Decision on Application by Mario Cerkez for Access to Confidential Material from Prosecutor v. Hadihasanovic et al and for order Compelling Prosecution to Produce Rule 68 Material

Case: IT-95-14/2-A

IN THE APPEALS CHAMBER

Before: Judge David Hunt, Pre-Appeal Judge

Registrar: Mr Hans Holthuis

Decision of: 7 September 2001

PROSECUTOR

v

Dario KORDIC & Mario CERKEZ

DECISION ON APPLICATION BY MARIO CERKEZ FOR ACCESS TO CONFIDENTIAL MATERIAL FROM PROSECUTOR v HADJIHASANOVIC et al AND FOR ORDER COMPELLING PROSECUTION TO PRODUCE RULE 68 MATERIAL

Office of the Prosecutor:

Mr Upawansa Yapa and Mr Norman Farrell

Counsel for the Defence:

Mr Mitko Naumovski for Dario Kordic
Mr Bozidar Kovacic and Mr Goran Mikulicic for Mario Cerkez

1. The appellant Mario Cerkez ("Cerkez") seeks orders from the Appeals Chamber:

(i) granting him access to the supporting material filed by the prosecution when seeking confirmation of the indictment in Prosecutor v Hadjihasonovic et al (Case IT-01-47-PT), upon the basis that that indictment deals with events closely related to those dealt with in his case and which, he says, "must" include exculpatory material to which he is entitled under Rule 68 of the Tribunal’s Rules of Procedure and Evidence ("Rules"); and

(ii) compelling the prosecution to search for Rule 68 material in its case files¹.

2. Cerkez concedes that all this material is confidential, as indeed it must be at this stage.

3. The Appeals Chamber has no jurisdiction to vary any orders in relation to confidential material made by either the confirming judge or the Trial Chamber to which that case has been assigned. That is clear from Rule 75(D). Cerkez will have to seek an order granting him access from the relevant Trial Chamber.

4. The prosecution is aware of its obligations under Rule 68, and it is inappropriate to make any order against the prosecution unless there is a failure by it to act. Now that the attention of the prosecution team appearing in this appeal has been drawn to the possibility that there is exculpatory material in favour of the appellants available in the prosecution’s case files in Hadjihasonovic et al, the Appeals Chamber expects such prosecution team to take the steps necessary to have a search made.

5. The Motion is dismissed.

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

Dated this 7^th day of September 2001,
At The Hague,
The Netherlands.

________________________
Judge David Hunt
Pre-Appeal Judge

[Seal of the Tribunal]

1 - Appellant Mario Cerkez's Motion for Access to Supporting Material in Hadjihasonovic et al Case and for the Production of Rule 68 Exculpatory Material, 5 Sept 2001 ("Motion"), pars 1, 2.1, 2.7, 3.8.