The Prosecutor v. Naser Oric - Case No. IT-03-68-AR73

“Public Redacted Version of ‘Decision on Interlocutory Appeal Concerning Rule 70’ issued on 24 March 2004”

26 March 2004
Appeals Chamber (Judges Meron [Presiding], Pocar, Shahabuddeen, Mumba and Schomburg)

Procedural Background

· On 16 February 2004, Trial Chamber III rendered its “Confidential and Ex Parte Decision on Defence Application for an Order Applying Rule 70¹ to Specific Information to be Provided to the Defence” whereby it denied the Accused’s request on the ground that it was premature. The Accused, in his motion (“Motion ”), was seeking an order of the Chamber to protect information that its source would only give provided the information could be granted confidentiality. Upon denial of the request, the provider of the information again informed the Accused that it would only assist the Defence in obtaining the information sought provided that the Trial Chamber grant an order to protect the confidentiality of that information pursuant to Rule 70(F) of the Rules of Procedure and Evidence (“Rules”). The Accused filed a further motion requesting that the Trial Chamber reconsider its previous order or, in the alternative, that it grant him certification to appeal.²

· On 25 February 2004, the Trial Chamber chose to certify the issue pursuant to Rule 73(B) of the Rules (“Impugned Decision”).³

Decision

The Appeals Chamber allowed the appeal, set aside the Impugned Decision, and remitted the Accused’s Motion to the Trial Chamber for further consideration in light of the present Decision.

Reasoning

Rule 70(F) states that a Trial Chamber “may order upon an application by the accused or defence counsel that, in the interests of justice, the provisions of this Rule shall apply mutatis mutandis to specific information in the possession of the accused”.

Purpose of Rule 70(F)

The Appeals Chamber noted that the Prosecution can, pursuant to Rule 70(B), guarantee the provider that the given confidential information will not be subject to disclosure , as information provided to the Prosecution on a confidential basis is automatically subject to the confidentially protection of Rule 70. In its view, the reference in Rule 70(F) to the fact that the provisions of Rule 70 shall apply “mutatis mutandis” to information in the possession of an accused, implies that the Defence shall be given the same guarantees as the Prosecution. It found that the “purpose of Rule 70(F) is to encourage third parties to provide confidential information to the Defence in the same way as Rule 70(B) encourages parties to do the same for the Prosecution”.⁴

“Specific information in possession of an accused” in Rule 70(F)

In the Appeals Chamber’s view, the reference in Rule 70(F) to “specific information in the possession of an accused”, read in the context of Rule 70, should not be strictly interpreted. It held:

“Read within the context of the Rule therefore, and with its purpose in mind, the reference of Rule 70(F) to ‘specific information in the possession of an accused’ is not a condition of the making of an order that the Rule applies; it is a reference to what the Rule will apply to after the making of an order that it is to apply. The circumstance that the accused is not now in possession of such information is therefore not pertinent.”⁵

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1. Rule 70 (Matters not Subject to Disclosure) reads in its relevant parts: “(B) If the Prosecutor is in possession of information which has been provided to the Prosecutor on a confidential basis and which has been used solely for the purpose of generating new evidence, that initial information and its origin shall not be disclosed by the Prosecutor without the consent of the person or entity providing the initial information and shall in any event not be given in evidence without prior disclosure to the accused. […] (F) The Trial Chamber may order upon an application by the accused or defence counsel that, in the interests of justice, the provisions of this Rule shall apply mutatis mutandis to specific information in the possession of the accused.”
2. Urgent, Confidential and Ex Parte Defence Motion for an Order Applying Rule 70 to Specific Information to be Provided to the Defence, 23 February 2004.
3. Decision on Defence Motion for an Order Applying Rule 70 to Specific Information to be Provided to the Defence, issued confidentially and ex parte on 25 February 2004.
4. Para. 6. On the interpretation of Rule 70, see Milosevic, IT-02-54-AR108 bis & AR73.3, Public Version of the Confidential Decision on the Interpretation and Application of Rule 70, 23 October 2003, Judicial Supplement No. 37.
5. Para. 7.