Case No.: IT-04-81-PT

IN THE TRIAL CHAMBER

Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy

Registrar:
Mr. Hans Holthuis

Order of:
12 April 2006

PROSECUTOR

v.

MOMCILO PERISIC

_________________________________________________________________________

ORDER ON MOTION FOR ACCESS TO CONFIDENTIAL INFORMATION IN THE PERISIC CASE

_________________________________________________________________________

Office of the Prosecutor

Ms. Susan Somers
Mr. Phillip Weiner

Counsel for Radivoje Miletic

Ms. Natacha Fauveau Ivanovic

Counsel for Ljubomir Borovcanin

Mr. Miodrag Stojanovic

Counsel for Momcilo Perisic

Mr. James Castle

Counsel for Milan Gvero

Mr. Dragan Krgovic

Counsel for Vinko Pandurevic

Mr. Peter Haynes and Mr. Djorde Sarapa

Counsel for Drago Nikolic

Ms. Jelena Nikolic and Mr. Stéphane Bourgon

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 Tribunal (“Rules”), of “General Miletic’s Motion for Access to Confidential Materials in the Perisic Case”, filed on 21 March 2006 (“Motion”),1 in which the Defence of Radivoje Miletic (“Applicant Miletic”) requests access to inter partes “confidential materials regarding the events in Srebrenica” in the case against Momcilo Perisic (“Accused”) contained in three categories of documents:

  1. the annexes to the Initial and Amended Indictments against the Accused;
  2. documents disclosed by the Prosecution pursuant to Rules 66 and 68 of the Rules; and
  3. statements and interviews of the Accused, if any exist;2

NOTING the “Borovcanin Defence Notification on Joining the ‘Requête du Général Miletic aux fins d’accès à des informations confidentielles dans l’affaire Perisic’ ”, filed on 22 March 2006 (“Borovcanin Notification”), which states that Ljubomir Borovcanin (“Applicant Borovcanin”) “joins the Motion filed by Miletic Defence in its entirety”;3

NOTING the “Gvero Defence Notification on Joining the ‘Requête du Général Miletic aux fins d’accès à des informations confidentielles dans l’affaire Perisic’, filed on 23 March 2006 (“Gvero Notification”), which states that Milan Gvero (“ Applicant Gvero”) joins the Motion filed by Miletic Defence in its entirety”;4

NOTING Vinko Pandurevic’s Defence Notification on Joining the ‘Requête du Général Miletic aux fins d’accès à des informations confidentielles dans l’affaire Perisic’ filed on 27 March 2006 (“Pandurevic Notification”), which states that Vinko Pandurevic”, (Applicant Pandurevic) “joins the ‘Requête du Général Miletic aux fins d’accès à des informations confidentielles dans l’affaire Perisic’ filed by Miletic’s Defence in its entirety”;5

NOTING the “Motion on behalf of Drago Nikolic Joining in to the ‘Requête du Général Miletic aux fins d’accès à des informations confidentielles dans l’affaire Perisic’”, filed on 27 March 2006 (“Nikolic Notification”), which states that Drago Nikolic (“Applicant Nikolic”) seeks to “join the Moving Party Miletic in seeking access to confidential material in the [Perisic] case”;6

NOTING that the Motion specifies that it seeks access only to material within the three specified categories that conforms to certain geographic and temporal specifications, namely the material relating to the events at Srebrenica in 1995 that are described in counts 9 to 13 of the Amended Indictment against the Accused ;7

NOTING that the Motion specifically states that access to ex parte material is not requested;8

NOTING that the Prosecution filed a response to the Motion (“Response”) in which it stated that it did not object “in principle” to the Applicants gaining access to the confidential inter partes material in this case but that “a substantial amount of the material requested by the Applicants would have been previously provided to them by the Prosecution team in the [Popovic et al. case]” and /or is available to the Applicants via the electronic disclosure database, and that it “would be duplication for the Registry to provide access to materials which have previously been disclosed to the [Applicants]”;9

NOTING that on this basis the Prosecution appears to oppose an order by the Registry to provide the Applicants access to “documents disclosed by the Prosecution pursuant to Rules 66 and 68 of the Rules” but does not oppose an order to the Registry to provide access to (1) the supporting material to the initial and amended indictment against the Accused and (2) the interviews and statements10 of the Accused, “subject to the required protective measures and confidentiality obligations”;

NOTING that the Prosecution requests that access to the material in this case be subject to all protective measures and orders of confidentiality that presently apply to the confidential material to which access is to be granted, that access to any material that was provided to the Prosecution pursuant to Rule 70 is subject to authorization by the provider, and that the Prosecution “will re-contact the Rule 70 providers to ascertain whether they consent to the disclosure of the material in question to the Applicants’ Defence”;11

NOTING that the Prosecution opposes access to any ex parte material but that the Motion does not seek access to such material;

NOTING that the Prosecution does not oppose access to confidential filings or Trial Chamber decisions that meet the forensic purpose test,12 but that the Motion does not seek access to such materials;

NOTING that the Defence did not file a response to the Motion within the time specified in the Rules;13

NOTING that the current indictment against the Applicants and their co-accused (“Current Popovic et al. Indictment”)14 charges one or more of them with the following crimes for their acts and omissions during the VRS attack on Srebrenica and the subsequent executions of Bosnian Muslims in July 1995: genocide, conspiracy to commit genocide; extermination, murder, persecutions, inhumane acts (forcible transfer), and deportation as crimes against humanity; and murder as a violation of the laws or customs of war;15

NOTING that the current indictment against the Accused (“Current Perisic Indictment”) charges him with the following crimes for his acts and omissions during the VRS attack on Srebrenica and the subsequent executions of Bosnian Muslims in July 1995: extermination, murder, persecutions, and inhumane acts (injuring and wounding civilians and forcible transfer) as crimes against humanity; and murder as a violation of the laws or customs of war;16

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;17

CONSIDERING that, taking into account the Applicants’ lack of knowledge about the nature of the confidential material in this case, the general nature of the material sought has been adequately identified in the Motion;

CONSIDERING that a legitimate forensic purpose for access to confidential material may be established by showing the existence of a nexus between an applicant’s case and the case from which such material is sought,18 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 ;19

NOTING that on 25 January 2006 this Trial Chamber granted a co-accused of the Applicants, Vujadin Popovic, access to Srebrenica-related confidential material in this case based on a finding that there were “significant similarities in the facts giving rise to the charges against SPopovicC and the Accused with regard to events in and around Srebrenica between July and November 1995, constituting a clear geographical and temporal overlap between the two proceedings”;20

NOTING that on 23 March 2006 Trial Chamber II granted the Accused access to certain confidential materials in the Popovic et al. case based on a finding that “the Perisic Defence has established that a sufficient nexus between the case against Momcilo Perisic and the SPopovic et al. caseC exists”;21

CONSIDERING that the significant similarities in the facts giving rise to the charges against the Applicants and the Accused with regard to events in and around Srebrenica in 1995 constitute a clear geographical and temporal overlap between the two proceedings justifying access by the Applicants to materials that relate to the Srebrenica-based charges in Counts 9–13 of the Current Perisic Indictment ;

CONSIDERING that the Motion only requests access to material that falls within three categories of documents, namely: supporting material to the original and amended indictment against the Accused, documents disclosed by the Prosecution to the Accused pursuant to Rules 66 and 68, and statements and interviews with the Accused;

CONSIDERING, however, that documents disclosed by the Prosecution to the Accused pursuant to Rules 66 and 68 of the Rules of Procedure and Evidence do not form part of the record of this case to which the Registry may provide access, and that the Prosecution has represented to this Chamber that much of this material has already been provided to the Applicants by the Prosecution team in the Popovic et al. case and/or is available via the electronic disclosure database;

CONSIDERING that nothing in this Order affects 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 Perisic proceedings that should be disclosed to the Applicants, but which is not covered by the terms of this Order;

CONSIDERING that some of the material to which access is sought contains information that may identify protected witnesses, and that the Applicants have undertaken “to preserve the confidentiality of the confidential documents and to respect the protective measures ordered in the Perisic Case”,22 as well as to comply with “any additional protective measure which the Trial Chamber may order”;23

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 Perisic case continue to have effect in the case against the Applicants and their co-accused, except as they have been varied in accordance with this Order;

PURSUANT TO Rules 54 and 75 of the Rules,

HEREBY GRANTS THE MOTION IN PART, AND ORDERS AS FOLLOWS:

(1) In consultation with the Prosecution and the Defence, the Registry shall identify and give the Applicants access to the following categories of inter partes confidential material:

a. Any confidential supporting material that accompanied the original indictment against the Accused or the Current Perisic Indictment that pertains to the Srebrenica -related charges in Counts 9–13 of those indictments; and

b. Any statement by, or transcript or recording of an interview of, the Accused that pertains to the Srebrenica-related charges in Counts 9–13 of the Current Perisic Indictment, and which forms part of the record of this case.

(2) The Registry shall give the Applicant access to inter partes confidential material in this case that was acquired pursuant to Rule 70 only if and when the consent of the providers has been obtained by the parties. The Registry shall contact the Prosecution and the Defence to determine which confidential material in the case, if any, is covered by Rule 70, and shall withhold disclosure of such material until such time as the relevant party informs the Registry that consent for disclosure has been obtained. The relevant party shall determine as expeditiously as possible whether any of the requested material falls under Rule 70, and shall contact the providers of such material without delay to seek their consent for disclosure of that material, even in respect of those providers who have consented to the use of the relevant material in a prior case. The parties shall be responsible for informing the Registry as appropriate.

(3) The Registry shall give the Applicants access to the non-Rule 70 inter partes confidential material identified in paragraph (1), above, without awaiting the parties’ responses in respect of permission to disclose the Rule 70 material identified by them.

(4) The protective measures that have already been ordered in relation to the material to be made accessible to the Applicants shall remain in place.

(5) The Applicants and their defence counsel shall not contact any witness whose identity was subject to protective measures in this case.

(6) The Applicants and their defence counsel shall not disclose to the public any confidential or non-public material disclosed to it from this case, except to the limited extent that disclosure to members of the public is directly and specifically necessary for the preparation and presentation his defence. 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 as soon as it is no longer needed for the preparation of the Applicant’s case. For the purpose 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, his counsel, and any employees who have been instructed or authorised by the Applicant’s counsel to have access to the confidential material. “The public” also includes, without limitation, families, friends, and associates of the Applicant; Accused and defence counsel in other cases or proceedings before the International Tribunal; the media ; and journalists.

(7) The Motion is otherwise denied.

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

______________________
Judge Robinson
Presiding

Dated this twelfth day of April 2006
At The Hague
The Netherlands

[Seal of the Tribunal]

1 - The Motion was originally filed in French; an English translation was filed on 28 March 2006.
2 - Motion, paras. 2, 9(a).
3 - Borovcanin Notification, para. 2.
4 - Gvero Notification, para. 2.
5 - Pandurevic Notification, para. 2.
6 - Nikolic Notification, para. 1. In the “Relief Sought” section of this filing, the Applicant Nikolic requests that the Trial Chamber “grant access to all inter partes confidential material in The Prosecutor v. Perisic as described in the Miletic Access Motion.” The only inter partes confidential material sought in the Miletic motion is three categories of Srebrenica-related material, and the Nikolic Notification is understood to be seeking the same.
7 - Motion, paras. 1, 4–5.
8 - Ibid., para. 2 n. 1; Notification, para. 2.
9 - Response, paras. 5-6.
10 - The Response states that “[I]t follows that the remaining materials sought and identified by the Applicants are (1) the supporting material to the initial and amended indictment against the Accused… and (2) the interviews of Momcilo Perisic” but it is assumed that the omission of any reference to the statements of the Accused is accidental.
11 - Response, para. 9.
12 - Ibid. at para. 7.
13 - See Rule 126 bis (requiring a response to be filed within fourteen days); Rule 3(E) (tolling the running of time under the Rules if a “document is filed in a language other than one of the working languages of the Tribunal”) (emphasis added); Rule 3(A) (providing that English and French are the working languages of the Tribunal).
14 - Prosecutor v. Popovic, Beara, Nikolic, Borovcanin, Tolimir, Miletic, Gvero, Pandurevic and Trbic, Case No. IT-05-88-PT (“Popovic et al.”), Consolidated Amended Indictment, 28 June 2005 (“Current Popovic et al. Indictment”). See Popovic et al., Order on the Consolidated Amended Indictment, 31 October 2005 (allowing the Prosecution to amend the indictments against all the accused in this newly joined case, and ordering that the consolidated amended indictment filed on 28 June 2005 shall be the operative indictment in the case against the nine co-accused). This indictment therefore supersedes the indictments against the Applicants before joinder was granted.
15 - See generally Current Popovic et al. Indictment, supra note 14.
16 - See Prosecutor v. Perisic, Case No. IT-04-81-PT, Amended Indictment, 26 September 2005 (“Current Perisic Indictment”), paras. 55–62 (Counts 9–13). See also ibid., Schedule D.
17 - 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.
18 - See ibid., para. 15.
19 - 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.
20 - Prosecutor v. Perisic, Case No. IT-04-81-PT, Order on Motion of Vujadin Popovic for Access to Confidential Material in The Prosecutor v. Perisic Case, 25 January 2006, para. 7.
21 - Prosecutor v. Popovic et al, Case No. IT-05-88-PT, Decision on Applicant’s Motion Seeking Access to Confidential Material in the Miletic et. al. Case No. IT-05-88-PT, 23 March 2006.
22 - Motion, para. 8.
23 - Ibid.