Case No: IT-95-14-A

Before: Judge Florence Ndepele Mwachande Mumba, Vice-President

Registrar: Mr Hans Holthuis

Decision of: 11 October 2001

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The Office of the Prosecutor:

1. I, Florence Ndepele Mwachande Mumba, Vice-President, am seised of the "Appellant’s Motion Requesting Assistance of the Appeals Chamber in Gaining Access to the Non-Public Transcripts and Exhibits", filed on 28 December 2000 by the Appellant Tihomir Blaskic ("Applicant"); the "Prosecution Response to ‘Appellant’s Motion Requesting Assistance of the Appeals Chamber in Gaining Access to the Non-Public Transcripts and Exhibits’", filed on 8 January 2001 ("Response"); the "Appellant’s Reply to Prosecution Response to Appellant’s Motion Requesting Assistance of the Appeals Chamber in Gaining Access to the Non-Public Transcripts and Exhibits", filed on 15 January 2001 ("Reply"); and the "Prosecution Response to the Reply of the Appellant’s Motion to Gain Access to Non-Public Transcripts and Exhibits", filed on 16 January 2001 ("Response to Reply").
2. The Applicant seeks access to all non-public trial transcripts and exhibits in the cases Prosecutor v Kupreskic, Prosecutor v Aleksovski, Prosecutor v Furundzija and Prosecutor v Kordic and Cerkez. The Prosecution opposes the Application.
3. The matter was originally before the Appeals Chamber. On 4 July 2001 the Appeals Chamber, having taken note of Rule 75(D) of the Rules of Procedure and Evidence of the Tribunal ("Rules"), invited the Registrar to transfer the matter to the President on the basis that it is not the proper forum to deal with the matter. On 4 October 2001 the President invited the Registrar to transfer the matter in so far as it relates to the case of Prosecutor v Aleksovski to the reconstituted Trial Chamber. On the same date, the President recused himself from dealing with the matter in relation to the three remaining cases on the basis that he had presided over the case Prosecutor v Blaskic at first instance, and invited the Registrar to transfer the matter to me pursuant to Rule 21. I am therefore seised of the matter in so far as it relates to the cases of Prosecutor v Kupreskic, Prosecutor v Furundzija and Prosecutor v Kordic and Cerkez ("Application", "relevant cases") in terms of Rule 21, which provides that the Vice-President shall exercise the functions of the President in case of the latter’s inability to act.
4. I have considered the Application, the Response, the Reply and the Response to the Reply. However, a considerable period of time has elapsed since the filings in relation to this matter. I do not know, for example, whether any of the material sought by the Applicant has in the meantime become public, or whether the Prosecutor has in the meantime disclosed, on whatever basis, material to the Applicant, to his satisfaction. I therefore consider it necessary to order the parties to file before me a fresh application and response. The matter will then be determined upon the basis of the fresh application and response without regard to any of the earlier filings.
5. Pursuant to Rules 21, 54 and 75(D), I hereby order that:

1. The Applicant is to file before me, no later than 12 a.m. on Friday, 19 October 2001, either an (i) indication in the event that he withdraws his Application; or (ii) a completely fresh application.
2. If a fresh application is filed it must include submissions identifying the basis for the power of the President to order the disclosure of non-public material in other cases where that material does not relate to the protection of victims or witnesses under Rule 75(D). The fresh application must also reflect any disclosure of non-public material from the relevant cases that may have taken place since the filing of the original Application.
3. The Prosecution is to file before me, no later than 12 a.m. on Wednesday, 14 October 2001, a fresh response to the fresh application. The fresh response must include submissions on whether any of the non-public material for which access is sough falls under Rule 70; if it does fall under Rule 70, the Prosecution must indicate the precise sub-paragraph of Rule 70 by which it asserts the material is covered. The fresh response must also include submissions identifying the basis for the power of the President to order the disclosure of non-public material in other cases where that material does not relate to the protection of victims or witnesses under Rule 75(D). The fresh response must furthermore include submissions on the confidentiality measures required by the Prosecution if the application for disclosure is granted.
4. No reply to a fresh response will be entertained unless leave is granted to file a reply.

Done in both English and French, the English version being authoritative.

Done this the eleventh day of October 2001
At The Hague
The Netherlands

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Judge Florence Ndepele Mwachande Mumba
Vice-President