Case No.: IT-97-24-T

IN TRIAL CHAMBER II

Before:
Judge Wolfgang Schomburg, Presiding
Judge Mohamed Fassi Fihri
Judge Volodymyr Vassylenko

Registrar:
Mr. Hans Holthuis

Order of:
5 July 2002

PROSECUTOR
v.
MILOMIR STAKIC

_________________________________________________________

ORDER TO THE REGISTRY OF THE TRIBUNAL TO PROVIDE DOCUMENTS

__________________________________________________________

The Office of the Prosecutor:

Ms. Joanna Korner
Mr. Nicholas Koumjian

Counsel for the Accused:

Mr. Branko Lukic
Mr. John Ostojic

Judge Per Lindholm

 

TRIAL CHAMBER II 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 a motion1 filed by the Office of the Prosecutor ("Prosecution") on 2 July 2002, seeking an order for a subpoena duces tecum to the United Nations Detention Unit (hereinafter "UNDU") to provide:

(1) original records or documents in the form of receipts, requests, medical records and letters signed or hand-written by Milomir Stakic since his detention, but not to include any communications to or from defence counsel or defence investigators;

(2) original documents such as driverís license, passport, or similar documents that were in the possession of Milomir Stakic upon his arrival at the detention unit,

(hereinafter, collectively, "requested materials"),

NOTING that defence counsel for Dr. Stakic (hereinafter "Defence") have contested the authenticity of signatures alleged to be those of Dr. Stakic, which appear on a number of documentary exhibits tendered by the Prosecution in its case (hereinafter "signed documents"),

NOTING the Order of 28 June 20022 issued by this Chamber to the Prosecution to appoint a forensic handwriting examiner to assess the question whether the signatures which appear on the "signed documents" are those of Dr. Stakic, as the Prosecution contends,

NOTING that the Defence indicated in open court that Dr. Stakic had chosen to exercise his right not to provide a sample of his handwriting to the Prosecution3,

NOTING that the Prosecution, in its motion, submits that comparative material "would be helpful" in relation to an analysis of the signatures which appear on the signed documents,

FURTHER NOTING the Prosecutionís submission4 that the UNDU cannot be expected to release the requested materials solely on the basis of a request from the Prosecution5,

NOTING, however, that the Prosecution did not insist on the issuance of a subpoena; rather it was accepted that an order from the Chamber would suffice6,

NOTING Rule 97 of the Rules of Procedure and Evidence ("Rules") which provides that "SaCll communications between lawyer and client shall be regarded as privileged, and consequently not subject to disclosure at trial, unless: (i) the client consents to such disclosure; or (ii) the client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure",

NOTING the general principle of proportionality, which states that:

- a measure in public international law is proportional only when (1) suitable, (2) necessary, and when (3) its degree and scope remain in a reasonable relationship to the envisaged target;

- procedural measures should never be capricious or excessive;

- if it is sufficient to use a more lenient measure, it must be applied7,

NOTING Rule 54 of the Rules pursuant to which "a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial",

HAVING HEARD the parties on this issue in court on 3 and 4 July 2002,

NOTING that the Defence for Dr. Stakic does not object to that portion of the Prosecutionís motion (paragraph 2) in which it seeks an order to the UNDU to provide "original documents such as driverís licence, passport, or similar documents that were in the possession of Milomir Stakic upon his arrival at the detention unit",

NOTING, however, that the Defence for Dr. Stakic argued, in relation to the materials requested in paragraph 1 of the Prosecutionís motion, that the subpoena is overbroad and overreaching in that such materials are protected by various privileges, including the lawyer-client privilege,

NOTING FURTHER that, in relation to this material, the Defence for Dr. Stakic argues that the Prosecution have failed to establish that the issuance of such an order is necessary, as is required under the Rules ,

NOTING that the parties have consented to the procedure set forth below, pursuant to which an ad litem Judge of Trial Chamber II, not being a Judge in this case, would review the requested materials before they are forwarded to the Prosecution8,

CONSIDERING that, it is the opinion of the Chamber, that, following the decision9 of the Trial Chamber in the case of Prosecutor v. Zejnil Delalic et al., where it was held that an accused may not be compelled under the Statute to provide a sample of his handwriting for the purpose of assisting the Prosecution in its investigation of the crimes charged against him,

the accused, in not providing the Prosecution with a sample of his handwriting, has exercised his legitimate right to remain silent in these proceedings,

CONSIDERING that, in order for the forensic handwriting examiner to carry out his assigned task of analysing the signatures on the signed documents, he or she must necessarily have access to a sufficiently large sample of Dr. Stakicís original handwriting and signatures,

CONSIDERING that the Chamber is fully alive to the need to respect the lawyer-client privilege as set forth in Rule 97 of the Rules,

CONSIDERING FURTHER that, applying the principle of proportionality, especially in terms of necessity and proportionality in its narrowest sense, the Trial Chamber finds that where, in relation to any of the requested materials, it appears that the accusedís right to privacy may be predominant (e.g. letters to a medical practitioner, diaries), such material should be excluded pursuant to the procedure outlined below,

CONSIDERING that the Registry of the Tribunal, responsible for the management of the UNDU, is a neutral organ and therefore that it cannot be expected to provide the requested materials solely on the basis of a request from the Prosecution,

CONSIDERING, however, that a subpoena duces tecum seems not to be appropriate and necessary in these circumstances,

CONSIDERING that, on the basis of the foregoing, it is the opinion of the Trial Chamber that the provision of the requested materials are "necessary for SÖC the conduct of the trial" within the meaning of Rule 54 of the Rules, and, accordingly, that the requested materials may be the subject of an order of this Chamber,

PURSUANT TO RULE 54 OF THE RULES,

HEREBY DIRECTS the UNDU:

  1. to identify any materials already within the possession of the UNDU (i.e. explicitly excluding material in Dr. Stakicís cell unit) comprising:
  2. (1) original records or documents in the form of receipts, requests, and letters signed or hand-written by Milomir Stakic since his detention, other than communications between Dr. Stakic and any member of his defence team,

    (2) original documents such as driverís license, passport, or similar documents that were in the possession of Milomir Stakic upon his arrival at the detention unit,

  3. to place these materials in a container which shall then be sealed and transferred to the premises of the International Tribunal (Chambers),

AND FURTHER REQUESTS THAT the container be opened only in the presence of Judge Per Lindholm (hereinafter "the appointed Judge"), and counsel for Dr. Stakic who shall observe the following procedure:

  1. The appointed Judge shall review the documents on the basis of the foregoing criteria (i.e. lawyer-client privilege and proportionality) and exclude certain materials accordingly ("excluded materials");
  2. At any time, the Stakic Defence may object to a document or any part thereof being included in the materials which are to be forwarded to the Prosecution (if necessary, portions of the documents may be severed);
  3. The appointed Judge shall be the final arbiter (instead of the Chamber) for the purposes of this procedure of reviewing, undoubtedly leaving, however, all remedies available under the Rules untouched;
  4. At the end of this procedure, the excluded materials shall be returned to the container, which shall be sealed and immediately returned to the premises of the UNDU. All the remaining documents shall be provided to the Prosecution in order to be forwarded to the appointed forensic handwriting examiner.

 

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

__________________
Judge Wolfgang Schomburg
Presiding

Dated this fifth day of July 2002
At The Hague
The Netherlands

[Seal of the Tribunal]


1 - Prosecutor v. Milomir Stakic, Case No. IT-97-24-T, Request by the Prosecutor for the Issuance of a Subpoena Duces Tecum, 1 July 2002.
2 - Prosecutor v. Milomir Stakic, Case No. IT-97-24-T, Order Pursuant to Rule 98 to Appoint a Forensic Handwriting Examiner, 28 June 2002.
3 - Transcript of the proceedings in Prosecutor v. Milomir Stakic, Case No. IT-97-24-T, (hereinafter "T"), page 5363.
4 - Prosecutor v. Milomir Stakic, Case No. IT-97-24-T, Declaration in Support of Request for Subpoena Duces Tecum, 1 July 2002.
5 - In this regard, the Chamber notes that Rule 11 of the Rules of Detention of the International Tribunal which states that "[a]ll information concerning detainees shall be treated as confidential and made accessible only to the detainee, his counsel and persons authorized by the Registrar".
6 - T. 5631.
7 - Prosecutor v. Enver Hadzihasanovic et al., Case No. IT-01-47-PT, Decision Granting Provisional Release to Enver Hadzihasanovic, 19 Dec. 2001, para. 8.
8 - T. 5631 - 32.
9 - Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Decision on the Prosecution's Oral Requests for the Admission of Exhibit 155 into Evidence and for an Order to Compel the Accused, Zdravko Mucic, to Provide a Handwriting Sample, 19 Jan. 1998.