IN TRIAL CHAMBER II
Before: Judge David Hunt, Pre-Trial Judge
Registrar: Mrs Dorothee de Sampayo Garrido-Nijgh
Decision of: 31 July 2000
Radoslav BRÐANIN & Momir TALIC
DECISION ON MOTION BY MOMIR TALIC
FOR ACCESS TO CONFIDENTIAL DOCUMENTS
The Office of the Prosecutor:
Ms Joanna Korner
Ms Anna Richterova
Ms Ann Sutherland
Counsel for Accused:
Mr John Ackerman for Radoslav Brdanin
Maître Xavier de Roux and Maître Michel Pitron for Momir Talic
1. Momir Talic (Talic) has been charged with various offences arising out of his alleged involvement in a plan in 1992 to effect "ethnic cleansing" of the proposed new Serbian Territory in Bosnia and Herzegovina (the area now known as "Republika Srpska") by removing nearly all of the Bosnian Muslim and Bosnian Croat populations from the areas claimed for that territory, specifically in the Autonomous Region of Krajina ("ARK").
2. Talic has requested the Registrar to provide access to the transcripts and exhibits relating to four other cases which have been, or are, before this Tribunal and whichalso arose out of events which were, or are, alleged to have occurred in the ARK during the same period of time. He says that, in his view, this material "may be of significant value" in preparing his defence.
3. Some of this material has been filed with, or accepted into evidence by, the Tribunal upon a confidential basis, and Talic has requested the Trial Chamber to do what is necessary to authorize the Registry Sscil, RegistrarC to provide access to that material as well. He says that the prosecution has access to this material and presently he does not, so that, pursuant to Article 21 of the Tribunals Statute, he is entitled to access to that material as well. This is a reference to the principles of "equality of arms" and the right to a fair trial stated in Article 21.
4. The four cases are:
The Prosecutor v Tadic, tried by Trial Chamber II
The Prosecutor v Kovacevic, tried by Trial Chamber II
The Prosecutor v Kvocka, currently pending before Trial Chamber I
The Prosecutor v Sikirica et al, currently pending before Trial Chamber III
5. The prosecution has opposed the application on three bases. The first, although not clearly stated, appears to be that Talic should rely upon the prosecutions compliance with its obligations under Rules 66(A) and 68. ByRule 66(A), the prosecution is obliged to make available to the defence copies of the supporting material which accompanied the indictment when confirmation was sought and of the statements of all witnesses whom it intends to call to testify at the trial. By Rule 68, the prosecution has a continuing obligation to
[ ] disclose to the defence the existence of evidence known to [it] which in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence.
6. I do not accept any submission that it is the prosecution which controls access by an accused person to material available within the Tribunal. The prosecution cannot necessarily predict what material would be relevant to a defence which has not yet been raised. It could not be accused of non-compliance with Rule 68 in those circumstances, but the accused meanwhile is prejudiced. Rules 66 and 68 relate to the prosecutions obligations of disclosure. They do not relate to the production of material sought by an accused which he is able to identify sufficiently and which the accused is able to demonstrate may be of assistance to him. The prosecution could not, for example, prevent access by an accused to material publicly available within the Tribunal merely by saying that it must be made available to the accused only through its compliance with Rules 66 and 68. The prosecution does, of course, have a right to be heard in relation to access by an accused (or by any other person) to material filed or accepted into evidence on a confidential basis, but that is another matter.
7. The second basis upon which the prosecution opposes the application is that Talic is in effect seeking discovery against the prosecution, and that he has failed to identify sufficiently a legitimate forensic purpose for which access is sought in the sense that he must demonstrate that there is a good chance that the material which he seeks will materially assist the case. It was upon this basis that the Trial Chamber refused to order the prosecution to communicate to Talic all other documents not included under Rules 66 and 68 which he had sought in the earlier motion which was refused by the Disclosure Decision. I interpret the present Motion as having been made in an endeavour to overcome the omission made by Talic in that earlier motion.
8. I do not accept that Talic is in effect seeking discovery against the prosecution by this present Motion. It is reasonable to say that there is a good chance that the transcripts and exhibits relating to other cases within the Tribunal arising out of events alleged to have occurred in the same area and at the same time as those with which the present case is concerned will materially assist him in his case. I have no doubt that the prosecution itself has already surveyed, or will before the trial survey, that material in preparation for this trial. Again, of course, the prosecution does not necessarily know what material would be relevant to a defence which may be raised in the present case. There are many issues of a general nature which are common to all such cases, and I do not regard this application as being of the nature of "a fishing expedition S C in order to discover whether STalicC has any case at all to make". All this must be read as being subject to a variation being made to orders for the protective measures which presently apply.
9. The third basis upon which the prosecution opposes the application is that this Trial Chamber is not the proper forum, as it is a matter for the Trial Chamber/s who ordered the original protective measures to vary the orders made. This is correct. Indeed, it is now expressly so provided by Rule 75(D):
Once protective measures have been issued in respect of a victim or witness, only the Chamber granting such measures may vary or rescind them or authorise the release of protected material to another Chamber for use in other proceedings. If, at the time of the request for variation or release, the original Chamber is no longer constituted by the same Judges, the President may authorise such variation or release.
10. So far as the two cases pending before Trial Chambers I and III are concerned, therefore, the application of Talic should be heard by those Chambers for a variation of the relevant protective measures ordered. Those Trial Chambers will no doubt take into account the degree of relevance which the confidential material in question could have to the particular issues raised by the amended indictment and any other issue which Talic is able to specify with some particularity in his application, as that issue becomes more acute in relation to confidential material than it does in relation to other material. I respectfully draw the attention of those Trial Chambers to the wish of the Registrar, expressed in her response to the Motion, to make further submissions in relation to the procedure to be followed. So far as the two cases which were heard by Trial Chamber II are concerned, that Trial Chamber cannot be reconstituted with the judges who heard them because either their terms of office have expired or they have resigned since the cases were heard. The application of Talic should therefore be heard by the President.
11. For the foregoing reasons, I INVITE the Registrar to transfer the Motion:
(i) to the President to deal with the variations sought to the protective measures ordered in The Prosecutor v Tadic and in The Prosecutor v Kovacevic;
(ii) to Trial Chamber I to deal with the variations sought to the protective measures ordered in The Prosecutor v Kvocka; and
(iii) to Trial Chamber III to deal with the variations sought to the protective measures ordered in The Prosecutor v Sikirica et al.
Done in English and French, the English text being authoritative.
Dated this 31st day of July 2000,
At The Hague,
Judge David Hunt
[Seal of the Tribunal]