Judge Richard May, Presiding
Judge Mohamed Bennouna
Judge Patrick Robinson

Mrs. Dorothee de Sampayo Garrido-Nijgh

Order of:
3 May 2000








Defence Counsel

Mr. Mitko Naumovski, Mr. Turner T. Smith Jr., and Mr. Robert Stein for Dario Kordic
Mr. Bozidar Kovacic and Mr. Goran Mikulicic, for Mario Cerkez

European Community Monitoring Mission

Mr. Tony McCourt

The Presidency of the Council of the European Union (Republic of Portugal)

The Commission of the European Union/European Community


THIS 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 ("the International Tribunal"),

BEING SEISED of "Dario Kordic’s ex parte, in camera Application for Issuance of an Order to the European Community Monitoring Mission (“ECMM”) Compelling the Production of Documents and Other Materials” (“the Application”) filed by the Defence for Dario Kordic on 1 November 1999, seeking the production of thirty-eight categories of documents as set out therein;

NOTING the "Notice of Joinder" in the Application filed by the Defence for Mario Cerkez on 1 November 1999;

NOTING the Order in this matter issued by the Trial Chamber on 2 February 2000 which requested the ECMM to disclose to the Trial Chamber within three weeks of the date of the order a list of the documents and material provided to, or copied, by the Office of the Prosecutor ("the Prosecution");

NOTING the "Note verbale" filed by the ECMM on 18 February 2000 which provided the Trial Chamber with a list of those documents which the ECMM permitted the Prosecution to use in this case pursuant to Rule 70 of the Rules of Procedure and Evidence of the International Tribunal ("the Rules");

NOTING the "Memorandum of Understanding on Monitoring Activities in Bosnia and Herzegovina" ("the Memorandum") concluded on 1 October 1991 between the then twelve members states of the European Community and the Commission on the one hand, and the Federal Authorities of the SFRY and the Republic of Bosnia and Herzegovina on the other hand;

NOTING further that in the course of a hearing held on 14 January 2000 ("the hearing") the Defence limited the Application to requests 3, 6, 10, 12-15, 18, 21-31, and 38;

CONSIDERING that pursuant to "Article VII (chain of responsibility)" of the Memorandum the ECMM operates under the responsibility, and reports to, its "Head (…) who is a national of the Member State of the European Community holding the EC Council Presidency";

 CONSIDERING that the representative of the ECMM who appeared before the Trial Chamber at the hearing was authorised to do so by a representative of the Republic of Portugal, which is the member state currently holding the European Union Council’s Presidency1 ("the Presidency of the EU Council");

CONSIDERING that issues relating to the ECMM, including its future, were discussed within the European Union’s Council2;

CONSIDERING the role of the Presidency of the EU Council in representing the member states in matters falling within the now common foreign and security policy under the provisions of the Treaty on European Union3, in addition to its role in relation to ECMM activities as provided for in the Memorandum;

CONSIDERING that pursuant to the Treaty on European Union4 the Commission is fully associated in the tasks of the Presidency, and that it was also vested by the Treaty establishing the European Community5 with the task to "ensure maintenance of all appropriate relations with the organs of the UN";

CONSIDERING also that a number of former ECMM monitors or representatives testified before the Trial Chamber in the course of the presentation of the Prosecution’s case, and that the ECMM has consented to the use by the Prosecution, pursuant to Rule 70, of a number of ECMM documents which have been tendered into evidence in this case;

PURSUANT TO Rule 54 of the Rules

HEREBY REQUESTS the Presidency of the Council and the Commission of the European Community/European Union to consider the Defence Application and to disclose to the Defence the documents and material listed in the confidential annex.


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

Richard May

Dated this third day of May 2000
At The Hague
The Netherlands

[Seal of the Tribunal]

1. Article 3 of the Treaty on European Union which entered into force on 1 November 1993, as supplemented by the so-called "Amsterdam Treaty" which entered into force on 1 May 1999, provided for a single institutional framework for the European Community and the European Union. Article 203 of the Treaty establishing the European Community provides for a "rotating" presidency of the Council.
2. See for instance "Council conclusions on the ECMM" adopted on 21 June 1999, as reported in Bulletin EU-6-1999.
3. Article 18, paras. 1 and 2, of the Treaty on European Union.
4. Article 18, para. 4, and Article 27, of the Treaty on European Union.
5. Article 302 of the Treaty establishing the European Community.