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:
18 June 2003
PROSECUTOR
v.
SLOBODAN MILOSEVIC
____________________________________
THIRD 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
”), as well as a “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
”, filed on 27 February 2003,
NOTING other 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 the Trial Chamber’s “Second Decision on Prosecution Motion for Orders
Pursuant to Rule 54 bis Against Serbia and Montenegro”, issued 12 June 2003
, which dealt 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” and which noted that a further Order would
be issued in respect of the application by the Prosecution for access to archives
,
NOTING the Prosecution’s requests for the Trial Chamber to issue binding
orders to compel Serbia and Montenegro to allow members of the Prosecution physical
access to documentation located and maintained on premises controlled by the Government
of Serbia and Montenegro,2
NOTING the Prosecution’s arguments that (1) the Trial Chamber may order Serbia
and Montenegro to grant the Prosecution access to archives under Rule 54 bis
of the Rules of Procedure and Evidence (“Rules”)3
and (2) the Trial Chamber may order Serbia and Montenegro to grant the Prosecution
access to archives under both Rule 39 and Rule 54 of the Rules,4
CONSIDERING the provisions of Article 29 of the Statute of the International
Tribunal (“Statute”) and the jurisprudence of the International Tribunal concerning
the obligation of States to cooperate with the International Tribunal in the investigation
and prosecution of persons accused of committing serious violations of international
humanitarian law and to comply without undue delay with requests for assistance
or orders issued by the Trial Chamber,5
CONSIDERING that the provisions of Rule 54 bis of the Rules and the
jurisprudence of the International Tribunal concerning the obligation of States
with respect to the production of documents or information do not authorize the
Trial Chamber to issue orders allowing a party physical access to collections of
documents in a specific case, but rather to issue orders compelling States6
to produce specific, identifiable documents,7
CONSIDERING that (1) Rule 54 of the Rules is a lex generalis by which
the Trial Chamber may issue such orders as may be necessary for the purposes of
an investigation or for the preparation or conduct of trials, (2) Rule 54 bis
of the Rules is a lex specialis by which the Trial Chamber may order
a State to produce identifiable documents to a party, and (3) thus, Rule 54 bis
, rather than Rule 54, of the Rules is the appropriate Rule under which the
Trial Chamber may issue biding orders to a State for the production of identifiable
documentation,
CONSIDERING that the request for an order to allow members of the Prosecution
physical access to documentation on premises controlled by the Government of
Serbia and Montenegro is in effect an application for a search warrant, but
that there are insufficient grounds for the grant of such a warrant in the present
circumstances,
PURSUANT to Article 29 of the Statute and Rules 54 and 54 bis
of the Rules,
HEREBY REJECTS the Prosecution’s Application for binding orders with
respect to access to government archives under the control of Serbia and Montenegro.
Done in both English and French, the English text being authoritative.
____________
Richard May
Presiding
Dated this 18th day of June 2003
At The Hague
The Netherlands
[Seal of the Tribunal]
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;
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 - 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,
at §3, n.8 (“[T]he OTP suggested that it use its own staff to survey such archives.
In this manner, OTP staff utilise their own time and resources (including, as
necessary, photocopy machines and scanners) at host archives and review their
indices of documents. Documents that are deemed to be relevant to the work of
this Tribunal are then either scanned or copied. This entire process is done in
the least intrusive way possible, with the co-operation and assistance of host
archive staff. In this way, documents that are deemed important and relevant (and
the Prosecution notes that often times, the host staff is not totally aware what
might be important and relevant) are acquired in the most efficient way possible”.);
§9, n.14 (“Such a survey/review may be referred to as ‘access to archives’”.);
§12, n.22 (“The Prosecution uses the term ‘physical access’ in order to track
Serbia and Montenegro’s use of such term, as well as its objection to the ability
of the Tribunal and its Prosecutor to gain ‘physical access’ to locations on the
territory of the former Yugoslavia”.); §13, n.25 (“[T]he Prosecution submits that
Rule 54bis does not ‘clearly exclude’ any right of the Prosecution
to physically access and operate in archives . . . merely because the rule does
not include a provision to review archives”.), dated 27 February 2003; Prosecution’s
Application for an Order Pursuant to Rule 54 bis Directing the Federal
Republic of Yugoslavia to Comply with Outstanding Requests for Assistance, at
§§8-10 (“The OTP has issued six RFAs for access to a total of 16 archives in the
FRY”.); §17 n.8 (“Note that the Prosecution admits that a very small number of
requests are of a broad nature. As such, these requests have been the subject
of additional clarification RFAs. The Prosecution notes, however, that in many
cases, such RFAs could be fulfilled by allowing OTP direct access to archives”.),
dated 13 December 2002.
3 - Prosecution’s Application for an Order Pursuant to Rule
54 bis Directing the Federal Republic of Yugoslavia to Comply with Outstanding
Requests for Assistance, at §§1, 8-19; 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, at §§8-10, 17.
4 - Prosecution’s Application for an Order Pursuant to Rule
54 bis Directing the Federal Republic of Yugoslavia to Comply with Outstanding
Requests for Assistance, at §1; 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, at §§10-12, 17.
5 - 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), §26 (stating that
Article 29 grants International Tribunal “the novel and indeed unique power .
. . to issue orders to sovereign States”).
6 - See Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-A
R108 bis, §27 (stating that obligation under Article 29 of Statute “concerns .
. . action that States may take only and exclusively through their organs (this,
for instance, happens in case of an order enjoining a State to produce documents
in the possession of one of its officials)”).
7 - See Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-A
R108 bis, §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).