Case No.: IT-02-60/1-A

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

Registrar:
Mr. Hans Holthuis

Decision:
4 February 2005

Counsel for the Appellant:

Ms. Virginia C. Lindsay

Counsel for the Prosecutor:

Mr. Norman Farrell

THE APPEALS CHAMBER of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 (“International Tribunal ”),

BEING SEISED of the “Emergency Motion for Access to Confidential Document ” filed confidentially¹ by Momir Nikolic (“Appellant”) on 26 November 2004 (“Motion for Access”), whereby the Appellant requests to be granted access to the following documents filed in the Krstic appellate proceedings:²

(i) Prosecution’s Notice and Filing of Rebuttal Evidence and Arguments in Compliance with the Appeals Chamber’s Scheduling Order, filed confidentially on 3 October 2003 (“Confidential Notice”);

(ii) Prosecution’s Notice and Filing of Rebuttal Evidence and Arguments in Compliance with the Appeals Chamber’s Scheduling Order, filed on 3 October 2003 (“Public Notice ”);³

(iii) Prosecution’s Further Notice and Filing of Rebuttal Evidence and Arguments in Compliance with the Appeals Chamber’s Scheduling Order, filed confidentially on 20 October 2003⁴ (“Further Notice”); and

(iv) ‘Confidential’ Decision on the Admissibility of Material Presented by the Prosecution in Rebuttal to Rule 115 Evidence Admitted on Appeal, dated 19 November 2003 (“19 November 2003 Decision”);

NOTING the Decision on Prosecution’s Second Motion to Strike rendered on 20 January 2005 by which the Appeals Chamber struck out the “Memorandum of Law in Support of Emergency Motion for Access to Confidential Document” filed by the Appellant on 29 November 2004;

NOTING that, in support of his Motion for Access, the Appellant submits, inter alia, that:

(i) in paragraph 120 of the Krstic Appeal Judgement, the Appeals Chamber states that the Prosecution relied upon the additional evidence presented during the Appeals hearing by Captain Momir Nikolic about a burial operation on 12 July 1995;

(ii) the passage relied upon by the Appeals Chamber as cited in footnote 199, paragraph 120, page 41, i.e. “Annex 3, Evidence of Nikolic (T, p. 402)”, consists of the testimony by the Appellant given in the Blagojevic and Jokic trial proceedings on 1 October 2003;⁵

(iii) the “testimony cited by the Krstic Appeals Chamber clearly states that the re-burials referred to occurred in September 1995, and not on 12 July 1995”;⁶

(iv) access to the requested pleadings is “necessary in order to understand what appropriate action should be taken to correct the record so that Sthe AppellantC’s testimony is accurately reflected, and to determine what, if any, role the Office of the Prosecutor played in the presentation of misleading arguments to the Appeals Chamber”;⁷

NOTING the “Prosecution Response to Confidential Emergency Motion for Access to Confidential Document and Confidential Memorandum of Law in Support Thereof” filed on 6 December 2004 (“Response”), whereby the Prosecution submits that the Motion for Access should be dismissed for the following reasons:

(i) the 19 November 2003 Decision is not confidential but a public document which is available in the International Tribunal’s judicial database and at the International Tribunal’s web-site;⁸

(ii) the Public Notice does not appear to exist although the Appeals Chamber refers to it in footnote 168, page 122 of the Krstic Appeal Judgement;⁹

(iii) the information that the Appellant is seeking to access does not exist since the Confidential Notice, the Further Notice and the 19 November 2003 Decision do not make any reference to any burials or re-burials on 12 July 1995, and moreover, when referring in the Confidential Notice to page 2356 of the Appellant’s testimony in the Blagojevic and Jokic case, the Prosecution did not state that this page showed that the Appellant was involved in (re-)burials on 12 July 1995;¹⁰

(iv) “[i]f the Appellant is of the view that a correction is required as to what the Prosecution submitted regarding [his] involvement in burial operations on 12 July 1995, the Prosecution would probably not even object to a clarification, if absolutely necessary”,¹¹ though “this issue is of no relevance to the Krstic [Appeal] Judgement as the Krstic Appeals Chamber considers [the Appellant]’s testimony of no assistance on the issue as the Appeals Chamber did not rely on his testimony as cited in para. 120”;¹²

(v) despite the Prosecution’s considerable efforts to identify the information the Appellant is seeking access to, Counsel for the Appellant decided to file the Motion for Access while it “apparently was only half finished”,¹³ without awaiting a response from the Prosecution as to her inquiry: the Motion for Access was in consequence premature;¹⁴

NOTING the “Appellant’s Reply to Prosecution’s Response to Confidential Emergency Motion for Access to Confidential Document and Confidential Memorandum of Law in Support” filed on 10 December 2004 (“Reply”), wherebythe Appellant, inter alia :

(i) withdraws the request to access the Public Notice and the 19 November 2003 Decision ;¹⁵

(ii) submits that, “as a matter of basic fairness and to provide the necessary equality of arms, [the] Appellant should be allowed to see the arguments […] which relate to [the] Appellant or [the] Appellant’s testimony”;¹⁶

(iii) submits that “[a]lthough the arguments to which access is sought were not made in the present proceedings, there is such an overlap between the two Appeals Chambers, as well as between the evidence in Krstic and the factual basis underlying [the] Appellant’s guilty plea, that [the] Appellant should be allowed notice and an opportunity to exercise an informed judgement before deciding whether there is a need to reply to the prosecution’s arguments in the present proceedings”;¹⁷

(iv) submits that “the history set out by the prosecution is a reasonably accurate portrayal of their [sic] attempts to obtain an advantage through delay”¹⁸ and that the Motion for Access “has worked efficiently and was not premature”¹⁹ since, in response, the Prosecution has finally identified the relevant portions of the Prosecution’s pleadings;²⁰

NOTING that the Appellant finally seeks access only to the Confidential Notice and the Further Notice;

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;²¹

NOTING that, following a careful review of the Confidential Notice and the Further Notice, the material to which the Appellant seeks access does not contain any reference to evidence presented by the Appellant about a burial or re-burial operation that occurred on 12 July 1995;

NOTING that the material relating to the Appellant relied upon by the Prosecution in the Confidential Notice and the Further Notice consists of the testimony given by the Appellant in the Blagojevic and Jokic case, which content is known to the Appellant;

CONSIDERING that the material sought by the Appellant does not contain any information likely to be of material assistance to the Appellant in the preparation of his case;

FOR THE FOREGOING REASONS,

DENIES the Appellant’s Motion for Access.

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

Done this 4th day of February 2005,
At The Hague
The Netherlands

_________________
Theodor Meron
Presiding Judge

[Seal of the Tribunal]