The Appeals Chamber reiterated that that the interests of justice require that Rule 75(F)(i) of the Rules be interpreted to provide for the variation of protective measures even when the second proceedings are not before the Tribunal, but before another jurisdiction and that the procedure set out in Rule 75(G)(i) of the Rules may apply mutatis mutandis to variations requested by a judge, a court, or a party for proceedings before another jurisdiction. Nonetheless, the Appeals Chamber specifies for the first time that, while any judge or bench, as a judicial authority, may directly apply for the variation of protective measures ordered pursuant to Rule 75 of the Rules, a party to proceedings before another jurisdiction should be authorized by an appropriate judicial authority to apply for such variation.

12. Rule 75(F)(i) of the Rules provides that “[o]nce protective measures have been ordered in respect of a victim or witness in any proceedings before the Tribunal (the ‘first proceedings’), such protective measures […] shall continue to have effect mutatis mutandis in any other proceedings before the Tribunal (the ‘second proceedings’) unless and until they are rescinded, varied or augmented in accordance with the procedure set out in this Rule”. Pursuant to Rule 75(G) of the Rules, “[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.”

13. In this case, variation is not sought for a case before the Tribunal, and Mr. Mungwarere is not “a party to the second proceedings” within the meaning of Rule 75 of the Rules. However, while Rule 75 of the Rules does not provide for such variation, the Appeals Chamber has held that the interests of justice require that Rule 75(F)(i) of the Rules be interpreted to provide for the variation of protective measures even when the second proceedings are not before the Tribunal, but before another jurisdiction, as in the present case.[1] The Appeals Chamber has also considered that the procedure set out in Rule 75(G)(i) of the Rules may apply mutatis mutandis to variations requested by a judge, a court, or a party for proceedings before another jurisdiction.[2]

14. However, the Appeals Chamber considers that a distinction must be drawn between requests from a judge or a court from another jurisdiction, and requests emanating from a party to proceedings before another jurisdiction. While any judge or bench, as a judicial authority, may directly apply for the variation of protective measures ordered pursuant to Rule 75 of the Rules, the Appeals Chamber considers that a party to proceedings before another jurisdiction should be authorized by an appropriate judicial authority to apply for such variation.

16. The Appeals Chamber notes that Mr. Mungwarere expressly refers to the legal standard applicable to requests for access to confidential material by an accused in another case before the Tribunal.[3] However, the Appeals Chamber emphasizes that, in the present instance, access to confidential material is not sought by an accused in another case before the Tribunal, but by an accused before another jurisdiction.

17. In such a case, the Appeals Chamber considers that the material sought should be specifically identified.[4] In addition, as is the case with requests by an accused in proceedings before the Tribunal, the applicant seeking access to confidential material for proceedings before another jurisdiction must demonstrate a legitimate forensic purpose. The Appeals Chamber recalls in this regard that consideration must be given to the relevance of the material sought, which may be demonstrated by showing the existence of a nexus between the applicant’s case and the case from which such material is sought.[5] The applicant must further establish that this material is likely to assist his case materially, or that there is at least a good chance that it would.[6]

18. Moreover, the Appeals Chamber has repeatedly underscored the importance of the protected witness’s consent to the disclosure of confidential material for proceedings before another jurisdiction.[7] In the absence of such consent, variation of protective measures may only be granted where the applicant demonstrates that the protective measures are no longer justified or that exceptional circumstances warrant the variation sought.[8]

The Appeals Chamber reiterated that a party is always entitled to seek material from any source, including from another case before the Tribunal, to assist in the preparation of its 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 shown. The Appeals Chamber specified the criteria for granting such access and considered that it had jurisdiction under Rule 75(G)(ii) to grant to the Appellant access to a confidential guilty plea entered in another case after having consulted with the Judges of the Trial Chamber concerned and afforded the Prosecution the possibility to apply for redactions.[1]

12. La Chambre d’appel a affirmé de manière constante qu’une partie a toujours le droit de chercher à obtenir des documents provenant de n’importe quelle source afin de l’aider à préparer son dossier, à condition d’identifier les documents recherchés, ou de décrire leur nature générale, et de démontrer l’existence d’un but légitime juridiquement pertinent justifiant l’obtention de cet accès[2]. La pertinence des pièces demandées par une partie peut être établie du fait de l’existence d’un lien entre l’affaire de ladite partie et la ou les affaires dans le cadre desquelles ces pièces ont été présentées, par exemple, lorsque ces affaires découlent d’événements qui auraient eu lieu dans la même région et à la même époque ou s’il existe d’autres recoupements[3]. Il suffit que la partie requérante démontre que l’accès à ces pièces est susceptible de l'aider de manière substantielle à présenter sa cause ou, tout au moins, qu'il existe de bonnes chances pour qu'il en soit ainsi[4]. En se prononçant sur une telle demande, il appartient à la Chambre d’appel de trouver un juste équilibre entre le respect du droit d’une partie à avoir accès à des pièces nécessaires à la préparation de sa cause et l’obligation du Tribunal de garantir la protection et la préservation d’informations confidentielles[5].

13. La Chambre d’appel considère qu’elle est compétente, en vertu de l’article 75(G)(ii), pour statuer sur la demande relative à la convention de plaidoyer de Joseph Serugendo, puisque aucune Chambre n’est saisie de la première affaire[6], la procédure ayant été terminée par le prononcé du Jugement le 12 juin 2006 et le décès de Joseph Serugendo le 22 août 2006. Ainsi, la Chambre d’appel se voit habilitée à modifier le niveau de classification des documents protégés[7].

14. La Chambre d’appel est satisfaite que l’Appelant a, d’une part, décrit avec suffisamment de précision la pièce demandée comme il lui incombait de le faire et, d’autre part, démontré l’existence d’un but légitime juridiquement pertinent justifiant la consultation de ladite pièce. Conformément à l’article 75(H) du Règlement, la Chambre d’appel a obtenu toutes les informations nécessaires des Juges composant la Chambre de première instance I qui a prononcé le Jugement dans l’affaire Serugendo et décide d’accorder à l’Appelant l’accès à la convention de plaidoyer de Joseph Serugendo.

15. La Chambre d’appel accorde au Procureur quatorze (14) jours à compter de la date de la présente décision pour déposer une requête aux fins d’expurgation, s’il peut établir l’existence de motifs suffisants justifiant l’expurgation de certaines informations contenues dans ledit document. Les mesures de protection que la Chambre de première instance a adoptées s’agissant de cette pièce restent en vigueur.

6. Rule 75(J) of the Rules of Procedure and Evidence (“Rules”), provides that decisions under paragraph (G) are subject to appeal directly to a full bench of the Appeals Chamber by either party.

10. The Appeals Chamber recalls that where a party requests access to confidential material from another case, such material must be identified or described by its general nature and a legitimate forensic purpose for accessing it must be demonstrated.[1] Consideration must be given to the relevance of the material sought, which may be demonstrated by showing the existence of a nexus between the requesting party’s case and the case from which such material is sought.[2] Such a factual nexus may be established, for example, “if the cases stem from events alleged to have occurred in the same geographic area at the same time,”[3] although this may not always be necessary or sufficient.[4] Rather, a case-specific analysis is required in each instance.[5] A Chamber must be satisfied that the requesting party has established that this material is likely to assist its case materially or that there is at least a good chance that it would.[6]

11. Once it is determined that confidential material filed in another case may materially assist an applicant, the Chamber shall determine which protective measures shall apply to the material, as it is within the Chamber’s discretionary power to strike a balance between the rights of a party to have access to material to prepare its case, and guaranteeing the protection and integrity of confidential information.[7] Failure by the Trial Chamber to apply this approach amounts to a discernible error based on an incorrect interpretation of the governing law.[8]

Eliézer Niyitegeka filed a motion for review before the Appeals Chamber, requesting the Appeals Chamber, inter alia, to admit excerpts of closed session transcripts from other cases to which he had not been granted access. The Appeals Chamber declined to examine those excerpts “obtained in direct violation of Trial Chambers’ orders”.[1] Following the Appeals Chamber’s decision, Eliézer Niyitegeka requested access to the relevant closed session transcripts to the relevant Trial Chambers. His requests were denied, together with his requests for reconsideration and for certification of an appeal. Eliézer Niyitegeka then filed a motion for clarification before the Appeals Chamber.

8.       […] the Appeals Chamber recalls that, in its Decision on Third Request for Review, it stated that the closed session material submitted by the Applicant in support of his Third Request for Review had been “obtained in direct violation of Trial Chambers’ orders”.[2] The Appeals Chamber was well aware that the Applicant was not a party to the proceedings in which the protective measures were ordered. However, it considered that, by obtaining and making use of closed session material to which he undoubtedly knew that he was not authorized to have access, the Applicant took part in the breach of the Trial Chambers’ orders committed by those who were directly bound by them. The Applicant therefore participated in the violation of the orders for protective measures imposed by the Trial Chambers and, thereby, “seriously undermine[d] the integrity of the Tribunal’s proceedings”.[3]    

11.     […] the Appeals Chamber clarifies that, although the Applicant was not a party to the cases in which the protective measures were ordered, he was bound by the Trial Chambers’ orders not to disclose confidential material from the moment it came into his possession. Similar to what the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia found in respect of closed session orders,[4] the Appeals Chamber considers that the orders of protective measures apply to all persons coming into possession of protected information. This is necessary, in particular, in order to comply with the Tribunal’s obligation pursuant to Article 21 of the Statute to protect witnesses on whose behalf protective measures have been ordered. Such orders would be meaningless if third parties were allowed to disclose confidential information on the sole ground that the orders were not expressly directed to them.

9. […] Given that the proceedings against Niyitegeka have been concluded, the only legitimate forensic purpose for obtaining access to this material is to establish a “new fact” capable of constituting the basis for a review of Niyitegeka’s convictions.[1] In this regard, Niyitegeka merely advances a broad and speculative assertion that any evidence provided by the witnesses in other proceedings before the ICTR necessarily serves a legitimate forensic purpose.[2] It follows from jurisprudence that the requesting party may not engage in a “fishing expedition”.[3] In the absence of more particularized submissions, the mere fact that witnesses may have testified in more than one case does not necessarily reflect that their evidence is relevant to establishing a “new fact” in the context of review proceedings, or demonstrate that any related material may be of material assistance to the preparation of a review application. […]

14. Access to confidential material may be granted whenever the Chamber is satisfied that the party seeking access has established that such material may be of material assistance to his case.[1] 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 shown.[2]

15. The relevance of the material sought by a party may be determined by showing the existence of a nexus between the applicant’s case and the cases from which such material is sought, i.e. if the cases stem from events alleged to have occurred in the same geographic area and at the same time.[3] It is sufficient that access to the material sought is likely to assist the applicant’s case materially, or that there is at least a good chance that it would.[4]

16. Not always would mere geographical and temporal overlap between two cases be sufficient in every instance to conclude that there is a legitimate forensic purpose. […]

19. The Appeals Chamber recalls that the protective measures in question were ordered in the Blaškić Review Proceedings.[1] Consequently, pursuant to Rule 75(G) of the Rules, the Appellant should bring any motion for variation of protective measures before the Blaškić Appeals Chamber. The Appeals Chamber in the present case has no jurisdiction to decide on the Appellant’s respective request and therefore finds that it should be dismissed.

14. The Appeal Chamber notes that protective measures ordered in one proceeding “shall continue to have effect mutatis mutandis in any other proceeding before the Tribunal”.[1] It further recognises that once the Appeals Chamber has granted access to confidential materials from another case, it then determines if and what additional protective measures are necessary in order to “strike a balance between the rights of a party to have access to material to prepare its case and guaranteeing the protection and integrity of confidential information”.[2]

15. The Appeals Chamber finds that existing protective measures should continue to apply to any material released to Perišić. It will further give the opportunity to the parties to the Dragomir Milošević case to request additional protective measures, if they so choose.

11. With respect to the material listed in categories (b) and (d) of the Motion, namely, all inter partes confidential filings and submissions, all confidential Trial Chamber and Appeals Chamber decisions, and all closed session hearing transcripts, the Appeals Chamber recalls that it is incumbent on the party seeking access to avoid engaging in a “fishing expedition”.[1] Nonetheless, it finds that the Motion does not amount to such abuse. The Appeals Chamber finds that Karadžić will be able to better understand and make use of confidential evidentiary material in the Dragomir Milošević case, such as exhibits and testimony transcripts, if he has access to the filings, submissions, decisions and hearing transcripts relating to that material.[2] The Appeals Chamber recalls that the applicable standard is only that there be a “good chance” that the confidential materials will materially assist the case of the party seeking access and that it does not require “accused seeking access to inter partes confidential materials in other cases to establish a specific reason that each individual item is likely to be useful”.[3] The Appeals Chamber further recalls that  the principle of equality of arms supports giving the applicant a similar chance to understand the proceedings and evidence and evaluate their relevance to his own case, in common with the Prosecution which has access to all inter partes filings.[4] Accordingly, once an accused has been granted access to confidential exhibits and confidential or closed session testimonies of another case before the Tribunal, he should not be prevented from accessing filings, submissions, decisions and hearing transcripts which may relate to such confidential evidence. The Appeals Chamber therefore grants Karadžić’s request for access to the material listed in categories (b) and (d) of the Motion. It notes, however, that, as is the practice of the Tribunal,[5] the Prosecution and Milošević will have the opportunity to apply to the Appeals Chamber for any additional protective measures or redactions, as detailed below, should they deem it necessary.

6. […] when the Appeals Chamber becomes seised of an appeal against a trial judgement, it becomes the Chamber “seised of the first proceedings” within the meaning of Rule 75(G)(i) of the Rules.[1] The Appeals Chamber, therefore, finds that the Applicant, as a party to the second proceedings,[2] properly filed his Motion before the Appeals Chamber.

7. The Appeals Chamber further recalls that, pursuant to Rule 75(F) of the Rules, protective measures that have been ordered in any proceedings before the Tribunal continue to have effect mutatis mutandis in any other proceedings before the Tribunal unless and until they are rescinded, varied or augmented. Rule 75(G) confers the competence to consider requests to vary protective measures on the Chamber seised of the first proceedings.[3] As previously observed by the Appeals Chamber, if the Chamber seised of the first proceedings were to transfer this competence to the Chamber seised of the second proceedings by way of a general referral, “the regulatory regime of Rule 75(G)(i) of the Rules would be frustrated and an important protection feature for victims and witnesses before the Tribunal would be circumvented”.[4]

8. The Krajišnik Decisions do not contradict the above interpretation.[5] These decisions concerned applications to, inter alia, rescind or vary the measure of delayed disclosure to the accused of witness identities, ordered by the Chamber seised of the first proceedings pursuant to Rule 69 of the Rules.[6] The question addressed in the Krajišnik Decisions is materially different from the present situation, where the Applicant seeks a general referral that any protective measure ordered by the Chamber seised of the first proceedings pursuant to Rule 75 of the Rules may subsequently be varied by the Chamber seised of the second proceedings.[7]

9. On the basis of the above, the Appeals Chamber reiterates that Rule 75(G) of the Rules clearly defines the procedure to be followed if a party seeks to vary protective measures ordered in previous proceedings.[8] As the Motion seeks a de facto circumvention of this Rule, it shall be denied without further consideration.

Pp. 4: CONSIDERING that a party is always entitled to seek material from any source, including from another case before the International Tribunal, to assist in the preparation of its 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 shown;[1]

CONSIDERING that “the relevance of the material sought by a party may be determined by showing the existence of a nexus between the applicant’s case and the cases from which such material is sought, i.e. if the cases stem from events alleged to have occurred in the same geographic area and at the same time”;[2]

CONSIDERING that “access to confidential material from another case may be granted wherever the Chamber is satisfied that the party seeking access has established that such material may be of material assistance to his case”[3] and that “it is sufficient that access to the material sought is likely to assist the applicant’s case materially, or that there is at least a good chance that it would”;[4]

P. 5: FINDING that the Applicant has sufficiently identified and described by its general nature the inter partes confidential material in the Prosecutor v. Krajišnik trial and appeals proceedings to which he seeks access;

FINDING FURTHER that there is a substantial geographical and temporal overlap between the Prosecutor v. Stanišić and Prosecutor v. Krajišnik cases such that the inter partes confidential material filed in the trial and appeals proceedings in Prosecutor v. Krajišnik is likely to be of material assistance in the preparation of the defence in Prosecutor v. Stanišić, and that therefore, the Applicant has demonstrated a legitimate forensic purpose for access to said confidential material;

P. 7: CONSIDERING that once an Appeals Chamber determines that confidential material filed in another case is likely to materially assist an applicant, the Appeals Chamber shall determine which protective measures shall apply to said material as it is within the Appeals Chamber’s discretionary power to strike a balance between the rights of a party to have access to material to prepare its case and guaranteeing the protection and the integrity of confidential information;[5]

CONSIDERING that, with regard to confidential material, the Mechanism must “find a balance between the right of a party to have access to material to prepare its case and the need to guarantee the protection of witnesses”;[1]

RECALLING that a request for access to confidential material from another case can only be granted if the material sought has been identified or described by its general nature and a legitimate forensic purpose for gaining such access is shown;[2]

RECALLING ALSO that the party seeking access to confidential material bears the burden to justify its request;[3]

RECALLING FURTHER that the requesting party must establish that such material is likely to assist its case materially, or that there is at least a good chance that it would, and that this standard may be met by showing the existence of a nexus between the applicant’s case and the cases from which such material is sought;[4]

9.       […] As to the nexus, […] Given the relatively low threshold for establishing this criterion,[1] […]