Before: Judge Gabrielle Kirk McDonald, Presiding
DECISION ON THE PROSECUTOR'S MOTION FOR THE PRODUCTION OF NOTES EXCHANGED BETWEEN ZEJNIL DELALIC AND ZDRAVKO MUCIC
The Office of the Prosecutor:
Mr. Eric Ostberg
Counsel for the Accused:
Ms. Edina Residovic, for Zejnil Delalic
Pending before this Trial Chamber of the International Criminal Tribunal for the
Prosecution of Persons Responsible for Serious Violations of International Humanitarian
Law in the Territory of the Former Yugoslavia since 1991 ("International
Tribunal") is a Motion for Production of Notes Exchanged between Detainees Delalic
and Mucic filed by the Office of the Prosecutor ("Prosecution") on 26 August
1996 ("Motion"). Attached to the Motion are four memoranda exchanged between the
Prosecution and the Registry in relation to the confiscation of such notes dated 15 May
1996, 5 July 1996, 17 July 1996 and 16 August 1996 respectively.
On 4 September 1996, counsel for the accused Zejnil Delalic filed a Rejoinder to the
Motion ("Rejoinder") and, on 23 September 1996, counsel for the accused Zdravko
Mucic indicated that he was not intending to respond to the Motion.
On 23 September 1996 the Trial Chamber invited the Registrar of the International
Tribunal to respond to the Motion, which response was filed on 25 September 1996
THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and the attached
HEREBY ISSUES ITS DECISION.
1. On 8 May 1996, the accused Zejnil Delalic was transferred to the United Nations
Detention Unit in The Hague ("Detention Unit"). The Detention Unit is under the
authority of the Registrar of the International Tribunal, who is responsible, through the
Commanding Officer, for its administration and staff.
2. At the time of Zejnil Delalic's transfer, the Prosecution orally requested the
Registrar that there be no contact between Zejnil Delalic and Zdravko Mucic, one of Zejnil
Delalic's co-defendants who was already detained there. Motion at Registry Page
("RP") D1129. According to the Motion, the Registrar informed the Prosecutor
"that it was normal procedure to separate detainees". Motion at RP D1128.
3. On or around 14 May 1996, a member of the Registry staff working in the Detention
Unit found that the detainees were attempting to communicate via notes left in a common
area of the Detention Unit. Such notes were not transmitted via the prescribed channel nor
submitted to the Registrar for inspection. The staff member, without being authorised by
the Registrar, orally informed the Prosecution of the attempt.
4. The Prosecution, having received this information, submitted on the next day a memorandum to the Registrar asking her to investigate the matter and to formalise or "memoralize" the oral request made at the time of Zejnil Delalic's arrival, that "there be no contact between" the two detainees, (Attachment A to the Motion, Memorandum of 15 May 1996 at RP D1120), and later requested the Registrar to disclose copies of the confiscated material. The Registrar declined to disclose such material.
B. The Pleadings
5. In the Motion, the Prosecution contends that it is entitled to obtain copies of the
confiscated mail as part of the Prosecutor's general duty and responsibility to
investigate crimes under the jurisdiction of the International Tribunal pursuant to
Article 16 of the Statute of the International Tribunal ("Statute") and Rule 39
of the Rules of Procedure and Evidence of the International Tribunal ("Rules").
6. The Prosecution also argues that it is entitled to receive copies of the confiscated
items as they could constitute evidence of contempt under Sub-rule 77(C) of the Rules,
which provides: "Any person who attempts to interfere with or intimidate a witness
may be found guilty of contempt and sentenced in accordance with Sub-rule (A)."
7. Finally, the Prosecution bases its contention on the argument that the
correspondence took place in violation of its request under Rule 66 of the Rules Governing
the Detention of Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise
Detained on the Authority of the Tribunal ("Rules of Detention"), and that it
"has the right to investigate the violation of the restriction which it had requested
in the first place and to decide if further steps need to be taken". Motion at
8. In the Rejoinder, counsel for the accused Zejnil Delalic argues that the right of
the Prosecution to investigate crimes under the jurisdiction of the International Tribunal
is restricted by the responsibilities of other bodies of the International Tribunal, such
as the Chambers, the Registry and the Defence. In particular, the Defence makes reference
to the Rules of Detention which establish the responsibility of the Registrar in laying
down the conditions for the inspection of correspondence and in applying them.
9. The Defence further contends that Rule 66 of the Rules of Detention is not
applicable as it had not been communicated to the detainees, and that the correspondence
could not be considered to be in violation of an order of which the detainees were not
informed. Moreover, counsel argues that the Prosecution's knowledge of the intercepted
correspondence is illegal and contrary to the Rules of Detention. According to the
Defence, the fact that the information was passed on directly to the Prosecution by a
member of the Registry staff working in the Detention Unit without the authorisation of
the Registrar invalidates any claims the Prosecution may have to that material. The
Defence argues that an "approval" by the Trial Chamber of "such practice of
obtaining information" would jeopardise the rights of the detainees by encouraging
direct contacts between the Prosecution and members of the staff of the Detention Unit for
the purpose of gaining access to information which would otherwise not be available to the
10. As to the right of the Prosecutor to have access to seized correspondence, the
Defence contends that the responsibility for deciding in which cases to inform the
Prosecutor of the seizure of correspondence lies with the Registrar, even if the
Prosecutor may be able to interpret the contents of such correspondence more effectively.
11. Finally, the Defence argues that the Prosecution contention that the exchanged
notes could be evidence of an attempt to interfere with witnesses is baseless, since the
detainees had already received each other's full statements through the process of
discovery and, in any event, the two accused do not have the status of witnesses.
12. The Registrar submits that the Rules of Detention and the Regulations made
thereunder reflect the general supervisory authority of the Registrar over the Detention
Unit. She states that, in the absence of specific provisions for written communications
exchanged within the Detention Unit she acted on the basis of the Rules of Detention and
the Regulations to Govern the Supervision of Visits to and Communications with Detainees
("Communications Regulations") concerning mail, and that "[t]he items were
confiscated due to the fact that they were regarded as illegal correspondence, the
detainees not having submitted this correspondence for inspection to the Registrar in
accordance with the procedure set up in the [Communications] Regulations". Brief
at RP D1407. The confiscation, therefore, was a consequence of the violation of the
obligation to submit all correspondence to the Registrar for inspection, and does not
relate to the character of the correspondence itself.
13. According to the Brief, the Communications Regulations give the sole responsibility
for the inspection of detainees' correspondence to the Registrar, and the purpose of such
inspection "is not the gathering of potential evidence for the Office of the
Prosecutor, but to ensure the smooth running of the judicial process and meet the
requirements of safety". Brief at RP D1406.
14. Further, the Registrar reports that the Communications Regulations emphasise the
Registrar's discretion in notifying the Prosecutor of a breach of the Communications
Regulations and that, irrespective of whether or not any correspondence constitutes
evidence of contempt, the Registrar is not required to hand it over to the Prosecutor.
According to the Brief, the Registrar's only obligation is to inform Defence Counsel
should any materials be handed over to the Prosecutor as evidence of contempt.
15. Hence the Registrar argues that the notes should not be made available to the
Prosecutor as that would limit her discretion under the Rules of Detention and jeopardise
the independent and impartial role of the Registrar in the administration of the Detention
16. The freedom of detainees to communicate between themselves and with others, which is guaranteed by Rule 60 of the Rules of Detention and recognised in Article 1 of the Communications Regulations, can only be restricted pursuant to a specific order of the Registrar, made under Rule 66 of the Rules of Detention, at the explicit request of the Prosecutor. Rule 66 of the Rules of Detention provides:
If the Registrar issues an order under Rule 66, the detainee should be informed
immediately, and the detainee has an automatic right to appeal to the President of the
International Tribunal to deny or reverse such a restriction. A restriction of the freedom
to communicate cannot be the result of any "normal procedure", but needs to be
implemented ensuring that procedural guarantees prescribed by the Rules of Detention are
17. It appears from the documentation attached to the Motion that no order under Rule
66 had been issued by the Registrar when, on approximately 14 May 1996, the detainees
reportedly attempted to exchange correspondence. The mere fact of the detainees'
communication, therefore, does not in itself constitute a violation of the Rules of
Detention or of the Communications Regulations which would warrant seizure and
confiscation of the notes by the Registrar. However, the method of the attempted
communication is in violation of the Communications Regulations: if, as suggested by the
Registrar, the items exchanged are to be considered as "correspondence", then
they would be correspondence sent in violation of the provisions of Article 6 of the
Communications Regulations, which requires all such correspondence to be submitted to the
Registrar for review.
18. It is clear, and not challenged by the parties, that the Registrar had the
authority under the Rules of Detention and the Communications Regulations to seize and
retain a copy of any notes found in a common area of the Detention Unit not submitted
through the appropriate channels, whether or not the notes constitute a breach of an order
under Rule 66.
19. The collection of evidence for the Prosecutor is clearly not a legitimate reason
for inspection of mail and other communications, hence the rationale for assigning the
task of inspecting the mail to the Registrar, even on occasions when the Prosecutor may be
more qualified in the determination of a threat of interference or intimidation of a
particular prosecution witness or to "the administration of justice". The fact
that the Prosecutor is excluded from this process by the Rules of Detention and is advised
of a breach only at the discretion of the Registrar is a consequence of his functional
adversarial position vis-à-vis detainees who are accused before the International
20. Correspondence sent in breach of the Communications Regulations is subject to specific provisions under Article 9 of the Communications Regulations, which states:
21. Having confiscated the notes, it is then for the Registrar to return the originals
to the respective authors, retain a copy of the offending items and decide, at her
discretion, whether to inform the Prosecutor of the existence and of the nature of a
breach of the Communication Regulations.
22. The Trial Chamber, therefore, finds that the Registrar has acted within her
authority in withholding from the Prosecution the confiscated items. Under the regime of
detention on remand established by the International Tribunal, the Prosecutor is only
entitled to receive information relating to the detainees' correspondence when the
Registrar considers it appropriate. It is clear from Article 9 that the disclosure of such
information is at the discretion of the Registrar: the fact that correspondence was
exchanged in violation of the Communications Regulations does not in any way imply that
the Prosecutor has an absolute right to be informed by the Registrar of its existence, nor
of its nature, nor of its contents.
23. The Trial Chamber must now address the Prosecution argument seeking seizure of the
notes from the Registrar pursuant to Rule 39(iv) or Rule 54 of the Rules. Rule 54
authorises the Trial Chamber to "issue such order, summonses, subpoenas, warrants and
transfer orders as may be necessary for the purposes of an investigation or for the
preparation or conduct of the trial".
24. The fact that the proceedings have reached the pre-trial stage does not preclude
the Prosecutor from continuing his investigations in the interests of justice. The
confirmation of an indictment does not necessarily conclude the investigations of the
Prosecutor, and he is entitled to request the assistance of the Trial Chamber whenever
necessary pursuant to Rule 39(iv) of the Rules.
25. While it is correct that the Prosecutor has a right to investigate, it is also true
that the right of access to documents is not unlimited: certain documents are protected
from inspection due to their nature, such as communications between detainees and counsel,
others are simply not available to the Prosecutor because of the circumstances in which
they arise, such as correspondence between detainees and persons other than counsel of
which the Registrar decides not to notify him.
26. Although the Prosecutor, in this case, obtained the information in breach of a duty
on the part of a staff member of the Registry working in the Detention Unit, it has not
been not suggested that the latter was acting as an agent of the Prosecutor in securing
that information, nor that the Prosecutor had solicited such information from him. The
indiscretion of the Registry employee does not vitiate the knowledge the Prosecutor holds
of the existence of the material.
27. Conversely, the mere knowledge that the document exists does not entitle the
Prosecutor to obtain it from the Registrar, since she is given the responsibility of
informing him of the existence of confiscated items or of their nature whenever she deems
28. In the present case, the Prosecution has sought an order of disclosure to be
effected as against another organ of the International Tribunal, the Registry, which is
legitimately withholding the documents.
29. Decisions of the Registrar are, in certain circumstances, subject to review by the
President of the International Tribunal. Rule 33 provides for the Registrar to perform her
tasks "under the authority of the President". Review by the President of the
International Tribunal is also prescribed by the Rules of Detention and the Communications
Regulations themselves: Rule 85 of the Rules of Detention permits written complaints to be
made by detainees to the President of the International Tribunal, while Article 10 of the
Communications Regulations specifically provides that a detainee may "at any time
request the President to reverse" any decision made by the Registrar under Article 9
of those Regulations. Article 13 of the Communications Regulations allows a detainee whose
mail has been intercepted or confiscated to make a formal complaint in accordance with the
Complaints Procedure. Article 7 of the Regulations for the Establishment of a Complaints
Procedure for Detainees provides for complaints which relate "to an alleged breach of
the rights of the individual detainee" to be referred to the President of the
International Tribunal for consideration.
30. The two detainees, Zejnil Delalic and Zdravko Mucic, have not requested such
intervention. However, it is clear that they would have the right to seek the intervention
of the President if they wished.
31. In all the circumstances, it seems appropriate to the Trial Chamber that a similar
right of review of the Registrar's decision should apply with respect to the Prosecution.
It seems illogical that one party to a dispute of this nature may seek to have it resolved
by one authority, i.e., the Trial Chamber, while the other may have recourse to a
different authority, i.e., the President of the International Tribunal.
32. The Trial Chamber therefore remits the matter to the President of the International
Tribunal for determination.
For the foregoing reasons,
THE TRIAL CHAMBER,
FINDS that the Registrar has acted within her discretion under the Rules of
Detention in withholding the confiscated items from the Prosecutor;
DIRECTS the Registrar to return the confiscated items, as soon as a copy of all
material has been made, to the respective authors, together with a note detailing the
reasons for seizure and a copy of this Decision;
DIRECTS the Registrar to provide a certified copy of the confiscated items to
the President of the International Tribunal for the purpose of determining whether the
material warrants partial or total disclosure to the Prosecutor.
Done in English and French, the English being authoritative.
Gabrielle Kirk McDonald
Dated this thirty-first day of October 1996
[Seal of the Tribunal]