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

Decision of:
20 October 2003

PROSECUTOR

v.

SLOBODAN MILOSEVIC

_________________________________________________

DECISION ON DEFENCE MOTION FILED BY THE DEFENCE OF FRANKO SIMATOVIC (IT-03-69-PT) FOR ACCESS TO TRANSCRIPTS AND DOCUMENTS

_________________________________________________

The Office of the Prosecutor

Ms. Carla Del Ponte
Mr. Geoffrey Nice
Mr. Dermot Groome

Amicus Curiae

Mr. Steven Kay
Mr. Branislav Tapuskovic
Mr. Timothy McCormack

The Accused

Mr. Slobodan Milosevic

Counsel for Mr. Franko Simatovic

Mr. Zoran Jovanovic

 

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 the "Defence Motion To Access Transcripts And Documents," filed by the Defence of Franko Simatovic ("Simatovic Defence") on 18 September 2003 ("Motion"), requesting access to all transcripts and documents from the case of Prosecutor v. Slobodan Milosevic (“Milosevic Case”),

NOTING that the Motion specifically seeks ‘(i) access to the transcripts of all open and closed session proceedings produced in the Bosnia and Herzegovina and Croatia part of the Milosevic Case on a continuous basis; (ii) access to trial exhibits, documentary evidence and motions filed by the parties in the Bosnia and Herzegovina and Croatia parts of the Milosevic Case on a continuous basis; and (iii) the liberty to apply to the Trial Chamber in the future for specific orders in respect to any closed material that the Defence believes could aid its case, and which the Office of the Prosecutor ("Prosecution") is not otherwise required to disclose,’

NOTING the "Prosecution Response To Motion By Franko Simatovic For Access To Transcripts And Documents," filed by the Prosecution on 2 October 2003 ("Response"), stating that the Prosecution has no objection to granting the Simatovic Defence access to open session testimony and public exhibits from the Milosevic Case, but that access to non-public materials in terms of closed or private session testimony and confidential exhibits should be denied given (i) the early stage of the proceedings in the case of Prosecutor v. Simatovic (“Simatovic Case”); and (ii) the continuing concerns for the safety of the witnesses in the Milosevic Case,

NOTING the Response stating that the Prosecution has no objection to granting access to public filings from the Milosevic Case to the Simatovic Defence, but that access to any confidential filings should be denied as the Simatovic Defence does not specify which categories of filings it seeks and the legitimate forensic purpose of its request,

NOTING the Response stating that if the Trial Chamber is to grant access to non-public materials to the Simatovic Defence, the Prosecution submits, in the alternative, ‘access to the non-public testimonies and confidential exhibits should only be allowed in accordance with the protective provisions and exclusions set out in paragraphs 11-19 of the Response, and access to confidential filings should be denied with respect to filings (i) made on an ex parte basis; (ii) which relate to witness protection; or (iii) which are not directly related to evidence admitted in the Milosevic Case,

NOTING that in the Response the Prosecution acknowledges that the crimes charged in the Simatovic Case are geographically and temporally related to some of the crimes charged in the Milosevic Case, and that much of the evidence in the Milosevic Case would be relevant to the preparation of the Simatovic Defence,

ALSO NOTING that in the Response the Prosecution states that it anticipates calling many of the protected witnesses in the Milosevic Case to testify in the Simatovic Case,

CONSIDERING that access to confidential material from another case shall be granted if the party seeking it can establish that it may be of material assistance to its case and that a party is always entitled to seek material from any source to assist in the preparation of its case if the document sought has been identified or described by its general nature and if a legitimate forensic purpose for such access has been shown,

CONSIDERING that protective measures of closed and private session testimony and confidential exhibits were ordered by the Trial Chamber in the Milosevic Case after the Trial Chamber was satisfied that such measures were consistent with the rights of the Accused,

CONSIDERING the stage of the proceedings in the Simatovic Case, in that a trial date has not yet been set, and that there are still outstanding disclosure matters including statements of witnesses that will be disclosed pursuant to Rule 66(A)(ii) of the Rules, potential exculpatory material pursuant to Rule 68 of the Rules and additional materials pursuant to Rules 66(B) and 67(C) of the Rules should the Simatovic Defence invoke reciprocal disclosure,

CONSIDERING that public testimonies, exhibits and filings are available to the Simatovic Defence upon application to the Registry of the International Tribunal,

CONSIDERING HOWEVER that confidential filings in the Milosevic Case are not evidence and the Simatovic Defence has not shown a legitimate forensic purpose for access to such materials,

PURSUANT TO Rule 54 of the Rules,

HEREBY ORDERS as follows:

  1. the Simatovic Defence may request access to public testimonies, exhibits and motions relating to the Bosnia and Herzegovina and Croatia parts of the Milosevic Case directly from the Registrar of the International Tribunal;
  2. the Simatovic Defence shall have access to non-public testimonies and exhibits pertaining to crimes and events related to charges against Franko Simatovic or his co-accused, Jovica Stanisic, from the Bosnia and Herzegovina and Croatia parts of the Milosevic Case, after:

    (i) the Prosecution has had a reasonable opportunity to seek the consent of the witnesses who testified confidentially in the Milosevic Case for their un-redacted testimony to be disclosed to the Simatovic Defence; and

    (ii) where such consent is not given by the witness, the Prosecution has redacted those parts of the testimony and exhibits that may reveal the identity of any protected person or that relate to a period other than 1 April 1991 to 31 December 1995;

  3. the Prosecution shall within a reasonable time determine whether any of the confidential material falls under Rule 70 of the Rules and shall contact the providers of such materials to seek their consent for disclosure of that material; and
  4. the Simatovic Defence shall not disclose to the public any confidential or non-public material disclosed to it from the Milosevic Case.

For the purpose of this decision, "the public" means and includes, all persons, governments, organisations, entities, clients, associations and groups, other than the Judges of the International Tribunal, the staff of the Registry, the Prosecutor and her representatives, and the accused and his defence team. "The public" also includes, without limitation, families, friends, and associates of the accused, accused and defence counsels in other cases or proceedings before the International Tribunal, the media, and journalists.

 

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

__________
Richard May
Presiding

Dated this twentieth day of October 2003
At The Hague
The Netherlands

[Seal of the Tribunal]