Case No.: IT-95-14-A
IN THE APPEALS CHAMBER
Before:
Judge Fausto Pocar, Presiding
Judge David Hunt
Judge Mehmet Güney
Judge Asoka de Zoysa Gunawardana
Judge Theodor Meron
Registrar:
Mr. Hans Holthuis
Order of:
16 October 2002
PROSECUTOR
v.
TIHOMIR BLASKIC
___________________________________________________________
DECISION ON APPELLANTS DARIO KORDIC AND MARIO CERKEZ’S SUPPLEMENTAL REQUEST
FOR ASSISTANCE IN GAINING ACCESS TO NON-PUBLIC POST TRIAL SUBMISSIONS, APPELLATE
BRIEFS, AND HEARING TRANSCRIPTS FILED IN THE PROSECUTOR v. TIHOMIR BLASKIC
___________________________________________________________
Counsel for the Prosecutor:
Mr. Norman Farrell
Counsel for the Appellant:
Mr. Anto Nobilo
Mr. Russell Hayman
Mr. Andrew Paley
THE APPEALS CHAMBER of the International Tribunal for the Prosecution
of Persons Responsible for Serious Violations of International Humanitarian
Law Committed in the Territory of the Former Yugoslavia since 1991 (“the International
Tribunal ”),
BEING SEISED of “Appellant Dario Kordic’s Supplemental Request for
Assistance of Appeals Chamber in Gaining Access to A Non-Public Post-Appeal
(sic( Pleadings and Hearings Transcripts filed in The Prosecutor v. Blaskic”
(the “Supplemental Request”);
PURSUANT TO the Statute and the Rules of Procedure and Evidence of
the International Tribunal (the “Statute” and the “Rules” respectively);
HEREBY RENDERS its Decision.
I. BACKGROUND
- On 3 April 2002 the Appellant Blaskic filed confidentially the “Appellant’s
Motion for Protective Measures for New Witnesses on Appeal” (“Motion for Protective
Measures ”), where he requested the imposition of five protective measures
for three new witnesses, whose statements he intended to proffer as additional
evidence on appeal pursuant to Rule 115 of the Rules. On 27 May 2002, the
Appeals Chamber issued confidentially the “Decision on Appellant’s Motion
for Protective Measures for New Witnesses on Appeal,” (“Decision on Motion
for Protective Measures”) granting inter alia, the imposition of the
following protective measure:
“…no information regarding the fact that the witness offered
testimony to the Tribunal , or information regarding the substance of their
testimony shall be disclosed to any third party, including parties to any
other proceeding before the Tribunal, without the witness’ prior consent…”
- On 21 June 2002, the Appellant Dario Kordic (“Applicant Kordic”) filed
the Supplemental Request which submits that for the reasons stated in his
previous submissions on this issue, and for the reasons stated in the Appeals
Chamber’s 16 May 2002 Decision 1, he is entitled
to access Appellant Blaskic’s Third Rule 115 Motion2
to the extent that any of the materials submitted therein bear in any way
upon the arguments advanced in his appeal. He further asserts that such materials
may materially assist him in his appeal, and does not deem it necessary to
repeat previous arguments advanced on the issue, incorporating all of the
arguments made in his prior submissions .3 He
further submits that although the Appeals Chamber ordered the Registry to
grant Applicant Kordic and Mario Cerkez (“Applicant Cerkez) access to the
non-public, post-trial submissions and appellate briefs filed in the present
appeal “up to and including the 16 May 2002 Decision ”, no such materials
had yet been provided to him.4
- On 21 June 2002, Applicant Cerkez filed his notice of joinder to the Supplemental
Request where he incorporates, mutatis mutandis, all arguments presented
by the Applicant Kordic.
- On 28 June 2002, the Prosecution filed its response to the Supplemental
Request (“Prosecution’s Response to Supplemental Request”) in which it acknowledges
that “a party should have access to any information likely to assist his case
materially in the preparation of his appeal” and does not oppose the application
for access , but recognizes that the third Rule 115 Motion has been filed
confidentially and is subject to restrictive protective measures as requested
by the Appellant Blaskic . It submits that “in light of the protective measures,
the fair determination of the Supplemental Request must be made on the basis
of the representations of all the parties concerned.”5
- On 2 July 2002, Appellant Blaskic filed his response to the Supplemental
Request . He opposes the Supplemental Request, and states that the bases for
his opposition are set out in his Motion for Protective Measures for New Witnesses
on Appeal, confidentially filed on 3 April 2002, and in his Brief in Reply
filed on 19 April 2002 in relation to this motion.
II. DISCUSSION
- In his previous request for assistance in gaining access to appellate briefs
and non-public, appellate submissions and hearing transcripts filed in the
Blaskic case, submitted on 5 February 2002, Applicant Kordic asserted
that he was entitled to know which arguments have been put forward by Appellant
Blaskic to the extent that those arguments bear materially upon issues that
are presented in Dario Kordic’s and Mario Cerkez’s appeals, as well as in
the Prosecution’s appeal. In addition , he submitted that since Appellant
Blaskic was trying to shift responsibility to others for crimes committed
by military units under his command, he wished to know which arguments have
been raised. He also claimed that access was necessary to assess the consistency
of the arguments advanced by the Prosecution in both appeals and to “frame
arguments appropriately during the oral argument.” With respect to the equality
of arms principle, Applicant Kordic asserted that it would be unfair to permit
the Prosecution to have access to confidential submissions in the Blaskic
appeal which may contain material that could be useful in the presentation
of oral argument before the Appeals Chamber, and yet to deny similar access
to him.6
- In his Motion for Protective Measures, the Appellant asserted that the
witnesses have expressed significant concerns for their physical safety, as
well as the safety of their families, if it becomes known that they have offered
to testify before the Tribunal. He stated that the witnesses requested assurances
that their identities and/or the fact that they have proffered testimony would
not be disclosed without their consent, as a condition to their agreement
to provide testimony to the International Tribunal.7
The protective measures sought by the Appellant are aimed at protecting the
witnesses from what the Appellant called “a very real threat” of retaliation
from the individuals identified as responsible for the crimes in question,
and from their supporters who still wield significant power in Central Bosnia.
- The witnesses’ fears of retaliation relate to the power that some of the
persons named in their statements such as Ljubicic and Kordic, still exert
in Central Bosnia . The witnesses are prepared to testify that the crimes
committed in Ahmici and Busovaca were planned by Dario Kordic, Ignac Kostroman,
and Anto Sliskovic, and to name the individuals that carried them out. One
of the witnesses currently lives in the Busovaca municipality and all three
witnesses have immediate family members who live in Central Bosnia. One of
the witnesses claims to be personally acquainted with Sliskovic and Kordic,
and others in the hard-line Busovaca faction. The witnesses believe that,
if information regarding their testimony were disclosed to other individuals
indicted by the Tribunal specifically to the parties to the other Lasva Valley
cases , or their supporters, the witnesses would be subjected to retaliation,
including assassination attempts.8
- As the Appeals Chamber stated in its Decision on Motion for Protective
Measures , the Tribunal has a statutory obligation under Article 21 of the
Statute to ensure that the Applicants Kordic and Cerkez have a fair and public
hearing, and under Article 22, to protect the witnesses from, inter alia,
interference or intimidation where it is possible to do so.9
- The present decision is not concerned with whether the applicants are entitled
to access the material sought in the Supplemental Request. The Appeals Chamber
found in its previous decision authorizing the disclosure of confidential
appellate submissions , that the Applicants Kordic and Cerkez had satisfied
the relevant conditions for being granted the access sought, since they had:
(a) described the material sought by their general nature, and (b) shown a
legitimate forensic purpose for such access . The Appeals Chamber stated that
the Applicants Kordic and Cerkez are entitled to be informed about the arguments
advanced in the present appeal to the extent that those arguments bear materially
upon issues that are presented in their own appeals.10
- The present decision concerns the Appeals Chamber’s duty to safeguard the
right of the Appellant to offer evidence material to his defence, and the
affirmative obligation to protect the witnesses that come to testify at this
International Tribunal . The witnesses whose statements have been proffered
as additional evidence on appeal by the Appellant Blaskic have been accorded
certain protective measures that cannot be lifted in order to grant Applicants
Kordic and Cerkez access to confidential material that is in fact inculpatory
to at least one of the applicants. If the protective measures granted by the
Appeals Chamber were to be lifted, the witnesses would rescind the authorisation
given to the Appellant Blaskic to submit their statements for admission under
Rule 115, and refuse to testify were the Appeals Chamber to decide to call
them.
- The Appeals Chamber has not yet issued a decision on the admissibility
of the witness statements, which are the object of the Supplemental Request.
The Prosecution has submitted that the Appellant’s Third Rule 115 Motion should
be rejected in its entirety . In its response to the Appellant’s Third Rule
115 Motion the Prosecution argues that the statements are not reliable since
they are not accompanied by a declaration under penalty or perjury, and that
they are essentially, documents “prepared” by counsel for the Appellant for
the purposes of the current appellate litigation.11
In light of the position taken by the Prosecution in the Blaskic appeal, it
seems unlikely that the Prosecution would use the material contained within
the Appellant’s Third Rule 115 Motion in its case against Kordic.
- If the Prosecution were required to disclose any part of the material covered
by the Appellant’s Third Rule 115 Motion pursuant to Rule 68, the Appeals
Chamber has already set out a procedure for this purpose.12
Hence the right of another appellant or accused to access exculpatory material
would not be hampered.
FOR THE FOREGOING REASONS,
THE APPEALS CHAMBER DENIES the Supplemental Request.
_________________
Fausto Pocar
Presiding Judge
Dated this sixteenth day of October 2002
At The Hague,
The Netherlands
[Seal of the Tribunal]
1 - Decision on Appellants Dario Kordic and Mario
Cerkez’s Request for Assistance of the Appeals Chamber in Gaining Access to Appellate
Briefs and Non-Public Post Appeal [sic] Pleadings and Hearing Transcripts filed
in the Prosecutor v. Blaskic, 16 May 2002.
2 - Appellant’s Third Motion to Admit Additional Evidence on Appeal
Pursuant to Rule 115 (confidential), 10 June 2002.
3 - Ibid, at para.7.
4 - Supplemental Request, at para.3. The Appeals Chamber was informed
that a member of the Office of Legal Aid mailed the material to the Appellant’s
counsel on 20 September 2002, and the defence confirmed via e-mail that they received
the material on 25 September 2002.
5 - Prosecution’s Response to Supplemental Request, at para.2.
6 - Supplemental Request at para. 8.
7 - Motion for Protective Measures at page 1.
8 - Ibid, at page 2.
9 - The Appeals Chamber’s decision refers to the Trial Chamber
in Tadic, “the Tribunal has to interpret these provisions within the context
of its own legal framework in determining where the balance lies…” Where the likelihood
that witnesses may be in danger has been established, it would be reasonable to
order measures to ensure their protection. Prosecutor v. Dusko Tadic, Decision
on the Prosecution’s Motion Requesting Protective Measures for Witness R, Case
No.: IT-94-1-T, 31 July 1996, at para.4.
10 - “Decision on Appellants Dario Kordic and Mario Cerkez’s
Request for Assistance of the Appeals Chamber in Gaining Access to Appellate Briefs
and Non-Public Post Appeal [sic] Pleadings and Hearing Transcripts filed in the
Prosecutor v. Blaskic”, 16 May 2002, paras. 14-17.
11 - Prosecution Response to Appellant’s Third Motion to Admit
Additional Evidence on Appeal Pursuant to Rule 115, Confidential, 12 August
2002, at paras 17,18.
12 - See Decision on Motion for Protective Measures, paras
22-24.