seeking access to confidential material in another case shall receive that material subject to appropriate protective measures if it “is likely to assist the applicant’s case materially, or […] there is a good chance that it would”, and that this standard is met by showing a factual nexus between the two cases.2
4. The Applicant claims there are “obvious overlaps” between his case and that against Galic.3 He points out that he has been charged “in part with command responsibility for the criminal acts alleged to have been committed […] by individuals who have been named as subordinates. […] The defendant in the Galic case is named as a subordinate in the Applicant’s Indictment and the Applicant is […] charged with responsibility for the acts of Galic as his commander. The facts and circumstances of the charges and evidence against Galic are therefore relevant.”4
5. The Prosecution agrees that there is a nexus between the cases and does not object to the Applicant’s receiving confidential material.5
6. The Appeals Chamber agrees with the Applicant and the Prosecution that there is a significant nexus between the two cases, and that this nexus warrants granting the Applicant access to confidential materials in the Galic case – subject to certain conditions, detailed below. As the Applicant explains, the events in the Galic case are closely related to the charges against him. The indictment against the Applicant identifies General Galic as the Applicant’s subordinate and charges the Applicant with command responsibility for Galic’s acts in relation to crimes that occurred in and around Sarajevo between August 1993 and August 1994.6 Moreover, in support of the confirmation of the Applicant’s indictment, the Prosecution submitted a document titled “Prior Judgements and Decisions the Prosecution Relies on for Confirmation of the Indictment”, a copy of which is attached as Appendix A to the Applicant’s Motion. This document states that the Prosecution in the Applicant’s case intends to rely on certain Trial Chamber findings in the Galic case. Moreover, the Applicant also submits – and the Prosecution does not dispute – that at the first status conference in the Perisic case, the Prosecution specifically acknowledged that the Applicant should have access to the confidential materials in the Galic case, and requested that the Defence seek such access through the present Motion rather than seeking disclosure directly from the Prosecution under Rule 68 of the Rules.7
7. The Prosecution requests that the grant of access be subject to three conditions : protective measures must be applied; no material provided under Rule 70 shall be disclosed without the consent of the provider; and no ex parte material shall be provided.
8. The Prosecution requests that the same protective measures be applied to the Applicant as were applied to Galic. That is, the Applicant “should be provided with copies of the […] Galic material precisely as disclosed to the […] Galic Defence team, subject to the same protective measures, including redactions”.8 The Prosecution also asks that it be allowed to apply for additional protective measures and redactions if necessary, and requests the Appeals Chamber to order “adequate protective measures to maintain the confidentiality of the material in question”.9
9. The Applicant, in his Access Motion, has undertaken to comply with all protective measures, both those already existing and those new ones applied by the Appeals Chamber.10
10. Once the Appeals Chamber has granted access to confidential materials from another case, it then determines what additional protective measures are necessary “to strike a balance between the rights of a party to have access to material to prepare its case and guaranteeing the protection and the integrity of confidential information ”.11
11. Because protective measures ordered in one proceeding “shall continue to have effect mutatis mutandis in any other proceedings before the Tribunal”,12 and because neither side objects to the maintenance of existing protective measures, those measures will continue to apply to any material released to the Applicant. The Prosecution and Stanislav Galic will also be able to request additional protective measures, if they desire. The Appeals Chamber will make a decision on such a request after it is presented and briefed.
12. Rule 70(B) of the Rules of Procedure and Evidence provides that information “provided to the Prosecutor on a confidential basis and which has been used solely for the purpose of generating new evidence […] shall not be disclosed by the Prosecutor without the consent of the person or entity providing the initial information”.13 Under Rule 70(F), the same restriction may be applied by order to specific information in the possession of the accused. The Appeals Chamber has previously ruled that material provided under Rule 70 shall not be released to the Accused in another case unless the provider consents to such disclosure.14
13. The Prosecution asserts that some of the material at issue here may have been provided to it pursuant to Rule 70.15 According to the Prosecution, Rule 70 providers often consent to the release of material in a specific case only.16 Consequently, the Prosecution states, it will ask these providers if they consent to the release of their material to the Applicant.17 The Applicant has made no objection to the Prosecution’s request to consult providers of Rule 70 material. Therefore, any material that has been provided to the Prosecution under Rule 70(B), in addition to any material that may have been provided to the Galic Defence under Rule 70(F), shall not be released to the Applicant unless and before the providers give their consent.
14. The Prosecution objects to the disclosure of any Prosecution filings that were submitted ex parte in the Galic case.18
15. The Applicant’s Motion does not specify that the Applicant seeks access to ex parte materials, and the Applicant filed no reply to the Prosecution’s assertion in its Response that the Applicant did not seek such access. The Appeals Chamber therefore assumes that the Applicant does not seek access to ex parte materials.
16. For the foregoing reasons, the Appeals Chamber GRANTS IN PART the Access Motion and allows the Applicant, subject to the conditions set forth below, access to all materials classified as inter partes and confidential in the Galic case.
17. The Appeals Chamber ORDERS the Prosecution and the Galic Defence:
(a) to identify to the Appeals Chamber and the Registry, within 10 working days from the date of this decision, what, if any, material has been provided subject to Rule 70;
(b) within 15 working days from the date of this decision to seek leave from the Rule 70 providers to disclose this material to the Accused.
18. The Appeals Chamber REQUESTS the Registry:
(a) to withhold any material provided pursuant to Rule 70, as identified by the Prosecution or the Galic Defence, until the responses of the providers have been relayed ;
(b) where the providers have consented to further disclosure, to provide the Applicant, all of his Counsel and any employees who have been instructed or authorized by Counsel, with all such material, in electronic format where possible;
(c) where the providers have refused consent to further disclosure, to withhold that material.
19. The Appeals Chamber ORDERS the Prosecution and Stanislav Galic to apply to the Appeals Chamber for additional protective measures or redactions, if required, within 15 working days from this decision.
20. The Appeals Chamber REQUESTS the Registry:
(a) where no additional protective measures or redactions are requested within 15 working days from the date of this decision, and where materials have not, within 10 working days from the date of this decision, been identified by the Prosecution or the Galic Defence as having been provided pursuant to Rule 70, to provide the Applicant, all of his Counsel and any employees who have been instructed or authorized by Counsel, with all inter partes confidential material described above, in electronic format where possible;
(b) where additional protective measures or redactions are requested, to withhold that material until the Appeals Chamber has issued a decision on the request;
(c) if the Appeals Chamber denies the request, to provide the Applicant, all of his Counsel and any employees who have been instructed or authorized by Counsel, with the inter partes confidential material to which the Appeals Chamber grants access, in electronic format where possible.
21. If the Appeals Chamber grants any requests for redactions, the party or parties applying for redactions shall be ordered to proceed with the authorized redactions and, thereafter, to provide the redacted inter partes confidential material to the Registry for provision to the Applicant, all of his Counsel and any employees who have been instructed or authorized by Counsel, in electronic format where possible.
22. The Appeals Chamber, save as otherwise required by this decision, ORDERS that the inter partes confidential material provided by the Registry shall remain subject to any protective measures previously imposed by the Trial Chamber.
23. The Appeals Chamber ORDERS that the Applicant, all of his Counsel and any employees who have been instructed or authorized by Counsel to have access to the inter partes confidential material described above shall not, without express leave of the Appeals Chamber finding that it has been sufficiently demonstrated that third-party disclosure is necessary for the preparation of the defence of the Applicant:
(a) disclose to any third party the names of witnesses, their whereabouts, transcripts of witness testimonies, exhibits, or any information which would enable them to be identified and would breach the confidentiality of the protective measures already in place;
(b) disclose to any third party any documentary evidence or other evidence, or any written statement of a witness or the contents, in whole or in part, of any non- public evidence, statement or prior testimony; or
(c) contact any witness whose identity was subject to protective measures;
24. The Appeals Chamber ORDERS that if for the purposes of preparing the defence of the Applicant, non-public material is disclosed to third parties – pursuant to authorization by the Appeals Chamber – any person to whom disclosure of the confidential material in this case is made shall be informed that he or she is forbidden to copy, reproduce or publicize, in whole or in part, any non-public information or to disclose it to any other person, and further that, if any such person has been provided with such information, he or she must return it to the defence team of the Applicant as soon as the information is no longer needed for the preparation of his defence.
25. For the purposes of the above paragraphs, third parties exclude: (i) the Applicant ; (ii) his Counsel; (iii) any employees who have been instructed or authorized by Counsel to have access to confidential material; and (iv) personnel from the International Tribunal, including members of the Prosecution;
26. The Appeals Chamber ORDERS that if Counsel for the Applicant or any members of the Defence team who are authorized to have access to confidential material should withdraw from the case, any confidential material to which access is granted in this decision and that remains in their possession shall be returned to the Registry of the International Tribunal.
Done in English and French, the English text being authoritative.
Dated this 16th day of February 2006,
At The Hague,
Judge Fausto Pocar,
[Seal of the Tribunal]