Case No. IT-02-54-T
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy
Mr. Hans Holthuis
12 April 2006
DECISION ON SERBIA AND MONTENEGRO’S MOTION TO VACATE OR SUSPEND 9 MARCH 2006 DECISION AND REQUEST TO REDACT PARTS OF PUBLIC VERSION OF DECISION
Office of the Prosecutor:
Ms. Carla Del Ponte
Mr. Geoffrey Nice
Prof. Timothy McCormack
Government of Serbia and Montenegro:
Ms. Sanja Milinkovic
Mr. Sasa Obradovic
Mr. Vladimir Cvetkovic
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 (“Tribunal”) is seized of a “Motion to Vacate or Indefinitely Suspend the Trial Chamber’s ‘Decision on Applications of Serbia and Montenegro Pursuant to Rule 54bis’ Issued on 9 March 2006” and a “Submission for Redaction of Certain Parts of the Trial Chamber’s ‘Decision on Applications of Prosecution and Serbia and Montenegro Pursuant to Rule 54bis’ Issued on 9 March 2006” and hereby renders a decision thereon.
1. On 9 March 2006 the Chamber filed a decision on various requests for relief made by the Prosecution and Serbia and Montenegro under Rule 54 bis (“Rule 54 bis Decision” or “Decision”).1 The Decision granted many of the Prosecution’s requests for relief and ordered Serbia and Montenegro to produce various documents (or, in the event of non-production, to provide explanations of the steps taken to locate the documents) by 23 March 2006. The Decision also denied Serbia and Montenegro’s request for protective measures for certain documents that were to be produced.
2. The Decision was filed confidentially but stated in the disposition that:
[The] status of this Decision will change from confidential to public in 7 days [i.e. on 16 March], but the Chamber invites any party to the case and Serbia and Montenegro to file submissions before the expiration of this time-period identifying specific passages in the Decision which should be redacted, if any, and the basis on which such redactions should be made.
3. On 14 March the Chamber issued an order terminating the proceedings due to the death of the Accused (“Termination Order”).2
4. On 15 March Serbia and Montenegro filed a motion requesting that the Trial Chamber either (i) vacate or “suspend indefinitely [the] execution” of the Rule 54 bis Decision or, in the alternative (ii) “suspend the execution” of the three rulings in the Decision that deny Serbia and Montenegro’s request for protective measures, pending an application by the state for review of these rulings by the Appeals Chamber (“Motion to Vacate” or “Motion”).3 Serbia and Montenegro also filed a request for redactions to be made to the text of the Rule 54 bis Decision in the event that the Decision was made public (“Request for Redactions”).4
5. One week later, the President issued an order assigning this Trial Chamber to consider the Motion to Vacate and Request for Redactions (“Assigning Order”).5
6. Then, on 29 March 2006, the Prosecution filed a response to the Motion to Vacate and Request for Redactions (“Response”).6
7. Serbia and Montenegro filed a reply to the Prosecution Response (“Reply”), along with a request for leave to file it, on 4 April 2006.7
8. That same day, the Prosecution filed a pleading withdrawing the submissions made in its Response (“Withdrawal of Submissions”).8
II. Motion to Vacate
9. Serbia and Montenegro argues that, under the terms of the Termination Order that ended proceedings in the Milosevic case, only decisions granting protective measures continue to have effect.9 The Rule 54 bis Decision was filed before termination but did not become “final” before termination because neither the time for compliance with the Decision, nor the time for filing an appeal or request for review of the Decision, had expired.10 And because, the state argues, it is “now not capable of becoming final,” the Decision “cannot have any legal effect.”11 In support of this argument, the state cites a decision in the Kovacevic case in which the Appeals Chamber terminated an interlocutory appeal that was pending because proceedings in the case had been terminated.12
10. Alternatively, the state argues, even if the Decision is still valid, the termination of the proceedings means that it has been “deprived of its purpose.”13 One of the requirements for granting an order for the production of documents or information under Rule 54 bis is that the documents or information be relevant to “any matter in issue before the Judge or Trial Chamber” and “necessary for a fair determination of that matter.”14 Once proceedings are terminated in a case, the state asserts, “this requirement … even if previously satisfied, cannot be considered as fulfilled any more.”15 In conclusion, the state requests that the Rule 54 bis Decision be vacated or that its execution be indefinitely suspended.16
11. In its initial response, the Prosecution argued that the Motion to Vacate should be denied. The death of the Accused, the Prosecution argued, “has no impact on the ongoing validity and importance” of the Rule 54 bis Decision and the Trial Chamber should “order [Serbia and Montenegro] to comply with it and produce the requested documents.”17 Alternatively, the Prosecution “request[ed] that the Trial Chamber issue a new order pursuant to Rule 54” in which it would “order [Serbia and Montenegro] to comply with the Trial Chamber’s [Decision] and immediately produce the documents requested therein.”18
12. In its 4 April 2006 filing, however, the Prosecution withdrew all of these submissions. According to this filing, the Prosecution has reached an agreement with the state that “documents will be provided,” and therefore considers that “the question of the continuing validity of the [Decision], or its substitution by another order in similar terms, is now moot.”19
III. Request for Redactions if Decision is to Become Public
13. In its Request for Redactions, Serbia and Montenegro explained that “in the extraordinary circumstances of the present case, it is not certain whether the [Rule 54 bis] Decision would be [made public] or not,” but that “out of an abundance of caution ” it decided to file a request for redactions.20
14. The state submits that if the Trial Chamber decides that the Decision should become public notwithstanding the termination of the proceedings, the Chamber should redact from the public version of the Decision (i) the parts of the decision that relate to Serbia and Montenegro’s motion for protective measures, and (ii) the parts of the decision that relate to the Prosecution request for the production of the personnel file of Ratko Mladic.21
15. In its response, the Prosecution submits that the Request for Redactions should be denied because there are “[n]o grounds for confidentiality of the [Decision].”22
16. In its filing of 4 April 2006 the Prosecution withdrew its “submissions on the continued validity of the Trial Chamber’s Decision” but did not explicitly address the status of its submissions on the question of redactions.23 The filing does state, however, that the Prosecution “hereby withdraws the prosecution submissions filed on 29 March 2006”, and this includes submissions on the state’s Request for Redactions.24
17. As a preliminary matter, the Trial Chamber notes that it is validly seized of the Motion to Vacate and the Request for Redactions by virtue of the Assigning Order issued by the President of the Tribunal.
18. The Chamber also notes that although its Rule 54 bis Decision was rendered prior to the death of the Accused and the termination of proceedings in the Milosevic case, the Decision set a deadline of 17 March 2006 for the Decision to become partly or fully public, and a deadline of 23 March 2006 for compliance with the Decision by the state. Both deadlines turned out to be after the Accused’s death and after the Chamber’s Termination Order was issued.
19. In its Termination Order this Chamber “terminate[d] all proceedings in this trial.”25 The only exception to this order was its confirmation of the provision in Rule 75(F)(i) that all the protective measures ordered during the course of the proceedings “shall continue to have effect unless and until they are rescinded, varied or augmented.”26 From the date of the Termination Order, then, the Rule 54 bis Decision—not being one that granted protective measures to witnesses or documents—was no longer operative. Its status at that time was that it had not yet been complied with and had not yet become public, and that status cannot change. In light of this, it is not necessary for the Chamber to “vacate” or “suspend” the effect of the Decision today. Nor, for the same reason, is it necessary for the Chamber to consider the Request for Redactions. As a result, Serbia and Montenegro’s requests for relief will be dismissed.
20. For these reasons, pursuant to Rule 54 and Rule 54 bis, the Trial Chamber hereby:
(a) GRANTS Serbia and Montenegro’s request for leave to file its Reply;
(b) DISMISSES as unnecessary Serbia and Montenegro’s Motion to Vacate, and
(c) DISMISSES as unnecessary Serbia and Montenegro’s Request for Redactions.
Done in both English and French, the English text being authoritative.
Dated this twelfth day of April 2006
At The Hague
[Seal of the Tribunal]