Case No. IT-02-60-A
Judge Fausto Pocar, Presiding
Judge Mohamed Shahabuddeen
Judge Mehmet Güney
Judge Andrésia Vaz
Judge Theodor Meron
Mr. Hans Holthuis
18 January 2006
DECISION ON MOMCILO PERISIC’S MOTION SEEKING ACCESS TO CONFIDENTIAL MATERIAL IN THE BLAGOJEVIC AND JOKIC CASE
The Office of the Prosecutor:
Mr. Norman Farrell
Mr. Chester Stamp
Ms. Sureta Chana
Counsel for the Accused:
Mr. Vladimir Domazet for Vidoje Blagojevic
Ms. Cynthia Sinatra for Dragan Jokic
Counsel for Applicant Momcilo Perisic:
Mr. James Castle
(a) the Prosecution, Vidoje Blagojevic and Dragan Jokic apply to the Appeals Chamber for additional protective measures or redactions, if required, within fifteen working days from this decision, including identification of any Rule 70 material that cannot be disclosed without the consent of the provider;
(b) upon identifying any such Rule 70 material, the Prosecution, Vidoje Blagojevic, or Dragan Jokic should seek the provider’s consent to the disclosure and inform the Appeals Chamber in its submissions as to whether such consent has been obtained;
(c) where no additional protective measures or redactions are requested either by the Prosecution, Vidoje Blagojevic or Dragan Jokic within fifteen working days, the Registry shall provide the Applicant and his Counsel and any employees who have been instructed or authorized by the Counsel with all inter partes confidential material described above, in electronic format where possible;
(d) where additional protective measures or redactions are requested for any of the inter partes confidential material described above, either by the Prosecution, Vidoje Blagojevic or Dragan Jokic, the Registry shall withhold that material until the Appeals Chamber has issued a decision on the request(s):
(i) if the Appeals Chamber denies the request(s), the Registry shall be ordered to provide the Applicant and his Counsel and any employees who have been instructed or authorized by the Counsel, with the inter partes confidential material to which the Appeals Chamber grants access, in electronic format where possible;
(ii) if the Appeals Chamber grants the request(s), the party or parties applying for redactions shall be ordered to proceed with the authorized redactions and, thereafter, shall provide the redacted inter partes confidential material to the Registry for provision to the Applicant and his Counsel and any employees who have been instructed or authorized by the Counsel, in electronic format where possible; and
(e) save for the disclosure required by this decision, the inter partes confidential material provided by the Registry shall remain subject to any protective measures previously imposed by the Trial Chamber.
The Applicant and his Counsel and any employees who have been instructed or authorized by the Counsel to have access to the inter partes confidential material described above shall not, without express leave of the Appeals Chamber based on a finding that it has been sufficiently demonstrated that third-party disclosure is necessary for the preparation of the defence of the Applicant:
(a) disclose to any third party, the names of witnesses, their whereabouts, transcripts of witness testimonies, exhibits, or any information which would enable them to be identified and would breach the confidentiality of the protective measures already in place;
(b) disclose to any third party, any documentary evidence 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; or
(c) contact any witness whose identity was subject to protective measures.
If, for the purposes of preparing the defence of the Applicant non-public material is disclosed to third parties – pursuant to the authorization of the Appeals Chamber – 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 publicize, 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 defence team of the relevant accused, as applicable, as soon as it is no longer needed for the preparation of his defence.
For the purposes of the above paragraphs, third parties exclude: (i) the Applicant ; (ii) his Counsel; (iii) any employees who have been instructed or authorized by their Counsel to have access to confidential material; and (iv) personnel from the International Tribunal, including members of the Prosecution.
If Counsel for the Applicant, or any members of the Defence team who are authorized to have access to confidential material should withdraw from the case, any confidential material to which access is granted in this decision that is in their possession shall be returned to the Registry of the International Tribunal.
Done in English and French, the English text being authoritative.
Dated 18 January 2006
At The Hague
Judge Fausto Pocar
[Seal of the International Tribunal]