Case No. IT-95-9-A

IN THE APPEALS CHAMBER

Before:
Judge Mehmet Güney, Presiding
Judge Mohamed Shahabuddeen
Judge Liu Daqun
Judge Andrésia Vaz
Judge Wolfgang Schomburg

Registrar:
Mr. Hans Holthuis

Decision of:
15 March 2006

PROSECUTOR

v.

BLAGOJE SIMIC

PUBLIC REDACTED VERSION

______________________________________________

DECISION ON BLAGOJE SIMIC’S MOTION (1) FOR ACCESS TO FURTHER CONFIDENTIAL MATERIALS; (2) FOR LEAVE TO DISCLOSE CONFIDENTIAL MATERIALS TO EXPERT; AND (3) TO VARY SCHEDULING PROVISIONS OF ORDERS OF 3 AND 17 FEBRUARY 2006

______________________________________________

Counsel for the Prosecutor:

Mr. Peter Kremer

Counsel for the Appellant:

Mr. Igor Pantelic
Mr. Peter Murphy

THE APPEALS 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 (“Appeals Chamber” and “International Tribunal”, respectively),

NOTING that in his appeal lodged against the Judgement rendered by Trial Chamber II on 17 October 2003, Blagoje Simic (“Appellant”) raised the following sixteenth ground of appeal:

“The Trial Chamber erred in law by denying Dr. Blagoje Simic’s Motion for disclosure of Prosecution witness Stevan Todorovic’s medical records, which may have contained information that substantially affected the credibility of the witness or have resulted in the exclusion of his evidence altogether, thereby denying Dr. Simic his right to examine the witnesses against him as provided for by Article 21(e) of the Statute ; thus, invalidating the decision. [Judgement, paragraph 21 (pages 7-8); Transcript, pp.11981-86].”;1

NOTING the “Order Proprio Motu Granting Access to Confidential Material ” issued on 3 February 2006 (“Order Granting Access”), whereby the Appeals Chamber, acting “out of an abundance of caution and for the purpose of being able to fully assess the merits of the Appellant’s sixteenth ground of appeal”,2 granted the Appellant and his Defence access, subject to certain conditions, to the medical reports filed confidentially before the Trial Chamber seised of the Todorovic case3 relating to the psychiatric examination of Mr. Stevan Todorovic (“Medical Reports”)4 and ordered the Appellant to file additional submissions, if required, within seven days from the date of receiving the Medical Reports;

NOTING that a redacted version of the Medical Reports was provided to the Appellant as a confidential annex to the “Decision on Application of Stevan Todorovic for Additional Protective Measures”, issued by the Appeals Chamber on 22 February 2006 (“Decision of 22 February 2006”);5

NOTING the “Scheduling Order for Appeal Hearing” issued by the Appeals Chamber on 17 February 2006, which ordered that the appeal hearing in the present case be held on Monday, 20 March 2006 (“Scheduling Order for Appeal Hearing”);

BEING SEISED OF the “Motion of Blagoje Simic (1) for Access to Further Confidential Materials; (2) for Leave to Disclose Confidential Materials to Expert; and (3) to vary Scheduling Provisions of Orders of 3 February and 17 February 2006” filed confidentially by the Appellant on 27 February 2006 (“Motion”), whereby he requests (1) that he may be granted access to the medical records of Stevan Todorovic “pertaining to the period in or about June 2002 when he was in The Hague to give evidence at the trial of this case”6 (“June 2002 Medical Records”); (2) leave to disclose the Medical Reports and the June 2002 Medical Records to an expert “for the purpose of obtaining an expert opinion which would assist the Appeals Chamber and Counsel in evaluating the Appellant’s 16th Ground of Appeal ”;7 (3) that the time-limits prescribed for the filing of additional submissions and the date of the appeal hearing be varied to allow sufficient time for this to be done;8 and (4) “as an interim measure, if necessary”, that “the Appellant’s time for making further submissions with respect to the 16th Ground of Appeal be extended to run from the date of the Appeals Chamber’s decision on this Motion”;9

NOTING the “Prosecution’s Response to Urgent Motion Filed 27 February 2006 ”, filed confidentially on 28 February 2006 (“Response”), whereby the Prosecution opposes the Motion in its entirety;

NOTING the “Reply of Blagoje Simic to Prosecution Response to Urgent Motion Filed on 27 February 2006”, filed confidentially on 1 March 2006 (“Reply”);

Request for Access to the June 2002 Medical Records

NOTING that, in support of his request for access to the June 2002 Medical Records, the Appellant submits that, in his application filed before the Appeals Chamber on 20 February 2006,10 Stevan Todorovic not only revealed the existence of the June 2002 Medical Records but also conceded that such records would be relevant to the Appellant’s case,11 and contends that it is necessary to review the said records “in order to form a complete view of Mr. Todorovic’s condition”;12

NOTING that, in its Response, the Prosecution submits that the Appellant’s request is “an attempt to have the Appeals Chamber review and reverse its Decision on Motion for Disclosure of Evidence dated 23 September 2004”13 and, further, that “at no point during the trial did the Defence ever seek access to any medical records [redacted]”;14

NOTING that the Appellant replies, inter alia, that, contrary to what the Prosecution argues, the issue raised by his 16th Ground of Appeal is “whether the Trial Chamber erred in denying the defence access to material which might have prevented the evidence of Stevan Todorovic from being admitted, or which might have led the Trial Chamber to take a different view of that evidence”15 and that it is now clear from the Medical Reports disclosed that the June 2002 Medical Records “would assist [redacted]”;16

CONSIDERING that, in the oral motion made at trial on 3 September 2002 (“ Oral Motion”), the Trial Chamber's denial of which is the object of the Appellant’s 16th Ground of Appeal, the Appellant confined himself to the issue of Stevan Todorovic’s mental health as indicated by the results of the psychiatric examinations conducted in the course of the sentencing proceedings against the latter, which results were reflected in the Medical Reports;17

CONSIDERING further that, during his testimony at trial, the issue of [redacted] was raised,18 and yet at the time the Appellant did not cross-examine him on this issue nor did he take any action to obtain access to any contemporary medical records of Stevan Todorovic ;

CONSIDERING therefore that the Appellant has waived his right to raise on appeal the issue of access to medical records other than those which were the object of his Oral Motion, namely the Medical Reports, and, as a result, the Appellant’s 16th Ground of Appeal will only be addressed insofar as it relates to the Appellant’s Oral Motion for access to the Medical Reports;

FINDING for the foregoing reasons that it is not necessary for the Appellant to have access to the June 2002 Medical Records in order to argue the merits of his 16th Ground of Appeal;

Request for Leave to Disclose the Medical Reports to an Expert

NOTING that, in support of his request for leave to disclose the Medical Reports to an expert, the Appellant argues that since “neither the members of the Appeals Chamber nor the Appellant’s Counsel are in a position to evaluate the potential impact of [the diagnosis offered in the Dr. Lecic-Tosevski Report] on the reliability of the evidence given by Mr. Todorovic at the trial in June 2002 without the assistance of an expert”,19 it is necessary to consult such expert “with a view to enabling the Appeals Chamber to evaluate the 16th Ground of Appeal fully and fairly”;20

NOTING that the Prosecution opposes this request on the grounds inter alia that: (1) the procedure suggested by the Defence is flawed in that it assumes the admissibility and relevance of the redacted Medical Reports and of the new expert report, ignoring the fact that these reports would be additional evidence, “which would only be receivable upon a motion under Rule 115”;21 and (2) the “proposed procedure is also illogical because the two redacted [Medical Reports] were prepared for another case …, and for another purpose, the medical psychiatric assessment of [Stevan] Todorovic”;22

NOTING further that the Prosecution “cautions against taking the next step and allowing an abuse of doctor-patient confidentiality by permitting this information to be used in these proceedings for an entirely unintended purpose”;23

NOTING that the Appellant submits in reply that, in order to decide the 16th Ground of Appeal, the “Appeals Chamber should be as fully informed as possible of the extent to which Mr. Todorovic’s evidence might have been compromised by his medical condition when he gave evidence” and that “the best way to get this information is by studying the medical records with the help of experts”,24 and argues, with respect to the Prosecution’s reference to doctor-patient confidentiality, that, in this case, “the interest of justice in enabling him to prepare” his appeal must prevail over “the interests of Mr. Todorovic in maintaining the confidentiality of his medical records”;25

NOTING that the Decision of 22 February 2006 provided that the redactions to the Medical Reports envisaged therein “strike an appropriate balance between the rights of the Appellant and the protection of Mr. Todorovic’s privacy”;26

NOTING that the Order Granting Access provided that “the Appellant, his Counsel and any employees who have been instructed or authorised by Counsel to have access to the Medical Reports shall not, without express leave of the Appeals Chamber based on a finding that it has been sufficiently demonstrated that third-party disclosure is necessary for the preparation of the defence of the Appellant, disclose to any third party the Medical Reports or any parts thereof”;27

CONSIDERING that, according to the Appellant, disclosing the redacted Medical Reports to an expert would assist him in the preparation of his defence, and thus that, in the circumstances of the case, the Appellant has sufficiently demonstrated that the disclosure of the redacted Medical Reports is necessary for the preparation of his defence;

FINDING therefore that leave should be granted to the Appellant to disclose the confidential redacted Medical Reports to an expert, subject to the conditions set out in the Order Granting Access;

Request for Variation of Time-Limit and Postponement of the Date of the Appeal Hearing

NOTING that the Appellant specifically requests permission to file his additional submissions in support of his 16th Ground of Appeal thirty (30) days from the receipt of the June 2002 Medical Records and submits that “this will necessitate some delay in the scheduled date for the hearing of the appeal”28 on the grounds that it will take some time to obtain the expert’s opinion and that “the interests of justice and fairness require that the 16th Ground of Appeal be analysed judicially with due regard to all available evidence”;29

NOTING further that, as an interim measure, the Appellant requests that the time-limit prescribed by the Order Granting Access for filing additional submissions with respect to the 16th Ground of Appeal be extended to run from the date of the Appeals Chamber’s decision on this Motion; 30

NOTING that the Prosecution opposes any delay in the filing deadlines set out in the Order Granting Access and in the Scheduling Order for Appeal Hearing on the grounds, inter alia, that: (1) the redacted Medical Reports are “neither lengthy nor complicated”; (2) the discussion of [redacted] is not extensive ; (3) the Appellant’s Defence “with reasonable diligence ought to have known of the medical reports, their conclusions, the testimony of Dr. Lecic-Tosevski because the medical reports existence, conclusions and testimony about them was public”; and (4) “any delay would put the 20 March 2006 Appeals Chamber hearing date at risk ”;31

NOTING that, in his Reply, the Appellant submits that the time consumed in properly analysing the June 2002 Medical Records and the redacted Medical Reports would be valuable in enabling the Appeals Chamber to properly evaluate the 16th Ground of Appeal,32 and “urges that the interests of justice be placed above those of maintaining the schedule presently laid down”;33

NOTING that Rule 127 of the Rules of Procedure and Evidence of the International Tribunal (“Rules”) provide that “on good cause being shown by motion” the Appeals Chamber may “enlarge or reduce any time prescribed by or under these Rules”;

CONSIDERING that the Appellant’s additional submissions, if any, were due no later than seven days after receiving the redacted Medical Reports, i.e. no later than Thursday, 2 March 2006;

CONSIDERING, however, that on 2 March 2006, the parties were informed by the Pre-Appeal Judge that the time-limit set out in the Order Granting Access for filing additional submissions was suspended until the Appeals Chamber issued its decision on the Motion;

CONSIDERING that the Appeals Chamber has found above that the Appellant has waived his right to raise on appeal the issue of access to medical records other than the Medical Reports, and therefore that it is not necessary for the Appellant to access the June 2002 Medical Records, but that he should be permitted to disclose the redacted Medical Reports to an expert;

FINDING therefore that there is good cause within the meaning of Rule 127 of the Rules to vary the time-limit prescribed in the Order Granting Access in order for the Appellant to consult an expert before filing his additional submissions regarding his 16th Ground of Appeal;

FINDING further that there is good cause to postpone the appeal hearing scheduled on Monday, 20 March 2006;

HEREBY, pursuant to Rules 54 and 127 of the Rules,

DENIES the Appellant’s request for access to the June 2002 Medical Records ;

GRANTS leave to the Appellant to disclose the confidential redacted Medical Reports to an expert;

GRANTS the request for variation of time-limit and postponement of the date of the appeal hearing;

ORDERS that:

(a) the Appellant’s additional submissions, if any, shall be filed no later than Wednesday, 5 April 2006;

(b) the Prosecution’s response, if any, shall be filed within ten days of the filing of the Appellant’s additional submissions; and

(c) the Appellant’s reply, if any, shall be filed within five days of the filing of the Prosecution’s response;

VACATES the Scheduling Order for Appeal Hearing; and

INFORMS the Parties that an order rescheduling the appeal hearing will be issued in due course.

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

Done this 15th day of March 2006,
At The Hague,
The Netherlands.

_______________
Judge Mehmet Güney
Presiding Judge

[Seal of the International Tribunal]


1 - Appellant Blagoje Simic’s Amended Notice of Appeal, 22 September 2004, p. 11, para. 18 (“16th Ground of Appeal”).
2 - Order Granting Access, p. 2.
3 - Prosecutor v. Stevan Todorovic, Case No. IT-95-9/1-S.
4 - Report of Dr. Lecic-Tosevski and Report of Dr. Soyka, referred to by the Todorovic Trial Chamber as the “Soyka Report” and the “Lecic-Tosevski Report”. See Prosecutor v. Stevan Todorovic, IT-95-9/1-S, Sentencing Judgement, 31 July 2001, para. 94.
5 - The Appeals Chamber notes that, due to technical difficulties, the Appellant’s Counsel received the decision and its annex only the following day, 23 February 2006. See Motion, para. 3.
6 - Motion, paras 2(1) and 9(1).
7 - Motion, paras 2(2) and 9(2).
8 - Motion, paras 2(3) and 9(3).
9 - Motion, paras 2(4) and 9(4).
10 - Application of Stevan Todorovic for Additional Protective Measures, 20 February 2006.
11 - Motion, para. 3.
12 - Motion, para. 5.
13 - Response, para. 1.
14 - Response, para. 2.
15 - Reply, para. 4.
16 - Reply, para. 6 (emphasis in the original).
17 - See Transcript, 11981-11983 (private session).
18 - See Transcript, 9196-9197 (private session).
19 - Motion, para. 4.
20 - Motion, para. 6.
21 - Response, paras 5, 6.
22 - Response, para. 7.
23 - Response, para. 8.
24 - Reply, para. 5.
25 - Reply, para. 7.
26 - Decision of 22 February 2006, p. 2.
27 - Order Granting Access, pp. 3, 4.
28 - Motion, para. 8.
29 - Motion, para. 7.
30 - Motion, paras 2(4) and 9(4).
31 - Response, para. 9.
32 - Reply, para. 1.
33 - Reply, para. 8.