Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy
Mr. Hans Holthuis
25 January 2006
ORDER ON DEFENCE MOTION FOR ACCESS TO ALL CONFIDENTIAL MATERIAL IN THE PROSECUTOR v. KRSTIC CASE
Office of the Prosecutor
Mr. Chester Stamp
Ms. Sureta Chana
Counsel for Radislav Krstic
Mr. Nenad Petrusic
Counsel for Momcilo Perisic
Mr. James Castle
THIS TRIAL 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 an “Applicant’s Motion Seeking Access to Confidential Material in the Krstic Case with Appendix A” and hereby renders a decision thereon.
1. On 16 November 2005, counsel for the Accused Momcilo Perisic (the “Defence”) filed a motion seeking access to “all confidential material”1 in the Krstic case, including “exhibits, transcripts of closed sessions and the filings” for both the trial and appellate stages of the case (“Motion”). The Motion is made on the ground that “the alleged events and facts in the Indictment [against the Accused]… are closely related to the charges against [Krstic]” and that access to all confidential material in the Krstic case would therefore be “of significant assistance for the preparation of” the Accused’s defence.2 More specifically, the Defence argues that because Krstic is named in the Perisic Indictment as one of the Accused’s subordinates, the “facts and circumstances of the charges and evidence against Krstic are … relevant” to the charges made against the Accused on the basis of his responsibility as a commander. In addition, the Defence argues, the Prosecution has indicated that it will seek to admit portions of the Krstic trial and appeal judgements as “prior adjudicated facts” under Rule 94, and the Defence therefore “has an obligation … to review these facts in order to make a knowing and intelligent decision on whether to object to Rule 94 admission.”3
2. On 28 November 2005 the Prosecution filed a response to the Motion (“Response”).4 In its Response, the Prosecution does not object to the Defence gaining access to the material sought in the Motion, provided that: (1) any protective measures imposed on the materials in the Krstic case, including redactions, apply mutatis mutandis to the Perisic case; (2) any material that is subject to Rule 70 remains confidential until the Prosecution obtains the consent of the provider; (3) filings that were made on an ex parte basis remain confidential, and (4) the Prosecutor is given the right to apply for additional protective measures within 21 working days of the decision on the Motion.5
3. Since no Chamber currently “remains seised of the … proceedings” in the Krstic case, this Trial Chamber is properly seized, under Rule 75(G)(ii) of the Rules, of the Motion.
4. A party may obtain inter partes confidential material from another case to assist in the preparation of its case if the material sought has been identified or described by its general nature and a legitimate forensic purpose for such access has been shown. This means that the party seeking the material must demonstrate “a good chance that access to the material will materially assist the applicant in preparing his case.”6 The party seeking the material need not, however, establish that it would likely be admissible evidence or applicable legal precedent in the party’s own case.7
5. Ex parte material is “of a higher degree of confidentiality [and] by nature contains information which has not been disclosed inter partes … because of [the] security interests of a State, other public interests, or [the] privacy interests of a person or institution.”8 Access to such material is not, therefore, granted unless an applicant can establish a “legitimate forensic necessity” for the material.9
6. If the material sought was originally provided to a party under Rule 70, the party that obtained the material must seek the consent of the Rule 70 provider(s) before it can be disclosed.10 This is true even if the Rule 70 provider(s) consented to the use of the material in one or more prior cases.11
7. The Trial Chamber considers that, taking into account the Accused’s lack of knowledge about the form and nature of the confidential material in the Krstic case, the general nature of the material sought has been adequately identified or described in the Motion.
8. In the Trial Chamber’s view, the Defence has also demonstrated that—given Krstic’s position as a subordinate of the Accused, named in several paragraphs of the Indictment, and given the Prosecution’s intention to seek the admission of factual findings from the Krstic trial and appellate judgements as “adjudicated facts” in the Accused’s trial under Rule 94—access to the confidential inter partes material in the Krstic case has a “legitimate forensic purpose.” In other words, the Defence has shown that there is “a good chance” that access to the requested material will materially assist the Accused in preparing his case. This is particularly true in relation to the Srebrenica-related charges made against the Accused on the basis of his alleged responsibility as Krstic’s commander, but the requested material will likely assist the Accused in preparing his case more generally.12 Thus access to inter partes confidential material is justified and will be granted.
9. In the view of the Chamber, the considerations discussed in the above paragraph also establish that there is a “legitimate forensic necessity” for the confidential material. As a result, the Defence will be granted access to the ex parte confidential material in the Krstic case as well.
10. PURSUANT TO Rules 54 and 75 of the Rules, the Trial Chamber hereby ORDERS as follows:
(1) The Motion is GRANTED in part.
(2) The Registry shall give the Defence access to inter partes confidential material in the Kstic trial and appeals case that was acquired pursuant to Rule 70 only if and when the consent of the provider(s) has been obtained by the relevant party. The Registry shall contact the Prosecution and Counsel for Radislav Krstic to determine which confidential material in the case, if any, is covered by Rule 70, and shall withhold disclosure of such material until such time as the relevant party informs the Registry that consent for disclosure has been obtained. The relevant party shall determine as expeditiously as possible whether any of the requested material falls under Rule 70, and shall contact the providers of such material without delay to seek their consent for disclosure of that material, even in respect of those providers who consented to the use of the relevant material in a prior case. The parties shall be responsible for informing the Registry as appropriate.
(3) The Registry shall give the Defence access to all non-Rule 70 inter partes and ex parte confidential material from the Krstic trial and appeals case without awaiting the parties’ responses in respect of permission to disclose the Rule 70 material identified by them.
(4) The protective measures which have already been ordered in relation to the material to be made accessible to the Defence shall remain in place.
(5) The Accused and the Defence shall not contact any witness whose identity was subject to protective measures in Krstic trial and appeals case.
(6) The Accused and the Defence shall not disclose to the public any confidential or non-public material disclosed to it from the Krstic trial and appeals case, except to the limited extent that disclosure to members of the public is directly and specifically necessary for the preparation and presentation of the Accused’s case. If any confidential or non-public material is disclosed to the public, any person to whom disclosure is made shall be informed that he is forbidden to copy, reproduce, or publicise confidential or non-public information or to disclose it to any person, and that he must return the material to the Defence as soon as it is no longer needed for the preparation of the Accused’s case.
For the purpose of this Order, “the public” means and includes all persons, governments, organisations, entities, clients, associations, and groups, other than the Judges of the International Tribunal, the staff of the Registry, the Prosecutor and her representatives, and the Accused, the Defence, and any employees who have been instructed or authorised by the Defence to have access to the confidential material. “The public ” also includes, without limitation, families, friends, and associates of the Accused ; Accused and defence counsel in other cases or proceedings before the International Tribunal; the media; and journalists.
Done in English and French, the English text being authoritative.
Judge Patrick Robinson
Dated this twenty-fifth day of January 2006
At The Hague
[Seal of the Tribunal]