Case No. IT-01-47-T

TRIAL CHAMBER II

Before:
Judge Jean-Claude Antonetti
Judge Vonimbolana Rasoazanany
Judge Bert Swart

Registrar:
Mr Hans Holthuis

Decision of:
11 April 2005

THE PROSECUTOR

v.

ENVER HADZIHASANOVIC
AMIR KUBURA

__________________________________________

DECISION ON THE ACCUSED SLOBODAN PRALJAK’S MOTION FOR ACCESS TO CONFIDENTIAL TESTIMONY AND DOCUMENTS

__________________________________________

The Office of the Prosecutor:

Mr Daryl Mundis

The Office of the Prosecutor

in case No. IT-04-74-PT:

Mr Kenneth Scott

Counsel for Enver Hadzihasanovic:

Ms Edina Residovic
Mr Stéphane Bourgon

Counsel for Jadranko Prlic in case No. IT-04-74-PT:

Mr Camil Salahovic
Mr Zelimir Par

Counsel for Bruno Stojic in case No. IT-04-74-PT:

Mr Zeljko Olujic

Counsel for Slobodan Praljak in case No. IT-04-74-PT:

Mr Bozidar Kovacic
Ms Nika Pinter

Counsel for Amir Kubura:

Mr Fahrudin Ibrisimovic
Mr Rodney Dixon

Counsel for Milivoj Petkovic in case No. IT-04-74-PT:

Ms Vesna Alaburic

Counsel for Valentin Coric in case No. IT-04-74-PT:

Mr Tomislav Jonjic

Counsel for Berislav Pusic in case No. IT-04-74-PT:

Mr Marinko Skobic

 

TRIAL CHAMBER II ("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");

SEISED of the Accused Slobodan Praljak’s Motion for Access to Confidential Testimony and Documents in the The Prosecutor v. Hadzihasanovic and Kubura Case, filed by counsel for Slobodan Praljak ("Defence for Mr Praljak") on 8 February 2005 ("Motion") with the aim of obtaining access to: i) "all closed session testimony and related exhibits in The Prosecutor v. Hadzihasanovic and Kubura case to the extent that the testimony or exhibits relate to conflict between Bosnian Muslims and Bosnian Croats and/or between the Army of BiH and the HVO on the territory of BiH in 1992 and 1993"1 and ii) "all non-public documents, materials and exhibits, including non-public pre-trial and trial submissions and motions filed confidentially and/or ex parte as well as decisions regarding such submissions providing that such material relates to the conflict between Bosnian Muslims and Bosnian Croats and/or between the Army of BiH and the HVO on the territory of BiH in 1992 and 1993";2

NOTING that in support of its Motion, Defence for Mr Praljak claims that: i) the documents requested will materially assist Defence for Mr Praljak to prepare its defence case given the fact that The Prosecutor v. Hadzihasanovic and Kubura case covers events which took place in the same region and during the same period as those in the case The Prosecutor v. Prlic et al., and that much of the evidence presented in The Prosecutor v. Hadzihasanovic and Kubura case relates specifically or at least generally to Slobodan Praljak, ii) pursuant to the Tribunal’s jurisprudence, a party is entitled to request documents from any source for the preparation of its case providing that the documents requested have been identified or described by their general nature or that a legitimate forensic purpose has been shown, and iii) Defence for Mr Praljak is ready to accept and to respect all protective measures that have been attached to the documents and testimonies it has requested to consult;3

NOTING that, in response, the Office of the Prosecutor ("Prosecution") submitted on 22 February 2005 a Response to the Accused Slobodan Praljak’s Motion for Access to Confidential Testimony and Documents in The Prosecutor v. Hadzihasanovic and Kubura Case, filed on 8 February 2005 ("Prosecution Response") where it is stated that: i) pursuant to the Tribunal’s jurisprudence, a party may obtain access to non-public materials for legitimate forensic purposes, ii) the material sought deals with the actions of Bosnian Muslims and the Army of Bosnia and Herzegovina during the conflict in the territory of Bosnia and Herzegovina and may be of some relevance to the events in The Prosecutor v. Prlic et al. case, and iii) as a result, the Prosecution does not, in broad principle, oppose the request as formulated in the Motion;4

NOTING that the Prosecution requested nevertheless that: i) the disclosure of the materials sought be subject to the protective measures in The Prosecutor v. Hadzihasanovic and Kubura and The Prosecutor v. Prlic et al. cases, ii) no material obtained under Rule 70 of the Rules of Procedure and Evidence ("Rules") be disclosed unless prior consent by the provider of the material is received, iii) the parties in The Prosecutor v. Hadzihasanovic and Kubura Case be given the opportunity to identify "sensitive witnesses" whose evidence should not be disclosed since it has no bearing, and iv) no ex parte submission be disclosed unless the Chamber decides otherwise after having received the arguments of Defence for Mr Praljak and of the party concerned by the submission in question in The Prosecutor v. Hadzihasanovic and Kubura case;5

NOTING that on 4 March 2005 Counsel for Jadranko Prlic ("Defence for Mr Prlic ") filed Jadranko Prlic’s Notice of Joinder to the Accused Slobodan Praljak’s Motion for Access to Confidential Testimony and Documents in The Prosecutor v. Hadzihasanovic and Amir Kubura Case, filed on 8 February 2005 ("Submission by Mr Prlic") in which Defence for Mr Prlic submits that he concurs with the requests submitted in the Motion;

NOTING that Trial Chamber I rendered its decision on 9 March 2005 on the motion of Defence for Mr Praljak, identical to the Motion, on access to confidential material related to other cases before the Tribunal;

NOTING that in response to the Submission by Mr Prlic, the Prosecution filed on 14 March 2005 the Prosecution’s Response to Jadranko Prlic’s Notice of Joinder to the Accused Slobodan Praljak’s Motion for Access to Confidential Testimony and Documents in The Prosecutor v. Hadzihasanovic and Amir Kubura Case, filed on 8 February 2005, where they indicated that the applicable arguments are those presented in the Prosecution Response;

NOTING that counsel for Enver Hadzihasanovic and Amir Kubura indicated on 31 March 2005 that they did not object to the request submitted in the Motion except with regard to the disclosure of some specific information;6

CONSIDERING that a party is always entitled to seek material from any source to assist him in his case, provided that he is able to identify the documents sought or to describe them by their general nature and to show a legitimate forensic purpose for such access;7

CONSIDERING that a significant geographic and temporal overlap exists between The Prosecutor v. Jadranko Prlic et al. and this case;

CONSIDERING that it is in the interest of justice that the confidential documents and transcripts of this case subject to Rule 70 of the Rules not be disclosed, unless the person or entity providing them consents to it, and that the ex parte submissions should not be disclosed unless there is a legitimate forensic necessity;

CONSIDERING that the term "sensitive witnesses" is to be understood as applying to any witness in this case whose existence or statements were disclosed to an adverse party less than 30 days before the said witness testified, having been summoned by a decision of the Chamber;

CONSIDERING that it is in the interest of justice not to disclose information relating to these "sensitive witnesses" unless there is a legitimate forensic necessity;

CONSIDERING that the Motion underlines the general nature of the requested non-public documents and transcripts, given the little information Defence for Mr Praljak and Defence for Mr Prlic dispose of on this subject;

CONSIDERING, in addition, that at this stage the Motion submits a legitimate forensic purpose justifying access to the requested non-public documents and transcripts, except for those subject to Rule 70 of the Rules, ex parte submissions and information on "sensitive witnesses";

CONSIDERING that it is in the interest of justice that when non-public documents and testimonies are disclosed to Defence for Mr Praljak and Defence for Mr Prlic, that they are also submitted to counsel for the other co-accused in The Prosecutor v. Jadranko Prlic et al. case;

FOR THE FOREGOING REASONS,

PURSUANT to Rules 54 and 75 of the Rules,

PARTIALLY GRANTS the Motion and ORDERS that the confidential documents and transcripts in this case relating to the conflict in the territory of Bosnia and Herzegovina in 1992 and 1993 between the Bosnian Muslims and the Bosnian Croats or the Army of Bosnia and Herzegovina and the HVO be disclosed to counsel for all the co-accused in the case The Prosecutor v. Jadranko Prlic et al., subject to the following provisions:

  1. For the purposes of this disposition:
    1. the term "Prosecution" shall refer to the Prosecutor of the Tribunal and all her staff,
    2. the term "Defence" shall refer to the accused Jadranko Prlic, Bruno Stojic, Slobodan Praljak, Milivoj Petkovic, Valentin Coric and Berislav Pusic and their counsel, those working closely with them, their staff, and any other person designated specifically by the Tribunal to defend those accused; each member of Defence must be named expressly in a list drawn up by each lead counsel; this list shall be filed under seal and ex parte within ten days of the date of this decision; any addition to or withdrawal from this list of any of those persons properly entitled to conduct the defence of an accused shall be indicated to this Chamber in the aforementioned manner within seven days,
    3. the term "public" shall refer to all persons, States, organisations, entities, users, associations and groups other than the Judges of the Tribunal, Registry staff (whether assigned to a Chamber or to the Registry), Prosecution and Defence; the term "public" shall include, in particular, family and friends of the Defence, and the accused in other cases before the Tribunal and their counsel,
    4. the term "media" shall refer to any person working for audiovisual or written media, including journalists, writers, television and radio personnel, their agents and representatives,
    5. the term "sensitive witness" shall refer to a witness in this case whose existence or statements were disclosed to an adverse party less than 30 days before the said witness testified, having been summoned by a decision of the Chamber,

  2. Considering their familiarity with the confidential documents and transcripts requested, the Prosecution, Defence for Mr Hadzihasanovic or Defence for Mr Kubura shall, if necessary, issue a redacted version of the said documents and transcripts, which shall then be transmitted to the Registry for disclosure to the Defence,
  3. The confidential documents and transcripts subject to Rule 70 of the Rules will not be disclosed to the Defence, unless the requisite consent is obtained by the Prosecution, Defence for Mr Hadzihasanovic or Defence for Mr Kubura; according to the document or transcript in question, the Prosecution, Defence for Mr Hadzihasanvic or Defence for Mr Kubura shall be responsible for informing the Registry that such consent has been obtained,
  4. Information relating to sensitive witnesses and ex parte submissions shall not be disclosed to the Defence, unless authorisation has been granted by this Chamber following a request setting out a legitimate forensic purpose,
  5. The Defence shall not disclose to the media any of the documents with which it has been provided pursuant to this decision,
  6. Unless directly and specifically necessary for the preparation and presentation of its case and unless prior consent has been granted by the Chamber, the Defence shall not disclose to the public or the media the following information:
    1. the names of the witnesses in this case who have been granted protective measures, their contact details, copies or the content of their statements, hearing transcripts of their testimony or their content or any information from which they may be identified or which violates the confidentiality of the protective measures in effect unless absolutely necessary for the preparation of the Defence case and with the prior authorisation of the Chamber, or
    2. any of the evidence (including documentary, audio-visual, physical or other) or any witness statements or potential witness statements or the content, all or any part thereof, of any evidence, statement or prior testimony disclosed to the Defence pursuant to this decision,

  7. Should the Defence consider that it is directly and specifically necessary for the preparation and presentation of its case to disclose to a member of the public the information or material it has received pursuant to this decision, and should the Chamber authorise such disclosure, the Defence must inform that member of the public that he or she must not copy, reproduce or make public the information or material in question, all or in part, or show or disclose it to anyone else; any member of the public who has received such a document, whether an original or a copy, shall, as soon as he or she has no further use for it, return it to the Defence for the preparation and presentation of its case,
  8. Should a member of a Defence team withdraw from the case The Prosecutor v. Jadranko Prlic et al., any document in his or her possession obtained pursuant to this decision shall be returned to lead counsel for that team,
  9. The Defence shall have no contact whatsoever with the witnesses referred to in the documents and the testimony disclosed pursuant to this decision, unless decided otherwise by the Chamber,
  10. In addition to the measures set out in this disposition, any previous protective measures covering documents and testimony shall remain in effect.

 

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

___________________
Jean-Claude Antonetti
Presiding

Done this eleventh day of April 2005
At The Hague
The Netherlands

[Seal of the Tribunal]


1. Motion, para. 3.
2. Ibid., para. 4.
3. Ibid., paras. 5, 6, 7, 8, 10, and 11.
4. Prosecution Response, paras. 6-10.
5. Ibid., paras. 15-26.
6. T. 18160.
7. Prosecutor v. Enver Hadzihasanovic et al., "Decision on Motion by Mario ^erkez for Access to Confidential Supporting Material", Case No. IT-01-47-PT, 10 October 2001, para. 10. Prosecutor v. Tihomir Blaskic, "Decision on Appellants Dario Kordic and Mario Cerkez’s Request for Assistance of the Appeals Chamber in Gaining Access to Appellate Briefs and Non-Public Post Appeal Pleading and Hearing Transcripts Filed in the Prosecutor v. Blaskic", Case No. IT-95-14-A, 16 May 2002, para. 14. Prosecutor v. Tihomir Blaskic, "Decision on Pasko Ljubicic’s Motion for Access to Confidential Material, Transcripts and Exhibits", Case No. IT-95-14-A, 4 December 2002, para. 13. Prosecutor v. Kvocka et al., "Decision on Mom~ilo Gruban’s Motion for Access to Material", Case No. IT-98-30/1-A, 13 January 2003, para. 5.