Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy
Mr. Hans Holthuis
25 January 2006
Office of the Prosecutor
Mr. Chester Stamp
Ms. Sureta Chana
Counsel for Vujadin Popovic
Mr. Zoran Zivanovic
Counsel for Momcilo Perisic
Mr. James Castle
THIS 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 (“International Tribunal”) is seized of a “Motion of Vujadin Popovic Seeking the Access to All Confidential Material in the Perisic Case” and hereby renders a decision thereon.
1. On 5 December 2005, counsel for Vujadin Popovic (“the Applicant”) filed a motion (“Motion”) seeking access to “all confidential material in the Perisic case” on the ground that the Applicant, like the Accused in this case, is charged with crimes committed in Srebrenica in 1995 and that therefore “the evidence in [this case] regarding Srebrenica could be relevant for the preparation of” the Applicant’s defence.1 In addition, the Applicant argues that, according to the indictment filed against him, the Accused was his superior and that therefore information regarding the Accused’s “rank … in [the] military hierarchy and his knowledge of the activities of [the] VRS in Srebrenica … may suggest the innocence or mitigate the guilt of [the Applicant].”2
2. Neither the Prosecution nor counsel for the Accused (the “Defence”) has filed a response to the Motion.
3. A party may obtain inter partes confidential material from another case to assist in the preparation of its case if the material sought has been identified or described by its general nature and a legitimate forensic purpose for such access has been shown. This means that the party seeking the material must demonstrate “a good chance that access to the material will materially assist the applicant in preparing his case.”3 The party seeking the material need not, however, establish that it would likely be admissible evidence or applicable legal precedent in the party’s own case.4
4. Ex parte material is “of a higher degree of confidentiality [and] by nature contains information which has not been disclosed inter partes … because of [the] security interests of a State, other public interests, or [the] privacy interests of a person or institution.”5 Access to such material is not, therefore, granted unless an applicant can establish a “legitimate forensic necessity” for the material.6
5. If the material sought was originally provided to a party under Rule 70, the party that obtained the material must seek the consent of the Rule 70 provider(s) before it can be disclosed.7 This is true even if the Rule 70 provider(s) consented to the use of the material in one or more prior cases.8
6. The Trial Chamber considers that, taking into account the Applicant’s lack of knowledge about the nature of the confidential material in this case, and the relatively small amount of existing confidential material in the case, the general nature of the material sought has been adequately identified or described in the Motion.
7. In the Trial Chamber’s view, the Applicant has also demonstrated that, although the Applicant and the Accused are not charged with the same crimes in relation to events in Srebrenica,9 there are significant similarities in the facts giving rise to the charges against the Applicant and the Accused with regard to events in and around Srebrenica between July and November 1995, constituting a clear geographical and temporal overlap between the two proceedings. In addition, the Applicant was a subordinate of the Accused during this time period. For these reasons, access by the Applicant to the confidential inter partes Srebrenica-related material in this case has a “legitimate forensic purpose.” In other words, the Applicant has shown that there is “a good chance” that access to the Srebrenica-related material will materially assist him in preparing his case.
8. No legitimate forensic purpose has been shown, however, for access to all confidential material in the case generally, without geographical or temporal limitation. Nor has the Applicant explained why access to other categories of information specifically alluded to in the Motion, such as information regarding the Accused’s “rank … in the military hierarchy” or his “relationships with the [personnel] of the VRS” would serve a legitimate forensic purpose.10 The legitimate forensic purpose extends only to confidential material relating to the Srebrenica events, as the Applicant himself appears to recognise this when in one paragraph of the Motion he describes the relief requested as being access to “all confidential material from [the Perisic case]… related to Srebrenica.”11 )
9. Finally, the Trial Chamber considers that the Applicant has not established that there is a “legitimate forensic necessity” for the confidential material in this case, including the confidential material that relates to the Srebrenica events. As a result, he will not be granted access to ex parte confidential material filed in the case.
10. PURSUANT TO Rules 54 and 75 of the Rules, the Trial Chamber hereby ORDERS as follows:
(1) The Motion is GRANTED in part.
(2) On the basis of consultations with the Prosecution and the Defence, the Registry shall identify the following categories of inter partes confidential material :
(a) All confidential supporting material that accompanied the Indictment against the Accused and that pertains to the Srebrenica-related charges in Counts 9-13.
(b) All confidential filings pertaining to the Srebrenica-related charges in Counts 9-13 of the Indictment against the Accused.
(3) The Registry shall give the Applicant access to inter partes confidential material in this case that was acquired pursuant to Rule 70 only if and when the consent of the providers has been obtained by the parties. The Registry shall contact the Prosecution and the Defence to determine which confidential material in the case, if any, is covered by Rule 70, and shall withhold disclosure of such material until such time as the relevant party informs the Registry that consent for disclosure has been obtained. The relevant party shall determine as expeditiously as possible whether any of the requested material falls under Rule 70, and shall contact the providers of such material without delay to seek their consent for disclosure of that material, even in respect of those providers who have consented to the use of the relevant material in a prior case. The parties shall be responsible for informing the Registry as appropriate.
(4) The Registry shall give the Applicant access to the non-Rule 70 inter partes confidential material identified in paragraph (2), above, without awaiting the parties’ responses in respect of permission to disclose the Rule 70 material identified by them.
(5) The protective measures which have already been ordered in relation to the material to be made accessible to the Applicant shall remain in place.
(6) The Applicant and his defence counsel shall not contact any witness whose identity was subject to protective measures in this case.
(7) The Applicant and his defence counsel shall not disclose to the public any confidential or non-public material disclosed to it from this case, except to the limited extent that disclosure to members of the public is directly and specifically necessary for the preparation and presentation his defence. If any confidential or non-public material is disclosed to the public, any person to whom disclosure is made shall be informed that he is forbidden to copy, reproduce, or publicise confidential or non-public information or to disclose it to any person, and that he must return the material to the Applicant as soon as it is no longer needed for the preparation of the Applicant’s case. For the purpose of this Order, “the public” means and includes all persons, governments, organisations, entities, clients, associations, and groups, other than the Judges of the International Tribunal, the staff of the Registry, the Prosecutor and her representatives, and the Applicant, his counsel, and any employees who have been instructed or authorised by the Applicant’s counsel to have access to the confidential material. “The public” also includes, without limitation, families, friends, and associates of the Applicant; Accused and defence counsel in other cases or proceedings before the International Tribunal; the media ; and journalists.
The Motion is otherwise denied.
Done in English and French, the English text being authoritative.
Judge Patrick Robinson
Dated this twenty-fifth day of January 2006
At The Hague
[Seal of the Tribunal]