Grabovica-Uzdol, Prosecutor v. Halilovic, Decision on Defence Motions for Access, IT-01-48-A (ICTY AC, Dec. 04, 2003)

Case No.: IT-01-48-PT

IN THE TRIAL CHAMBER

Before:
Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon

Registrar:
Mr. Hans Holthuis

Decision of:
4 December 2003

PROSECUTOR

v.

SEFER HALILOVIC

_________________________________________________

DECISION ON DEFENCE MOTIONS FOR ACCESS

__________________________________________________

The Office of the Prosecutor

Mr. Ekkehard Withopf
Mr. Vladimir Tochilovsky
Ms. Marie Tuma

Counsel for the Accused

Mr. Stefan Kirsch
Mr. Guénaël Mettraux

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 SEISED of three "Motions for access" filed by counsel for the Defence on 28 November and 3 December 2003, seeking the assistance of the Trial Chamber in obtaining access to documents currently said to be in the custody and control of: (1) the Cantonal Prosecutor of Mostar; (2) the Cantonal Prosecutor of Sarajevo; and (3) the Presidency of Bosnia and Herzegovina, pursuant to Rules 54 and 54 bis of the Rules of Procedure and Evidence of the International Tribunal ("Rules") (together "the Motions"),

NOTING the requirements of Rule 54 bis (A) and (B) that a party requesting an order for a State to produce documents or information shall "explain the steps that have been taken by the applicant to secure the State’s assistance" and that a Trial Chamber may reject an application if satisfied that "no reasonable steps have been taken by the applicant to obtain the documents or information from the State",

CONSIDERING that the Defence has not demonstrated to the satisfaction of the Trial Chamber that it has requested assistance from the State of Bosnia and Herzegovina but that its requests have been directed solely to the cantonal and other authorities said to be in possession of the material to which access is sought,

CONSIDERING that Article 29 of the Statute of the International Tribunal imposes obligations on States, and not on individual authorities, and that it is the responsibility of the State to ensure that those obligations are observed by the individual authorities under its control,

CONSIDERING therefore that the appropriate course of action is for the Defence first to seek the assistance of the State of Bosnia and Herzegovina, through its Ministry of Justice or other appropriate State organ, before seeking an order from the Trial Chamber,

PURSUANT TO Rule 54 bis (B) of the Rules,

HEREBY REJECTS the Motions.

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

__________
Richard May
Presiding

Dated this fourth day of December 2003
At The Hague
The Netherlands

[Seal of the Tribunal]

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