Lasva Valley, Prosecutor v. Kordic et al, Decision on Application by Kordic for Access to Ex Parte Filings, IT-95-14/2-A (ICTY AC, Dec. 17, 2003)

Case No. IT-95-14/2-A

IN THE APPEALS CHAMBER

Before:
Judge Wolfgang Schomburg, Presiding
Judge Fausto Pocar
Judge Florence Mumba
Judge Mehmet Güney
Judge Inés Weinberg de Roca

Registrar:
Mr Hans Holthuis

Decision:
17 December 2003

PROSECUTOR

Dario KORDIC & Mario CERKEZ

__________________________________________

DECISION ON APPLICATION BY KORDIC FOR ACCESS TO EX PARTE FILINGS

__________________________________________

Counsel for the Prosecutor:

Mr Norman Farrell

Counsel for the Accused:

Mr Mitko Naumovski, Mr Turner T Smith Jnr and Mr Stephen M Sayers for Dario Kordic
Mr Bozidar Kovacic and Mr Goran Mikulicic for Mario Cerkez

Dario Kordic (“Kordic”) seeks access to the ex parte annex filed by his co-appellant Mario Cerkez (“Cerkez”) in support of his motion to admit additional evidence upon his appeal pursuant to Rule 115 of the Rules of Evidence and Procedure.¹ Kordic further seeks access to the corresponding ex parte annex that accompanied the prosecution’s Response to the Cerkez Rule 115 motion.²
In support of his request Kordic says that neither Cerkez nor the prosecution has provided any justification for the filing of the annexes on an ex parte basis, as they are required to do, and that in the absence of providing justifications for the ex parte annexes he is denied an opportunity to challenge those justifications .³ Kordic asks the Appeals Chamber to order Cerkez to disclose his ex parte annex to Kordic and to permit him to make submissions if necessary,⁴ and to order the prosecution to disclose its ex parte annex to Kordic to the extent that it refers to him, relates to any arguments advanced by him or the prosecution on their respective appeals, or constitutes material that should be disclosed to him pursuant to Rule 68.⁵
The prosecution has filed a Response to Kordic’s Application in which it says the filing of its ex parte annex was made in response to the filing of the ex parte annex by Cerkez to his Rule 115 motion and that this was made clear in the Response it filed.⁶ It submits that until the Appeals Chamber determines that Kordic is entitled to have access to Cerkez’s ex parte annex the prosecution “cannot unilaterally decide to effectively disclose it to Kordic by referring to its content in an inter partes Prosecution filing”.⁷ It submits that should the Appeals Chamber decide that Kordic should be permitted access to Cerkez’s ex parte annex it has no objection to Kordic receiving access to its corresponding ex parte annex on the same terms.⁸ It submits, however, that Kordic has not formally sought access to the ex parte annex of Cerkez but merely made a complaint about its filing upon that basis in his request to access the Rule 115 motion of Cerkez.⁹ In his Reply to the prosecution Kordic repeats his request for access and at the same time files a formal application for access to the ex parte annex filed Cerkez.¹⁰
The ex parte materials to which Kordic requests access are subject to confidential protective measures imposed by the Blaskic Appeals Chamber¹¹ and that Chamber is currently seised of the matter. The Appeals Chamber notes that Rule 75(G) of the Rules provides in the relevant parts:

(G) A party to the second proceedings seeking to rescind, vary or augment protective measures ordered in the first proceedings must apply:

(i) to any Chamber, however constituted, remaining seised of the first proceedings ; or
(ii) if no Chamber remains seised of the first proceedings, to the Chamber seised of the second proceedings.

The Appeals Chamber, in the present case, does not consider itself competent to decide this issue. Kordic, if he so wishes, may file a motion before the Blaskic Appeals Chamber.
The Application and Amended Application are, therefore, dismissed.

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

Dated this seventeenth day of December 2003,
At The Hague,
The Netherlands.

______________
Judge Wolfgang Schomburg
Presiding

[Seal of the Tribunal]

1 - Mario Cerkez Motion to Admit Additional Evidence on Appeal Pursuant to Rule 115, 7 April 2003; Dario Kordic’s Submissions in Relation to Motion filed by Co-Accused, Mario Cerkez for Admission of “Additional Evidence” Under Rule 115, 22 April 2003 (“Application”); Kordic’s Amended Response to Cerkez’s Motion for Admission of “Additional Evidence” Under Rule 115, 22 April 2003 (“Amended Application”).
2 - Kordic’s Motion for Access to Prosecution’s Ex parte Submissions in Connection with Cerkez’s Rule 115 Motions, 21 May 2003 (“Motion”).
3 - Amended Application, paras 9-13.
4 - Amended Application, para. 11.
5 - Application, p. 3.
6 - Prosecution’s Response to Kordic’s Motion for Access to Prosecution’s Ex Parte Submissions in Connection With Cerkez’s Rule 115 Motion, 29 May 2003, (“Response”), para. 9.
7 - Response, para. 6.
8 - Response, para. 7.
9 - Response, para. 3.
10 - Kordic’s Reply in Support of his Motion for Access to Prosecution Ex Parte Submissions, 30 May 2003 (“Reply”); Kordic’s Motion for Access to Ex Parte Submissions Made in Connection with Cerkez’s Initial Rule 115 Motion, 30 May 2003 (“Second Motion”).
11 - Decision of 27 May 2003.

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