Judicial Supplement 42 - The Prosecutor v. B;agojevic & Jokic

The Prosecutor v. Blagojevic & Jokic - Case No. IT-02-60-T

“Decision on Vidoje Blagojevic’s Expedited Motion to Compel the Prosecution to Disclose its Notes from Plea Discussions with the Accused Nikolic & Request for an Expedited Open Session Hearing”

13 June 2003
Trial Chamber I, section A (Judges Liu [Presiding], Vassylenko and Argibay)

Questioning of an accused – Purpose of Rules 43 and 63(B) – Rules 43 and 63 (B) and plea discussions - Nature of the notes taken in preparation of a plea agreement.

Purpose of Rules 43 and 63(B): the protection set forth in Rules 43 and 63 (B) are provided for the suspects and the accused being questioned, not third persons . They were adopted to have an authentic record of the questioning of a suspect or accused in order to guarantee that the right of the suspect or accused was respected during such questioning as well as to provide a reliable record of the questioning as everything that the suspect says during the questioning can be used against him in evidence.

Rules 43 and 63(B) and plea discussions: plea discussions serve to explore the possibility of a future plea agreement and consequently, for the purposes of the discussions, nothing an accused says during the discussions will be used against him at trial should the plea negotiations fail. Rules 43 and 63(B) do not apply to plea discussions, as the protection set forth in the said Rules are not applicable.

Nature of the notes taken in preparation of a plea agreement: notes taken by the Prosecution in preparation of a plea agreement are privileged as they are internal documents made by the Prosecution in connection with the preparation of the case. They are a work product protected under Rule 70(A).

Procedural Background

· On 7 May 2003, Momir Nikolic pleaded guilty to the charge of persecution as a crime against humanity. The Trial Chamber accepted the plea and entered a conviction under that charge. That same day, the “Joint Motion for Consideration of Amended Plea Agreement between Momir Nikolic and the Office of the Prosecutor” was filed along with its annex entitled “Statement of Facts and Acceptance of Responsibility”. The Prosecution expressed its intention to call Momir Nikolic as a witness.

· By letter dated 7 May 2003, Blagojevic’s Defence requested that the Prosecution disclose all materials related to discussions between Momir Nikolic, his Defence and the Prosecution regarding the plea agreement. By letter dated 8 May 2003, the Prosecution responded that it had no audio or video recording of those discussions and that the handwritten notes (“Notes”) it has are a work product protected under Rule 70(A)¹ of the Rules of Procedure and Evidence (“Rules”). It nevertheless stated that it would review the Notes in order to comply with its obligation under Rule 68 to disclose to the Defence any exculpatory evidence.

· On 19 May 2003, Blagojevic’s Defence (the “Defence”) filed its Motion to request that the said materials be disclosed to it and that a public hearing be held “in order to fully address the issues therein, to establish a requisite and transparent record, and to determine, in addition to the remedies sought herein, whether any sanction are warranted pursuant to Rule 68 bis”.²

· On 30 May 2003 and on 6 June 2003, respectively, the Prosecution confidentially filed its Response and the Defence confidentially filed its Reply.³

The Decision

The Trial Chamber denied the Motion.

The Reasoning

The purpose of Rules 43 and 63(B)

Rule 63(B) states that the questioning of an accused shall be audio-recorded or video-recorded in accordance with the procedure provided for in Rule 43 which aims at protecting suspects or accused by inter alia providing them with a copy of the recordings. The Trial Chamber noted that “the protection set forth in Rules 43 and 63(B) are provided for the suspects and the accused being questioned, not third persons”. It therefore found that should the plea discussions at stake be considered as “questioning” within the scope of those Rules, Vidoje Blagojevic would still not be entitled to complain about any non-compliance with them as he is not an interested party. The Trial Chamber furthermore considered that “Rules 43 and 63(B) were adopted to have an authentic record of the questioning of a suspect or accused in order to guarantee that the right of the suspect or accused were respected during such questioning as well as to provide a reliable record of the questioning as everything that the suspect says during the questioning can be used against him in evidence”.

Rules 43 and 63(B) and plea discussions

The Trial Chamber found that “plea discussions serve to explore the possibility of a future plea agreement and consequently, for the purposes of the discussions , nothing an accused says during the discussions will be used against him at trial should the plea negotiations fail”. It held that Rules 43 and 63(B) do not apply to plea discussions, as the protection set forth in the said Rules is not applicable ”. The Trial Chamber noted that Momir Nikolic had waived his right to have the meetings related to the possibility of a plea agreement recorded and found that not recording the plea discussions was not in violation of the Rules of the Tribunal.

The nature of the notes taken in preparation of a plea agreement

The Trial Chamber considered the Prosecution notes taken in preparation of a plea agreement with Momir Nikolic “privileged, as they are internal documents made by the Prosecution in connection with the preparation of the case”, and therefore as a work product protected under Rule 70(A). It further found that “it is in the public interest that plea negotiations be protected from disclosure to any third parties , as the confidentiality of any negotiations is an essential element to both their occurrence and their success”.

The Trial Chamber turned to the obligation of the Prosecution under Rule 68 to disclose exculpatory evidence. It found that the Prosecution had expressly undertaken to disclose any such materials and agreed to review the Notes in order to provide the Blagojevic Defence with any information falling under that Rule. It found no indication of a failure by the Prosecution to comply with its disclosure obligations and therefore denied the Motion.

________________________________________
1. Rule 70 (Matters not Subject to Disclosure)
(A) Notwithstanding the provisions of Rules 66 and 67, reports, memoranda, or other internal documents prepared by a party, its assistants or representatives in connection with the investigation or preparation of the case, are not subject to disclosure or notification under those Rules.
2. Vidoje Blagojevic’s Expedited Motion to Compel the Prosecution to Disclosure its Notes from its Discussions with the Nikolic Defence Team and During the Negotiating & Debriefing Sessions with Accused Nikolic Resulting in the Agreed Facts in Support of the Guilty Plea Arrangement of Accused Nikolic & Request for an Expedited Open Session Hearing, filed partly confidentially on 19 May 2003 (“Motion”).
3.“Prosecution’s Response to Vidoje Blagojevic’s Expedited Motion to Compel the Prosecution to Disclosure [sic] its Notes From its Discussions With the Nikolic Defence Team”, filed confidentially by the Office of the Prosecutor (“Prosecution”) on 30 May 2003 (“Response”). “Vidoje Blagojevic’s Leave to Reply & Reply to Prosecution’s Response to Vidoje Blagojevic’s Expedited Motion to Compel the Prosecution to Disclosure [sic] its Notes from its Discussions with the Nikolic Defence Team”, filed confidentially on 6 June 2003 (“Reply”).