IN THE TRIAL CHAMBER

Before:
Judge Richard May
Judge Mohamed Bennouna
Judge Patrick Robinson

Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh

Order of:
16 February 1999

 

PROSECUTOR

v.

DARIO KORDIC
MARIO CERKEZ

___________________________________________________________

FURTHER ORDER ON MOTION FOR ACCESS TO NON-PUBLIC MATERIALS
IN THE LASVA VALLEY AND RELATED CASES

___________________________________________________________

The Office of the Prosecutor:

Mr. Geoffrey Nice
Ms. Susan Somers
Mr. Patrick Lopez-Terres
Mr. Kenneth Scott

Counsel for the Accused:

Mr. Mitko Naumovski, Mr. Leo Andreis, Mr. Turner Smith, Mr. David Geneson and Mr. Ksenija Durkovic, for Dario Kordic
Mr. Bozidar Kovacic, for Mario Cerkez

 

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"),

BEING SEISED of the Defence "Notice of motion to allow the accused access to non-public materials in Lasva Valley and related cases" and the memorandum in support thereof, filed by the Defence for Dario Kordic on 9 June 1998 ("the Motion for Access") and subsequently joined by the Defence for Mario Cerkez (together "Defence") on 14 September 1998, together with the Response to the Motion ("the Prosecution Response") filed by the Office of the Prosecutor ("Prosecution") on 8 July 1998, the Defence Reply to the Prosecution Response filed on 16 July 1998, the Prosecution’s further submissions concerning the Motion for Access filed on 4 September 1998, the Defence Response to the further submissions filed on 11 September 1998, and the confidential Prosecution Response thereto filed on 8 October 1998, pursuant to which the Defence seeks access to the non-public material in related cases before other Chambers of the International Tribunal,

CONSIDERING that, at this stage of the proceedings, it is appropriate for such material to be disclosed to the Defence,

CONSIDERING that it is a matter for each Trial Chamber to determine whether to disclose to another Chamber material that is subject to protective measures imposed by the first Trial Chamber and that it is not a matter for any other Trial Chamber to decide,

CONSIDERING the Decision of Trial Chamber I of 12 November 1998 while seised of this matter requesting the Trial Chambers seised of the various Lasva Valley cases to indicate to it in respect of the non-public testimony "whether the Motion may be granted and if so, under what conditions in terms of confidentiality and protective measures, if necessary",

CONSIDERING the responses of the various Trial Chambers thereto and, in particular, the Opinion of 16 December 1998 issued by the Trial Chamber seised of the case of Prosecutor v. Tihomir Blaskic, Case No. IT-95-14, the Opinion of 8 February 1999 issued by the Trial Chamber seised of the case of Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1, the Request of 10 February 1999 issued by the Trial Chamber seised of the case of Prosecutor v. Zoran Kupreskic et al., Case No. IT-95-16 and the Request of 10 February 1999 issued by the Trial Chamber seised of the case of Prosecutor v. Anto Furundzija, Case No. IT-95-17/1,

CONSIDERING that Article 20 of the Statute of the International Tribunal ("the Statute") requires the Trial Chamber to ensure that a trial is fair and expeditious and that the proceedings are conducted with full respect for the rights of the accused and due regard to the protection of victims and witnesses,

CONSIDERING the rights of the accused as set forth in Article 21 of the Statute and, in particular, the right of the accused to have adequate time and facilities for the preparation of his defence,

CONSIDERING that this Trial Chamber is bound by the Decisions and Orders granting protective measures of the various Trial Chambers seised of the cases in which the non-public testimony was given,

CONSIDERING the ongoing nature of the duty of disclosure, in particular in respect of the cases of Prosecutor v. Tihomir Blaskic, Case No. IT-95-14, and Prosecutor v. Zoran Kupreskic et al., Case No. IT-95-16,

PURSUANT TO Articles 20 and 22 of the Statute and Rules 69, 75 and 79 of the Rules of Procedure and Evidence of the International Tribunal

DETERMINES TO REMAIN SEISED of the Motion for Access and

HEREBY INVITES the Registrar:

  1. to provide copies of the transcripts of the testimony of, identifying material, and all exhibits introduced through the twenty-six protected witnesses in the case of Prosecutor v. Zoran Kupreskic et al., Case No. IT-95-16, who have consented to the release of their non-public testimony direct to the Defence in this case within seven days of the date hereof and subject to the protective measures set out herein;
  2. to provide copies of the transcripts of the testimony of, identifying material, and all exhibits introduced through the three protected witnesses in the case of Prosecutor v. Anto Furundzija, Case No. IT-95-17/1, who have consented to the release of their non-public testimony direct to the Defence in this case within seven days of the date hereof and subject to the protective measures set out herein;
  3.  

    AND ORDERS as follows:

  4. the Prosecution shall within seven days of the date hereof disclose to the Defence copies of all transcripts of the testimony of, identifying material, and all exhibits introduced through protected witnesses in the case of Prosecutor v. Tihomir Blaskic, insofar as such material relates to witnesses to be called in the case of Prosecutor v. Dario Kordic and Mario Cerkez or constitutes exculpatory material relating to either of these two accused and subject to the protective measures set out herein;
  5. the Prosecution shall within seven days of the date hereof disclose to the Defence copies of all transcripts of the testimony of, identifying material, and all exhibits introduced through protected witnesses in the case of Prosecutor v. Zlatko Aleksovski insofar as such material relates to witnesses to be called in the case of Prosecutor v. Dario Kordic and Mario Cerkez or constitutes exculpatory material relating to either of these two accused and subject to the protective measures set out herein;
  6. all material provided to the Defence pursuant to this Order shall be subject to the following protective measures:
    1. all protective measures ordered by the Trial Chamber before which a witness has been heard shall continue in full force and effect;
    2. all definitions contained in the Order of this Trial Chamber dated 15 January 1999 shall apply to the material to be disclosed;
    3. save as is directly and specifically necessary for the preparation and presentation of this case, the Prosecutor, the Kordic Defence and the Cerkez Defence shall not disclose to the public: (a) the names, identifying information or whereabouts of any witness or potential witness identified to them pursuant to this Order, until such time as the witness testifies publicly in open session; (b) any evidence (including documentary, physical and other evidence) or any written statement of a witness or potential witness, or the substance, in whole or part, of any such evidence or statement that has not already been made public, except in the course of public trial and other public proceedings before the International Tribunal (where not protected by further, specific protective measures); (c) the non-public or otherwise protected testimony of a witness or potential witness identified pursuant to this Order or of a person whose written statement(s) has been disclosed pursuant to this Order, except that a person may review his or her own written statement(s) and testimony (and such documentary, physical or similar evidence which is directly related to or included in his or her statement or testimony); and to the extent reasonably necessary to his or her work, an expert witness may review the statements and testimony of other persons, as well as other evidence;
    4. if the Prosecutor, the Kordic Defence or the Cerkez Defence find it directly and specifically necessary to disclose such information for the preparation and presentation of this case, they shall first seek the consent of this Trial Chamber to such disclosure and shall explain the reasons justifying such disclosure and, if such disclosure is authorised, shall inform each person among the public to whom a written statement or non-public or otherwise protected testimony of a witness (or any portion of such a statement or testimony) or other non-public evidence is shown or disclosed, that such person is not to copy, reproduce or publicise such statement or evidence, and is not to show or disclose it to any other person. If provided with the original or any copy or duplicate of such statement or evidence, such person shall return it to the Prosecutor, the Kordic Defence or the Cerkez Defence when such statement or evidence is no longer reasonably necessary for the preparation and presentation of this case;
    5. the Prosecutor, the Kordic Defence and the Cerkez Defence shall not disclose to any person to whom disclosure of material is authorised pursuant to this Order that the relevant witness has already testified before the International Tribunal;
    6. the family, friends and associates of Dario Kordic or Mario Cerkez (other than the Kordic Defence or the Cerkez Defence) shall not contact any witness or potential witness who has been identified to the Kordic Defence or the Cerkez Defence pursuant to this Order or whose unredacted written statement(s) or non-public or protected testimony has been disclosed pursuant to this Order, concerning or in connection with this case;
    7. the Kordic Defence and Cerkez Defence may only on reasonable prior written notice to the Prosecutor contact a witness or potential witness identified to them pursuant to this Order or a person whose written statement(s) or non-public or protected testimony has been disclosed pursuant to this Order;
    8.  
    9. nothing herein shall preclude any party or person from seeking such other or additional protective orders or measures as may be viewed appropriate concerning a particular witness or other evidence.

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

 

_______________________________
Richard May
Presiding

Dated this sixteenth day of February 1999
At The Hague
The Netherlands

[The seal of the Tribunal]