Case: IT-95-14/2-A


Judge David Hunt, Pre-Appeal Judge

Mr Hans Holthuis

Decision of:
31 March 2003





Counsel for the Prosecutor:

Mr Norman Farrell

Counsel for the Defence:

Mr Mitko Naumovski, Mr Turner T Smith Jnr and Mr Stephen M Sayers for Dario Kordic
Mr Bozidar Kovacic and Mr Goran Mikulicic for Mario Cerkez


1. The appellant Dario Kordic ("Kordic) has sought an order directing the prosecution to disclose, in unredacted form, the transcript of an interview conducted over four days with Witness AT, after the judgment was given. Witness AT had been called by the prosecution as a witness at the trial. Kordic claims that the lack of corroboration of this witness’s evidence at the trial1, and the contradictions within that evidence, are crucial issues raised in his appeal, and that a full disclosure of the contents of this interview would constitute exculpatory material within the meaning of Rule 68 of the Rules of Procedure and Evidence ("Rules").2

2. The prosecution has responded by denying that it has failed to comply with Rule 68,3 and stating that, since the Motion was filed, it had provided the interview "with less redactions",4 and that it had agreed to provide Kordic with yet further excerpts from the interview.5 The prosecution also stated that, in order to be completely transparent, it would file an ex parte document for the Appeals Chamber "setting out the remaining redactions and the reasons for such redactions",6 and that it will comply with any order of the Appeals Chamber in relation to the redactions made.7 The redactions are said to have been necessary in relation to "material which is not exculpatory" for "confidentiality, investigative or safety/security concerns",8 and that the redacted areas "contain sensitive material".9 The prosecution filed its ex parte document the following day.10 It identifies the purpose of that document as being "to inform the Appeals Chamber of those portions which have remained redacted, the reasons for the redactions and to place the redacted portions of the Interviews before the Chamber if the Chamber feels it is necessary to review this matter".11

3. In his Reply,12 Kordic has rejected the prosecution’s right to make submissions regarding Witness AT on an ex parte basis, and he has argued that such submissions "should at least be made inter partes, to the extent that they do not raise specific, articulable [sic] witness protection or witness security concerns".13

4. The fundamental principle in every case is that ex parte proceedings should be entertained only where it is thought to be necessary in the interests of justice to do so – that is, justice to everyone concerned – in circumstances where, for example, the disclosure to the other party or parties in the proceedings of the information conveyed by the application, or of the fact of the application itself, would be likely to prejudice unfairly either the party making the application or some person or persons involved in or related to that application.14 The party seeking relief on an ex parte basis in such a case must identify with some care why the disclosure of the fact of the application, or of its detail, to the other party to the proceedings would cause such unfair prejudice.15 In the present case, the prosecution has not identified the basis upon which it claims to be entitled to file its application to the Appeals Chamber upon a wholly ex parte basis, although (as already stated) the prosecution has disclosed to Kordic the fact of the application itself.

5. Applications made by the prosecution under Rule 66(C) – seeking to be relieved of its obligation to disclose material where the disclosure "may prejudice further or ongoing investigations, or for any other reason may be contrary to the public interest or affect the security interests of any State" – may not be filed on a wholly ex parte basis.16 Only a month before the Ex Parte Filing was filed by the prosecution in the present case, the prosecution had been ordered by the Appeals Chamber to refile a redacted version of such a motion.17 I see no distinction between that situation and the current situation, and the same order will therefore be made in this case as well.

6. Another problem which should be raised at this stage arises from the fact that it is anything but clear whether the material presently placed before the Appeals Chamber in Annex A to the prosecution’s Ex Parte Filing is the same as the version of the interview finally provided to Kordic. A comparison between that document and Exhibit 2 to the Motion filed by Kordic suggests that the passages indicated in that document as having been redacted are not always the passages which have remained redacted in the material finally disclosed to Kordic. This final version must be provided by the prosecution.


7. The prosecution is accordingly ordered:

(1) to re-file inter partes a redacted version of the Prosecution Ex Parte Filing, other than the annexes, within five days of the date of this Order; and

(2) to provide the Appeals Chamber with a copy of the final version of the interview disclosed to Kordic, as described in pars 8, 16 and 20 of the prosecution’s Response, together with (upon an ex parte basis) an unredacted version of that document which indicates the passages which have remained redacted.

The Defence is reminded that, in accordance with par 10 of the Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the International Tribunal,18 it has ten days after the redacted version of the Prosecution’s Ex Parte Filing has been filed in which to file its response to the claims made by the prosecution in support of the remaining redactions which have been made.


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

Dated this 31st day of March 2003,
At The Hague,
The Netherlands.

Judge David Hunt
Pre-Appeal Judge

[Seal of the Tribunal]

1 - Appellant Dario Kordic’s Motion for Access to Unredacted Portions of the Most Recent Prosecution Interviews of Witness “AT”, conducted over a Four-Day Period in October 2002, and First Disclosed in Heavily-Redacted Form to Kordic on 28 February 2003, 7 Mar 2003 (“Motion”).
2 - Motion, par 9. Associated with this Motion are complaints by Kordic that the prosecution has failed to comply with its obligations of disclosure pursuant to Rule 68: Notice of Prosecution’s Non-Compliance with its Obligations under Rule 68 and Application for Permission to Submit Additional Arguments on the Effect of the Prosecution’s Rule 68 Violations, Pursuant to the Pre-Appeal Judge’s 11 May 2001 and 2 July 2001 Decisions, 7 Mar 2003; Supplemental Notice of Rule 68 Violation by the Prosecution, 13 Mar 2003. All three of these documents are stated to have been filed “Under Seal”, but it seems from his subsequent filings that Kordic intended them to be filed on a confidential basis only.
3 - Prosecution’s Response to the Appellant Dario Kordic’s Motion for Access to Unredacted Portions of Interviews with Witness AT, 20 Mar 2003 (“Response”), pars 9, 11-12.
4 - Response, par 8.
5 - Ibid, pars 16, 20.
6 - Ibid, par 10.
7 - Ibid, pars 18, 21.
8 - Ibid, par 8.
9 - Ibid, par 16.
10 - Prosecution’s Ex Parte Filing Regarding Motion by Kordic for Disclosure of Unredacted Interviews with Witness AT, 21 Mar 2003 (“Ex Parte Filing”), filed on a “Confidential Ex Parte” basis.
11 - Ex Parte Filing, par 3.
12 - Dario Kordic’s Reply in Support of his Motion for Access to Unredacted Portions of the Most Recent Prosecution Interviews of Witness “AT”, 25 Mar 2003 (“Reply”).
13 - Reply, par 18.
14 - Prosecutor v Simic et al, IT-95-9-PT, Decision on (1) Application by Stevan Todorovic to Re-Open the Decision of 27 July 1999, (2) Motion by ICRC to Re-Open Scheduling Order of 18 November 1999, and (3) Conditions for Access to Material, 28 Feb 2000, pars 39-43; Prosecutor v Brdjanin & Talic, IT-99-36-PT, Decision on Second Motion by Prosecution for Protective Measure, 27 Oct 2000, par 11.
15 - Ibid.
16 - Prosecutor v BrdJanin & Talic, IT-99-36-PT, Decision on Prosecution Application for Oral Hearing of Rule 66(C) Motion, 1 June 2001.
17 - Prosecutor v Krstic, IT-98-33-A, Order for the Prosecution to Refile its Motion, 21 Feb 2003, p 2.
18 - IT/155/Rev 1, 7 Mar 2002.