Case No. IT-04-74-PT
BEFORE THE TRIAL CHAMBER
Before:
Judge Liu Daqun, Presiding
Judge Amin El Mahdi
Judge Alphons Orie
Registrar:
Mr. Hans Holthuis
Order of:
5 October 2004
PROSECUTOR
v.
JADRANKO PRLIC
BRUNO STOJIC
SLOBODAN PRALJAK
MILIVOJ PETKOVIC
VALENTIN CORIC
BERISLAV PUSIC
__________________________________________
DECISION ON PROSECTION’S MOTION FOR PROTECTIVE MEASURES CONCERNING DISCLOSURE OF CONFIDENTIAL MATERIAL TO ENVER HADZIHASANOVIC AND AMIR KUBURA
__________________________________________
The Office of the Prosecutor:
Mr. Kenneth Scott
The Applicants :
Mrs. Edina Residovic and Mr. Stéphane Bourgon for Enver
Hadzihasanovic
Mr. Fahrudin Ibrisimovic and Mr. Rodney Dixon for Amir Kubura
Counsel for the Accused:
Mr. Camil Salahovic and Mr. Zelimir Par for the accused Mr. Jadranko Prlic
Mr. Zeljko Olujic for the accused Mr. Bruno Stojic
Mr. Bozidar Kovacic and Ms. Nika Pinter for the accused Mr. Slobodan Praljak
Ms. Vesna Alaburic for the accused Mr. Milivoj Petkovic
Mr. Tomislav Jonjic for the accused Mr. Valentin Coric
Mr. Marinko Skobic for the accused Mr. Berislav Pusic
TRIAL CHAMBER I ("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"),
NOTING the Trial Chamber’s "Decision on Hadzihasanovic and Kubura’s Motion for Access to Confidential Supporting Material" dated 3 September 2004 granting access to the accused Enver Hadzihasanovic and Amir Kubura ("Applicants") to the confidential supporting material relating to the indictment against the accused in the case Prosecutor v. Prlic et al. and ordering the Prosecution to file a motion for protective measures ("Decision");
NOTING the ""Prosecution’s Motion for Protective Measures Concerning Disclosure of Confidential Material to Enver Hadzihasanovic and Amir Kubura" dated 15 September 2004 ("Motion"), whereby the Prosecution seeks to be allowed to redact all information concerning the identities and whereabouts of witnesses included or mentioned in such material, the additional information concerning a particular witness should only be disclosed if the Applicants make a significant, particularised showing of a substantial and bona fide basis and reason why the disclosure of this information is actually warranted";1
NOTING the "Applicants’ Joint Response to Prosecution Motion for Protective Measures" dated 20 September 2004 ("Response"), whereby the Applicants (1) "do not object to obtaining access to the confidential material sought with the names, addresses and whereabouts and other identifying information of witnesses named or mentioned in such material being redacted; (2) requests that "such redactions be limited to those witnesses who have required protective measures or who already benefit from protective measures granted to them in other cases", (3) for material covered by Rule 70, request the Trial Chamber to order the Prosecution to seek authorization from the providers and to report to the Trial Chamber when such consent is refused;2
CONSIDERING that it falls within the Chamber’s discretion to strike a balance between the right of a party to have access to confidential material to prepare its case and guaranteeing the protection and the integrity of confidential information;3 that protective measures granted to witnesses whose material is to be disclosed to the Applicant must remain fully effective; that at this stage the Applicants do not need to know the details of the protected victims or witnesses in order to determine whether the material sought will in fact assist them in the preparation of their defence;4 that it is therefore appropriate that the material concerning those victims or witnesses is redacted before being disclosed to the Applicants;
CONSIDERING however that the Prosecution may have to disclose the details of the protected victims or witnesses at a later stage if their revelation can be justified by the Applicants having considered the material;
CONSIDERING that in relation to material, subject to the general confidentiality order imposed on the Prlic et al. defence by this Chamber5, concerning or identifying witnesses who have not required protective measures or who do not already benefit from protective measures granted to them in other cases, the Trial Chamber is not convinced that disclosure of such material in a non-redacted form to the Applicants will pose any danger to the integrity of the information if appropriate protective orders are made;
PURSUANT TO Articles 20, 21 and 22 of the Statute and Rules 54 and 75 of the Rules of Procedure and Evidence ("the Rules"),
HEREBY GRANTS the Motion in part and ORDERS that access to the Applicants to the confidential supporting material in the Prlic et al. case is made subject to the following orders and protective measures:
Done in both English and French, the English text being authoritative.
Dated this 5th Day of October 2004,
At The Hague
The Netherlands
___________________
Judge Alphons Orie
Pre-trial judge, Trial Chamber I
[Seal of the Tribunal]