Judicial Supplement 4 - The Prosecutor v. Tihomir Blaskic

The Prosecutor v. Tihomir Blaskic - Case No. IT-95-14-T

"Order for the Production of Documents Used to Prepare for Testimony"

22 April 1999
Trial Chamber I (Judges Jorda [Presiding], Rodrigues and Shahabuddeen)

Article 21 and Sub-rule 70(A) - disclosure of materials relevant to the preparation of defence.

Materials used indirectly in the preparation of a defence do not constitute internal documents in the sense of Sub-rule 70(A) of the Rules of Procedure and Evidence; ordering the productions of these documents does not infringe on the accused’s rights pursuant to Article 21 of the Statute.

During the preparation of his case, the accused relied on previously drafted personal notes based inter alia on a war diary prepared by his deputy and on a military log. By his own assertion, this allowed him to offer detailed and exhaustive evidence when testifying in his own defence pursuant to Sub-rule 85(C) of the Rules.

In the interests of justice and so that it be better able to ascertain the truth, the Trial Chamber deemed access to the war diary and the military log necessary. Accordingly, it ordered the Defence to produce those documents notwithstanding the fact that the Defence had not clearly indicated whether they were in its possession. The Trial Chamber also ordered the Federation of Bosnia and Herzegovina, if necessary, to provide either to the Defence or to the Tribunal’s Registry a certified copy of the said documents.

"Decision on the Prosecution and Defence Motions Dated 25 January 1999 and 25 March 1999 Respectively"

22 April 1999
Trial Chamber I (Judges Jorda [Presiding], Rodrigues and Shahabuddeen)

Rules 66 and 68 - disclosure by the Prosecution of transcripts of confidential Defence testimony to Defence Counsel in another case.

Without prejudice to Rule 70 of the Rules of Procedure and Evidence, the Prosecution’s disclosure obligations pursuant to Rules 66 and 68, and the exculpatory character of confidential Defence documents take precedence over their confidential nature insofar as the protection of witnesses is maintained or increased.

In a confidential ex parte Motion dated 25 January 1999, the Prosecution requested authorisation to disclose to the Defence Counsel in The Prosecutor v. Kordic and Cerkez (IT-95-14/2-T) the transcripts of four confidential depositions including that of one Defence witness tendered in evidence in the Blaskic case. The Decision also addressed a sealed Defence Motion dated 25 March 1999 requesting that the Prosecution be ordered not to disclose evidence tendered by the Defence, in particular to the Defence in the Kordic and Cerkez case without express notification and consent. The Trial Chamber considered that since the Motions are connected, simultaneous consideration and a single Decision are justified.

The Submissions of the Parties

In support of its Motion, the Prosecution submitted that disclosure would comply with its obligations under Rules 66 and 68. The Prosecution’s request guaranteed compliance with protective measures already ordered by the Blaskic Trial Chamber and any additional measures to be ordered by the Kordic and Cerkez Trial Chamber. Further, referring to Orders issued in related cases, the Prosecution argued the need for the express consent of the witnesses concerned or, in any event, for an order by the Trial Chamber.

Based on the Trial Chamber’s Opinion Further to the Decision of the Trial Chamber Seized of the Case the Prosecutor v. Dario Kordic and Mario Cerkez Dated 12 November of 16 December 1998 (hereinafter "the Opinion"), the Defence Motion sought to protect the safety of the protected witnesses and to honour the guarantees of confidentiality in order to prevent Defence investigations from being jeopardised. The Prosecution, however, argued that the Defence does not have the capacity to consent to an order of a Trial Chamber and also submitted that the Defence Motion is without practical interest since the Prosecution has already disclosed materials to the Defence in the Kordic and Cerkez case. The Prosecution further argued that in the Further Order on Motion for Access to Non-public Materials in the Lasva Valley and Related Cases of 16 February 1999 (hereinafter "Further Order") issued in the Kordic and Cerkez case, the Trial Chamber addressed the issue of witness protection.

The Decision

The Trial Chamber considered the Opinion which stated that the Defence is not subject to the same disclosure obligations as the Prosecution and that, pursuant to Rules 66 and 68 but without prejudice to Rule 70, the Prosecution’s disclosure obligation is without distinction to the public or confidential character of the documents concerned. The Trial Chamber also considered the Further Order which compelled the Prosecution, subject to protective measures, to disclose to the Kordic and Cerkez Defence team confidential evidence insofar as it relates to witnesses to be called in the Kordic and Cerkez case or constitutes exculpatory measures.

To the extent that the Prosecution had not yet discharged its obligations under Rules 66 and 68, the Trial Chamber authorised the disclosure of the transcripts of the four witnesses’ testimony within the limits of the Prosecution Motion.