IN THE TRIAL CHAMBER
Before:
Judge Richard May
Judge Mohamed Bennouna
Judge Patrick Robinson
Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh
Order of:
16 February 1999
PROSECUTOR
v.
DARIO KORDIC
MARIO CERKEZ
___________________________________________________________
FURTHER ORDER ON MOTION FOR ACCESS TO NON-PUBLIC MATERIALS
IN THE LASVA VALLEY AND RELATED CASES
___________________________________________________________
The Office of the Prosecutor:
Mr. Geoffrey Nice
Ms. Susan Somers
Mr. Patrick Lopez-Terres
Mr. Kenneth Scott
Counsel for the Accused:
Mr. Mitko Naumovski, Mr. Leo Andreis, Mr. Turner Smith, Mr. David Geneson and
Mr. Ksenija Durkovic, for Dario Kordic
Mr. Bozidar Kovacic, for Mario Cerkez
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 ("International Tribunal"),
BEING SEISED of the Defence "Notice of motion to allow the accused
access to non-public materials in Lasva Valley and related cases" and the memorandum
in support thereof, filed by the Defence for Dario Kordic on 9 June 1998 ("the Motion
for Access") and subsequently joined by the Defence for Mario Cerkez (together
"Defence") on 14 September 1998, together with the Response to the
Motion ("the Prosecution Response") filed by the Office of the Prosecutor
("Prosecution") on 8 July 1998, the Defence Reply to the Prosecution
Response filed on 16 July 1998, the Prosecutions further submissions concerning
the Motion for Access filed on 4 September 1998, the Defence Response to the further
submissions filed on 11 September 1998, and the confidential Prosecution
Response thereto filed on 8 October 1998, pursuant to which the Defence seeks access to
the non-public material in related cases before other Chambers of the International
Tribunal,
CONSIDERING that, at this stage of the proceedings, it is appropriate
for such material to be disclosed to the Defence,
CONSIDERING that it is a matter for each Trial Chamber to determine
whether to disclose to another Chamber material that is subject to protective measures
imposed by the first Trial Chamber and that it is not a matter for any other Trial Chamber
to decide,
CONSIDERING the Decision of Trial Chamber I of 12 November 1998 while
seised of this matter requesting the Trial Chambers seised of the various Lasva Valley
cases to indicate to it in respect of the non-public testimony "whether the Motion
may be granted and if so, under what conditions in terms of confidentiality and protective
measures, if necessary",
CONSIDERING the responses of the various Trial Chambers thereto and, in
particular, the Opinion of 16 December 1998 issued by the Trial Chamber seised of the
case of Prosecutor v. Tihomir Blaskic, Case No. IT-95-14, the Opinion of 8 February
1999 issued by the Trial Chamber seised of the case of Prosecutor v. Zlatko Aleksovski,
Case No. IT-95-14/1, the Request of 10 February 1999 issued by the Trial Chamber
seised of the case of Prosecutor v. Zoran Kupreskic et al., Case No. IT-95-16 and
the Request of 10 February 1999 issued by the Trial Chamber seised of the case of Prosecutor
v. Anto Furundzija, Case No. IT-95-17/1,
CONSIDERING that Article 20 of the Statute of the International
Tribunal ("the Statute") requires the Trial Chamber to ensure that a trial is
fair and expeditious and that the proceedings are conducted with full respect for the
rights of the accused and due regard to the protection of victims and witnesses,
CONSIDERING the rights of the accused as set forth in Article 21 of the
Statute and, in particular, the right of the accused to have adequate time and facilities
for the preparation of his defence,
CONSIDERING that this Trial Chamber is bound by the Decisions and
Orders granting protective measures of the various Trial Chambers seised of the cases in
which the non-public testimony was given,
CONSIDERING the ongoing nature of the duty of disclosure, in particular
in respect of the cases of Prosecutor v. Tihomir Blaskic, Case No. IT-95-14, and Prosecutor
v. Zoran Kupreskic et al., Case No. IT-95-16,
PURSUANT TO Articles 20 and 22 of the Statute and Rules 69, 75 and 79
of the Rules of Procedure and Evidence of the International Tribunal
DETERMINES TO REMAIN SEISED of the Motion for Access and
HEREBY INVITES the Registrar:
- to provide copies of the transcripts of the testimony of, identifying material,
and all exhibits introduced through the twenty-six protected witnesses in the
case of Prosecutor v. Zoran Kupreskic et al., Case No. IT-95-16, who have consented
to the release of their non-public testimony direct to the Defence in this case within
seven days of the date hereof and subject to the protective measures set out herein;
- to provide copies of the transcripts of the testimony of, identifying
material, and all exhibits introduced through the three protected witnesses in the
case of Prosecutor v. Anto Furundzija, Case No. IT-95-17/1, who have consented to
the release of their non-public testimony direct to the Defence in this case within seven
days of the date hereof and subject to the protective measures set out herein;
AND ORDERS as follows:
- the Prosecution shall within seven days of the date hereof disclose to the Defence
copies of all transcripts of the testimony of, identifying material, and all
exhibits introduced through protected witnesses in the case of Prosecutor v. Tihomir
Blaskic, insofar as such material relates to witnesses to be called in the case of Prosecutor
v. Dario Kordic and Mario Cerkez or constitutes exculpatory material relating to
either of these two accused and subject to the protective measures set out herein;
- the Prosecution shall within seven days of the date hereof disclose to the Defence
copies of all transcripts of the testimony of, identifying material, and all
exhibits introduced through protected witnesses in the case of Prosecutor v. Zlatko
Aleksovski insofar as such material relates to witnesses to be called in the case of Prosecutor
v. Dario Kordic and Mario Cerkez or constitutes exculpatory material relating to
either of these two accused and subject to the protective measures set out herein;
- all material provided to the Defence pursuant to this Order shall be subject to the
following protective measures:
- all protective measures ordered by the Trial Chamber before which a witness has been
heard shall continue in full force and effect;
- all definitions contained in the Order of this Trial Chamber dated 15 January 1999 shall
apply to the material to be disclosed;
- save as is directly and specifically necessary for the preparation and presentation of
this case, the Prosecutor, the Kordic Defence and the Cerkez Defence shall not disclose to
the public: (a) the names, identifying information or whereabouts of any witness or
potential witness identified to them pursuant to this Order, until such time as the
witness testifies publicly in open session; (b) any evidence (including
documentary, physical and other evidence) or any written statement of a witness or
potential witness, or the substance, in whole or part, of any such evidence or statement
that has not already been made public, except in the course of public trial and other
public proceedings before the International Tribunal (where not protected by further,
specific protective measures); (c) the non-public or otherwise protected testimony of a
witness or potential witness identified pursuant to this Order or of a person whose
written statement(s) has been disclosed pursuant to this Order, except that a person may
review his or her own written statement(s) and testimony (and such documentary, physical
or similar evidence which is directly related to or included in his or her statement or
testimony); and to the extent reasonably necessary to his or her work, an expert witness
may review the statements and testimony of other persons, as well as other evidence;
- if the Prosecutor, the Kordic Defence or the Cerkez Defence find it directly and
specifically necessary to disclose such information for the preparation and presentation
of this case, they shall first seek the consent of this Trial Chamber to such disclosure
and shall explain the reasons justifying such disclosure and, if such disclosure is
authorised, shall inform each person among the public to whom a written statement or
non-public or otherwise protected testimony of a witness (or any portion of such a
statement or testimony) or other non-public evidence is shown or disclosed, that such
person is not to copy, reproduce or publicise such statement or evidence, and is not to
show or disclose it to any other person. If provided with the original or any copy or
duplicate of such statement or evidence, such person shall return it to the Prosecutor,
the Kordic Defence or the Cerkez Defence when such statement or evidence is no longer
reasonably necessary for the preparation and presentation of this case;
- the Prosecutor, the Kordic Defence and the Cerkez Defence shall not disclose to any
person to whom disclosure of material is authorised pursuant to this Order that the
relevant witness has already testified before the International Tribunal;
- the family, friends and associates of Dario Kordic or Mario Cerkez (other than the
Kordic Defence or the Cerkez Defence) shall not contact any witness or potential witness
who has been identified to the Kordic Defence or the Cerkez Defence pursuant
to this Order or whose unredacted written statement(s) or non-public or protected
testimony has been disclosed pursuant to this Order, concerning or in connection with this
case;
- the Kordic Defence and Cerkez Defence may only on reasonable prior written notice to the
Prosecutor contact a witness or potential witness identified to them pursuant to this
Order or a person whose written statement(s) or non-public or protected testimony has been
disclosed pursuant to this Order;
-
- nothing herein shall preclude any party or person from seeking such other or additional
protective orders or measures as may be viewed appropriate concerning a particular witness
or other evidence.
Done in French and English, the English text being authoritative.
_______________________________
Richard May
Presiding
Dated this sixteenth day of February 1999
At The Hague
The Netherlands
[The seal of the Tribunal]