Date: 18 March 2005

IN TRIAL CHAMBER I, SECTION A

Before:
Judge Liu Daqun, Presiding
Judge Amin El Mahdi
Judge György Szénási

Registrar:
Mr. Hans Holthuis

Decision of:
18 March 2005

PROSECUTOR

v.

SEFER HALILOVIC

PARTLY CONFIDENTIAL

___________________________________________

DECISION ON ADDENDUM TO FURTHER DEFENCE REPORT RE ACCESS TO FOSS MATERIAL AND ADDITIONAL MOTIONS RE CRIMINAL RECORD OF PROSECUTION WITNESSES FILED ON 5 JANUARY 2005 AND 11 FEBRUARY 2005

___________________________________________

The Office of the Prosecutor:

Ms. Sureta Chana
Mr. Philip Weiner
Mr. David Re

Counsel for the Accused:

Mr. Peter Morrissey
Mr. Guénaël Mettraux

Government of Bosnia and Herzegovina

 

TRIAL CHAMBER I, SECTION A, (“Trial 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 (“Tribunal”),

BEING SEISED OF the Defence “Addendum to ’Further Defence Report re Access to FOSS Material’”, filed confidentially and ex parte on 24 November 2004 (“Motion re Access to Criminal Records”), in which the Defence requests the Trial Chamber inter alia to direct the relevant Bosnian authorities to provide the Defence with criminal records of a number of individuals, who appear on the list of prosecution witnesses, which criminal records the Defence has already sought to obtain;1

NOTING the “Order on Further Defence Report re Access to Foss Material and Addendum”, issued confidentially and ex parte by Trial Chamber III on 21 December 2004 (“Order on Defence Report and Motion re Access to Criminal Records”), in which Trial Chamber III ordered the Government of Bosnia and Herzegovina to file a written submission, no later than 20 January 2005, to indicate its general position concerning the criminal records sought by the Defence ;

NOTING FURTHER that Trial Chamber III in the Order on Defence Report and Motion re Access to Criminal Records ordered the Defence to file a written submission, no later than 20 January 2005, in which the Defence states (i) the name of each of the individuals the Defence seeks the criminal records of, and the reasons why the Defence believes such criminal records exist for these individuals; and (ii) if such criminal records exist, how they are relevant and necessary in terms of Rule 54 bis of the Rules of Procedure and Evidence (“Rules”);

NOTING the “Additional Motion re Criminal Record of Prosecution Witnesses ”, filed confidentially and ex parte on 5 January 2005 (“Additional Motion re Access to Criminal Records”), in which the Defence provides a list of twenty-seven individuals whose criminal records it wishes to obtain, and alleges that it has investigated the criminal background of a large number of Prosecution witnesses and found that many of them had criminal records;2

NOTING FURTHER that the Defence in the Additional Motion re Access to Criminal Records submits (i) that, as the Prosecution has failed to investigate the criminal background of its witnesses, the Defence is obliged to investigate these matters;3 and (ii) that the criminal records sought are relevant and necessary because, inter alia, the records could provide information affecting the credibility and reliability of many Prosecution witnesses and their evidence and the criminal records can verify the criminal character of the troops involved in the “Neretva 93” operation, which is part of the Prosecution case;4

NOTING that this case was transferred from Trial Chamber III to Trial Chamber I on 17 January 2005;5

NOTING the Response of the Government of Bosnia and Herzegovina, filed confidentially and ex parte on 3 February 2005 (“State Response”), in which the Government of Bosnia and Herzegovina states that it is prepared to enable the Defence to “inspect the files of people” it requests, “if the ICTY issues the appropriate order in the sense of Rule 54 bis of the Rules of Procedure and Evidence”;6

NOTING the “Decision on Prosecution’s Motion to Vary its Rule 65 ter Witness List”, issued by the Trial Chamber on 7 February 2005;

NOTING the “Additional Motion re Criminal Records of Prosecution Witnesses ”, filed confidentially and ex parte on 11 February 2005 (“Second Additional Motion re Access to Criminal Records”), in which the Defence amends the list of individuals whose criminal records it wishes to have access to a total number of ten Prosecution witnesses “in view of the fact that several of the individuals concerned by its original motion have now been withdrawn from the prosecution witness list”;

NOTING that the Trial Chamber during the Trial Hearing of 2 March 2005 lifted the ex parte status of all the above mentioned filings of the Defence;7

NOTING that during a Trial Hearing, held in closed session on 3 March 2005 (“Closed Session Hearing”), the Defence clarified that it “should be provided with any material, which could go to the credit of a particular witness,” including material supporting an indictment or conviction;8

NOTING that during the Closed Session Hearing, the Prosecution submitted that “when a request is made for a criminal record it is a certified copy of a conviction ”,9 which in the Prosecution’s view does not include supporting material concerning that conviction, or material concerning arrests or charges against an individual;10

NOTING that the Defence has provided the Trial Chamber with an explanation as to why it has reason to think that criminal records exist related to each of the ten Prosecution witnesses, including the explanation that other witnesses in their statements implicate some of the ten Prosecution witnesses as being involved in criminal activities;11

CONSIDERING that pursuant to Articles 20 (1) and 21 (4) (b) of the Statute the accused is entitled to a fair and expeditious trial and to have adequate time and facilities for the preparation of his defence;

CONSIDERING that the Defence has sufficiently demonstrated how such information , if any, regarding criminal activities of the ten Prosecution witnesses might be relevant and necessary in terms of Rule 54 bis of the Rules, in particular that this information could assist the Trial Chamber in determining the credibility of the witnesses and the weight to be given to their evidence;

CONSIDERING that the Government of Bosnia and Herzegovina does not object to allowing access to the files of “people sought after by Mr. Sefer Halilovic’s Defence team” if the Trial Chamber decides to issue an order pursuant to Rule 54 bis to this effect;12

NOTING that in essence the Defence’s request is a request to the Trial Chamber to direct the relevant authorities of Bosnia and Herzegovina to allow access to the Defence to all information regarding criminal activities of the ten Prosecution witnesses;

CONSIDERING that, where it concerns a Defence request for access to information regarding criminal activities of witnesses, the Trial Chamber has to balance the rights of the accused to a fair and expeditious trial and the rights to privacy of those witnesses;

CONSIDERING that full access to all information as to any criminal activities , if any, of a witness may entail information which is irrelevant to the present case; and more importantly, information regarding alleged criminal activities which have not yet been presented before the domestic courts of Bosnia and Herzegovina ;

CONSIDERING the general principle of law that judgements of domestic courts are public, wherefore the right to privacy of a witness is not violated in any way by allowing access to the Defence to these judgements;

CONSIDERING that a file containing the supporting material of a criminal case (“criminal file”) which has led to a conviction, whether or not the witness was later pardoned or whether amnesty was granted to that witness, may contain information which could affect the credibility of a witness, or information as to the “criminal character” of those witnesses who allegedly were involved in the so-called “Neretva 93” operation, wherefore the Trial Chamber considers that access to those criminal files may be necessary or relevant for a fair determination of a matter in issue before the Trial Chamber;

CONSIDERING HOWEVER that an acquittal by a domestic court will not affect the credibility of a witness, wherefore the Trial Chamber at this stage does not consider access to criminal files concerning acquittals to be necessary or relevant for a fair determination of a matter in issue before the Trial Chamber;

CONSIDERING that in the present case, general information as to whether witnesses were ever indicted may be necessary or relevant for a fair determination of a matter in issue before this Trial Chamber, especially for those witnesses who allegedly were involved in the so-called “Neretva 93” operation;

CONSIDERING HOWEVER that, at this stage, the Trial Chamber finds that access to the criminal files underlying indictments, if any, may be necessary or relevant to the fair determination of a matter in issue before this Trial Chamber only insofar as the indictment is related to or resulting from the Trebevic operation or insofar as the indictment concerns allegations of commission of crimes in Grabovica and/ or Uzdol;

PURSUANT TO Article 29 of the Statute for the International Tribunal and Rules 54 and 54 bis of the Rules,

HEREBY GRANTS IN PART the Motion re Access to Criminal Records and the Second Additional Motion re Access to Criminal Records;

REQUESTS the Government of Bosnia and Herzegovina at a date no later than 24 March 2005:

i) to grant access to the Defence to judgements of the domestic courts of Bosnia and Herzegovina, if any, concerning the ten Prosecution witnesses listed in the confidential annex to this decision (“listed Prosecution witnesses”), including where amnesty and/or pardon has been granted;

ii) to grant access to the criminal files related to convictions, if any, of the listed Prosecution witnesses;

iii) to provide the Defence with a list of indictments, if any, against the listed Prosecution witnesses;

iv) to grant access to the criminal files concerning indictments, if any, of the listed Prosecution witnesses insofar as the indictments are related to or resulting from the Trebevic operation and/or insofar the indictments contain allegations of commission of crimes in Grabovica and/or Uzdol;

REQUESTS the Registrar to provide the Government of Bosnia and Herzegovina with a copy of this decision.

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

_________________
Judge Liu Daqun
Presiding

Dated this eighteenth day of March 2005,
At The Hague,
The Netherlands.

[Seal of the Tribunal]


1 - Motion re Access to Criminal Records, paras 5, 6 and 16. In its Motion, the Defence has also requested the Trial Chamber to direct the relevant authorities to grant access to the Defence to a Prosecution witness, whom the Defence submitted had been arrested in Sarajevo. On 5 January 2005, the Trial Chamber was informed that the Defence has been able to meet with that witness in the Sarajevo Prison. See Additional Motion re Access to Criminal Records, para 21. The Trial Chamber therefore considers this request for access to a Prosecution witness to be moot.
2 - Additional Motion re Access to Criminal Records, para 5.
3 - Additional Motion re Access to Criminal Records, paras 5 and 12.
4 - Additional Motion re Access to Criminal Records, paras 11, 15-16.
5 - President’s “Order Reassigning a Case to a Trial Chamber,” 17 January 2005.
6 - State Response, p. 18.
7 - Trial Hearing 2 March 2005, T. 58. The ex parte status was lifted with the exception of one paragraph in the Additional Motion re Criminal Record of Prosecution Witnesses.
8 - Closed Session Hearing, T. 2.
9 - Closed Session Hearing, T. 4
10 - Closed Session Hearing, T. 4-5.
11 - Additional Motion re Access to Criminal Records, paras, 7-8, insofar as these paragraphs concern the ten Prosecution witnesses.
12 - State Response, p. 18.