Case No. IT-99-36-T

IN TRIAL CHAMBER II

Before:
Judge Carmel Agius, Presiding
Judge Ivana Janu
Judge Chikako Taya

Registrar:
Mr. Hans Holthuis

Decision of:
1 March 2004

PROSECUTOR

v.

RADOSLAV BRDJANIN

____________________________________

DECISION ON MOTION BY THE DEFENCE OF MILAN MARTIC FOR ACCESS TO CONFIDENTIAL TRANSCRIPTS AND DOCUMENTS

____________________________________

The Office of the Prosecutor:

Ms. Joanna Korner
Mr. Andrew Cayley

Counsel for the Accused:

Mr. John Ackerman
Mr. David Cunningham

Counsel for Milan Martic:

Mr. Predrag Milovancevic

 

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 the "Motion filed by the Defence of Milan Martic (IT-95-11 PT) for access to confidential transcripts and documents" ("Motion") filed 13 February 2004, in which the Defence for Milan Martic ("Applicant") requests (1) to be given access to transcripts of all closed or private session testimonies in the case Prosecutor v. Radoslav Brdjanin, as soon as practicable and on a continuous basis; (2) to be given access to trial exhibits and documentary evidence produced during closed or private session testimonies in the case Prosecutor v. Radoslav Brđanin, as soon as practicable and on a continuous basis; and (3) to be granted leave to apply to the Trial Chamber for specific orders with respect to any closed session material which is likely to assist the defence case and which the Prosecution is not otherwise required to disclose to the defence;

NOTING the Applicant’s argument that access to the aforementioned material is required due to the geographical and temporal overlap between the allegations in the Applicant’s case and the case before this Trial Chamber, and that the availability of evidence produced in the Brđanin case would materially assist the preparation of the defence of Milan Martic;

NOTING the "Prosecution’s Response to ‘Motion filed by the Defence of Milan Martic (IT-95-11 PT) for access to confidential transcripts and documents" ("Response") filed 23 February 2004, in which the Prosecution accepts that the Applicant has a legitimate interest to access transcripts and trial exhibits from closed or private sessions in the Brdjanin case, but only as regards the municipalities of Bosanski Novi, Prnjavor and Sipovo, as the overlap between the two cases is confined to these municipalities;

NOTING that the Prosecution does not object to the Registry providing the Applicant with redacted versions of closed and private session transcripts and with redacted copies of confidential trial exhibits as regards the municipalities of Bosanski Novi, Prnjavor and Sipovo;

NOTING that the Prosecution objects to the disclosure in any form of material provided to it pursuant to Rule 70(B) of the Tribunal’s Rules of Procedure and Evidence ("Rules") and of the identities of protected witnesses;

CONSIDERING that the Tribunal’s jurisprudence has clarified that an applicant may not engage in a ‘fishing expedition’1, but may be granted access to material outside the scope of Rules 66 and 68 in order to be assisted in the preparation of his case, provided that (i) the material sought has been identified or described by its general nature as clearly as possible even though it cannot be described in detail; and (ii) a legitimate forensic purpose for such access has been shown;2

CONSIDERING that Rule 75(F) of the Rules provides that "[once] protective measures have been ordered in respect of a victim or witness in any proceedings before the Tribunal (the "first proceedings"), such protective measures: (i) shall continue to have effect mutatis mutandis in any other proceedings before the Tribunal (the "second proceedings") unless and until they are rescinded, varied or augmented in accordance with the procedure set out in this Rule; but (ii) shall not prevent the Prosecutor from discharging any disclosure obligation under the Rules in the second proceedings, provided that the Prosecutor notifies the Defence to whom the disclosure is being made of the nature of the protective measure ordered in the first proceedings";

FINDING that the Applicant has identified the material sought by its general nature, and, in view of the overlap between the Applicant’s case and the instant case as regards the municipalities of Bosanski Novi, Prnjavor and Sipovo, that the Applicant has demonstrated a legitimate forensic interest to access material from the instant case regarding these municipalities, as it is likely to be of material assistance to his defence;

FINDING that access, however, shall not include any material within the scope and protected by Rule 70(B), this Rule constituting an exception to the Prosecution’s general obligation for disclosure;3

FOR THE FOREGOING REASONS

PURSUANT TO Articles 20, 21 and 22 of the Statute of the Tribunal and to Rules 54, 73 and 75 of the Rules of Procedure and Evidence;

HEREBY ORDERS AS FOLLOWS:

1. The Applicant is granted

(1) access to closed and private session transcripts produced by Trial Chamber II in the case of Prosecutor v. Radoslav Brdjanin, Case No. IT-99-36-T, with regard to evidence relevant to the municipalities of Bosanski Novi, Prnjavor and Sipovo, after the redaction by the Registry of those parts of it which will reveal the identity of any protected person;

(2) leave to lodge an application at the appropriate time justifying the revelation of the identity of any particular witness;

(3) access to confidential trial exhibits introduced in the case of Prosecutor v. Radoslav Brdjanin, Case No. IT-99-36-T, with regard to evidence relevant to the municipalities of Bosanski Novi, Prnjavor and Sipovo, after the redaction by the Registry of those parts of it which will reveal the identity of any protected person;

(4) leave to lodge an application at the appropriate time justifying the revelation of the exhibit in its original form.

2. The applicant is not granted access to any Rule 70(B) material which may be included in evidence contained under paragraph 1 (1) and (3) above.

 

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

Dated this 1st day of March 2004,
At The Hague
The Netherlands

______________
Carmel Agius
Presiding Judge

[Seal of the Tribunal]


1. Prosecutor v. Hadzihasanovic et al. Case No. IT-01-47-AR73, Decision on Appeal from Refusal to Grant Access to Confidential Material in Another Case, 23 April 2002, p. 3.
2. Prosecutor v. Rajic, Case No. IT-95-12-PT, Decision on Joint Defence Motion for Access to Confidential Supporting Material, Filings, Transcripts and Exhibits in the Rajic case, 15 September 2003, p. 3; Prosecutor v. Brdjanin, Case No. IT-99-36-T, Decision on Motion by Momcilo Gruban for Access to Confidential Materials in the Brđanin and Talic Case, 1 April 2003, p. 3; ibid., Decision on Joint Motion by Momcilo Krajisnik and Biljana Plavsic for Access to Trial Transcripts of Both Open and Closed Sessions and Documents and Things Filed Under Seal, 13 March 2002, para. 6; ibid., Second Decision on Motions by Radoslav Brdjanin and Momir Talic for Access to Confidential Documents, 15 November 2000, para. 12.
3. Prosecutor v. Brdjanin, Case No. IT-99-36-T, Decision on Joint Motion by Momcilo Krajisnik and Biljana Plavsic for Access to Trial Transcripts of Both Open and Closed Sessions and Documents and Things Filed Under Seal, 13 March 2002, para. 19.