Case No. IT-02-60-A
Judge Theodor Meron, President
Judge Fausto Pocar
Judge Mohamed Shahabuddeen
Judge Mehmet Güney
Judge Andrésia Vaz
Mr. Hans Holthuis
16 November 2005
DECISION ON MOTIONS FOR ACCESS TO CONFIDENTIAL MATERIALS
Counsel for the Prosecutor:
Counsel for the Applicants and their Co-Accused:
Jelena Nikolic & Stéphane Bourgon for Drago Nikolic
Dragan Krgovic for Milan Gvero
Zoran Zivanovic for Vujadin Popovic
John Ostojic for Ljubisa Beara
Alan Newman & Miodrag Stojanovic for Ljubomir Borovcanin
Natacha Fauveau Ivanovic for Radivoje Miletic
Djorde Sarapa for Vinko Pandurevic
Colleen Rohan for Milorad Trbic
Counsel for the Appellants:
Vladimir Domazet for Vidoje Blagojevic
Cynthia Sinatra for Dragan Jokic
1. The Appeals 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 appeals of all parties from the Judgement of Trial Chamber I in this case, rendered orally on 17 January 2005 and in writing on 24 January 2005 (“Judgement ”). It is also presently seized of the “Defence Motion on Behalf of Drago Nikolic Seeking Access to Confidential Material in the Blagojevic and Jokic Case” (“Nikolic Motion”), filed on 12 October 2005 by Drago Nikolic, an accused in another case before the International Tribunal, Prosecutor v. Miletic et al.1 The Nikolic Motion seeks access to all confidential materials in the Blagojevic and Jokic case, except for the transcripts, which have already been disclosed by the Prosecution.
2. The Prosecution filed a “Response to Drago Nikolic’s Request for Confidential Material in the Blagojevic and Jokic Case” on 21 October 2005 (“Response”). The Response does not oppose the Nikolic Motion except as it applies to confidential filings made by the Prosecution and to ex parte materials.
3. Mr. Nikolic filed his “Applicant’s Motion Seeking Leave to Reply to the Prosecution Response to Drago Nikolic’s Request for Confidential Material in the Blagojevic and Jokic Case” on 26 October 2005, and included with this motion a proposed reply (collectively, “Reply”). The Appeals Chamber notes that it is not necessary for a party who has filed a motion before it to seek leave to file a reply to a response to that motion; the reply may simply be filed. However, it is necessary for such a party to comply with the requirements of the Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the International Tribunal.2 Paragraph 14 of that Practice Direction specifies that replies be filed within four days of the filing of the response to a motion. The Reply in this case was filed within five days, apparently under the belief that the deadline was set by Rule 126 bis of the Rules of Procedure and Evidence of the International Tribunal (“Rules”),3 instead of the Practice Direction.4
4. The Appeals Chamber has previously explained that trial counsel’s unfamiliarity with the Appeals Chamber’s procedures does not constitute good cause for an extension of time: “counsel participating in appeals proceedings are expected to familiarize themselves with the relevant procedural requirements”.5 However, the Reply in this case serves a purpose that benefits both the Appeals Chamber in the resolution of the Nikolic Motion and the Prosecution in the result it seeks: it clarifies that Mr. Nikolic does not seek access to ex parte materials. In the interests of justice, the Appeals Chamber will therefore recognize the Reply as validly filed notwithstanding the one-day delay in its filing.
5. In addition to the Nikolic Motion, the Appeals Chamber is seized of “General Milan Gvero’s Application for Access to Closed Session Testimony and Exhibits Filed Under Seal” (“Gvero Motion”; together with the Nikolic Motion, “Motions”), filed on 18 October 2005 by one of Mr. Nikolic’s co-accused, Milan Gvero (together with Mr. Nikolic, “Applicants”). In his motion, Mr. Gvero requests access to all closed session testimony and exhibits filed under seal in the Blagojevic and Jokic trial. The Prosecution filed a “Response to Milan Gvero’s Application for Access to Closed Session Testimony and Exhibits Filed Under Seal” on 21 October 2005, stating that it does not object to the access sought by Mr. Gvero.
6. The applicable law concerning access to confidential materials filed before the International Tribunal is well settled. First, pursuant to Rule 75(F) of the Rules, protective measures ordered by the Trial Chamber in any “first proceedings ” (here, the Blagojevic and Jokic case) shall “continue to have effect mutatis mutandis in any other proceedings before the Tribunal (the ‘second proceedings’ ) unless and until they are rescinded, varied, or augmented in accordance with the procedure set out in this Rule”. The Applicants, being parties to a “second proceedings ” (their own case, Prosecutor v. Miletic et al.), properly applied to the Appeals Chamber, the chamber currently seized of the first proceedings, for a variation of protective measures, as is required by Rule 75(G).
7. A previous decision in this case, the Decision on Miletic Motion for Access filed on 9 September 2005, presented similar issues. That decision concerned a motion for access to inter partes confidential materials in this case filed by Radivoje Miletic, who is now, following a joinder of several separate cases in the Trial Chamber, one of the present Applicants’ co-accused. Subject to certain conditions, the Appeals Chamber granted the motion in full.
8. As the Decision on Miletic Motion for Access explains, “the Appeals Chamber has held that it is sufficient for an accused applying for access to inter partes confidential material in another case to demonstrate that ‘the material sought is likely to assist the applicant’s case materially, or at least that there is a good chance that it would’, and that this standard is met ‘by showing the existence of a nexus between the applicant’s case and the case from which such material is sought, for example, if the cases stem from events alleged to have occurred in the same geographical area at the same time’”.6
9. Mr. Nikolic argues that this standard is satisfied here because of the “material, temporal, and geographic overlap” between his case and the Blagojevic and Jokic case.7 Mr. Nikolic, like Mr. Miletic and like the appellants Vidoje Blagojevic and Dragan Jokic, is charged with crimes committed in the region of Srebrenica during 1995.8 Mr. Nikolic observes that he, like Mr. Jokic, is alleged to have been part of the leadership of the Zvornik Brigade during that period. Mr. Gvero makes similar arguments in his motion, stating that he is “charged with the same events in July 1995 in Srebrenica that were the subject of the Blagojevic trial.”9 Finally, Mr. Nikolic notes that based on similar overlap between the cases, the Appeals Chamber previously granted Mr. Miletic access to confidential inter partes exhibits and decisions.10
10. The Prosecution does not contest that these facts satisfy the standard for the Applicants’ access to inter partes confidential exhibits and decisions, which were the materials that Mr. Miletic sought and to which he was granted access. In its Response, it does, however, maintain that confidential filings of the parties should be treated differently because they “have no bearing on the Applicant’s case unless the Trial Chamber adopted those particular submissions, which would be revealed in the Trial Chamber’s decisions. Thus, any other submissions or matters which the Trial Chamber did not adopt or was not persuaded of, would not materially assist the Applicant in preparing his case.”11
11. The Appeals Chamber has never suggested that an applicant for access to inter partes confidential materials must demonstrate that the materials in question would likely be admissible evidence or applicable legal precedents in his own case. Rather, the question is whether there is a good chance that access to the materials will materially assist the applicant in preparing his case. This was the underlying rationale behind the Appeals Chamber’s decision to grant access to confidential decisions to Mr. Miletic: “the Trial Chamber’s decisions may help the Applicant to prepare his case by shedding light on the Trial Chamber’s treatment of legal and factual issues that may be common to the two cases”.12 The Appeals Chamber considers that access to the confidential filings of parties is likely to be useful to Mr. Nikolic here for similar reasons: Mr. Nikolic will be better able to understand and make use of both the decisions and the evidence in the Blagojevic and Jokic case if he can read the filings that related to them. The Prosecution has access to those filings, and given Mr. Nikolic’s demonstration of the nexus between the two cases, the principle of equality of arms supports giving Mr. Nikolic a similar chance to understand the proceedings and evidence in the Blagojevic and Jokic case and evaluate their relevance to his own case.
12. Moreover, it is not necessarily the case that submissions made by the parties in one case have no bearing on another case unless the Trial Chamber adopted those submissions. The Prosecution is a party to both cases. If, for example, the Prosecution made factual representations in the Blagojevic and Jokic case that are advantageous to Mr. Nikolic, Mr. Nikolic might be able to argue that it cannot contradict itself in his own case, at least without some justification for its change in position. The Appeals Chamber does not, of course, mean either to suggest that such representations were in fact made or to speculate on the legal validity of such hypothetical arguments from Mr. Nikolic. But the categorical position of the Prosecution that its submissions in one case cannot be relevant to other cases is not supportable.
13. The Appeals Chamber considers that in the interests of justice, Mr. Nikolic and Mr. Gvero should be given access to the same materials here, even though Mr. Gvero framed his request more narrowly. Moreover, the Applicants have seven co- accused, whose cases were joined together with theirs in part on the basis of their factual intertwining.13 The discussion above as well as the Decision on Miletic Motion for Access thus strongly suggest that the Blagojevic and Jokic case has a factual nexus with the cases of the Applicants’ and Mr. Miletic’s co-accused, three of whom were notably specifically listed in the Blagojevic and Jokic Judgement as alleged fellow members of a joint criminal enterprise,14 and all of whom are referred to by name elsewhere in the Judgement.15
14. Without commenting on the merits of the joinder decision, which has been appealed by some of the co-accused, the Appeals Chamber observes that it would not be an effective use of the International Tribunal’s resources for each of the co-accused in Prosecutor v. Miletic et al. to file separate and substantially identical motions for access to the confidential materials in the Blagojevic and Jokic case. The Appeals Chamber considers that it is not necessary under the Rules for it to await such motions, as it has the “inherent authority, as the Chamber currently seised of proceedings in this case, to modify orders entered earlier in these proceedings, including those issued pursuant to Rule 75(A) of the Rules”.16 It also notes its holding in a recent decision in the Naletilic and Martinovic case that it was “in the interests of justice in granting access to inter partes confidential material in this case to the Applicant and the Accused Prlic, to grant similar access to the other co-accused in the Prosecutor v. Prlic et al. case”.17
15. In the interests of justice, the Appeals Chamber considers that each of the co-accused in the Applicants’ case (except Zdravko Tolimir, who remains at large ) should have access to the inter partes confidential materials in this case. If the Prosecution or the appellants Dragan Jokic and Vidoje Blagojevic believe that there are reasons to deny any of the co-accused access to any of the materials affected by this decision, they may include arguments to that effect in any submissions they file concerning the necessity for further protective measures.
16. The Appeals Chamber has explained that once it “determines that confidential material filed in another case may materially assist an applicant, the Appeals Chamber shall determine which protective measures shall apply to said material as it is within the Appeals Chamber’s discretionary power to strike a balance between the rights of a party to have access to material to prepare its case and guaranteeing the protection and the integrity of confidential information”.18 As is its practice, and in view of the vital objective of protecting the safety of witnesses, the Appeals Chamber will permit the parties to the Blagojevic and Jokic case an opportunity to file submissions addressing the appropriate protective measures to be undertaken here, if they so choose.
17. Pursuant to Rule 75 of the Rules, the Appeals Chamber hereby GRANTS the Motions, and allows the defence of the Applicants and their co-accused in the case of Prosecutor v. Miletic et al. access, subject to the conditions set forth below, to all materials classified as inter partes and confidential in the Blagojevic and Jokic case. “Their co-accused”, for the purpose of this disposition, are Vujadin Popovic, Ljubiša Beara, Ljobomir Borovcanin, Radivoje Miletic, Vinko Pandurevic, and Milorad Trbic.
18. All other motions for access to inter partes confidential materials in this case filed by the co-accused in Prosecutor v. Miletic et al. and currently pending before the Appeals Chamber are hereby DISMISSED as moot.19
19. The Appeals Chamber ORDERS that:
(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;
(b) 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 Applicants, their co-accused, all of their Counsel and any employees who have been instructed or authorized by their Counsel, with all inter partes confidential material described above, in electronic format where possible;
(c) 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 within fifteen working days, 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 Applicants, their co-accused, all of their Counsel and any employees who have been instructed or authorized by their 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 Applicants, their co-accused, all of their Counsel and any employees who have been instructed or authorized by their Counsel, in electronic format where possible.
(d) save as otherwise 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 Applicants, their co-accused, all of their Counsel and any employees who have been instructed or authorized by their Counsel to have access to the inter partes confidential material described above shall not, without express leave of the Appeals Chamber finding that it has been sufficiently demonstrated that third-party disclosure is absolutely necessary for the preparation of the defence of the Applicants or their co-accused:
(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 Applicants or their co-accused, non-public material is disclosed to third parties – pursuant to authorization by 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 Applicants and their co-accused; (ii) their 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 Applicants or their co-accused, or any members of their Defence teams 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 16 November 2005
At The Hague
Judge Theodor Meron
[Seal of the Tribunal]