Miscellaneous 4 - Case No. IT-02-55-Misc4

“Reconsideration of order of 9 May 2002”

17 July 2002 (Redacted Version filed on 15 January 2003)¹
BEFORE THE DUTY JUDGE: Judge Hunt

Procedural Background

· On 9 May 2002 Judge Hunt granted to the Prosecution warrants for search and seizure of potential evidence.³ The Prosecution sought a reconsideration of the terms of the Order, objecting to what it considered to be “conditions”⁴ imposed upon those warrants. The “conditions” were as follows:

“AND FURTHERS ORDERS

(5) that the OTP is to-

(a) notify me (or, if I am not available, a Judge nominated by the President) within seven days of the receipt of the material seized once the warrants have been executed or of the fact that no material was found and,

(b) to produce to me, or to such other Judge as appropriate, within the same period an undertaking from the Team Leader of the Investigation Team investigating Case OTP-INV-08-2000 (the “[REDACTED] investigation”), or any other person into whose charge any such material is given, that notice of such receipt will be given to the Senior Trial Attorney in each case being conducted by the OTP which arises out of events associated with or related to the events which are the subject of the [REDACTED] Investigation; and

(6) that such Senior Trial Attorneys are to bring to the attention of the relevant Trial Chambers (on an ex parte basis) the receipt of such documents and to seek directions as to the disclosure, if any, of those to the Defence in that case .”

The Decision

Judge Hunt, after reconsideration, did not alter his Order.

The Reasoning

The Prosecution complained that these conditions extend beyond the supervision necessary to enforce the lawful execution of the warrant and that “accidental” non -compliance could invalidate the search and hence preclude the admission into evidence of any material seized.⁵

Judge Hunt expressed his willingness to “reconsider [his] decision in the light of these two complaints”⁶ but, as regards the second complaint, did not agree that (5) and (6) of his Order are “conditions ” upon the execution of warrants. He pointed out that (5) and (6) are “merely expressed as further orders”. He did “not accept that non-compliance with them could invalidate the search”, but stated that non-compliance “would constitute a contempt of court ”. He remained “satisfied that such orders are necessary in order to protect the rights of any accused person to whom the document may be relevant”.

The power of seizure of the OTP: a very powerful weapon in its hands

In Judge Hunt’s opinion, the “power of seizure” of the Office of the Prosecutor (hereinafter “OTP”) is “a very powerful weapon in its hands”. He explained that, by seizing material, the OTP “denies” the Accused access to it and that “experience has demonstrated that the results can be deleterious to the rights of those accused”.

In his review of the Tribunal’s experience, he referred to one case whereby it took the OTP “over six months to provide the Accused with a copy of the documents ”.⁷ He referred to another case in which an Accused – not being aware of the seizure by the OTP - obtained a binding order to the relevant authorities to produce the document⁸ which was not respected. In this latter case, after the trial had concluded, it was discovered that the documents had been in the possession of the OTP during the course of the trial.⁹

Orders in relation to the issue of a warrant to seize documents

Judge Hunt noted that, after a similar order had been made earlier¹⁰, which “excited no complaint from the Prosecution [and] unfortunately […] no reaction at all, the OTP has “apparently taken no steps to ensure that the same thing will not happen again”. He considered that “the only way ‘the rights of those accused persons adversely affected by the warrants’¹¹ can be protected is to keep making orders of this type”. He stated that, “if the Prosecution is not prepared to institute its own system to protect the right of accused persons, orders of this type are necessary”.

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1. The present Decision, filed on 15 January 2003, is the redacted public version of a Decision originally filed on a confidential and ex parte basis
2. See infra, under (5) and (6).
3. IT-02-55-Misc 4, Order Granting Warrants for Search and Seizure of Potential Evidence (hereinafter the “Order”), 9 May 2002.
4. Quote marks from the text of the present Decision.
5. A Motion Seeking Reconsideration of the Terms of the Orders of Judge David Hunt of 9 May 2002 Granting Warrants for Search and Seizure of Potential Evidence (hereinafter the “Motion”), paras. 3 and 32.
6. In the text: “I am prepared to”.
7. Brdjanin & Talic, IT-99-36, Status Conference, 2 February 2001, T. 268-269 and 271-275.
8. Kordic & Cerkez, IT-95-14/2, Order to Bosnia and Herzegovina for the Production of Documents, 18 July 2000; Application for Issuance of an Order to Bosnia and Herzegovina and to the Federation of Bosnia-Herzegovina Compelling the Production of Documents and Other Materials, 20 June 2001.
9. Kordic & Cerkez, IT-95-14/2, Status Conference, 22 June 2001, T. 28522-28523, 28525-28528.
10. In Re Prosecutor’s Application for an Order and Warrants Authorising the Search of Various Sites Located in [REDACTED], and to the Inspection and Seizure of Evidence Found Therein, IT-01-49-Misc 1, (Confidential and Ex Parte) Order Issuing Search Warrant and Authorising the Seizure of Evidence, 31 August 2001, p. 3.
11. Judge Hunt used the terminology of para. 7 of the Motion.