Case No. IT-01-48-T

Before:
Judge Liu Daqun, Presiding
Judge Florence Mumba
Judge Amin El Mahdi

Registrar:
Mr. Hans Holthuis

Decision of:
9 June 2005

Counsel for the Accused: Valentin Coric

Mr. Tomislav Jonjic

Counsel for the Accused: Berislav Pusic

Mr. Fahrudin Ibrisimovic

Counsel for the Accused: Milivoj Petkovic

Ms. Vesna Alaburic

Counsel for the Accused: Slobodan Praljak

Mr. Bozidar Kovacic
Ms. Nika Pinter

Counsel for the Accused: Jadranko Prlic

Mr. Michael Karnavas

Counsel for the Accused: Bruno Stojic

Mr. Berislav Zivkovic

The Office of the Prosecutor:

Mr. Philip Weiner
Ms. Sureta Chana
Mr. David Re
Mr. Kenneth Scott

Counsel for the Accused Sefer Halilovic:

Mr. Peter Morrissey
Mr. Guénaël Mettraux

TRIAL CHAMBER I, SECTION A, (“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”);

BEING SEISED of the “Accused Slobodan Praljak’s Motion for Access to Confidential Testimony and Documents in Prosecutor v. Halilovic Case,” filed on 8 February 2005 (“Praljak Motion”);

ALSO BEING SEISED of Jadranko Prlic’s “Notice of Joinder to Slobodan Praljak’s Motion for Access to Confidential Testimony and Documents in Prosecutor v. Halilovic Case Filed on 8 February 2005”, filed on 4 March 2005 (“Prlic Notice of Joinder ”) whereby the accused Jadranko Prlic, who is one of the co-accused of Slobodan Praljak in Prosecutor v. Prlic et al. (“Prlic et al. case”), joins Slobodan Praljak (“Applicants”) in the Praljak Motion;

NOTING that the Applicants request access to:

1) transcripts of all closed session testimony and related exhibits in the Prosecutor v. Halilovic case (“Halilovic case”) “to the extent that the testimony or exhibits relate to conflict between Bosnian Muslims and Bosnian Croats and/or between the ABiH and HVO on the territory of BiH in 1992/1993”;¹ and

2) “all non-public document, materials and exhibits, including non-public pre-trial and trial submissions and motions filed confidentially and/or ex parte as well as decisions regarding such submissions filed in pre-trial and trial phases of the proceedings, provided that such material relates to the conflict between Bosnian Muslims and Bosnian Croats and/or between the ABiH and HVO on the territory of BiH in 1992/1993”;² (“material sought ”)

NOTING that the Applicants submit that based on review of public materials they have reason to believe that non-public material in the Halilovic case includes information on several issues, including the following:

1. “Political and military plans and intentions of the participants of the conflict ;

2. Engagement and disposition of the warring parties troops in 1992/93 on the territories defined by the indictment;

3. Formation, subsequent functioning, command relationships and operations of the Patriotic League and ABiH from January 1, 1991 through March 1994;

4. Formation, subsequent functioning, command relationships and operations of the HVO in 1992/93;

5. Activities that relate to disciplinary or criminal proceedings against officers, soldiers, or other personnel of the Army of the Republic of Bosnia-Herzegovina or the Territorial Defence (collectively, ABiH) for acts of ethnic cleansing, other violations of the international humanitarian law or the laws of war, or violations of military law generally, from January 1, 1993 through March 31, 1994.”³

NOTING that the Applicants submit (i) that the material sought will materially assist the Defence case and that it needs not be otherwise disclosed by the Prosecution;⁴ (ii) that the crimes alleged in the Prlic et al. case are geographically and temporally related to the crimes charged in the Halilovic case and that much of the evidence relates specifically or generally to the Applicants;⁵ and (iii) that the accused are “ready to accept and to fully respect in detail all protective measures that have been attached to the material […] as well as additional protective measures that Trial Chamber I may decide to impose”;⁶

NOTING the “Prosecution Response to the Accused Slobodan Praljak’s Motion for Access to Confidential Testimony and Documents in Prosecutor v. Halilovic Case, filed on 8 February 2005” (“Prosecution Response to Praljak Motion”), filed on 22 February 2005;

NOTING the “Prosecution’s Response to Jadranko Prlic’s Notice of Joinder to the Accused Slobodan Praljak’s Motion for Access to Confidential Testimony and Documents in Prosecutor v. Halilovic Case, filed on 8 February 2005””, filed on 14 March 2005 (“Prosecution Response to Prlic Notice”), whereby the Prosecution submits that the Prosecution Response to Praljak Motion is applicable mutatis mutandis with respect to Prlic Notice of Joinder, requesting “that the Trial Chamber consider all the requests and arguments made therein in regard to Slobodan Praljak as also being made […] in regard to Jadranko Prlic”;⁷

NOTING that the Prosecution submits that the non-public testimony and related exhibits may potentially assist in the preparation of the Prlic et al. case as “the actions of Bosnian Muslims and the ABiH during the period of the conflict may conceivably have relevance, bearing or influence on the events that form the subject matter of the Prlic et al. indictment;”⁸

NOTING that the Prosecution further submits that material falling under Rule 70 of the Rules of Procedure and Evidence (“Rules”) should only be disclosed after the material has been identified and after receipt of the provider’s consent to disclosure;⁹

NOTING that the Prosecution “objects in principle to the disclosure of evidence or information concerning a particularly sensitive witness where the evidence or information concerning that witness simply has no bearing, or only the most insufficient connection, to the [Prlic et al.] case”, and submits that “a ‘sensitive witness’ is not every witness for whom some protective measures was previously given, but is meant to indicate a previously protected witness in a situation involving particular sensitivity where the evidence or information regarding that witness is so disconnected from the [Prlic et al.] case that disclosure in these circumstances is not warranted”;¹⁰

NOTING that the Prosecution requests that the Prosecution and other interested parties be given an adequate opportunity, in the event the Trial Chamber grants, in general, the request for disclosure, to identify sensitive witnesses where their evidence or related information should not be disclosed;¹¹

NOTING that the Prosecution opposes the disclosure of ex parte filings or submissions in the Halilovic case, because disclosure of this material would “lead to an entirely contradictory and anomalous result if material which was not available to an opposing party in the very case in which it was presumably most relevant would be disclosed to a ‘stranger’ in a completely different case”;¹²

NOTING that the Prosecution submits that, if the Trial Chamber is inclined to grant the disclosure of ex parte material, the party in the Halilovic case who submitted that material, should first be allowed the opportunity to review that material and take a position as to whether or not this material should be disclosed to the accused in the Prlic et al. case;¹³

NOTING that the Prosecution and the Applicants agree that the material to be provided should be limited to the extent that the testimony, exhibits or materials relate to the “conflict between Bosnian Muslims and Bosnian Croats and/ or between ABiH and HVO on the territory of Bosnia and Herzegovina in 1992/93”;¹⁴

NOTING FURTHER that the Prosecution requests that “any disclosure of the materials sought in any ICTY proceeding also be subject to the existing protective orders and measures in the Prlic et al. case, as set out in the Trial Chamber’s ‘Order for Protective Measures, dated 30 July 2004’, as amended, in addition to all protective measures [entered in the Halilovic case];”¹⁵

NOTING the President’s “Order Replacing a Judge in a Case Before a Trial Chamber”, issued on 31 May 2005, by which the President, pursuant to Rule 15 bis (C) of the Rules, assigned, with immediate effect, Judge Florence Mumba to replace Judge György Szénási in the Halilovic case;

CONSIDERING that a party may not engage in a “fishing expedition”, but that it may seek material from any source, including from another case before the Tribunal, to assist in the preparation of its case, if it is able to describe the documents sought by their general nature as clearly as possible even though it cannot describe them in detail; and if a legitimate forensic purpose for such access has been shown;¹⁶

CONSIDERING that the relevance of material being sought by a party may be determined by showing the existence of a nexus between the applicant’s case and the case from which such material is sought, i.e. where a geographical, temporal or otherwise material overlap between the cases exists the material sought is likely to be of assistance to the applicant’s case, or at least, there is a good chance that it may assist the defence of the applicant(s);¹⁷

CONSIDERING that in view of the geographical and temporal overlap between the Prlic et al. case and the Halilovic case, the material sought is likely to be of material assistance to the Applicant’s case;

CONSIDERING, however, that ex parte material is of a special nature of confidentiality, as it by nature contains information not disclosed even between the parties because of security interests of a State, other public interest, or privacy interests of a person or institution (“special privacy interests”); and that the party on whose behalf ex parte status has been granted enjoys a protected degree of trust that the information will not be disclosed;¹⁸

CONSIDERING that the nature of the material sought has been described by its general nature as clearly as possible and that a legitimate forensic purpose for access has been shown with the exception of ex parte material;

CONSIDERING, however, that the protection which ex parte material enjoy, does not discharge the Prosecution from its disclosure obligation pursuant to Rules 66 and 68 of the Rules;

CONSIDERING that the Prosecution and the Halilovic Defence have not yet identified witnesses they consider to be “sensitive witnesses”;

CONSIDERING that it is in the interests of justice that Rule 70 material is not disclosed except upon the provider’s consent;

CONSIDERING that according to Rule 75 (G), a Chamber can rescind, vary or augment protective measures only ex post, which means, after having ordered the protective measures; and therefore that the Trial Chamber does only grant access to material which to date is subject to any protective measures; by so doing, also giving the opportunity to the Prosecution to be heard on the merits concerning future material sought;¹⁹

CONSIDERING that it is in the interests of justice when granting access to confidential material in the Halilovic case to the Applicants, to extend this access to all other co-accused in the Prlic et al. case;²⁰

PURSUANT TO, Articles 20 and 21 of the Statute and Rules 54 and 75 of the Rules;

HEREBY GRANTS the Motion IN PART and ORDERS that access to the confidential material in the Halilovic case, available to date, concerning the conflict between Bosnian Muslims and Bosnian Croats or between the Army of Bosnia and Herzegovina and HVO on the territory of Bosnia and Herzegovina in 1992 and 1993 be granted to the Accused in the Prlic et al. case, subject to the following orders and protective measures:

1. For the purpose of this disposition:

(a) the “Prosecution” means the Prosecutor of the Tribunal and her staff;

(b) the “Accused” means Slobodan Praljak, Jadranko Prlic, Bruno Stojic, Milivoj Petkovic, Valentin Coric and Berislav Pusic, their Defence counsels and immediate legal assistants and staff and others specifically assigned by the Tribunal to their Defence team and identified in a list to be maintained by the lead counsel and filed with the Trial Chamber ex parte and under seal within ten days of the entry of this order. Any and all additions and deletions to the initial list in respect of any of the above categories of persons who are necessarily identified and properly involved in the preparation of the defence shall be notified to the Trial Chamber in similar fashion within seven days of such additions or deletions;

(c) the “public” means all persons, governments, organisations, entities, clients, associations and groups, other than the Judges of the Tribunal and the staff of the Registry (assigned to either Chambers or the Registry), the Prosecution and the accused, as defined above. The “public” specifically includes, without limitations, family, friends and associates of the accused, the accused in other cases or proceedings before the Tribunal and Defence counsel in other cases or proceedings before the Tribunal;

(d) the “media” means all video, audio and print media personnel, including journalists, authors, television and radio personnel, their agents and representatives;

2. since the Prosecution is familiar with the material, it shall provide it to the Registry for disclosure to the Accused;

3. ex parte material shall not be disclosed;

4.“sensitive witness” material be identified by the Prosecution and the Halilovic Defence Team within three weeks from the filing of the decision; and shall not be disclosed unless on leave granted by the Trial Chamber;

5. material which falls under Rule 70 of the Rules shall not be disclosed unless prior authorisation is obtained by the Prosecution from the relevant authorities; the Prosecution shall be responsible for informing the Registry as appropriate;

6. the Accused shall not disclose to the media any confidential or non public materials provided by the Prosecution;

7. save as is directly and specifically necessary for the preparation and presentation of their case and only on leave being first granted by the Chamber, the Accused shall not disclose to the public, to the media, or to the family members and associates of the accused;

(a) the names, identifying information or whereabouts of any witness or potential witness identified by the Prosecution, copies of witness statements, the contents thereof, or any other information which would enable them to be identified and would breach the confidentiality of the protective measures already in place, unless absolutely necessary for the preparation of the accused case and always with the leave of the Chamber; or

(b) any evidence (including documentary, audio visual, physical, 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 disclosed to the accused;

8. if the Accused find it directly and specifically necessary to disclose such information for the preparation and presentation of their case and having obtained leave from the Trial Chamber to do so, the Accused shall inform each person among the public to whom non-public material or information (such as witness statements, transcripts of testimonies, exhibits, prior testimony, videos, or the contents thereof), is shown or disclosed, that he or she is forbidden to copy, reproduce or publicise such non-public material or information, and is not to show or disclose it to any other person. If provided with the original or any copy or duplicate of such material, such person shall return it to the accused when such material is no longer necessary for the preparation and presentation of the Defence;

9. if a member of the Defence teams withdraws from the case, all material in his or her possession shall be returned to the lead Defence counsel for the relevant Defence team;

10. the Accused shall have no contact with the witnesses concerned with the material to be disclosed, unless otherwise decided by the Trial Chamber under the conditions set by the latter;

11. subject to the protective measures and orders prescribed above, the protective measures that are already in place in relation to the material disclosed should remain in place;

REQUESTS the Registrar to provide the material to which disclosure has been granted.

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

_________________
Judge Liu Daqun
Presiding Judge

Dated this ninth day of June 2005,
At The Hague
The Netherlands

[Seal of the Tribunal]