Case No.: IT-02-54-T

IN THE TRIAL CHAMBER

Before:
Judge Richard May, Presiding

Judge Patrick Robinson
Judge O-Gon Kwon

Registrar:
Mr. Hans Holthuis

Order of:
12 June 2003

PROSECUTOR
v.
SLOBODAN MILOSEVIC

__________________________________

SECOND DECISION ON PROSECUTION MOTION FOR ORDERS PURSUANT TO RULE 54 bis AGAINST SERBIA AND MONTENEGRO

__________________________________

Office of the Prosecutor: Amici Curiae:

Mr. Geoffrey Nice Mr. Steven Kay
Ms. Hildergaard Uertz-Retzlaff Mr. Branislav Tapuskovic
Mr. Dermot Groome Mr. Timothy McCormack

The Accused:

Slobodan Milosevic

Government of Serbia and Montenegro

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”),

BEING SEISED of a “Prosecution’s Application for an Order Pursuant to Rule 54 bis Directing the Federal Republic of Yugoslavia to Comply With Outstanding Requests for Assistance”, filed by the Prosecution on 13 December 2002 (“Application ”),

NOTING the subsequent filings of the parties, the arguments made in oral hearings before the Trial Chamber on 10 March 2003 and 3 June 2003, as well as the procedural Orders issued by the Trial Chamber,1

NOTING the Trial Chamber’s “Decision in Part on Prosecution Motion for Orders pursuant to Rule 54 bis against Serbia and Montenegro”, issued on 5 June 2003,

NOTING that this Decision deals with the remainder of the Prosecution’s requests for assistance as set forth in its “Priority List of Documents Requested from Serbia and Montenegro for the Case Against Slobodan Milosevic”,2

CONSIDERING the provisions of Rule 54 bis of the Rules of Procedure and Evidence (“Rules”) and the jurisprudence of the International Tribunal concerning the obligation of States to provide assistance,3

NOTING that a further Order will be issued in respect of the application by the Prosecution for access to archives,

PURSUANT to Article 29 of the Statute of the International Tribunal and Rule 54 bis of the Rules,

HEREBY ORDERS the parties to undertake the actions set forth in Annex A attached hereto.

 

Done in both English and French, the English text being authoritative.

______________
Richard May
Presiding

Dated this 12th day of June 2003
At The Hague
The Netherlands

[Seal of the Tribunal]


Annex A

Ruling No. Item Nos. with Corresponding RFA Reference(s) Disposition of Trial Chamber
Ruling No. 1 Item 8: RFAs 117; 219 The Trial Chamber hereby ORDERS Serbia and Montenegro to produce to the Prosecution within two months from the date of this Order the Supreme Defence Council minutes of meetings that took place between (1) 12 March 1993 and 28 October 1997 and (2 ) 23 March 1999 and 5 October 2000.
Ruling No. 2 Item 12: RFA 117 The Trial Chamber hereby ORDERS Serbia and Montenegro to produce to the Prosecution within two months from the date of this Order (1) the Federal Republic of Yugoslavia Defence Plan and (2) the Supreme Defence Council Decision approving the Federal Republic of Yugoslavia Defence Plan.
Ruling No. 3

Item 4(a): RFA 79
Item 5: RFA 79
Items 121-125: RFA 291, §§1a-e
Item 134: RFA 291, §9
Item 136a: RFA 291, §§11-15
Items 163-165: RFA 85

The Trial Chamber hereby ORDERS Serbia and Montenegro to produce to the Prosecution the requested documentation within two months from the date of this Order.

Ruling No. 4

Item 79: RFA 219, §18
Item 87: RFA 219, §22
Item 99: RFA 219, §32
Items 137-139: RFA 309(1-3)
Item 146: RFA 309(10)

The Trial Chamber hereby ORDERS Serbia and Montenegro (1) to continue processing these Requests for Assistance and (2) to produce to the Prosecution the requested documentation within two months from the date of this Order.
Ruling No. 5

Items 17-18: RFA 119A
Items 43-46: RFA 175

The Trial Chamber hereby ORDERS Serbia and Montenegro (1) to continue searching for the remainder of the requested documentation and (2) to produce to the Prosecution the remainder of the requested documentation within two months from the date of this Order.
Ruling No. 6 Item 71: RFA 219, §7 The Trial Chamber hereby ORDERS Serbia and Montenegro (1) to inform the Prosecution whether or not the requested document exists and, (2) if such document exists, to produce it to the Prosecution within two months from the date of this Order.
Ruling No. 7 Item 47: RFAs 203; 279 The Trial Chamber hereby ORDERS the Prosecution to inform the Trial Chamber within two months of the date of this Order which of the documents are still outstanding.
Ruling No. 8 Items 13-16: RFA 118 The Trial Chamber hereby ORDERS the Prosecution to inform the Trial Chamber within two months from the date of this Order of the following, in light of Serbia and Montenegro’s response that no state organ called the “Supreme Command” existed: (1) the Prosecution’s understanding of the term “Supreme Command”, and (2) the evidence that the Prosecution relied upon to show the existence of the “Supreme Command”.
Ruling No. 9 Items 19-23: RFA 119B-C The Trial Chamber hereby ORDERS the Prosecution within two months from the date of this Order (1) to inform the Trial Chamber of the following, in light of Serbia and Montenegro’s response that no state organ called the “Supreme Command” existed : (a) the Prosecution’s understanding of the term “Supreme Command”, and (b) the evidence that the Prosecution relied upon to show the existence of the “Supreme Command”; (2) to furnish further specification of the requested documentation to Serbia and Montenegro; and (3) to take reasonable steps to secure Serbia and Montenegro’s assistance.
Ruling No. 10 Items 128-132: RFA 291, §§3-7 The Trial Chamber hereby ORDERS (1) the Prosecution to furnish further specification of the requested documentation to Serbia and Montenegro within one month from the date of this Order; (2) Serbia and Montenegro (a) to continue to cooperate with the Prosecution with respect to these Requests for Assistance, and (b) to produce the requested documentation within two months from the date of this Order.
Ruling No. 11

Item 70: RFA 219, §6
Item 95: RFA 219, §27
Item 98: RFA 219, §31
Items 100-120: RFAs 219, §§33-39; 229

The Trial Chamber hereby ORDERS Serbia and Montenegro to issue to the Trial Chamber within two months from the date of this Order a report further specifying what measures Serbia and Montenegro have taken to locate the requested documentation.
Ruling No. 12

Items 24-42: RFAs 174; 174A
Items 50-69: RFA 219, §§4-5
Items 75-77: RFA 219, §§11-13
Item 84: RFA 219, §21
Items 88-89: RFA 219, §23

The Trial Chamber hereby ORDERS Serbia and Montenegro to issue to the Trial Chamber within two months from the date of this Order a report further specifying what measures Serbia and Montenegro have taken to locate the requested documentation, including but not limited to the information that led to the conclusion that the requested documentation was or may have been destroyed by NATO.
Ruling No. 13

Items 1-3: RFAs 79; 241; 241A-B
Items 10-11: RFA 117
Items 48-49: RFAs 203; 219, §2
Items 140-145: RFA 309(4-9)

The Trial Chamber hereby DENIES the Prosecution’s request for a binding order on the basis that the Request for Assistance is overbroad and unduly onerous.
Ruling No. 14

Items 85-86: RFA 219, §21

The Trial Chamber hereby DENIES the Prosecution’s request for a binding order on the basis that the Prosecution should seek to obtain the requested documentation from Bosnia and Herzegovina (Republika Srpska) instead of Serbia and Montenegro.

 


1 - Scheduling Order for Hearing on Prosecution Motion for Binding Order, dated 10 January 2003; Written Response of Serbia and Montenegro to “Prosecution’s Application for an Order pursuant to Rule 54 bis Directing the Federal Republic of Yugoslavia to Comply with Outstanding Requests for Assistance”, dated 7 February 2003; Prosecution’s Request for Leave to File a Reply Regarding Outstanding Requests for Assistance, dated 14 February 2003; Order on Prosecution Request for Leave to File Reply, dated 19 February 2003; Prosecution’s Reply to the Serbia and Montenegro Response to the Prosecution’s Application for an Order Pursuant to Rule 54 bis Directing the Federal Republic of Yugoslavia to Comply with Outstanding Requests for Assistance, dated 27 February 2003; Submission of Serbia and Montenegro pursuant to the Chamber Order Issued at the Oral Hearing of 10 March 2003 concerning the “Prosecution’s Application for an Order pursuant to Rule 54 bis Directing the Federal Republic of Yugoslavia to Comply with Outstanding Requests for Assistance”, dated 6 May 2003; Prosecution Response to the 6 May 2003 Submission by Serbia and Montenegro regarding Outstanding Requests for Assistance, dated 20 May 2003; Confidential Supplemental Information to the Prosecution Response to the 6 May 2003 Submission by Serbia and Montenegro regarding Outstanding Requests for Assistance, dated 5 June 2003.
2 - Annex A to the Prosecution Response to the 6 May 2003 Submission by Serbia and Montenegro regarding Outstanding Requests for Assistance, dated 20 May 2003. In Annex A of this Decision, the Trial Chamber omits reference to Requests for Assistance where the Prosecution has requested no action or where an order is otherwise not necessary: Item 4: RFA 79; Items 6-7: RFAs 79, 110; Items 72-74: RFA 219, §8-9; Item 78: RFA 219, §15; Items 80-83: RFA 219, §6, 19-20; Items 90-94: RFAs 219, 219, §24-26; Items 96-97: RFA 219, §29, 30; Items 126-127: RFAs 291, 291, §2; Item 133: RFA 291, §8; Items 135-136: RFAs 291, 291, §10; Items 147-162: RFAs 325, 336, 338, 349.
3 - See Prosecutor v. Tihomir Blaskic, Judgement on the Request of the Republic of Croatia for Review of Trial Chamber II of 18 July 1997, Appeals Chamber, Case No. IT-95-14-A R108 bis (29 Oct. 1997), §32 (holding that any request for order for production of documents issued under Article 29, §2 of Statute must identify specific documents and not broad categories, set out succinctly reasons why such documents are deemed relevant to trial, not be unduly onerous, and give requested State sufficient time for compliance).