Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy
Mr. Hans Holthuis
22 February 2006
Office of the Prosecutor
Ms. Carla Del Ponte
Mr. Geoffrey Nice
Counsel for Radivoje Miletic
Ms. Natacha Faveau Ivanovic
Mr. Slobodan Milosevic
Prof. Timothy McCormack
Mr. Steven Kay
Ms. Gillian Higgins
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”);
BEING SEIZED, pursuant to Rule 75(G)(i) of the Rules of Procedure and Evidence of the Tribunal (“Rules”), of a “Motion of General Miletic For Access to Confidential Information in the Milosevic Case”, filed on 11 January 2006 (“Motion”),1 in which the Defence of Radivoje Miletic (“Applicant”) argues that the requirements for access to confidential material from other proceedings have been met, and requests access to four categories of confidential material in the Milosevic Case:
a. confidential supporting material that accompanied the modified Bosnia indictment ;
b. confidential transcripts of closed sessions;
c. confidential exhibits; and
d. confidential inter partes filings;2
NOTING that the Motion specifies that it seeks only the material within those categories that conforms to certain geographic and temporal specifications, namely the material relating to the events at Srebrenica—which is defined as including events in the municipalities of Bratunac and Zvornik—between March and November 1995;3
NOTING that neither the Prosecution nor the Defence filed a response to the Motion within the time specified in the Rules;4
NOTING that the current indictment against the Applicant and his co-accused (“Current Popovic et al. Indictment”)5 charges him with the following crimes for his acts and omissions during the VRS attack on Srebrenica and the subsequent executions of Bosnian Muslims: murder, forcible transfer and deportation as crimes against humanity; murder, cruel and inhumane treatment, terrorising the civilian population, destruction of personal property, and forcible transfer as forms of persecution as a crime against humanity; and murder as a violation of the laws or customs of war;6
NOTING that the amended Bosnia Indictment against Accused Milosevic (“Milosevic Bosnia Indictment”) charges him with the following statutory crimes arising from, inter alia, the persecution, extermination, murder, wilful killing, forcible transfer, or deportation of Bosnian Muslims in, around, and from Srebrenica in July 1995: genocide or complicity in genocide, grave breaches of the Geneva Conventions, violations of the laws or customs of war, and crimes against humanity;7
CONSIDERING 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; and that access to confidential material from another case is granted if the party seeking it can establish that it may be of material assistance to its case;8
CONSIDERING that the relevance of the material sought by a party may be determined by showing the existence of a nexus between the applicant’s case and the case from which such material is sought,9 and therefore that access to material may be granted if the party seeking it demonstrates a “geographical, temporal or otherwise material overlap” between the two proceedings ;10
CONSIDERING that the significant similarities in the facts giving rise to the charges against the Applicant and the Accused Slobodan Milosevic, with regard to events in and around Srebrenica between March and November 1995, constitute a clear geographical and temporal overlap between the two proceedings;
CONSIDERING that in the “Order on Defence Motion on Behalf of Drago Nikolic Seeking Access to All Confidential Material in the Milosevic Case”, issued on 2 December 2005 (“Order on Nikolic Access Request”), the Trial Chamber granted access to substantially similar categories of confidential inter partes material for one of the Applicant’s co-accused;
CONSIDERING that some of the material to which access is sought contains information that may identify protected witnesses, and that the Applicant has undertaken “to preserve the confidentiality of the confidential documents and to respect the protective measures ordered in the Milosevic Case”,11 as well as to comply with “any additional protective measure which the Trial Chamber may order”;12
CONSIDERING that, pursuant to Rule 75(F)(i) of the Rules, any protective measures that have been ordered in respect of a witness in the Milosevic case continue to have effect in the case against the Applicant and his co-accused, except as they have been varied in accordance with this Order;
PURSUANT TO Rules 54 and 75 of the Rules,
HEREBY GRANTS THE MOTION, AND ORDERS AS FOLLOWS:
(1) In consultation with the Prosecution and Assigned Counsel, the Registry shall identify the following categories of confidential material:
(a) All confidential supporting material that accompanied the Bosnia indictment and that pertains to the Srebrenica-related charges for Counts 1–7 and 16–18, including any material pertaining to events occurring in the municipalities of Bratunac and Zvornik, during the period March to November 1995;
(b) All closed and private session transcripts pertaining to the Srebrenica-related charges for Counts 1–7 and 16–18, including any material pertaining to events occurring in the municipalities of Bratunac and Zvornik, during the period March to November 1995;
(c) All confidential and under seal trial exhibits pertaining to the Srebrenica-related charges for Counts 1–7 and 16–18, including any material pertaining to events occurring in the municipalities of Bratunac and Zvornik, during the period March to November 1995; and
(d) All inter partes confidential filings pertaining to the Srebrenica-related charges for Counts 1–7 and 16–18, including any material pertaining to events occurring in the municipalities of Bratunac and Zvornik, during the period March to November 1995.
(2) The Prosecution shall determine as expeditiously as possible whether any of this confidential material falls under Rule 70, and shall contact the providers of such material without delay to seek their consent for disclosure of that material.
(3) Subject to the consent of such Rule 70 providers where applicable, the Applicant and his defence counsel shall have access to these four categories of inter partes confidential material.
(4) The Registry shall contact the Prosecution to determine which confidential material in the case, if any, is covered by Rule 70, and shall withhold provision of such material until such time as the Prosecution informs the Registry that consent for disclosure has been obtained.
(5) The Applicant and his defence counsel shall not disclose to the public any confidential or non-public material disclosed to it from the Milosevic case except to the limited extent that such disclosure to members of the public is directly and specifically necessary for the preparation and presentation of the Applicant’s case. If any confidential or non-public material is disclosed to the public, any person to whom disclosure is made shall be informed that he is forbidden to copy, reproduce, or publicise confidential or non-public information or to disclose it to any person, and that he must return the material to the Applicant or his counsel as soon as it is no longer needed for the preparation of the Applicant’s case.
(6) In consultation with the Prosecution and Assigned Counsel, the Registry shall determine whether this Order grants the Applicant access to any material that was not covered by the Order on Nikolic Access Request (“additional confidential material”), and shall provide such additional confidential material to the Defence of Drago Nikolic.
(7) For the purposes of this Order, “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 Applicant and his defence team. “The public” also includes, without limitation, families, friends, and associates of the Applicant; 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 Robinson Presiding
Dated this twenty-second day of February 2006
At The Hague
[Seal of the Tribunal]