"Decision on Appellant's Motion Requesting Assistance of the Appeals Chamber in Gaining Access to non-Public Transcripts and Exhibits from the Aleksovski Case"

8 March 2002
Judges Pocar (Presiding), Hunt, Güney, Gunawardana and Meron

Procedural Background

On 20 February 2002, Judge Florence Mumba rendered the Decision Granting Access to non-Public Materials.

The Decision

Pursuant to Rules 541 and 752 of the Rules of Procedure and Evidence, the Appeals Chamber ordered that the Prosecution seek the consent of the providers of the Rule 70(C)3 material and that the Registry disclose all non-public transcripts and exhibits subject (1) to any protective measures already adopted by the Trial Chamber and (2) to additional protective measures.

In the Order, the Trial Chamber stated that Tihomir Blaskic, his Defence counsel and any employee at that counsel's law firm or at the Office of Mr. Anto Nobilo who were instructed or authorised by Defence counsel to access the disclosed materials shall prior to having such access.

(a) sign and file with the Registry a written undertaking stating:

(i) that he or she shall not disclose to any third party either the identities of protected witnesses or the content or protected documents, unless paragraph (c) was complied with, and
(ii) that he or she is fully aware that if the measures provided for in this decision are violated, he or she could be found in contempt of the Tribunal pursuant to Rule 77 of the Rules4;

(b) and that third parties shall exclude:

(i) Tihomir Blaskic;
(ii) Defence counsel employees who signed and filed such a written undertaking;
(iii) staff members of the Tribunal; or
(iv) staff members in the Office of the Prosecutor.

(c) and that should Tihomir Blaskic deem it necessary to grant access to any of the disclosed material to third parties, he shall file a signed written undertaking by the third party with the Registry5.

The Reasoning

The Appeals Chamber was satisfied that Tihomir Blaskic is entitled to access the material since he had (1) described its general nature as clearly as he could and (2) shown that such access was likely to assist his appeal materially6.

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1. "At the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial."
2. "(A) A Judge or a Chamber may, proprio motu or at the request of either party, or of the victim or witness concerned, or of the Victims and Witnesses Section, order appropriate measures for the privacy and protection of victims and witnesses, provided that the measures are consistent with the rights of the accused.
(B) A Chamber may hold an in camera proceeding to determine whether to order:

(i) measures to prevent disclosure to the public or the media of the identity or whereabouts of a victim or a witness, or of persons related to or associated with a victim or witness by such means as:

(a) expunging names and identifying information from the Tribunal's public records;
(b) non-disclosure to the public of any records identifying the victim;
(c) giving of testimony through image- or voice- altering devices or closed circuit television; and
(d) assignment of a pseudonym;

(ii) closed sessions, in accordance with Rule 79;
(iii) appropriate measures to facilitate the testimony of vulnerable victims and witnesses, such as one-way closed circuit television.

(C) A Chamber shall, whenever necessary, control the manner of questioning to avoid any harassment or intimidation.
(D) Once protective measures have been ordered in respect of a victim or witness, a party seeking to vary or rescind such an order must:

(i) apply to the Chamber that granted such measures to vary or rescind them or to authorise the release of protected material to another Chamber for use in other proceedings; or
(ii) if, at the time of the request for variation or release, the original Chamber can no longer be constituted by the same Judges, apply to the President to authorise such variation or release who, after consulting with any Judge of the original Chamber who remains a Judge of the Tribunal and after giving due consideration to matters relating to witness protection, shall determine the matter.

During appellate proceedings from proceedings before a Trial Chamber in which an order has been made for protective measures, the Appeals Chamber is in the same position as the Trial Chamber to vary or rescind the order made by the Trial Chamber."
3. "If, after obtaining the consent of the person or entity providing information under this Rule, the Prosecutor elects to present as evidence any testimony, document or other material so provided, the Trial Chamber, notwithstanding Rule 98, may not order either party to produce additional evidence received from the person or entity providing the initial information, nor may the Trial Chamber for the purpose of obtaining such additional evidence itself summon that person or a representative of that entity as a witness or order their attendance. A Trial Chamber may not use its power to order the attendance of witnesses or to require production of documents in order to compel the production of such additional evidence."
4. "(A) The Tribunal in the exercise of its inherent power may hold in contempt those who knowingly and wilfully interfere with its administration of justice, including any person who

(i) being a witness before a Chamber, contumaciously refuses or fails to answer a question;
(ii) discloses information relating to those proceedings in knowing violation of an order of a Chamber;
(iii) without just excuse fails to comply with an order to attend before or produce documents before a Chamber;
(iv) threatens, intimidates, causes any injury or offers a bribe to, or otherwise interferes with, a witness who is giving, has given, or is about to give evidence in proceedings before a Chamber, or a potential witness; or
(v) threatens, intimidates, offers a bribe to, or otherwise seeks to coerce any other person, with the intention of preventing that other person from complying with an obligation under an order of a Judge or Chamber.

(B) Any incitement or attempt to commit any of the acts punishable under paragraph (A) is punishable as contempt of the Tribunal with the same penalties.
(C) When a Chamber has reason to believe that a person may be in contempt of the Tribunal, it may:

(i) direct the Prosecutor to investigate the matter with a view to the preparation and submission of an indictment for contempt;
(ii) where the Prosecutor, in the view of the Chamber, has a conflict of interest with respect to the relevant conduct, direct the Registrar to appoint an amicus curiae to investigate the matter and report back to the Chamber as to whether there are sufficient grounds for instigating contempt proceedings; or
(iii) initiate proceedings itself.

(D) If the Chamber considers that there are sufficient grounds to proceed against a person for contempt, the Chamber may:

(i) in circumstances described in paragraph (C)(i), direct the Prosecutor to prosecute the matter; or
(ii) in circumstances described in paragraph (C)(ii) or (iii), issue an order in lieu of an indictment and either direct amicus curiae to prosecute the matter or prosecute the matter itself.

(E) The rules of procedure and evidence in Parts Four to Eight shall apply mutatis mutandis to proceedings under this Rule.
(F) Any person indicted for or charged with contempt shall, if that person satisfies the criteria for determination of indigence established by the Registrar, be assigned counsel in accordance with Rule 45.
(G) The maximum penalty that may be imposed on a person found to be in contempt of the Tribunal shall be a term of imprisonment not exceeding seven years, or a fine not exceeding 100,000 Euros, or both.
(H) Payment of a fine shall be made to the Registrar to be held in a separate account.
(I) If a counsel is found guilty of contempt of the Tribunal pursuant to this Rule, the Chamber making such finding may also determine that counsel is no longer eligible to represent a suspect or accused before the Tribunal or that such conduct amounts to misconduct of counsel pursuant to Rule 46, or both.
(J) Any decision rendered by a Trial Chamber under this Rule shall be subject to appeal. Notice of appeal shall be filed within fifteen days of filing of the impugned decision. Where such decision is rendered orally, the notice shall be filed within fifteen days of the oral decision, unless

(i) the party challenging the decision was not present or represented when the decision was pronounced, in which case the time-limit shall run from the date on which the challenging party is notified of the oral decision; or
(ii) the Trial Chamber has indicated that a written decision will follow, in which case the time-limit shall run from filing of the written decision."
5. See The Prosecutor v. Radoslav Brdjanin and Momir Talic ("Krajina"), Case No. IT-99-36-PT, Trial Chamber II, Decision on Motion by Prosecution for Protective Measures, 3 July 2000 (summarised in Judicial Supplement No. 18), paras. 45 to 49.
See also The Prosecutor v. Dario Kordic and Mario Cerkez ("Lasva River Valley"), Case No. IT-95-14/2-A, Pre-Appeal Judge David Hunt, Order on Prosecution Request for Variation of Witness Protective Measures, 19 March 2002.
6. The Prosecutor v. Tihomir Blaskic ("Lasva River Valley"), Case No. IT-95-14-A, Appeals Chamber, Decision on the Appellant's Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, 26 September 2000 (hereinafter the "Blaskic Decision", summarised in Judicial Supplement No. 19), para. 55.
See also The Prosecutor v. Zejnil Delalic et al. ("Celebici Camp"), Case No. IT-96-21-A, Appeals Chamber, Decision on Motion to Preserve and Provide Evidence, 22 April 1999 (summarised in Judicial Supplement No. 4), Separate Opinion of Judge Hunt, para. 4; The Prosecutor v. Enver Hadzihasanovic et al. ("Central Bosnia"), Case No. IT-01-47-PT, Trial Chamber II, Decision on Motion by Mario Cerkez for Access to Confidential Supporting Material, 10 October 2001, in which the Trial Chamber considered that "[t]he obiter remark by the Appeals Chamber […] relating to requirements to be satisfied for a request under Rule 75(D)" was inapplicable to an application for access. The Trial Chamber expressed "the view that such a standard is too high for such a purpose." It added that "[a]n applicant seeking access who is able to show a legitimate forensic purpose for that access cannot be expected to identify exactly what material he needs if he does not know (due to confidential orders) what form that material is in or what its exact nature is." The Trial Chamber explained that "[t]he underlying reason for requiring an identification of the documents or of the nature of the documents sought is to prevent an accused or applicant from conducting a 'fishing expedition' - that is, seeking access to material in order to discover whether he has any case at all to make." It concluded that "[i]t is a sufficient onus to require the party to identify as clearly as possible the documents or the nature of the documents to which he seeks access"(para. 11).
See also The Prosecutor v. Tihomir Blaskic, ("Lasva River Valley"), Case No. IT-95-14-A, Judge Florence Mumba, Decision Granting Access to non-Public Materials, 20 February 2002, in which the Judge considered the comment in the Blaskic Decision that the material supporting requests presented under Rule 75(D) must be exactly identified - obiter dictum in any event - "as setting too strict and too high a standard" (para. 7); see also The Prosecutor v. Radoslav Brdjanin and Momir Talic ('Krajina'), Case No. IT-99-36-PT, Trial Chamber II Section A, Decision on Joint Motion by Momcilo Krajisnik and Biljana Plavsic for Access to Trial Transcripts of Both Open and Closed Sessions and Documents and Things Filed Under Seal, 13 March 2002 (summarised in this issue of the Judicial Supplement).