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IN THE TRIAL CHAMBER
Before:
Judge Richard May, Presiding
Judge Mohamed Bennouna
Judge Patrick Robinson
Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh
Order of:
3 May 2000
PROSECUTOR
v.
DARIO KORDIC
MARIO CERKEZ
CONFIDENTIAL EX PARTE
__________________________________________________
DECISION ON EX PARTE APPLICATION FOR THE ISSUANCE
OF AN ORDER TO THE EUROPEAN COMMUNITY MONITORING MISSION
__________________________________________________
Defence Counsel
Mr. Mitko Naumovski, Mr. Turner T. Smith Jr., and Mr. Robert Stein for Dario Kordic
Mr. Bozidar Kovacic and Mr. Goran Mikulicic, for Mario Cerkez
European Community Monitoring Mission
Mr. Tony McCourt
The Presidency of the Council of the European Union (Republic of Portugal)
The Commission of the European Union/European Community
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 ("the International Tribunal"),
BEING SEISED of "Dario Kordics ex parte, in camera Application for Issuance of an Order to the European Community Monitoring Mission (ECMM) Compelling the Production of Documents and Other Materials (the Application) filed by the Defence for Dario Kordic on 1 November 1999, seeking the production of thirty-eight categories of documents as set out therein;
NOTING the "Notice of Joinder" in the Application filed by the Defence for Mario Cerkez on 1 November 1999;
NOTING the Order in this matter issued by the Trial Chamber on 2 February 2000 which requested the ECMM to disclose to the Trial Chamber within three weeks of the date of the order a list of the documents and material provided to, or copied, by the Office of the Prosecutor ("the Prosecution");
NOTING the "Note verbale" filed by the ECMM on 18 February 2000 which provided the Trial Chamber with a list of those documents which the ECMM permitted the Prosecution to use in this case pursuant to Rule 70 of the Rules of Procedure and Evidence of the International Tribunal ("the Rules");
NOTING the "Memorandum of Understanding on Monitoring Activities in Bosnia and Herzegovina" ("the Memorandum") concluded on 1 October 1991 between the then twelve members states of the European Community and the Commission on the one hand, and the Federal Authorities of the SFRY and the Republic of Bosnia and Herzegovina on the other hand;
NOTING further that in the course of a hearing held on 14 January 2000 ("the hearing") the Defence limited the Application to requests 3, 6, 10, 12-15, 18, 21-31, and 38;
CONSIDERING that pursuant to "Article VII (chain of responsibility)" of the Memorandum the ECMM operates under the responsibility, and reports to, its "Head ( ) who is a national of the Member State of the European Community holding the EC Council Presidency";
CONSIDERING that the representative of the ECMM who appeared before the Trial Chamber at the hearing was authorised to do so by a representative of the Republic of Portugal, which is the member state currently holding the European Union Councils Presidency1 ("the Presidency of the EU Council");
CONSIDERING that issues relating to the ECMM, including its future, were discussed within the European Unions Council2;
CONSIDERING the role of the Presidency of the EU Council in representing the member states in matters falling within the now common foreign and security policy under the provisions of the Treaty on European Union3, in addition to its role in relation to ECMM activities as provided for in the Memorandum;
CONSIDERING that pursuant to the Treaty on European Union4 the Commission is fully associated in the tasks of the Presidency, and that it was also vested by the Treaty establishing the European Community5 with the task to "ensure maintenance of all appropriate relations with the organs of the UN";
CONSIDERING also that a number of former ECMM monitors or representatives testified before the Trial Chamber in the course of the presentation of the Prosecutions case, and that the ECMM has consented to the use by the Prosecution, pursuant to Rule 70, of a number of ECMM documents which have been tendered into evidence in this case;
PURSUANT TO Rule 54 of the Rules
HEREBY REQUESTS the Presidency of the Council and the Commission of the European Community/European Union to consider the Defence Application and to disclose to the Defence the documents and material listed in the confidential annex.
Done in English and French, the English text being authoritative.
___________________________
Richard May
Presiding
Dated this third day of May 2000
At The Hague
The Netherlands
[Seal of the Tribunal]
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