Case No.: IT-04-81-PT
IN THE TRIAL CHAMBER
Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy
Registrar:
Mr. Hans Holthuis
Order of:
7 February 2006
PROSECUTOR
v.
MOMCILO PERISIC
__________________________________
SECOND ORDER ON DEFENCE MOTION FOR ACCESS TO ALL CONFIDENTIAL MATERIAL IN THE PROSECUTOR V. KRSTIC CASE
__________________________________
Office of the Prosecutor
Ms. Susan Somers
Mr. Philip Weiner
Counsel for Radislav Krstic
Mr. Nenad Petrusic
Counsel for Momcilo Perisic
Mr. James Castle
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") is seized of a "Prosecutor’s
Request for Certification of Interlocutory Appeal
of Order on Defence Motion for Access to All Confidential
Material in the Prosecutor v. Krstic case and in
the Alternative Prosecution’s Motion for Reconsideration
of Order Granting Confidential Ex Parte Material
to Accused" and hereby renders a decision thereon.
- On 16 November 2005 counsel for the Accused Momcilo
Perisic (the "Defence") filed a motion seeking access to "all confidential material"1 in the Krstic trial and appeals case, including "exhibits, transcripts of closed sessions and the filings" for both the trial and appellate stages of the case ("Motion").
- On 28 November 2005 the Prosecution filed a response
to the Motion ("Response").2
- On 25 January 2006 the Trial Chamber issued an
order granting the Defence access to all confidential
material, including ex parte confidential
material, in the Krstic trial and appeals
case ("Original Order for Access").3
- On 1 February 2006 the Prosecution filed a motion
for certification or, in the alternative, reconsideration
of the part of the Trial Chamber’s order that granted
the Accused access to ex parte confidential
material.4
- A trial chamber has the "inherent power" to reconsider
its own decisions inter alia if it is satisfied that "its
previous decision was erroneous" and that this error
has "caused prejudice."5 The
Chamber is satisfied that ex parte material
was not specifically requested in the original Motion
and it therefore considers that its decision was
made in error.6 In addition,
giving effect to the Original Order for Access could
result in protected material being inappropriately
disclosed to a third party and therefore this error
causes prejudice.
Disposition
- PURSUANT TO Rules 54 and 75 of the Rules, the Trial Chamber hereby ORDERS as follows:
- The motion for reconsideration is GRANTED and this Order supersedes the Original Order for Access in its entirety.
- The motion for a stay and for certification is DISMISSED as unnecessary.
- The Registry shall give the Defence access to inter partes confidential material in the Krstic trial and appeals case but shall not give the Defence access to any ex parte material filed in the case.
- The Registry shall give the Defence access to inter partes confidential material in the Kstic trial
and appeals case that was acquired pursuant to Rule
70 only if and when the consent of the provider(s)
has been obtained by the relevant party. The Registry
shall contact the Prosecution and Counsel for Radislav
Krstic to determine which confidential material in
the case, if any, is covered by Rule 70, and shall
withhold disclosure of such material until such time
as the relevant party informs the Registry that consent
for disclosure has been obtained. The relevant party shall determine as expeditiously as possible whether any of the requested material falls under Rule 70, and shall contact the providers of such material without delay to seek their consent for disclosure of that material, even in respect of those providers who consented to the use of the relevant material in a prior case. The parties shall be responsible for informing the Registry as appropriate.
- The Registry shall give the Defence access to all non-Rule 70 inter partes confidential material from the Krstic trial and appeals case without awaiting the parties’ responses in respect of permission to disclose the Rule 70 material identified by them.
- The protective measures which have already been ordered in relation to the material to be made accessible to the Defence shall remain in place.
- The Accused and the Defence shall not contact any witness whose identity was subject to protective measures in Krstic trial and appeals case.
- The Accused and the Defence shall not disclose to the public any confidential or non-public material disclosed to it from the Krstic trial and appeals case, except to the limited extent that disclosure to members of the public is directly and specifically necessary for the preparation and presentation of the Accused’s case. If any confidential or non-public material is disclosed to the public, any person to whom disclosure is made shall be informed that he is forbidden to copy, reproduce, or publicise confidential or non-public information or to disclose it to any person, and that he must return the material to the Defence as soon as it is no longer needed for the preparation of the Accused’s case.
For the purpose 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 Accused, the Defence, and any employees who
have been instructed or authorised by the Defence
to have access to the confidential material. "The
public" also
includes, without limitation, families, friends,
and associates of the Accused; Accused and defence
counsel in other cases or proceedings before the
International Tribunal; the media; and journalists.
Done in English and French, the English text being authoritative.
_____________
Judge Patrick Robinson
Presiding
Dated this seventh day of February 2006
At The Hague
The Netherlands
[Seal of the Tribunal]
1. Applicant’s Motion
Seeking Access to Confidential Material in the
Krstic Case with Appendix A, Case No. IT-04-81-PT,
16 November 2005, paras. 1 and 14.
2.Prosecution
Response to the Request of Momcilo Perisic for Confidential
Material in the Radislav Krstic Case, Case No. IT-04-81-PT,
28 November 2005.
3.
Order on Defence Motion for Access
to All Confidential Material in the Prosecutor v.
Krstic Case, Case No. IT-04-81-PT, 25 January 2006.
4.
Prosecutor’s
Request for Certification of Interlocutory Appeal
of Order on Defence Motion for Access to All Confidential
Material in the Prosecutor v. Krstic case and in
the Alternative Prosecution’s Motion for Reconsideration
of Order Granting Confidential Ex Parte Material
to Accused, Case No. IT-04-81-PT, 6 February 2006.
5.
Prosecutor v. Delalic,
Mucic, Delic, and Landzo (“Celebici
Sentencing Appeal Judgement”), Case No. IT-96-21-Abis,
Judgement on Sentence Appeal, 8 April 2003, para.
49; See also Prosecutor v. Kvocka, Radic,
Zigic, and Prcac,
Case No. IT-98-30/1-A, Decision, 22 March 2004 ("Kvocka et
al. Appeal
Decision"); Prosecutor
v. Blaskic,
Case No. IT-95-14-A, Decision on "Prosecution’s Preliminary
Response and Motion for Clarification Regarding Decision
on Joint Motion of Hadzihasanovic, Alagic and Kubura
of 24 January 2003”,
26 May 2003 (“Blaskic Appeal Decision"); Prosecutor
v. Milosevic, Case No. IT-02-54-T, Decision
on Prosecution Motion for Reconsideration of Decisions
Concerning Supreme Defence Council Documents and
Implementation of Appeals Chamber Review Decision,
para. 27.
6.
See Prosecutor v.
Blagojevic and Jokic, Case
No. IT-04-81-PT, Decision on Momcilo Perisic’s Motion
Seeking Access to Confidential Material in the Blagojevic
and Jokic Case, 18 January 2006, para. 6.
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