"Decision on Prosecutor's Motion for Reconsideration"

15 February 1999
Trial Chamber III (Judges May [Presiding], Bennouna and Robinson)

Introduction

At the pre-trial stage of the Kordic and Cerkez case, three public orders compelling the disclosure of documents to the Prosecution were issued to the Republic of Croatia. The present Decision is relevant to an Order issued on 22 January 1999 further to an Application by the Prosecution dated 24 July 1998. In this Application, the Prosecution requested that the Trial Chamber order the Republic of Croatia to produce 11 categories of documents mentioned in its confidential annex

The Trial Chamber considered what it deemed to be the "mandatory and cumulative" criteria for an order for the production of documents as determined by the Appeals Chamber in its Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997 of 29 October 1997 in the Blaskic case (IT-95-14-AR108 bis): the specificity of the documents, the relevance of the documents to the trial and the requirement that the documents not be unduly onerous and that sufficient time be given to the State to comply. Having found that the reasons for the relevance of most documents had not been given or otherwise proved, the Trial Chamber ordered the production of only the two categories of documents which in its opinion met the criteria set in the Appeals Chamber’s Judgement.

The Prosecutor's Motion for Reconsideration and Croatia's Response

In the Motion dated 29 January 1999, the Prosecution requested that the Trial Chamber reconsider its ruling of 22 January 1999. Asserting that all documents annexed to its Application of 24 July 1998 were "directly relevant to the prosecution of this case" and presenting its arguments in a confidential ex parte memorandum, the Prosecution requested that all categories of documents in the initial Application be included in the Trial Chamber’s Order.

In a submission of 3 February 1999, the Republic of Croatia opposed the Motion. The main argument advanced was that "motions for reconsideration" are "impermissible" because they are not permitted by the Rules of Procedure and Evidence. Croatia based this position on the Decision on Defence Motion to Reconsider of 30 June 1998 in the Kovacevic case (IT-97-24-PT). Croatia further submitted that the Trial Chamber had correctly ruled that the excluded documents did not meet the criteria of the Appeals Chamber’s Judgement of 29 October 1997.

The Trial Chamber's Decision

The Trial Chamber rejected the Motion. In agreement with the Republic of Croatia, it found that a "motion to reconsider" is not provided for in the Rules of Procedure and Evidence and also does not form part of the procedures at the Tribunal. The Trial Chamber further found that the matter had been fully argued before it and that the Prosecution had not asserted that new facts would warrant its further consideration.

"Further Order on Motion for Access to Non-public Material in the Lasva Valley and Related Cases"

16 February 1999
Trial Chamber III (Judges May [Presiding], Bennouna and Robinson)

Introduction

At the pre-trial stage of the case, on 9 June 1998, the Defence Counsel for Dario Kordic filed a Motion which was joined by the Defence Counsel for Mario Cerkez on 14 September 1998. The Motion requested requesting access to non-public materials in related cases before the Tribunal.

On 12 November 1998, Trial Chamber I requested that the Trial Chambers seized of the Blaskic case (IT-95-14-T), the Aleksovski case (IT-95-14/1-T), the Furundzija case (IT-95-17/1-T) and the Kupreskic et al. case (IT-95-16-T) state whether and under which conditions of confidentiality and protection the Motion could be granted.

In response to the requests by the Furundzija and Kupreskic et al. Trial Chambers, the Tribunal’s Victims and Witnesses Section informed the Chambers of the confidential witnesses in those cases who had consented to the release of the transcripts of their testimony. The Furundzija and Kupreskic et al. Trial Chambers considered that only that testimony could be used before another Trial Chamber and consequently requested that the Registrar arrange for their release. The Kordic & Cerkez Trial Chamber was informed accordingly.

The Blaskic and Aleksovski Trial Chambers responded differently to the requests from the Kordic & Cerkez Trial Chamber. They did not seek the consent of the protected witnesses but instead proposed additional protective measures for them so that their testimony might be released.

The Decision

The Trial Chamber considered the responses submitted by the various Trial Chambers. It also considered an accused’s right guaranteed by Article 21 of the Statute to have adequate time and facilities to prepare his defence, the fact that the present Trial Chamber is bound by the relevant protective measures ordered by other Trial Chambers and the ongoing nature of the disclosure obligation.

With regard to the protected witnesses in the Furundzija and Kupreskic et al. cases who have consented to the release of their non-public testimony, the Trial Chamber invited the Registrar to provide copies of the "transcripts of the testimony of, identifying material, and all exhibits introduced through" these witnesses. In respect of the Blaskic and Aleksovski cases, the Trial Chamber ordered the Prosecution to disclose all these materials, but only insofar as they relate to witnesses who were to be called in the Kordic & Cerkez case or constitute exculpatory evidence.

The Trial Chamber further ordered a broad range of protective measures, the first of which was an Order that all protective measures ordered by the respective Trial Chambers remain in force. Furthermore, the Defence for Dario Kordic and Mario Cerkez was ordered not to disclose to the public information relating to the particulars of protected (potential) witnesses or their evidence unless the Trial Chamber had consented thereto and subject to further conditions outlined in the present Order. In addition, certain persons close to the accused were ordered not to contact any protected (potential) witness identified as such by the Defence, or any witness whose testimony has been released pursuant to this Order. The Defence team was also ordered not to contact such persons except after reasonable prior notice in writing to the Prosecution. Finally, the Trial Chamber granted the right to any party or person to apply for any additional protective orders or measures.