Case No. IT-98-34-A

IN THE APPEALS CHAMBER

Before:
Judge Fausto Pocar, Presiding
Judge Mohamed Shahabuddeen
Judge Mehmet Güney
Judge Wolfgang Schomburg
Judge Inés Mónica Weinberg de Roca

Registrar:
Mr. Hans Holthuis

Decision:
7 November 2003

PROSECUTOR

v.

Mladen Naletilic, aka “TUTA”
Vinko Martinovic, aka “STELA”

___________________________________________

DECISION ON JOINT DEFENCE MOTION BY ENVER HADZIHASANOVIC AND AMIR KUBURA FOR ACCESS TO ALL CONFIDENTIAL MATERIAL, FILINGS, TRANSCRIPTS AND EXHIBITS IN THE NALETILIC AND MARTINOVIC CASE

___________________________________________

Counsel for the Prosecutor:

Mr. Norman Farrell

Counsel for the Appellants:

Mr. Matthew Hennesy and Mr. Christopher Young Meek for Mladen Naletilic
Mr. Zelimir Par and Mr. Kurt Kerns for Vinko Martinovic

Counsel for the Applicants:

Ms. Edina Residovic and Mr. Stéphane Bourgon for Enver Hadzihasanovic
Mr. Fahrudin Ibrisimovic and Mr. Rodney Dixon for Amir Kubura

THE APPEALS 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 (“the International Tribunal ”),

BEING SEISED OF the “Joint Defence Motion for Access to All Confidential Material, Filings, Transcripts and Exhibits in the Naletilic and Martinovic case ,” filed jointly by Enver Hadzihasanovic and Amir Kubura (“Applicants”) on 29 July 2003 (“Motion”), whereby the Applicants seek an order that all confidential material , filings, transcripts and exhibits in the Naletilic and Martinovic case1 be disclosed to the Applicants;

CONSIDERING that, according to the Applicants that “the overlap between the Naletilic and Martinovic case and the Applicants’ case is temporal and material ,” that the Applicants’ case concerns offences during the same period and that the material overlap is as follows:

1. “the military operations conducted by the warring factions in both cases form part of the same armed conflict between the HVO and ABiH in Bosnia and Herzegovina in 1993”,

2. “command and control relationships within the ABiH and the HVO in both cases follow the same military structures and organizations”, and

3. “the presence and operations of HV troops from Croatia in Bosnia and Herzegovina is related to both cases”;2

NOTING the “Prosecution Response to Joint Defence Motion by Enver Hadzihasanovic and Amir Kubura for Access to All Confidential Material, Filings, Transcripts and Exhibits in the Naletilic and Martinovic case” filed on 8 August 2003 (“Response ”);

NOTING that in the Response, the Prosecution opposes the granting of the Motion “primarily on the ground that the Applicants have failed to demonstrate a legitimate forensic purpose for the requested access” and argues that the scope of the access sought by the Applicants is impermissibly broad;3

NOTING that in the Response, the Prosecution also submits that, “unlike other cases in which the Applicants sought access to confidential materials, the Naletilic and Martinovic case cannot be considered a ‘flipside’ case to the Hadzihasnonvic and Kubura case,”4 and that “[t]he Applicants’ case is concerned with Central Bosnia, whereas the Naletilic and Martinovic case is confined to South-West Bosnia”5 and therefore there is no geographical overlap between the two cases;

NOTING that the Prosecution further argues that “the Applicants have not demonstrated, and are unable to demonstrate, why confidential material about the HVO special units (the “KB”) operating in the Mostar Jablanica municipalities in South-West Bosnia and Herzegovina could materially assist them in their defence’ , that whether the conflict is internal or international is no longer an issue”, and that therefore material concerning the involvement of the Republic of Croatia is not relevant;6

NOTING that the Prosecution, in the event the Motion is granted, requests that the parties to the Naletilic and Martinovic case “should be granted sufficient time to determine whether there is a need to apply to the Appeals Chamber for additional protective measures for the witnesses who testified” and “to determine whether there is any non-public material that falls under Rule 70(C) of the RPE (the Rules of Procedure and Evidence( to contact the providers of this material and obtain their consent for disclosure”;7

CONSIDERING that a party is always entitled to seek material from any source to assist in the preparation of its case if the material sought has been identified or described by its general nature and if a legitimate forensic purpose for such access has been shown;8

CONSIDERING that the Applicants have identified the relevant parts of the Naletilic and Martinovic Judgement and referred the Appeals Chamber to the material to which they request access;

CONSIDERING that the temporal overlap between the two cases is not, in itself , sufficient to grant access to confidential material;

CONSIDERING that the Applicants have failed to show a geographic overlap between the two cases since the Naletilic and Martinovic case deals with South-West Bosnia and Herzegovina and the Applicants’ case deals with Central Bosnia and Herzegovina, and that they have not demonstrated that material concerning the HVO special units (the KB) and its sub-units operating in the region of Mostar is likely to be of material assistance to the Applicants’ case, nor that there is a good chance that it may assist them in their defence;

CONSIDERING that the character of the conflict is not relevant in the Hadzihasanovic and Kubura case since the indictment only contains charges under Article 3 of the Statute, and that therefore the Applicants have not shown that the confidential material concerning the presence of HV troops from the Republic of Croatia in Bosnia and Herzegovina is likely to be of material assistance to the Applicants’ case, nor that there is a good chance that it may assist them in their defence;

CONSIDERING that the material overlap between the two cases is limited to the general HVO military structure and organization and that the material in relation thereto is likely to be of material assistance to the Applicants’ case, or at least, there is a good chance that it may give them such assistance;9

HEREBY GRANTS the Motion IN PART and ORDERS that:

(a) the Prosecution and the Defence in the Naletilic and Martinovic case apply to the Appeals Chamber for additional protective measures, if required, within eight working days from this decision and identify whether the material related to information about the HVO military structure (see Annex) falls under Rule 70(C) of the Rules ; and

(b) subject to any application by either party in the Naletilic and Martinovic case for additional protective measures within eight working days, the Registry to grant the Applicants access to the specified materials and exhibits from the Naletilic and Martinovic case (see Annex);

(c) the material to which access is granted shall remain subject to the protective measures imposed by the Trial Chamber.

The Applicants, their Counsel and any employees who have been instructed or authorised by their Counsel to have access to the confidential material shall:

(i) not disclose to any third party, the names of witnesses, their whereabouts, copies of witness statements, the contents of the witness statements, transcripts of witness testimonies, the contents thereof, or any information which would enable them to be identified and would breach the confidentiality of the protective measures already in place unless absolutely necessary for the preparation of Applicants’ case, and always with leave of the Appeals Chamber;

(ii) not disclose to any third party, any documentary or other evidence, or any written statement of a witness or the contents, in whole or in part, of any non-public evidence, statement or prior testimony; and

(iii) not contact any witness from the Naletilic and Martinovic case whose identity was subject to protective measures without first demonstrating to the Appeals Chamber that the witness may materially assist the Applicants’ case in some identified way and that such assistance is not otherwise reasonably available to them.

If, for the purposes of preparing the Applicants’ case, non-public material is disclosed to third parties - provided that the conditions set out in paragraph (i) are met - any person to whom disclosure of the confidential material in this case is made shall be informed that he or she is forbidden to copy, reproduce or publicise, in whole or in part, any non-public information or to disclose it to any other person , and further that, if any such person has been provided with such information, he or she must return it to the Applicants or their Counsel as soon as it is no longer needed for the preparation of the case.

For the purposes of the above paragraphs, third parties exclude: (i) the Applicants, (ii) persons authorised by the Registrar to assist Counsel for the Applicants, (iii) personnel from the International Tribunal, including members of the Office of the Prosecutor.

 

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

Dated this seventh day of November 2003,
At The Hague,
The Netherlands.

_____________
Judge Fausto Pocar
Presiding

[Seal of the Tribunal]


ANNEX

List of Evidence (public and non-public) to which the Applicants are granted access
Paragraph(s) in Trial Judgement Evidence (testimony or exhibit)
82, 83, 84 Defence witness Slobodan Praljak
82 Defence witness NA (pseudonym)
82 Defence witness NC (pseudonym)
82, 84 Exhibit DD1/82
82 Prosecution witness F
82 Defence witness Ivan Bender
82 Prosecution witness Marco Prelec
82, 84, 85 Defence witness NP (pseudonym)
82 Defence witness NO (pseudonym)
82 Prosecution witness Fransisco Aguirre
82 Exhibit PPIAC 67
82 Exhibit PP 631
82 Exhibit PP 534.1
82, 84 Defence witness Zeljko Glasnovic
84 Exhibit PP 927/2
84 Exhibit PP 662.02
84 Exhibit PP 563
84 Exhibit PP 564
84 Exhibit PP 566
84 Exhibit PP 678
84 Prosecution witness Allan Knutsen
84 Prosecution witness Ralph Mrachacz
84 Exhibit PP 354.1
84 Defence witness NB (pseudonym)
84 Defence witness NR (pseudonym)
84 Exhibit PP 564.1
84 Exhibit PP 327 (confidential)


1 - Prosecutor v. Naletilic and Martinovic, Case No.: IT-98-34-T.
2 - Motion, para. 6.
3 - Response, paras 3, 6, and 16.
4 - Response, para. 7.
5 - Response, para. 8.
6 - Response, paras 9-15.
7 - Response, paras 17-18.
8 - Prosecutor v Kordic and Cerkez, Case No. IT-95-14/2-A, Order on Pasko Ljubicic’s Motion for Access to Confidential Supporting Material, Transcripts and Exhibits in the Kordic and Cerkez Case, 19 July 2002, p. 4; Prosecutor v . Tihomir Blaskic, Case No.: IT-95-14-A, Decision on Appellant’s Dario Kordic and Mario Cerkez Request for Assistance of the Appeals Chamber in Gaining Access to Appellate Briefs and Non-Public Post Appeal Pleadings and Hearing Transcripts filed in the Prosecutor v Blaskic, 16 May 2002, para. 14; Prosecutor v Kvocka et al, Case No.: IT-98-30/1-A, Decision on Momcilo Gruban’s Motion for Access to Material, 13 January 2003, para. 5; Prosecutor v. Blaskic, Case No.: IT-95-14-A, Decision on Joint Motion of Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura for Access to All Confidential Material, Transcripts and Exhibits in the case Prosecutor v. Tihomir Blaskic, 24 January 2003, p. 4.
9 - Prosecutor v. Blaskic, Case No.: IT-95-14-A, Decision on Joint Motion of Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura for Access to All Confidential Material, Transcripts and Exhibits in the case Prosecutor v. Tihomir Blaskic, 24 January 2003.