Before: Judge Gabrielle Kirk McDonald, Presiding
Judge Ninian Stephen
Judge Lal C. Vohrah

Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:
31 October 1996

PROSECUTOR

v.

ZEJNIL DELALIC
ZDRAVKO MUCIC also known as "PAVO"
HAZIM DELIC
ESAD LANDZO also known as "ZENGA"

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DECISION ON THE PROSECUTOR'S MOTION FOR THE PRODUCTION OF NOTES EXCHANGED BETWEEN ZEJNIL DELALIC AND ZDRAVKO MUCIC

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The Office of the Prosecutor:

Mr. Eric Ostberg
Ms. Teresa McHenry

Counsel for the Accused:

Ms. Edina Residovic, for Zejnil Delalic
Mr. Bradislav Tapuskovic, for Zdravko Mucic

I. INTRODUCTION

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 ("Brief").

THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and the attached documentation,

HEREBY ISSUES ITS DECISION.

II. DISCUSSION

A. Background

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 RP 1122.

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 Prosecution.

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 Unit.

C. Analysis

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:

The Prosecutor may request the Registrar or, in case of emergency, the Commanding Officer, to prohibit contact between a detainee and any other person if he has reasonable grounds for believing that such contact is for the purposes of attempting to arrange the escape of the detainee from the detention unit, or could prejudice or otherwise affect the outcome of the proceedings against the detainee or of any other investigation, or that such contact could be harmful to the detainee, or any other person. If the request is made to the Commanding Officer on grounds of urgency, the Prosecutor shall immediately inform the Registrar of the request, together with the reasons thereof. The detainee shall immediately be informed of the fact of any such request. A detainee may at any time request the President to deny or reverse such a request for prohibition of contact.

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 safeguarded.

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--vis detainees who are accused before the International Tribunal.

20. Correspondence sent in breach of the Communications Regulations is subject to specific provisions under Article 9 of the Communications Regulations, which states:

If the Registrar finds there to have been a breach of these Regulations or of an Order of the Tribunal, an offending item of outgoing mail will be returned to the detainee together with a note from the Registrar, in a language the detainee understands, giving the reasons for refusal to post the offending item. The detainee shall then be given the opportunity to rewrite the item omitting the offending part. An offending item of incoming mail shall, in the sole discretion of the Registrar, either be returned to the sender or retained by the Registrar and the detainee shall be informed accordingly. A copy shall be kept by the Registrar of all offending items and any offending enclosure may be confiscated. The Registrar may also notify the Prosecutor, the Commanding Officer and, if deemed necessary, the Dutch authorities of the breach and of the nature of the offending item.


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 it appropriate.

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.

III. DISPOSITION

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
Presiding Judge

Dated this thirty-first day of October 1996
At The Hague
The Netherlands

[Seal of the Tribunal]