Case No.: IT-02-54-T


Judge Patrick Robinson, Presiding

Judge O-Gon Kwon
Judge Iain Bonomy

Mr. Hans Holthuis

Order of:
2 December 2005







Office of the Prosecutor

Ms. Carla Del Ponte
Mr. Geoffrey Nice

Counsel for Drago Nikolic

Mrs. Jelena Nikolic
Mr. Stéphane Bourgon

The Accused

Mr. Slobodan Milosevic

Amicus Curiae

Prof. Timothy McCormack

Assigned Counsel

Mr. Steven Kay, QC
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 (“International Tribunal”);

BEING SEIZED, pursuant to Rule 75(G)(i) of the Rules of Procedure and Evidence of the International Tribunal (“Rules”), of a “Defence Motion on Behalf of Drago Nikolic Seeking Access to All Confidential Material in the Milosevic Case”, filed on 17 October 2005 (“Motion”), in which the Defence of Drago Nikolic (“the Applicant”) argues that the requirements for access to confidential material from other proceedings have been met, and requests “access to all confidential material (including the transcripts, exhibits and filings) in the Milosevic Case”;1

NOTING that, despite the extensive scope of this request, the Motion concedes that “the alleged events and facts in the Indictment against the Applicant are closely related to some of the charges laid against the Accused” in this case,2 and specifically identifies only one general area of geographic and temporal overlap, by noting that

some of the charges issued against both [the Applicant and the Accused Milosevic] are based on the same alleged events that occurred between July and November 1995, following the alleged attack of the Army of the Republika Srpska (the “VRS”) on Srebrenica in July 1995, in the eastern part of Bosnia and Herzegovina and more specifically in the area of Srebrenica, Zvornik and Bratunac.3

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

NOTING 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”, filed simultaneously in several cases, including Prosecutor v. Milosevic, on 31 October 2005 (“Registry Submission”), in which the Registry requests, inter alia, that if a Chamber grants less than complete access to confidential material, “the parties whose evidence is in question should compile the material to be provided—subject to those limitations—and convey the material to the Registry to provide to the party seeking access”;4

NOTING the Prosecution’s Response to the Registry Submission, filed simultaneously in several cases, including Prosecutor v. Milosevic, on 11 November 2005 (“Prosecution Response to Registry”), in which the Prosecution “agrees that, in many instances the solution is for the Registry to provide those materials in their entirety but subject to the continuation of the original protective measures”,5 but notes, in the context of a discussion of responsibility for redaction, that “it should not necessarily fall to parties to ensure that the resulting record complies with the Chamber’s ruling” and that “[t]hese documents are records officially maintained by the Registry”;6

NOTING that the current indictment against the Applicant and his co-accused (“Current Popovic et al. Indictment”)7 charges him with the following crimes for his acts and omissions during the VRS attack on Srebrenica and the subsequent executions of Bosnian Muslims: genocide; conspiracy to commit genocide; extermination, murder, forcible transfer and deportation as crimes against humanity; murder, cruel and inhumane treatment, terrorising the civilian population, destruction of personal property, and forcible transfer as forms of persecution as a crime against humanity; and murder as a violation of the laws or customs of war;8

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, forcible transfer, or deportation of Bosnian Muslims in, around, and from Srebrenica in July 1995: genocide or complicity in genocide, grave breaches of the Geneva Conventions, violations of the laws or customs of war, and crimes against humanity;9

NOTING that the Milosevic Bosnia Indictment alleges that the Accused Milosevic was a participant in a joint criminal enterprise whose members included General Ratko Mladic, the Commander of the Main Staff of the VRS;10

NOTING that the Superseded Nikolic Indictment alleged that the Applicant was a participant in a different joint criminal enterprise whose members also included General Mladic,11 and that, although the Current Popovic et al. Indictment contains no overlap between the members of the two joint criminal enterprises,12 it does allege that the conspiracy to commit genocide charged in Count 2 included General Mladic,13 and that some of the underlying conduct giving rise to the charges in the indictment was ordered by General Mladic;14

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;15

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,16 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;17

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 between July and November 1995, constitute a clear geographical and temporal overlap between the two proceedings;

CONSIDERING, however, that no legitimate forensic purpose has been shown for access to all confidential material in this case without geographic or temporal limitations;

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 ”;18

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 ”,19 as well as “any additional protective measures the [Trial] Chamber may deem necessary to impose for the protection of witnesses in the Milosevic Case”;20

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;

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 inter partes confidential material:

(a) All confidential supporting material that accompanied the Bosnia indictment and that pertains to the Srebrenica-related charges for Counts 1–7 and 16–18 during the period July to November 1995;

(b) All closed and private session transcripts pertaining to the Srebrenica-related charges for Counts 1–7 and 16–18 during the period July to November 1995;

(c) All confidential and under seal trial exhibits pertaining to the Srebrenica-related charges for Counts 1–7 and 16–18 during the period July to November 1995; and

(d) All confidential filings pertaining to the Srebrenica-related charges for Counts 1–7 and 16–18 during the period July to November 1995;

(2) The Prosecution shall determine whether any of this confidential material falls under Rule 70, and shall contact the providers of such material 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 three categories of inter partes confidential material;

(4) 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 ; and

(5) 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 Presiding

Dated this second day of December 2005
At The Hague
The Netherlands

[Seal of the Tribunal]

1 - Motion, para. 15(ii).
2 - Ibid., para. 4 (emphasis added).
3 - Ibid., para. 12.
4 - Registry Submission, para. 12.
5 - Prosecution Response to Registry, para. 2.
6 - Ibid., para. 6.
7 - 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 indictment against the accused that was in force before joinder was granted. See Prosecutor v. Nikolic, Case No. IT-02-63-T, Indictment, 6 September 2002 (“Superseded Nikolic Indictment”).
8 - See generally Current Popovic et al. Indictment, supra note 7.
9 - See 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). See also ibid., Schedule A, p. 25.
10 - Milosevic Bosnia Indictment, supra note 9, para. 7.
11 - See Superseded Nikolic Indictment, supra note 7, para. 20.
12 - Compare Milosevic Bosnia Indictment, supra note 9, para. 7, with Current Popovic et al. Indictment, supra note 7, paras. 36, 49 (limiting the members of the joint criminal enterprise, conspiracy and operation alleged in the indictment to the nine co-accused).
13 - Current Popovic et al. Indictment, supra note 7, para. 34.
14 - See, e.g., ibid., paras. 27, 32.
15 - 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.
16 - See id., para. 15.
17 - 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.
18 - 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. See also Prosecution Response to Registry, para. 3 (“The Prosecution does not consider that the defence should be granted access to ex parte material in another case, and can see no reason in principle for what would amount to changing the status of the earlier communications.”)
19 - Motion, para. 9.
20 - Ibid., para. 10.