Handling of confidential information

Notion(s) Filing Case
Decision on Modalities of Self-Representation - 11.09.2007 KRAJIŠNIK Momčilo

34. With regard to confidential information, the Appeals Chamber generally sees no error in the Registry's determination that Mr. Krajišnik may only discuss confidential material with designated legal associates.  This is a difficult issue.  On the one hand, given Mr. Krajišnik's distance from the region and confinement in the UNDU, it is virtually impossible for him to personally undertake investigations relating to confidential material – investigations which may prove helpful in the preparation of his defence.  If he cannot discuss confidential material with those outside the UNDU, then he has no mechanism for enabling such investigations.[1]  On the other hand, if Mr. Krajišnik is permitted to share confidential information with anyone he considers to be part of his team, then the risks of leakage of confidential information or of inappropriate conduct of investigations are significantly higher than where investigations are conducted under the supervision of a legal professional.  Such an approach could endanger the protection of witnesses and victims (protections so important that they are specifically referenced in Article 22 of the Statute).  The Registry has sought to strike a balance between these competing interests by enabling Mr. Krajišnik to share confidential information only with designated legal associates, who in turn can provide the professional supervision needed to ensure appropriate use of the confidential information.  The Appeals Chamber considers that this approach does indeed strike a reasonable balance and upholds it, subject to one caveat that will be discussed in paragraph 44.

[1] Since Mr. Krajišnik's case is at the appeal stage, there is presumably little (if any) need for outside investigations.  Nonetheless, the Appeals Chamber cannot rule out a priori the possibility that some need exists, and so the Appeals Chamber addresses this issue.  Cf. Nahimana et al. v. Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Hassan Ngeze’s Motions for Approval of Further Investigations on Specific Information Relating to the Additional Evidence of Potential Witnesses, 20 June 2006, para. 27.

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