Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy
Mr. Hans Holthuis
1 March 2005
The Office of the Prosecutor
Ms. Carla Del Ponte
Mr. Geoffrey Nice
Prof. Timothy L.H. McCormack
Mr. Slobodan Milosevic
Mr. Steven Kay
Ms. Gillian Higgins
Counsel for the Accused in Limaj et al.
Mr. Michael Mansfield and Mr. Karim A.A. Khan for Fatmir
Mr. Gregory Guy-Smith and Mr. Richard Harvey for Haradin Bala
Mr. Michael Topolski QC and Mr. Steven Powles for Isak Musliu
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 “Defence Motion Requesting Access to Certain Confidential Material in the Case of the Prosecutor v. Slobodan Milosevic on Behalf of the Defence of Fatmir Limaj, Haradin Bala and Isak Musliu”, filed jointly by the Defence teams of Fatmir Limaj, Haradin Bala, and Isak Musliu (“Defence”) on 17 December 2004 (“ Motion”),
NOTING the response filed on behalf of the Office of the Prosecutor (“Prosecution ”) on 1 February 2005 in which the Prosecution applies for leave to file the Response (“Prosecution Response”),1
NOTING that the Defence seeks 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 (“Annexes to the 98 bis Motion”); (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 (“98 bis Response”); and (3) transcripts of all confidential testimony and copies of all confidential exhibits pertaining to Kosovo in 1998,
(i) the Annexes to the 98 bis Motion consist of extracts of evidence produced in the Milosevic case by way of transcript and exhibits respectively;
(ii) the Prosecution asserts that the Defence have a legitimate forensic purpose in seeking access to the Annexes to the 98 bis Motion,2 and that the Prosecution does not object to the disclosure of versions which redact information relating to material that was adduced in closed or private session or that is currently under seal and which may identify protected witnesses,3
(iii) the Prosecution concedes that the Defence would have a legitimate forensic purpose in seeking material contained in the 98 bis Response as it relates to the question of whether an armed conflict existed in Kosovo from early 1998, and that the Prosecution does not object to the disclosure of the confidential portions of the 98 bis Response relating to Kosovo (pages 1-45 of the document),4
(iv) the Prosecution objects to the disclosure of confidential transcripts and confidential exhibits as the Defence has not shown a legitimate forensic interest in seeking the requested material and, in the alternative, that disclosure would reveal the identities of protected witnesses,5
CONSIDERING that a party may not engage in a fishing expedition, but that access to confidential material from another case shall be granted if the party seeking it has identified or described it by its general nature and if a legitimate forensic interest for such access has been shown,6
CONSIDERING that the relevance of the material sought by a party may be determined by showing a nexus between the Applicant’s case and the case from which such material is sought, i.e., where a geographical, temporal or other overlap between the cases exist and the material sought is likely to be of material assistance to the Applicant’s case or, at least, there is a good chance that it may give the Applicant such assistance, 7
CONSIDERING that the Defence has identified the requested material by its general nature, and that the Defence has demonstrated a legitimate forensic interest to access the parts of the material that pertain to the existence of an armed conflict in Kosovo between early January 1998 and August 1998,
CONSIDERING HOWEVER that, in respect of the material sought which goes to matters other than the existence of an armed conflict in Kosovo between early January 1998 and August 1998, the Defence has not demonstrated a legitimate forensic interest,
CONSIDERING FURTHER that, in respect of confidential material for which a legitimate forensic interest has been demonstrated and which is currently not publicly available, the burden of redacting that material so that it may be disclosed to the Defence is for the Prosecution, and not for Assigned Counsel who (as Amici Curiae) included such material in a confidential annex in a filing in these proceedings; this being because the protection was granted on the request of the Prosecution, or at least in respect of Prosecution witnesses or exhibits, and where it is the responsibility of the Prosecution to produce that material to the defence under the terms of the Rules, it must ensure that the material is properly redacted to protect the relevant interests,
PURSUANT TO Rules 54, 75, and 127 of the Rules of Procedure and Evidence,
HEREBY DECIDES and ORDERS as follows:
(i) The Prosecution’s application for leave to file a response is GRANTED.
(ii) The Registry shall provide the Defence with copies of the 98 bis Response insofar as it relates to the Kosovo part of the Milosevic case, pages 1-45 only.
(iii) The Defence shall have access to the requested transcripts of confidential testimony and copies of confidential exhibits relating to the existence of an armed conflict in Kosovo between early January 1998 and August 1998, only after the Prosecution, within 30 days, has redacted those parts that may reveal the identity of any protected witness. This order includes reference to any material made in the Annexes to the 98 bis Motion.
(iv) The protective measures which have already been ordered in relation to material to be made accessible to the Defence shall remain in place, and the 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 their defence teams. “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.
Judge Patrick Robinson
[Seal of the Tribunal]