Case No. IT-95-14/2-A
IN THE APPEALS CHAMBER
Judge Wolfgang Schomburg, Presiding
Judge Fausto Pocar
Judge Florence Mumba
Judge Mehmet Güney
Judge Inés Weinberg de Roca
Mr Hans Holthuis
17 December 2003
Dario KORDIC & Mario CERKEZ
DECISION ON APPLICATION BY KORDIC FOR ACCESS TO EX PARTE FILINGS
Counsel for the Prosecutor:
Mr Norman Farrell
Counsel for the Accused:
Mr Mitko Naumovski, Mr Turner T Smith Jnr and Mr Stephen M Sayers for Dario
Mr Bozidar Kovacic and Mr Goran Mikulicic for Mario Cerkez
- Dario Kordic (“Kordic”) seeks access to the ex parte annex filed
by his co-appellant Mario Cerkez (“Cerkez”) in support of his motion to admit
additional evidence upon his appeal pursuant to Rule 115 of the Rules of Evidence
and Procedure.1 Kordic further seeks access to
the corresponding ex parte annex that accompanied the prosecution’s
Response to the Cerkez Rule 115 motion.2
- In support of his request Kordic says that neither Cerkez nor the prosecution
has provided any justification for the filing of the annexes on an ex parte
basis, as they are required to do, and that in the absence of providing
justifications for the ex parte annexes he is denied an opportunity
to challenge those justifications .3 Kordic asks
the Appeals Chamber to order Cerkez to disclose his ex parte annex
to Kordic and to permit him to make submissions if necessary,4
and to order the prosecution to disclose its ex parte annex to Kordic
to the extent that it refers to him, relates to any arguments advanced by
him or the prosecution on their respective appeals, or constitutes material
that should be disclosed to him pursuant to Rule 68.5
- The prosecution has filed a Response to Kordic’s Application in which it
says the filing of its ex parte annex was made in response to the filing
of the ex parte annex by Cerkez to his Rule 115 motion and that this
was made clear in the Response it filed.6 It submits
that until the Appeals Chamber determines that Kordic is entitled to have
access to Cerkez’s ex parte annex the prosecution “cannot unilaterally
decide to effectively disclose it to Kordic by referring to its content in
an inter partes Prosecution filing”.7 It
submits that should the Appeals Chamber decide that Kordic should be permitted
access to Cerkez’s ex parte annex it has no objection to Kordic receiving
access to its corresponding ex parte annex on the same terms.8
It submits, however, that Kordic has not formally sought access to the ex parte
annex of Cerkez but merely made a complaint about its filing upon that
basis in his request to access the Rule 115 motion of Cerkez.9
In his Reply to the prosecution Kordic repeats his request for access and
at the same time files a formal application for access to the ex parte
annex filed Cerkez.10
- The ex parte materials to which Kordic requests access are subject
to confidential protective measures imposed by the Blaskic Appeals
Chamber11 and that Chamber is currently seised
of the matter. The Appeals Chamber notes that Rule 75(G) of the Rules provides
in the relevant parts:
(G) A party to the second proceedings seeking to rescind,
vary or augment protective measures ordered in the first proceedings must
(i) to any Chamber, however constituted, remaining seised
of the first proceedings ; or
(ii) if no Chamber remains seised of the first proceedings,
to the Chamber seised of the second proceedings.
The Appeals Chamber, in the present case, does not consider itself competent
to decide this issue. Kordic, if he so wishes, may file a motion before
the Blaskic Appeals Chamber.
- The Application and Amended Application are, therefore, dismissed.
Done in English and French, the English text being authoritative.
Dated this seventeenth day of December 2003,
At The Hague,
Judge Wolfgang Schomburg
[Seal of the Tribunal]
1 - Mario Cerkez Motion to Admit Additional
Evidence on Appeal Pursuant to Rule 115, 7 April 2003; Dario Kordic’s Submissions
in Relation to Motion filed by Co-Accused, Mario Cerkez for Admission of “Additional
Evidence” Under Rule 115, 22 April 2003 (“Application”); Kordic’s Amended Response
to Cerkez’s Motion for Admission of “Additional Evidence” Under Rule 115, 22 April
2003 (“Amended Application”).
2 - Kordic’s Motion for Access to Prosecution’s Ex parte
Submissions in Connection with Cerkez’s Rule 115 Motions, 21 May 2003 (“Motion”).
3 - Amended Application, paras 9-13.
4 - Amended Application, para. 11.
5 - Application, p. 3.
6 - Prosecution’s Response to Kordic’s Motion for Access to
Prosecution’s Ex Parte Submissions in Connection With Cerkez’s Rule 115
Motion, 29 May 2003, (“Response”), para. 9.
7 - Response, para. 6.
8 - Response, para. 7.
9 - Response, para. 3.
10 - Kordic’s Reply in Support of his Motion for Access to
Prosecution Ex Parte Submissions, 30 May 2003 (“Reply”); Kordic’s Motion for Access
to Ex Parte Submissions Made in Connection with Cerkez’s Initial Rule 115 Motion,
30 May 2003 (“Second Motion”).
11 - Decision of 27 May 2003.