Case No. IT-03-68-T

IN TRIAL CHAMBER II

Before:
Judge Carmel Agius, Presiding
Judge Hans Henrik Brydensholt
Judge Albin Eser

Registrar:
Mr. Hans Holthuis

Decision of:
20 February 2006

PROSECUTOR

v.

NASER ORIC

_________________________________________

DECISION ON "DEMANDE DE CERTIFICATION D’APPEL CONTRE LA DECISION DU 26 JANVIER 2006 RELATIVE A LA REQUETE DU GENERAL MILETIC AUX FINS D’ACCES A DES INFORMATIONS CONFIDENTIELLES"

_________________________________________

The Office of the Prosecutor:

Mr. Jan Wubben
Ms. Patricia Sellers Viseur
Mr. Gramsci di Fazio
Ms. JoAnne Richardson
Mr. Jose Doria

Counsel for the Accused:

Ms. Vasvija Vidovic
Mr. John Jones

Counsel for the Radivoje Miletic

Mrs. Natacha Fauveau Ivanovic

 

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 "Demande de Certification d’Appel Contre la Décision du 26 Janvier 2006 Relative à la requête du Général Miletic aux Fins d’Accès à des Informations Confidentielles" filed by Counsel for Radivoje Miletic in the Case No. IT-05-88-PT-1- ("Miletic Defence") on 1 February 2006 ("Request for Certification");

NOTING the "Requête du Général Miletic aux Fins d’Accès à des Informations Confidentielles dans l’Affaire Oric" filed by the Miletic Defence on 11 January 2006 ("Miletic Motion"), in which the Miletic Defence seeks to have access to part of the confidential material in the Oric case, namely the transcripts of all closed sessions, relevant exhibits and confidential decisions ("Requested Material");

NOTING the "Prosecution’s Response to Defence Motion on Behalf of General Miletic Seeking Access to All Confidential Material in the Oric Case" filed by the Office of the Prosecutor ("Prosecution") in the Oric case-2- on 25 January 2006 ("Prosecution Response"), in which the Prosecution submits that the Miletic Defence failed to demonstrate that i) a sufficient nexus exists between the case against Naser Oric and the case against Radivoje Miletic; and that ii) the disclosure of the identity of the witnesses for whom protective measures were granted in the Oric case would assist in the preparation of its case;

NOTING the Decision on "Requête du Général Miletic aux Fins d’Accès à des Informations Confidentielles dans l’Affaire Oric" rendered by the Trial Chamber on 26 January 2006 ("Miletic Decision"), in which the Trial Chamber denied the Miletic Motion on the basis that the Miletic Defence had failed i) to establish a sufficient nexus between the case against Radivoje Miletic and the case against Naser Oric; and ii) to substantiate how the disclosure of the identity of the witnesses for whom protective measures were granted in the Oric case would assist in the preparation of the case for Radivoje Miletic;

NOTING that, in its Request for Certification, the Miletic Defence submits that the Trial Chamber erred i) in procedure, by depriving the Miletic Defence of the right to file a motion requesting leave to reply to the Prosecution’s Response, ii) in fact, by automatically accepting the imprecise allegations of the Prosecutor and failing to appreciate the arguments of the Miletic Defence, and iii) in law, by automatically basing its decision on the request for access filed by Drago Nikolic, a co-accused of Radivoje Miletic in the Case No. IT-05-88-PT, without previously verifying whether the facts relevant to the case of Radivoje Miletic were the same as those relevant to the case of Drago Nikolic, and thus without having applied the standards established in the jurisprudence of the Tribunal;

NOTING the "Prosecution Response to the Defence 'Demande de Certification d’Appel Contre la Décision du 26 Janvier Relative à la requête du Général Miletic aux Fins d’Accès à des Informations Confidentielles'" filed by the Prosecution on 14 February 2006 ("Response to the Request for Certification"), in which the Prosecution asserts that the Request for Certification failed to demonstrate that i) the Miletic Decision affects the fairness and expeditious conduct of the proceedings or the outcome of the trial, and that ii) an immediate resolution of the issue by the Appeals Chamber may materially advance the proceedings;

NOTING that, pursuant to Rule 73(C) of the Rules, the Request for Certification was made within seven days of the filing of the Miletic Decision;

NOTING that, pursuant to Rule 126bis of the Rules, a Trial Chamber may, using its discretion, grant leave to reply to a party and that, in the instant case, the Trial Chamber was satisfied that the arguments set forth by the parties both in the Motion and the Prosecution Response were exhaustive, and that no reply was necessary;

NOTING that the Miletic Defence is granted leave to reply to the Response to Request for Certification;

NOTING Rule 73(B) of the Rules of Procedure and Evidence ("Rules") which sets out two cumulative criteria to be satisfied before the Trial Chamber may exercise its discretion to certify a decision for interlocutory appeal, namely that:

  1. the decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial; and

  2. for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings;

CONSIDERING, in the exercise of the Trial Chamber’s discretion to grant certification, that the Miletic Decision does not involve issues that would "significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial" in particular because, as the Trial Chamber previously found, the nexus between the case against Radivoje Miletic and the case against Naser Oric was not sufficient to be of assistance to Radivoje Miletic;

CONSIDERING further that, although the Miletic Defence submits that it does not wish to have disclosed the identities of the witnesses for whom protective measures were granted in the Oric case, the relief it requests would nonetheless have the same material effect and, therefore, the Miletic Defence has failed to substantiate how the disclosure of the identity of witnesses for whom protective witnesses were granted in the Oric case would materially assist in the preparation of the case for Radivoje Miletic;

NOTING that, although the Trial Chamber need not review the second of the two cumulative criteria provided for in Rule 73(B) of the Rules as the first criterion is not fulfilled, the Request for Certification likewise fails to satisfy the second criterion in that there is no discernible way in which an immediate resolution of the issue decided upon in the Miletic Decision may materially advance the proceedings in the case against Radivoje Miletic;

FOR THE FOREGOING REASONS,

PURSUANT TO Rule 54, 73(B) of the Rules and Article 20(1), 21(2) and 22 of the Statute of the Tribunal

HEREBY DENIES the Request for Certification.

 

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

Dated this twentieth day of February 2006,
At The Hague,
The Netherlands

_________________________
Carmel Agius
Presiding Judge

[Seal of the Tribunal]


1. Prosecutor v. Zdravko Tolimir, Vujadin Popovic, Ljubisa Beara, Drago Nikolic, Ljubomir Borovcanin, Radivoje Miletic, Milan Gvero, Vinko Pandurevic and Milorad Trbic, Case No. IT-05-88-PT.
2. Prosecutor v. Naser Oric, Case No. IT-03-68-T.