IN THE APPEALS CHAMBER
Judge David Hunt, Pre-Appeal Judge
Mr Hans Holthuis
31 March 2003
Dario KORDIC & Mario CERKEZ
ORDER TO PROSECUTION TO REFILE ITS EX PARTE FILING IN RESPONSE TO MOTION BY KORDIC FOR DISCLOSURE IN RELATION TO WITNESS "AT"
Counsel for the Prosecutor:
Mr Norman Farrell
Counsel for the Defence:
Mr Mitko Naumovski, Mr Turner T Smith Jnr and Mr Stephen M Sayers for Dario Kordic
Mr Bozidar Kovacic and Mr Goran Mikulicic for Mario Cerkez
1. The appellant Dario Kordic ("Kordic) has sought an order directing the prosecution to disclose, in unredacted form, the transcript of an interview conducted over four days with Witness AT, after the judgment was given. Witness AT had been called by the prosecution as a witness at the trial. Kordic claims that the lack of corroboration of this witness’s evidence at the trial1, and the contradictions within that evidence, are crucial issues raised in his appeal, and that a full disclosure of the contents of this interview would constitute exculpatory material within the meaning of Rule 68 of the Rules of Procedure and Evidence ("Rules").2
2. The prosecution has responded by denying that it has failed to comply with Rule 68,3 and stating that, since the Motion was filed, it had provided the interview "with less redactions",4 and that it had agreed to provide Kordic with yet further excerpts from the interview.5 The prosecution also stated that, in order to be completely transparent, it would file an ex parte document for the Appeals Chamber "setting out the remaining redactions and the reasons for such redactions",6 and that it will comply with any order of the Appeals Chamber in relation to the redactions made.7 The redactions are said to have been necessary in relation to "material which is not exculpatory" for "confidentiality, investigative or safety/security concerns",8 and that the redacted areas "contain sensitive material".9 The prosecution filed its ex parte document the following day.10 It identifies the purpose of that document as being "to inform the Appeals Chamber of those portions which have remained redacted, the reasons for the redactions and to place the redacted portions of the Interviews before the Chamber if the Chamber feels it is necessary to review this matter".11
3. In his Reply,12 Kordic has rejected the prosecution’s right to make submissions regarding Witness AT on an ex parte basis, and he has argued that such submissions "should at least be made inter partes, to the extent that they do not raise specific, articulable [sic] witness protection or witness security concerns".13
4. The fundamental principle in every case is that ex parte proceedings should be entertained only where it is thought to be necessary in the interests of justice to do so – that is, justice to everyone concerned – in circumstances where, for example, the disclosure to the other party or parties in the proceedings of the information conveyed by the application, or of the fact of the application itself, would be likely to prejudice unfairly either the party making the application or some person or persons involved in or related to that application.14 The party seeking relief on an ex parte basis in such a case must identify with some care why the disclosure of the fact of the application, or of its detail, to the other party to the proceedings would cause such unfair prejudice.15 In the present case, the prosecution has not identified the basis upon which it claims to be entitled to file its application to the Appeals Chamber upon a wholly ex parte basis, although (as already stated) the prosecution has disclosed to Kordic the fact of the application itself.
5. Applications made by the prosecution under Rule 66(C) – seeking to be relieved of its obligation to disclose material where the disclosure "may prejudice further or ongoing investigations, or for any other reason may be contrary to the public interest or affect the security interests of any State" – may not be filed on a wholly ex parte basis.16 Only a month before the Ex Parte Filing was filed by the prosecution in the present case, the prosecution had been ordered by the Appeals Chamber to refile a redacted version of such a motion.17 I see no distinction between that situation and the current situation, and the same order will therefore be made in this case as well.
6. Another problem which should be raised at this stage arises from the fact that it is anything but clear whether the material presently placed before the Appeals Chamber in Annex A to the prosecution’s Ex Parte Filing is the same as the version of the interview finally provided to Kordic. A comparison between that document and Exhibit 2 to the Motion filed by Kordic suggests that the passages indicated in that document as having been redacted are not always the passages which have remained redacted in the material finally disclosed to Kordic. This final version must be provided by the prosecution.
7. The prosecution is accordingly ordered:
(1) to re-file inter partes a redacted version of the Prosecution Ex Parte Filing, other than the annexes, within five days of the date of this Order; and
(2) to provide the Appeals Chamber with a copy of the final version of the interview disclosed to Kordic, as described in pars 8, 16 and 20 of the prosecution’s Response, together with (upon an ex parte basis) an unredacted version of that document which indicates the passages which have remained redacted.
The Defence is reminded that, in accordance with par 10 of the Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the International Tribunal,18 it has ten days after the redacted version of the Prosecution’s Ex Parte Filing has been filed in which to file its response to the claims made by the prosecution in support of the remaining redactions which have been made.
Done in English and French, the English text being authoritative.
Dated this 31st day of March 2003,
At The Hague,
Judge David Hunt
[Seal of the Tribunal]