Case No.: IT-02-54-T


Judge Patrick Robinson, Presiding

Judge O-Gon Kwon
Judge Iain Bonomy

Mr. Hans Holthuis

Order of:
22 February 2006







Office of the Prosecutor

Ms. Carla Del Ponte
Mr. Geoffrey Nice

Counsel for Momcilo Perisic

Mr. James Castle

The Accused

Mr. Slobodan Milosevic

Amicus Curiae

Prof. Timothy McCormack

Assigned Counsel

Mr. Steven Kay
Ms. Gillian Higgins

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 (“Tribunal”);

BEING SEIZED, pursuant to Rule 75(G)(i) of the Rules of Procedure and Evidence of the International Tribunal (“Rules”), of an “Applicant’s Motion Seeking Access to Confidential Material in the Milosevic Case”, filed on 24 January 2006 (“Motion”), in which the Defence of Momcilo Perisic (“Applicant”) argues that the requirements for access to confidential material from other proceedings have been met, and requests access to confidential material in the Milosevic Case;

NOTING that the precise scope of the request is unclear, because the Motion first requests access to “all confidential materials and materials that were tendered for admission but never were offered for admission in the Milosevic case”,1 and finally asks for “all confidential material in both trial and appellate proceedings (including exhibits and transcripts of closed sessions and the filings) in the Milosevic case except with respect to materials that relate to the original Kosovo indictment and which do not relate to the Appellant”;2

NOTING that the question of the admission status of materials arises if the materials in question are susceptible of being exhibits in a case, not if the materials in question are transcripts or the submissions of the parties;

CONSIDERING that, even if there is a difference between materials tendered for admission and materials offered for admission, any material so tendered or offered that is not actually admitted has no official status in the proceedings, and therefore does not form part of the corpus of materials to which an applicant from other proceedings may be granted access;

NOTING that, despite the extensive scope of the Applicant’s request, the Motion concedes that “the Amended Indictment against the Applicant charges him in part with command responsibility for the criminal acts alleged to have been committed in Sarajevo, Zagreb and Srebrenica by individuals who have been named as subordinates”,3 allegations similar to those against accused Milosevic;

NOTING that the Motion also asserts an overlap between the cases against the Applicant and accused Milosevic with regard to Kosovo, by requesting “disclosure of any materials that relate to the Applicant’s resistance to the use of the VJ in Kosovo and his subsequent termination as Chief of Staff due to this resistance ”4 (“requested Kosovo material”);

NOTING that neither the Prosecution nor the Defence filed a response to the Motion;

NOTING that the current indictment against the Applicant (“Current Perisic Indictment”)5 charges him with the following crimes for his acts and omissions in relation to events in Sarajevo, Zagreb, and Srebrenica: murder, extermination, and inhumane acts as crimes against humanity; murder and attacks on civilians as violations of the laws or customs of war; and murder, cruel and inhumane treatment, and forcible transfer as forms of persecution as a crime against humanity;6

NOTING that the amended Bosnia indictment against Accused Milosevic (“Milosevic Bosnia Indictment”) charges him with the following statutory crimes arising from, inter alia, the persecution, extermination, murder, wilful killing, and forcible transfer or deportation of civilians in, around, and from Srebrenica and Sarajevo; and the wanton destruction or plunder of property, wilfully causing great suffering, cruel treatment, and attacks on civilians in Sarajevo: genocide or complicity in genocide, grave breaches of the Geneva Conventions, violations of the laws or customs of war, and crimes against humanity;7

NOTING that the second amended Croatia indictment against Accused Milosevic (“Milosevic Croatia Indictment”) does not charge him with any crime arising from any event in Zagreb,8 and that there is no temporal overlap between the charges against the Applicant and those against Accused Milosevic with regard to events in Croatia;9

CONSIDERING that a party is always entitled to seek material from any source to assist in the preparation of its case if the document sought has been identified or described by its general nature, and if a legitimate forensic purpose for such access has been shown; and that access to confidential material from another case is granted if the party seeking it can establish that it may be of material assistance to its case;10

CONSIDERING 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 the case from which such material is sought,11 and therefore that access to material may be granted if the party seeking it demonstrates a “geographical, temporal or otherwise material overlap” between the two proceedings ;12

CONSIDERING that the significant similarities in the facts giving rise to the charges against the Applicant and the Accused Slobodan Milosevic, with regard to events in and around Srebrenica and Sarajevo during the periods concerned in the respective indictments, constitute a clear material overlap between the two proceedings;

CONSIDERING that the Motion has also demonstrated a legitimate forensic purpose for access to the requested Kosovo material;

CONSIDERING, however, that no legitimate forensic purpose has been shown for access to any confidential material relevant to the Croatia charges in this case, or to all confidential material relevant to the Bosnia charges in this case without geographic limitation;

CONSIDERING that the Simic Appeals Chamber ruled that “ex parte material, being of a higher degree of confidentiality, by nature contains information which has not been disclosed inter partes solely because of security interests of a State, other public interests, or privacy interests of a person or institution ”, and that, like the applicant in Simic, the Applicant in this matter “cannot demonstrate a legitimate forensic purpose in relation to such ex parte material ”,13 even if his request could be interpreted to include such material;

CONSIDERING that some of the material to which access is sought contains information that may identify protected witnesses, and that the Applicant has undertaken “to comply with all the measures of protection ordered in the Milosevic Case ”,14 as well as “any additional protective measures the STrialC Chamber may deem necessary to impose for the protection of witnesses in the Milosevic Case”;15

CONSIDERING that, pursuant to Rule 75(F)(i) of the Rules, any protective measures that have been ordered in respect of a witness in the Milosevic case continue to have effect in the case against the Applicant and his co-accused, except as they have been varied in accordance with this Order;

NOTING that the Motion states that it was filed, at least in part, because of a “prosecutor’s request that the defence obtain disclosure of relevant materials in the Milosevic case through a disclosure motion rather than solely through disclosure directly from the Prosecutor under Rule 68”, an approach which was “intended to ensure that the chamber seized with the case authorised disclosure pursuant to any and all protective measures it wished to impose”;16

NOTING that the Rules specifically permit the Prosecution to comply with its disclosure obligations despite the existence of protective measures;17 and that if, in order to fulfil its disclosure obligations, the Prosecution must provide materials that would otherwise violate existing protective measures, it may apply to the appropriate Chamber for variation of those protective measures;18

CONSIDERING that this Order does not affect the disclosure obligations of the Prosecution under Rules 66 and 68, and that it is the responsibility of the Prosecution to determine whether there is additional material related to the Milosevic proceedings that should be disclosed to the Applicant, but that is not covered by the terms of this Order;

PURSUANT TO Rules 54 and 75 of the Rules,


(1) In consultation with the Prosecution and Assigned Counsel, the Registry shall identify the following categories of confidential material:

(a) All confidential supporting material that:

i. accompanied the Milosevic Bosnia Indictment, and which pertains to the charges related to Srebrenica and Sarajevo for Counts 1–7 and 16–18, and

ii. accompanied the Milosevic Kosovo Indictment, and which is relevant to the Applicant’s resistance to the use of the VJ in Kosovo and his subsequent termination as Chief of Staff due to this resistance;

(b) All closed and private session transcripts pertaining to:

i. the charges related to Srebrenica and Sarajevo for Counts 1–7 and 16–18, and

ii. the Applicant’s resistance to the use of the VJ in Kosovo and his subsequent termination as Chief of Staff due to this resistance;

(c) All confidential and under seal trial exhibits pertaining to:

i. the charges related to Srebrenica and Sarajevo for Counts 1–7 and 16–18, and

ii. the Applicant’s resistance to the use of the VJ in Kosovo and his subsequent termination as Chief of Staff due to this resistance;

(d) All inter partes confidential filings pertaining to:

i. the charges related to Srebrenica and Sarajevo for Counts 1–7 and 16–18, and

ii. the Applicant’s resistance to the use of the VJ in Kosovo and his subsequent termination as Chief of Staff due to this resistance;

(2) The Prosecution shall determine as expeditiously as possible whether any of this confidential material falls under Rule 70, and shall contact the providers of such material without delay to seek their consent for disclosure of that material.

(3) Subject to the consent of such Rule 70 providers where applicable, the Applicant and his defence counsel shall have access to these four categories of inter partes confidential material.

(4) The Registry shall contact the Prosecution to determine which confidential material in the case, if any, is covered by Rule 70, and shall withhold provision of such material until such time as the Prosecution informs the Registry that consent for disclosure has been obtained.

(5) The Applicant and his defence counsel shall not disclose to the public any confidential or non-public material disclosed to it from the Milosevic case except to the limited extent that such disclosure to members of the public is directly and specifically necessary for the preparation and presentation of the Applicant’s case. If any confidential or non-public material is disclosed to the public, any person to whom disclosure is made shall be informed that he is forbidden to copy, reproduce, or publicise confidential or non-public information or to disclose it to any person, and that he must return the material to the Applicant or his counsel as soon as it is no longer needed for the preparation of the Applicant’s case.

(6) The Motion is otherwise denied.

For the purposes of this Order, “the public” means and includes all persons, governments, organisations, entities, clients, associations and groups, other than the Judges of the International Tribunal, the staff of the Registry, the Prosecutor and her representatives, and the Applicant and his defence team. “The public” also includes, without limitation, families, friends, and associates of the Applicant; accused and defence counsels in other cases or proceedings before the International Tribunal ; the media; and journalists.

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

Judge Robinson

Dated this twenty-second day of February 2006
At The Hague
The Netherlands

[Seal of the Tribunal]

1 - Motion, para. 1.
2 - Ibid., para. 15(ii).
3 - Ibid., para. 11 (emphasis added).
4 - Ibid., para. 14.
5 - Prosecutor v. Perisic, Case No. IT-04-81-PT, Amended Indictment, 29 September 2005 (“Current Perisic Indictment”).
6 - See generally Current Perisic Indictment, supra note 5.
7 - Prosecutor v. Milosevic, Case No. IT-02-54-T, Amended Indictment (Bosnia), 22 November 2002 (“Milosevic Bosnia Indictment”), paras. 32, 33, 35, 36, 40 (Counts 1–7, 16–18).
8 - See generally Milosevic, Second Amended Indictment (Croatia), 27 July 2004 (“Milosevic Croatia Indictment”).
9 - Compare Current Perisic Indictment, supra note 5, paras. 47–54 (charging the Applicant with superior responsibility for his omissions in relation to crimes perpetrated in Zagreb in May 1995) with Milosevic Croatia Indictment, supra note 8, para. 7 (alleging that the joint criminal enterprise at issue in that indictment existed “before l August 1991 and continued until at least June 1992”); see also ibid., para. 30 (asserting that the Accused Milosevic exercised effective control over the relevant alleged subordinates “from at least March 1991 until 15 June 1992”).
10 - See Prosecutor v. 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 and Hearing Transcripts Filed in the Prosecutor v. Blaskic [Case], 16 May 2002, para. 14.
11 - See id., para. 15.
12 - See Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2-A, Decision on Motion by Hadzihasanovic, Alagic and Kubura for Access to Confidential Supporting Material, Transcripts and Exhibits in the Kordic and Cerkez Case, 23 January 2003, p. 4.
13 - Prosecutor v. Simic, Case No. IT-95-9-A, Decision on Defence Motion by Franko Simatovic for Access to Transcripts, Exhibits, Documentary Evidence and Motions Filed by the Parties in the Simic et al. Case, 13 April 2005, p. 4.
14 - Motion, para. 9.
15 - Ibid., para. 10.
16 - Ibid., para. 13.
17 - See Rule 75(F)(ii) of the Rules.
18 - See Rule 75(G) of the Rules.