Case No. IT-03-68-T

IN TRIAL CHAMBER II

Before:
Judge Carmel Agius, Presiding
Judge Hans Henrik Brydensholt
Judge Albin Eser

Registrar:
Mr. Hans Holthuis

Decision of:
8 November 2005

PROSECUTOR

v.

NASER ORIC

_______________________________________________________

DECISION ON THE DEFENCE MOTION ON BEHALF OF DRAGO NIKOLIC SEEKING ACCESS TO ALL CONFIDENTIAL MATERIAL IN THE ORIC CASE

_______________________________________________________

The Office of the Prosecutor:

Mr. Jan Wubben
Ms. Patricia Sellers Viseur
Mr. Gramsci di Fazio
Ms. JoAnne Richardson

Counsel for the Accused:

Ms. Vasvija Vidovic
Mr. John Jones

Counsel for the Accused Nikolic:

Ms. Jelena Nikolic
Mr. Stéphane Bourgon

 

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 "Defence Motion on Behalf of Drago Nikolic Seeking Access to All Confidential Material in the Oric Case" filed by Defence Counsel for Drago Nikolic in the Case Number IT-05-88-PT ("Nikolic Defence") on 17 October 2005 ("Nikolic Motion"), in which the Nikolic Defence seeks to have access to all confidential material (including the transcripts, exhibits and filings) in the Oric case ("Requested Material");

NOTING the "Response on Behalf of Naser Oric to Defence Motion on Behalf of Drago Nikolic Seeking Access to All Confidential Material in the Oric Case" filed by Counsel for Naser Oric ("Oric Defence") on 25 October 2005 ("Oric Response"), in which the Oric Defence does not take a position on the Motion, leaves it to the discretion of the Trial Chamber to rule on the Motion but submits that it does not accept i) the characterisation of the case against Naser Oric made by the Nikolic Defence and thus does not accept the existence of the required nexus between the two cases, and ii) the forensic purpose for requesting disclosure of the identities of protected witnesses called by the Oric Defence;

NOTING the "Order on the Defence Motion on Behalf of Drago Nikolic Seeking Access to All Confidential Material in the Oric Case" issued by the Trial Chamber on 26 October 2005 ("Order"), in which the Trial Chamber invited the Prosecution in the case against Naser Oric to respond and the Nikolic Defence to reply to the Nikolic Motion no later than Wednesday 2 November 2005;

NOTING the "Prosecution’s Response to Defence Motion on Behalf of Drago Nikolic Seeking Access to All Confidential Material in the Oric case" filed by the Prosecution in the Oric case on 28 October 2005 ("Prosecution Response"), in which the Prosecution submits that the Nikolic Defence has failed to demonstrate i) a sufficient link between the case against Naser Oric and the case against Drago Nikolic, and ii) a sufficient forensic purpose to warrant the disclosure of any confidential information, including the identities of protected witnesses;

NOTING further the "Submission of the Registry Pursuant to Rule 33(B) of the Rules of Procedure and Evidence Regarding Defence Motions Seeking Access to Confidential Material in Several Cases" issued by the Registry on 28 October 2005, in which the Registry presents a number of considerations with regard to the practical aspect of disclosing confidential information from one case to another case, namely the meaning of "access", the manner in which the material should be provided, the entity responsible for identifying the confidential information to be provided and the issue of ex parte material and submits the following recommendations: i) that Registry shall implement immediately any Chamber order granting full access to all confidential information; ii) that, if the Trial Chamber grants only partial access to confidential material subject to limitations, the parties shall compile the said material and convey it to the Registry to provide to the party seeking access; and iii) that the Trial Chamber should specify whether ex parte material is to be handled differently from other confidential material;

NOTING, in addition, the "Applicant’s Reply to the Response on Behalf of Naser Oric to Defence Motion on Behalf of Drago Nikolic Seeking Access to All Confidential Material in the Oric Case" filed on 2 November 2005 ("Reply), which does not materially advance the arguments put forward in support of the Motion but simply reiterates them;

NOTING Rule 75(G)(i) of the Rules of Procedure and Evidence of the Tribunal (“Rules”) which provides that “[a] party to the second proceedings seeking to rescind, vary or augment protective measures ordered in the first proceedings must apply […] (i) to any Chamber, however constituted, remaining seised of the first proceedings";

RECALLING that access to confidential material may be granted whenever the Chamber is satisfied that the party seeking access has established that such material may be of material assistance to his case;1

RECALLING further that the relevance of the material sought by a party may be determined by showing the existence of a nexus between the applicant’s case and cases from which such material is sought, for instance, if the cases stem from events alleged to have occurred in the same geographical area and at the same time;2

CONSIDERING that the burden of establishing that the Requested Material may be of assistance to the case of the Accused was on the Nikolic Defence but that it has failed to establish a sufficient nexus between the case against Drago Nikolic and the case against Naser Oric in view of the fact that, while the two cases stem from events alleged to have occurred in the same geographical area, they have temporal and material scopes which do not overlap;

CONSIDERING further that the Nikolic Defence has failed to substantiate how the disclosure of the identity of the witnesses for whom protective measures were granted in the Oric case would assist in the preparation of the case for Drago Nikolic;

FOR THE FOREGOING REASONS

PURSUANT TO Rules 54 and 75(G)(i) of the Rules

HEREBY DENIES the Nikolic Motion.

 

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

Dated this 8th day of November 2005,
At The Hague
The Netherlands

____________________________
Carmel Agius
Presiding Judge

[Seal of the Tribunal]


1. Prosecutor v. Enver Hadzihasanovic et al., Case No. IT-01-47-PT, Decision on Motion by Mario Cerkez for access to confidential supporting material, 10 October 2001, para. 10; Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-A, Decision on appellants Dario Kordic and Mario Cerkez’s request for assistance of the Appeals Chamber in gaining access to appellate briefs and non-public post-appeal pleadings ad hearing transcripts filed in the Prosecutor v. Tihomir Blaskic, 16 May 2002, para. 14.
2. Prosecutor v. Radoslav Brdjanin and Momir Talic, Case No. IT-99-36-PT, Decision on Motion by Momir Talic for access to confidential documents, 3 July 2000, para.. 8; Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-A, Decision on appellants Dario Kordic and Mario Cerkez’s request for assistance of the Appeals Chamber in gaining access to appellate briefs and non-public post-appeal pleadings ad hearing transcripts filed in the Prosecutor v. Tihomir Blaskic, 16 May 2002, para. 15.