Case No: IT-95-14-A
THE PRESIDENT OF THE TRIBUNAL
Before: Judge Florence Ndepele Mwachande Mumba, Vice-President
Registrar: Mr Hans Holthuis
Order of: 5 November 2001
ORDER FOR SUBMISSIONS ON SPECIFIC PROTECTIVE MEASURES REQUIRED
The Office of the Prosecutor:
Mr Upawansa Yapa
Counsel for the Applicant:
Mr Anto Nobilo
Mr Russell Hayman
Mr Andrew M Paley
- I, Florence Ndepele Mwachande Mumba, Vice-President, issued the "Order in Relation to Application by Tihomir Blaskic for Access to Non-public Transcripts and Exhibits" on 11 October 2001 ("Order"). I am now seised of, inter alia, the "Appellant’s Motion for Access to Non-public Transcripts and Exhibits in Response to 11 October 2001 Order", filed on 19 October 2001 by the Applicant, Tihomir Blaskic ("Fresh Application"); and the confidential "Prosecution’s Response to Appellant’s Motion for Access to the Non-public Transcripts and Exhibits in Response to 11 October 2001 Order and Further Application for Extension of Time", filed on 31 October 2001 ("Fresh Response").
- In paragraph 5(c) of the Order, I instructed the Prosecutor to include in the Fresh Response submissions on the confidentiality measures required in the event of the application for disclosure being granted. The Fresh Response simply states that if access were to be granted, "it should be done under very strict protective measures." What is required is for the Prosecutor to make detailed submissions on the general or individual protective measures that are, in her view, required. I intend to give the Prosecutor just less than two weeks in which to make the said submissions.
- This time-period is necessary, in my view, to enable the Prosecutor to make detailed submissions, which would enable me to expeditiously resolve this matter to the benefit of both parties. This time-period is also necessary to enable the Prosecutor to include submissions in relation to the required protective measures for any Rule 68 materials that must still be disclosed to the Applicant from the case Prosecutor v Kordic and Cerkez ("Kordic case"). Both the Applicant and the Prosecutor have referred to the fact that no decision on a confidential "Prosecution Notice of Intention to Seek the Release of Non-public Exculpatory Material from the Trial Chamber in Prosecutor v Kordic and Cerkez for Disclosure in the Appeal of Prosecutor v Blaskic", filed on 24 January 2001, has been issued. I consider that I have the competence to deal with the conditions under which Rule 68 materials that are subject to protective measures from the Kordic case have to be released to the Applicant. This is so because, inter alia, the Fresh Application concerns an application for the disclosure, subject to what I consider the appropriate protective measures to be, of all non-public transcripts and exhibits in a number of cases, including the Kordic case. The said Rule 68 materials and the conditions for its release would necessarily be included. This time-period should also be sufficient to enable the Prosecutor to seek the consent for the disclosure to the Applicant from the providers of the Rule 70(C) related information. I note that the Prosecutor does not dispute that I am empowered to order the disclosure to the Applicant of such information – rather, her submission is that such disclosure must be subject to the consent of the provider of the said information. I sincerely hope that the providers of the said Rule 70(C) related information would consent to its disclosure to the Applicant.
- The Applicant would not be prejudiced by the time-period. The Applicant submitted in the Fresh Application that the deadline for his appeal brief is 30 November 2001. Rules 112, 113 and 115, read together, and the Tribunal recess which starts at 17 December 2001 and ends on 4 January 2002, make it impossible for a hearing date to be set for this year, by which time the matter before me should have been disposed of.
- The Applicant will not have the right to reply to the submissions I am now requesting the Prosecutor to make unless leave is sought and granted to file a reply prior the filing of a reply.
- I have considered the merits of the Fresh Application and Fresh Response in a preliminary fashion. It is my prima facie view that the Applicant has satisfied the requirements for the access sought. This access, should I finally grant it, would of course be subject to the protective measures I consider necessary to impose. I reserve final judgement on all the issues before me, including the matter of the course of action to be adopted should a provider of Rule 70(C) related information not consent to that information being disclosed to the Applicant. I hope that making my prima facie views known may expedite the resolution of this matter.
- Pursuant to Rule 54, I hereby:
- Order the Prosecutor to file before me, but in the cases Prosecutor v Kupreskic, Prosecutor v Furundzija and Kordic, no later than 12 a.m. on Friday, 16 November 2001, a supplement to her Fresh Response, in which detailed submissions on the general or individual protective measures required in the event that disclosure is ordered, are to be made.
- Order that the Prosecutor is to comply with my orders set out in paragraphs 4(b) and 4(c) of the "Order Granting an Extension of Time", issued by me on 1 November 2001, in the supplement referred to in paragraph 7(a) of the present order. In this regard the Prosecutor is also ordered to immediately seek the consent of the providers of the Rule 70(C) related information for its disclosure to the Applicant, should such disclosure be ordered.
- Order that no reply to the supplement to the Fresh Response will be entertained unless leave is sought and granted prior to filing a reply. Such request for leave must be filed by 12 a.m. on Wednesday, 21 November 2001.
Done in both English and French, the English version being authoritative.
Done this the fifth day of November 2001
At The Hague
Judge Florence Ndepele Mwachande Mumba
[Seal of the Tribunal]