Case No. IT-99-36-T


Judge Carmel Agius, Presiding
Judge Ivana Janu
Judge Chikako Taya

Mr. Hans Holthuis

Decision of:
1 April 2003





The Office of the Prosecutor:

Ms. Joanna Korner
Mr. Andrew Cayley

Counsel for the Accused:

Mr. John Ackerman


TRIAL CHAMBER II (“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 “Motion by Momcilo Gruban (“Applicant”) for Access to Confidential Materials in the Brdjanin and Talic Case” (“Motion”) of 4 March 2003 , in which the Applicant submits that all material from the proceedings before the Trial Chamber in the Brdjanin and Talic case must be disclosed to the Applicant and specifically requests the disclosure of a) redacted transcripts; b) Trial Chamber Orders and Decisions; c) Prosecution and Defence exhibits; and d) documentary evidence admitted during the pre-trial stage;

CONSIDERING the Applicant’s arguments that disclosure of the aforementioned material should be granted because of the partial material overlap between the indictments in the Applicant’s case and the case before this Trial Chamber, namely to the extent that the Omarska camp is concerned, and because of the fact that according to the Prosecution’s Pre-Trial Brief the allegations against the Applicant are supported to a large extent by the testimony of witnesses giving evidence in the Brdjanin and Talic case;

CONSIDERING the “Prosecution Response to the Defence Motion for Disclosure Filed on Behalf of Momcilo Gruban” (“Response”) of 10 March 2003, in which the Prosecution argues that none of the witnesses of the Brdanin and Talic case are anticipated at present to be called to give evidence in the Gruban case and submits that the Applicant may be granted access and disclosure only to material that relates to the Keraterm and Omarska camp from the case Prosecutor v. Stakic1;

CONSIDERING that the Prosecution seeks time to identify witnesses and documents relevant to the Gruban case containing confidential material or falling under Rule 70 and submits that it will indicate to the Registry the material relevant to the Gruban case, pointing out that in the event that it does not wish to have relevant material disclosed, it will file a motion to that effect;

CONSIDERING the Trial Chamber’s decision of 20 September 2003 by which the proceedings against the accused Talic were separated from those against the accused Brdjanin;2

CONSIDERING the Prosecution’s obligations to disclose material to the Applicant pursuant to Rules 66 and 68 of the Tribunal’s Rules of Procedure and Evidence (“ Rules”);

CONSIDERING Rule 75(F) of the Rules, according to which “SonceC protective measures have been ordered in respect of a victim or witness in any proceedings before the Tribunal (the “first proceedings”), such protective measures: (i) shall continue to have effect mutatis mutandis in any other proceedings before the Tribunal (the “second proceedings”) unless and until they are rescinded, varied or augmented in accordance with the procedure set out in this Rule; but (ii) shall not prevent the Prosecutor from discharging any disclosure obligation under the Rules in the second proceedings, provided that the Prosecutor notifies the Defence to whom the disclosure is being made of the mature of the protective measure ordered in the first proceedings”;

FINDING that there is no need for the Trial Chamber to impose any further obligation on the Prosecution to disclose to the Applicant material falling under Rules 66 and 68 of the Rules;

CONSIDERING that the Applicant may be granted access to material which does not fall within the scope of Rules 66 and 68 of the Rules, provided that he is able to identify the documents sought or to describe them by their general nature and to show a legitimate forensic purpose of such access, and subject to the imposition of appropriate protective measures;3

FINDING that the Applicant has not shown that any material, other than that related to the Omarska camp, would be likely to assist his case materially, or that there is at least a good chance that it will give that assistance4 and therefore has not shown any legitimate forensic purpose for accessing material that is not related to the Omarska camp;

FINDING further that the Motion seeking access to all materials in the Brdjanin and Talic case is a mere “fishing expedition”5 and does not identify the documents sought or describe them by their general nature , even not those concerning the Omarska camp;


HEREBY rejects the Motion.


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

Dated this first day of April 2003.
At The Hague
The Netherlands

Carmel Agius
Presiding Judge

[Seal of the Tribunal]

1 - Prosecutor v. Stakic, Case No IT-97-24-T.
2 - Prosecutor v. Radoslav Brdjanin and Momir Talic, Case No. IT-99-36-T, Decision on the Prosecution’s Oral Request for the Separation of Trials, 20 September 2002.
3 - Prosecution v. Radoslav Brdjanin and Momir Talic, Case No. IT-99-36-T, Decision on Joint Motion by Momcilo Krajisnik and Biljana Plavsic for Access to Trial Transcripts of Both Open and Closed Sessions and Documents and Things Filed Under Seal, 13 March 2002, par 6.
4 - Prosecutor v. Brdanin and Talic, Decision on Motion by Momir Talic for Disclosure of Evidence, 27 July 2000, paras 5-8.
5 - Prosecutor v. Hadzihasanovic et al., Decision on Motion by Mario Cerkez for Access to Confidential Supporting Material, October 10, 2001, quoting Prosecutor v. Delalic et al, Case IT-86-21-A, Separate Opinion of Judge David Hunt on Motion by Esad Landzo to Preserve and Provide Evidence, 22 April 1999, par 4.