Case No. IT-03-66-T

TRIAL CHAMBER II

Before:
Judge Kevin Parker, Presiding
Judge Krister Thelin
Judge Christine Van Den Wyngaert

Registrar:
Mr. Hans Holthuis

Order of:
14 April 2005

PROSECUTOR

v.

Fatmir LIMAJ
Haradin BALA
Isak MUSLIU

________________________________________________

DECISION ON MOTION OF ASSIGNED COUNSEL IN MILOSEVIC FOR VARIANCE OF PROTECTIVE MEASURES PURSUANT TO RULE 75

________________________________________________

The Office of the Prosecutor:

Mr. Alex Whiting
Mr. Julian Nicholls
Mr. Milbert Shin
Mr. Colin Black

Assigned Counsel in Milosevic :

Mr. Steven Kay QC
Ms. Gillian Higgins

Amicus Curiae in Milosevic:

Prof. Timothy McCormack

The Accused in Milosevic

Mr. Slobodan Milosevic

Counsel for the Accused:

Mr. Michael Mansfield Q.C. and Mr. Karim A. A. Khan for Fatmir Limaj
Mr. Gregor Guy-Smith and Mr. Richard Harvey for Haradin Bala
Mr. Michael Topolski Q.C. and Mr. Steven Powles for Isak Musliu

 

THIS TRIAL CHAMBER II ("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 ("Tribunal"),

BEING SEISED of a motion dated 8 April 2005 ("Motion")1 from counsel assigned to the Accused Mr. Slobodan Milosevic ("Assigned Counsel for Milosevic") in which Assigned Counsel for Milosevic requests this Chamber to vary the protective measures ordered in respect of Prosecution witness Dragan Jasovic, who testified in this case on 5, 6 and 7 April 2005, and further, to order the Registry to release the transcripts of all private session testimony given by Dragan Jasovic and copies of all confidential materials and exhibits, if any, produced through the witness during the trial proceedings,

NOTING the response filed on behalf of the Office of the Prosecutor ("Prosecution") on 12 April 2005,2 in which it is submitted that, while the Prosecution is under no obligation to disclose the material sought to Assigned Counsel for Milosevic or the Accused in the Milosevic case under the applicable Rules of Procedure and Evidence ("Rules"), it would have no objection to the Chamber granting the requested access were it to be deemed that such a course was in the interests of justice,

NOTING that counsel for the Accused in this case have indicated there is no objection to the motion,3

NOTING Rule 75 of the Rules which states in relevant part that once protective measures have been ordered in respect of a victim or witness in any proceedings before the Tribunal such protective measures shall continue to have effect mutatis mutandis in any other proceedings before the Tribunal, and that a party seeking to rescind, vary or augment protective measures in another case before this Tribunal must apply to the Chamber, however constituted, remaining seised of that case,

NOTING, therefore, that, as the Chamber which ordered protective measures in relation to the material sought, this Chamber is properly seised of the motion,

NOTING the arguments of Assigned Counsel for Milosevic in support of the motion:

  1. That a number of witness statements concerning events in the Racak area in Kosovo in 1999, taken by Dragan Jasovic, then a Serbian policeman at the secretariat of the interior in Urosevac, were introduced through a witness for the defence in the Milosevic case and were admitted into evidence by the Milosevic Chamber,

  2. That the statements, inter alia, purport to identify members of the KLA in and around Racak and that some of the individuals identified match those listed in Schedule A of the Kosovo Indictment in the Milosevic case,

  3. That the Prosecution have challenged the admissibility of the witness statements on the grounds, inter alia, that they were coerced and, therefore, that their admission into evidence is contrary to Rule 95 of the Rules.

  4. That the Accused Milosevic now seeks to call Dragan Jasovic as a witness in his own case4 in order to establish, inter alia, that the witness statements were taken by him in accordance with the law.

CONSIDERING that a party is always entitled to seek material from any source to assist in the preparation of its case if the document sought has been identified or described by its general nature and if a legitimate forensic purpose has been shown,5

CONSIDERING that access to confidential material from another case shall be granted if the party seeking it can establish that it may be of material assistance to its case, that is, that it is likely to assist the applicantís case materially, or that there is at least a good chance that it would,6

CONSIDERING further that material may be considered relevant where a nexus exists between the applicantís case and the case from which such material is sought (e.g. where the charges arise out of events with geographic and temporal identity),7

CONSIDERING that while there is an approximate geographic overlap in relation to certain of the crimes charged in the Milosevic case and the crimes charged in this case, there is not a clear temporal overlap,

CONSIDERING, however, that the admissibility of witness statements taken by Dragan Jasovic in and around Racak in Kosovo is being challenged by the Prosecution in the Milosevic case on the grounds, inter alia, that the statements were coerced,

CONSIDERING, therefore, that testimony relating to the manner in which witness statements were taken by Dragan Jasovic in general, an issue explored in his testimony before this Chamber, may be relevant to the Milosevic defence, as may be the matter of Dragan Jasovicís credibility, and further that the Accused Milosevic anticipates calling Dragan Jasovic as a witness in his own case to explore, inter alia, these matters,

FINDS that Assigned Counsel for Milosevic has identified the requested material and, in the Chamberís view, has demonstrated that it may be of material assistance to the Milosevic defence,

FURTHER FINDS, however, that the actual identities of the individuals named in private session by Prosecution witness Dragan Jasovic in this case, have not been shown to be relevant to the Milosevic defence, and therefore, that these names should be redacted from his private session transcripts, and from the confidential materials and exhibits produced through him, prior to their being made available in accordance with this decision,

NOTING that while the Accused Milosevic is conducting his own defence there are also Assigned Counsel and counsel appointed as amicus curiae ("Amicus Curiae"),

PURSUANT TO Rule 75(G)(i) of the Rules, HEREBY GRANTS the motion and orders as follows:

  1. The protective measures ordered in relation to Prosecution witness Dragan Jasovic are hereby varied to the extent that Assigned Counsel, the Accused and the Amicus Curiae in the Milosevic case shall be granted access to the private session transcripts of Dragan Jasovicís testimony and all confidential materials and exhibits produced through him in this case, as redacted in accordance with this decision, the Prosecution to provide the redacted copies of this material to the Registry for distribution to Assigned Counsel, the Accused and the Amicus Curiae in the Milosevic case;
  2. Assigned Counsel, the Accused and the Amicus Curiae in the Milosevic case shall not disclose to the public, as defined hereafter, any of the aforementioned confidential or non-public material.

For the purposes of this decision, the term "public" includes all persons, governments, organisations, entities, associations and groups other than the Judges of the International Tribunal and the staff of the Registry, the Prosecutor and the Accused in the Milosevic case, Assigned Counsel for Milosevic, the Amicus Curiae in the Milosevic case, and the Accused Milosevicís legal associates, as recognised by the Milosevic Chamber. The term "public" specifically includes, without limitation family members, friends and associates of the Accused, the Accused in other cases or proceedings before the International Tribunal, the media and journalists.

 

Done both in English and French, the English version being authoritative.

_____________
Judge Kevin Parker

Dated this fourteenth day of April 2005
At The Hague,
The Netherlands

[Seal of the Tribunal]


1. Assigned Counsel Motion Pursuant to Rule 75 Requesting Access to Certain Confidential Material in the case of the Prosecutor v. Fatmir Limaj, Haradin Bala and Isak Musliu on Behalf of the Defence of Slobodan Milosevic, 8 April 2005.
2. Prosecutionís Response to Assigned Counsel Motion Pursuant to Rule 75 Requesting Access to Certain Confidential Material in the case of the Prosecutor v. Fatmir Limaj, Haradin Bala and Isak Musliu on Behalf of the Defence of Slobodan Milosevic, 12 April 2005.
3. Transcript of the proceedings in the case Prosecutor v. Fatmir Limaj, Haradin Bala and Isak Musliu, T. 5833.
4. Assigned Counsel indicate in the motion that the Trial Chamber in the Milosevic case has acceded to the Accusedís oral request to call Mr. Jasovic as a witness, although he was not in the original Rule 65 ter witness list.
5. Prosecutor v. Kvocka et al, Case No. IT-98-30/1-A, Decision on Momcilo Grubanís Motion for Access to Material, 13 January 2003, para. 5, citing collected cases.
6. Ibid.
7. Ibid.