Case No.: IT-95-14/2-A
IN THE APPEALS CHAMBER
Before:
Judge David Hunt, Presiding
Judge Mehmet Güney
Judge Asoka de Zoysa Gunawardana
Judge Fausto Pocar
Judge Theodor Meron
Registrar:
Mr Hans Holthuis
Order of:
19 July 2002
PROSECUTOR
v.
DARIO KORDIC
MARIO CERKEZ
___________________________________________________________
ORDER ON PASKO LJUBICIC’S MOTION FOR ACCESS TO CONFIDENTIAL SUPPORTING MATERIAL, TRANSCRIPTS AND EXHIBITS IN THE KORDIC AND CERKEZ CASE
___________________________________________________________
Counsel for the Prosecutor
Mr Norman Farrell
Counsel for Pasko Ljubicic
Mr Tomislav Jonjic
Counsel for Dario Kordic
Mr Bozidar Kovacic
Counsel for Mario Cerkez
Mr Mitko Naumovski
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,
BEING SEISED OF "Pasko Ljubicic’s Motion for Access to Confidential Supporting Material, Transcripts and Exhibits", dated 3 June 2002 but filed on 4 June 2002, whereby Pasko Ljubicic ("Ljubicic") seeks access to confidential supporting material, transcripts and exhibits in the Kordic and Cerkez case;
NOTING the "Prosecution’s Response to ‘Pasko Ljubicic’s Motion for Access to Confidential Supporting Material, Transcripts and Exhibits’ of 4 June 2002 and Request for Extension of Time", dated 13 June 2002, whereby the Prosecution does not object to Ljubicic’s request in relation to material, transcripts and exhibits which relates to the Kordic and Cerkez trial to the extent that these documents are relevant to Ljubicic’s case, but objects to Ljubicic’s request to have access to material which is not relevant to his case and states that he should also be denied access to "post-trial materials" on the ground that he failed to describe the material for which he seeks access by its general nature as clearly as possible and because he failed to demonstrate how access to that material is likely to assist him;
NOTING the letter of the Senior Legal Officer of the Appeals Chamber, filed confidentially on 19 June 2002, in which the Senior Legal Officer invites Counsel for Kordic, Cerkez, Ljubicic and the Prosecutor to make submissions concerning appropriate courses of action to grant Ljubicic access to relevant material from the Kordic and Cerkez case;
NOTING the letter of the Prosecution in response to the Senior Legal Officer’s letter, filed confidentially on 28 June 2002, in which the Prosecution proposes to file an inter partes document identifying the nature of the material which the Prosecution seeks to have excluded as irrelevant to the Ljubicic case, together with a clear statement as to the test applied in selecting what is to be excluded1;
NOTING that the Prosecution further submits that: (i) in relation to Rule 70 material, adequate time will be needed to contact providers of such material in order to ascertain their readiness to disclose it to the Ljubicic’s Defence; and (ii) in relation to some other non-public material, access should only be granted subject to adequate redaction and, in relation to certain confidential witnesses, the Prosecution should be given some time to ascertain the views of those witnesses and the views of the government or entity that may have consented to the confidential witness testimony2;
NOTING that Counsel for Cerkez submits that the Prosecution should not be allowed to control access to material for which access is sought by a defendant in another case and suggests that disclosure of all the material in a redacted form ("as a first step") would be more in accordance with the principle of public and transparent trial3;
NOTING that Cerkez did not file any document under seal nor requested closed session or any other protective measures for any of his witnesses4;
NOTING that Counsel for Kordic states that, provided appropriate protective measures are put into place, he has no objection to Ljubicic having access to all of the material filed in the Kordic and Cerkez at trial, but that, considering the volume of material and the practical difficulties that would ensue if the parties were requested to redact it, he submits that the parties should instead be requested to describe in some detail, in an inter partes document, the nature of the material which the Prosecution seeks to have excluded5;
NOTING that Ljubicic re-iterates that he should be granted access to all confidential and non-confidential supporting material, transcripts and exhibits, including post-trial material, and that, should the Appeals Chamber only grant him access to part of that material, the Prosecution should not be left to determine the extent of that access, but that, instead, the Defence should have the possibility to review the material and evaluate its relevance itself6;
NOTING that Trial Chamber III called a witness who testified confidentially on 13 and 14 November 2000 and in relation to whom various protective measures were granted, including an order that, before the record and transcript of his testimony is released, the parties and the government of Croatia may make representations in relation any such release7;
CONSIDERING that the present issue relates to the Accused’s access to material from another trial relevant to his case and the manner in which such access should be granted, and that it is not a matter of disclosure;
CONSIDERING that a party is always entitled to seek material from any source to assist in the preparation of his case if the material sought has been identified or described by its general nature and if a legitimate forensic purpose for such access has been shown8;
CONSIDERING that, in view of the partial geographical, temporal and substantive overlap between the present case and the Kordic and Cerkez case, some of the material sought is likely to be of material assistance to the Defence’s case or, at least, there is a good chance that it may give the Defence such assistance;
CONSIDERING, however, that the geographical, temporal and substantive overlap between these two cases is only partial, and that the Defence failed to establish how the material relating to incidents or events which did not occur at a time or in a place relevant to the Ljubicic’s Indictment could otherwise materially assist the Defence’s case;
CONSIDERING also that a party may not engage in a fishing expedition, but that it must describe the documents sought by their general nature as clearly as possible even though it cannot describe them in detail9;
CONSIDERING that, in relation to material related to the Kordic and Cerkez appeal, the Defence has failed to describe the documents for which access was sought even in the broadest terms, thereby engaging in a fishing expedition;
HEREBY REJECTS Ljubicic’s motion in relation to "post-trial materials" to the extent that he was unable to describe it by its general nature as clearly as possible;
CONSIDERING, however, that if, at a later stage, he is able to describe such material by its general nature as clearly as possible, Ljubicic may file a fresh motion seeking access thereto;
CONSIDERING that, in relation to confidential supporting material, transcripts and exhibits from the Kordic and Cerkez trial for which there is sufficient geographical, temporal or substantive overlap with his case, Ljubicic has (a) described the material sought by its general nature and (b) shown a legitimate forensic purpose for such access;
CONSIDERING that, although the documents are in the possession of the Registry, it would be necessary for the Prosecution to make submissions as to what redaction should be made and accordingly it would be more efficient and appropriate for the Prosecution to make the redaction directly;
HEREBY GRANTS the motion in part and ORDERS as follows:
Done in English and French, the English version being authoritative.
______________________
David Hunt
Presiding Judge
Done this 19 July 2002,
At The Hague,
The Netherlands.
[Seal of the Tribunal]