Case No. IT-05-88-PT

IN TRIAL CHAMBER II

Before:
Judge Carmel Agius, Presiding Judge
Judge Kevin Parker
Judge Jean-Claude Antonetti

Registrar:
Mr. Hans Holthuis

Decision of:
23 March 2006

THE PROSECUTOR

v.

VUJADIN POPOVIC
LJUBISA BEARA
DRAGO NIKOLIC
LJUBOMIR BOROVCANIN
ZDRAVKO TOLIMIR
RADIVOJE MILETIC
MILAN GVERO
VINKO PANDUREVIC
MILORAD TRBIC

__________________________________________

DECISION ON APPLICANT’S MOTION SEEKING ACCESS TO CONFIDENTIAL MATERIAL IN THE MILETIC ET. AL. CASE NO. IT-05-88-PT

__________________________________________

The Office of the Prosecutor:

Peter McCloskey

Counsel for the Accused in Case No. IT-05-88-PT:

Zoran Zivanovic for Vujadin Popovic
John Ostojic for Ljubisa Beara
Jelena Nikolic and Stephane Bourgon for Drago Nikolic
Aleksandar Lazarevic and Miodrag Stojanovic for Ljubomir Borovcanin
Natacha Fauveau Ivanovic for Radivoje Miletic
Dragan Krgovic for Milan Gvero
Peter Haynas and Đorđe Sarapa for Vinko Pandurevic
Colleen Rohan and Vesna Janjic for Milorad Trbic

Counsel for the Accused in the Case No. IT-04-81-PT

James A. Castle for Momcilo Perisic

 

TRIAL CHAMBER II 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 "Applicant’s Motion Seeking Access to Confidential Material in the Miletic et al. Case No. IT-05-88-PT" filed by Counsel for Momcilo Perisic ("Perisic Defence") on 6 March 2006 ("Motion"), in which the Perisic Defence seeks access to all confidential material (including the supporting material of the indictment pursuant to Rule 66(A)(i) of the Rules of Procedure and Evidence of the Tribunal ("Rules"), all material disclosed pursuant to Rules 66 and 68 of the Rules as well as transcripts of closed sessions and filings) in the Case No. IT-05-88-PT1 ("Confidential Material");

NOTING the "Response to Momcilo Perisic’s Request for Confidential Material in the Miletic et. al. Case" filed by the Office of the Prosecutor in the Case No. IT-05-88-PT ("Prosecution") on 8 March 2006 ("Response"), in which the Prosecution does not object to Momcilo Perisic gaining access to inter partes confidential material but would oppose access to any ex parte material;

NOTING Rule 75(G)(i) of the Rules of Procedure and Evidence of the Tribunal (“Rules”) which provides that “[a] party to the second proceedings seeking to rescind, vary or augment protective measures ordered in the first proceedings must apply […] (i) to any Chamber, however constituted, remaining seised of the first proceedings";

RECALLING the "Submission of the Registry Pursuant to Rule 33(B) of the Rules of Procedure and Evidence Regarding Defence Motions Seeking Access to Confidential Material in Several Cases" issued by the Registry on 28 October 2005, in which the Registry presents a number of considerations with regard to the practical aspect of disclosing confidential information from one case to another case, namely the meaning of "access", the manner in which the material should be provided, the entity responsible for identifying the confidential information to be provided and the issue of ex parte material and submits the following recommendations: i) that Registry shall implement immediately any Chamber order granting full access to all confidential information; ii) that, if the Trial Chamber grants only partial access to confidential material subject to limitations, the parties shall compile the said material and convey it to the Registry to provide to the party seeking access; and iii) that the Trial Chamber should specify whether ex parte material is to be handled differently from other confidential material;

CONSIDERING that, although not explicitly requested by the Perisic Defence in its Motion, it is important to note that the ex parte material in the Case No. IT-05-88-PT shall not be covered by the use of the term Confidential Material;

RECALLING further that access to confidential material may be granted whenever the Chamber is satisfied that the party seeking access has established that such material may be of material assistance to his case;2

RECALLING further that the relevance of the material sought by a party may be determined by showing the existence of a nexus between the applicant’s case and cases from which such material is sought, for instance, if the cases stem from events alleged to have occurred in the same geographical area and at the same time;3

CONSIDERING that the Perisic Defence has established that a sufficient nexus between the case against Momcilo Perisic and the case against the Accused in the Case No. IT-05-88-PT exists, in view of the fact that Momcilo Perisic is partly charged with superior responsibility pursuant to Article 7(3) of the Statute of the Tribunal for criminal acts alleged to have been committed by a number of the accused in the Case No. IT-05-88-PT, namely Ljubisa Beara, Vujadin Popovic, Vinko Pandurevic and Drago Nikolic, at the time and location covered in the indictment in the Case No. IT-05-88-PT;4

PURSUANT TO Rule 54 and 75(G)(i) of the Rules;

HEREBY GRANTS the Motion and ORDERS that

Momcilo Perisic, the Perisic Defence and any employees who have been instructed or authorised by the Perisic Defence to have access to the Confidential Material shall not, without express leave of the Trial Chamber,

  1. disclose to the public, the identity of witnesses for whom protective measures have been granted in the Case No. IT-05-88-PT ("Protected Witnesses") and their whereabouts, transcripts of the testimonies of the Protected Witnesses and the contents thereof, exhibits and the contents thereof, or any information which would enable the Protected Witnesses to be identified and would breach the confidentiality of the protective measures already in place;

  2. disclose to the public any documentary, or other evidence, or any written statement of a Protected Witness or the contents, in whole or in part, of any non-public evidence, statement or prior testimony of a Protected Witness;

  3. contact any Protected Witness without first seeking leave from the Trial Chamber;

For the purpose of this decision, "the public" means and includes all persons, governments, organisations, entities, clients, associations and groups, other than the Judges of the Tribunal, the staff of the Registry, the Prosecution and her representatives, Momcilo Perisic, the Perisic Defence, legal assistants and other members of the Perisic Defence team, their agents or representatives. "The public" also includes, without limitation, family, friends, and associates of the accused; accused in other cases or proceedings before the Tribunal, defence counsel in other cases or proceedings before the Tribunal, the media and journalists.

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

Dated this twenty-third day of March 2006
At The Hague
The Netherlands

________________________
Judge Carmel Agius
Presiding

[Seal of the Tribunal]


1. Prosecutor v. Vujadin Popovic, Ljubisa Beara, Drago Nikolic, Ljubomir Borovcanin, Zdravko Tolimir, Radivoje Miletic, Milan Gvero, Vinko Pandurevic and Milorad Trbic, Case No. IT-05-88-PT.
2. Prosecutor v. Enver Hadzihasanovic et al., Case No. IT-01-47-PT, Decision on Motion by Mario Cerkez for access to confidential supporting material, 10 October 2001, para. 10; Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-A, Decision on appellants Dario Kordic and Mario Cerkez’s request for assistance of the Appeals Chamber in gaining access to appellate briefs and non-public post-appeal pleadings ad hearing transcripts filed in the Prosecutor v. Tihomir Blaskic case, 16 May 2002, para. 14.
3. Prosecutor v. Radoslav Brdjanin and Momir Talic, Case No. IT-99-36-PT, Decision on Motion by Momir Talic for access to confidential documents, 3 July 2000, para.. 8; Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-A, Decision on appellants Dario Kordic and Mario Cerkez’s request for assistance of the Appeals Chamber in gaining access to appellate briefs and non-public post-appeal pleadings ad hearing transcripts filed in the Prosecutor v. Tihomir Blaskic case, 16 May 2002, para. 15.
4. Prosecutor v. Momcilo Perisic, Case No. IT-04-81-PT, Amended Indictment, 26 September 2005, paras 55-62.