Case No.: IT-02-54-T
IT-99-37-PT

IN THE TRIAL CHAMBER

Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy

Registrar:
Mr. Hans Holthuis

Decision of:
27 July 2004

PROSECUTOR

v.

SLOBODAN MILOSEVIC

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DECISION ON MOTIONS OF THE DEFENCE IN PROSECUTOR v MILUTINOVIC, OJDANIC AND SAINOVIC FOR ACCESS TO CERTAIN CONFIDENTIAL FILINGS

__________________________________________________

The Office of the Prosecutor

Mr. Geoffrey Nice
Ms. Cristina Romano
Mr. Milbert Shin

The Accused

Mr. Slobodan Milosevic

Counsel for the Accused

Mr. Eugene OíSullivan and Mr. Slobodan Zecevic, for Milan Milutinovic
Mr. Toma Fila and Mr. Goran Petrovic for Nikola Sainovic
Mr. Tomislav Visnjic, Mr. Peter Robinson, and Mr. Vojislav Selezan, for Dragoljub Ojdanic

Amici Curiae

Mr. Stephen Kay, QC
Mr. Timothy L.H. McCormack

 

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 ("the International Tribunal"),

BEING SEISED of a "Motion filed on Behalf of Mr. Milan Milutinovic for Access to Certain Confidential Filings in the Case of the Prosecutor v. Slobodan Milosevic, Case No IT-02-54-T" filed on 14 May 2004, together with a "Defence Motion Requesting Access to Certain Confidential Filings in the Case of the Prosecutor v. Slobodan Milosevic" filed on behalf of the accused, Nikola Sainovic on 18 May 2004 (together the "Motions"),

NOTING the joint response filed on behalf of the Office of the Prosecutor ("Prosecution") on 28 May 2004 ("Prosecution Response") and the Application for leave to file a reply and Reply to the Prosecution Response filed on behalf of the accused Milan Milutinovic on 1 June 2004 ("Application for Leave and Reply"),

NOTING that the defence in the Milutinovic case seek access to three categories of confidential documents in the case of the Prosecutor v. Slobodan Milosevic (the "Milosevic case"), namely (1) confidential annexes 1 and 2 to the Amici Curiae Motion for Judgement of Acquittal Pursuant to Rule 98 bis, filed on 3 March 2004; (2) confidential Response by the Prosecution to the Amici Curiae Motion for Judgement of Acquittal Pursuant to Rule 98 bis insofar as it relates to the Kosovo part of the Milosevic case; and (3) Index to Prosecutionís Witness Summaries in relation to the Kosovo part of the Milosevic case,

CONSIDERING that confidential annexes 1 and 2 consist of extracts of evidence produced in the Milosevic case by way of transcript and exhibits respectively,

CONSIDERING that the Prosecution pre-trial brief has now been filed in the Milutinovic case and that disclosure in that case is complete save for material related to certain protected witnesses,

CONSIDERING that the defence teams in the Milutinovic case are bound by Orders for non-disclosure preventing the disclosure by them to the public of confidential material provided to them under Rules 66 and 68 of the Rules of Procedure and Evidence of the International Tribunal ("Rules"),

CONSIDERING that a review by the Trial Chamber of the material to which access is sought confirms that all such material, with the exception of one item, contained in Annex 2, is material to which the defence may have access, either because the item is already in the public domain or because it reflects or summarises statements of witnesses who are to be called in the Milutinovic case, so that the original statement or testimony of the witness should, by now, have been disclosed to the defence,

CONSIDERING also that the Index to Prosecutionís Witness Summaries has not been filed in the Milosevic case and constitutes an internal document prepared by a party in connection with the investigation or preparation of a case which, pursuant to Rule 70 of the Rules, is not subject to disclosure,

PURSUANT TO Rules 54 and 66 of the Rules of Procedure and Evidence of the International Tribunal

HEREBY ORDERS as follows:

  1. the Defence Application for Leave and Reply is granted and the Reply is accepted as properly filed in this matter;
  2. DIRECTS the Registry to provide the defence in the Milutinovic case with (a) copies of confidential annex 1 to the Amici Curiae Motion for Judgement of Acquittal Pursuant to Rule 98 bis; and (b) copies of the confidential and unredacted Response by the Prosecution to the Amici Curiae Motion for Judgement of Acquittal Pursuant to Rule 98 bis, pages 1 Ė 45 only;
  3. DIRECTS the Prosecution within two weeks from the date of this Decision to file a confidential and ex parte submission to the Trial Chamber addressing the exhibit referred to in the pre-penultimate item on page 98 of confidential Annex 2 to the Amici Curiae Motion for Judgement of Acquittal Pursuant to Rule 98 bis, informing the Trial Chamber whether it intends to call the witness to whom this exhibit relates in the Milutinovic case and of any other matter that may be relevant to disclosure to the defence in the Milutinovic case;
  4. REMAINS SEISED of the Motions insofar as they relate to confidential Annex 2 to the Amici Curiae Motion for Judgement of Acquittal Pursuant to Rule 98 bis; and
  5. DENIES the Motions in respect of the Index to Prosecutionís Witness Summaries.

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

______________
Judge Patrick Robinson
Presiding

Dated this twenty-seventh day of July 2004
At The Hague
The Netherlands

[Seal of the Tribunal]