7. […] In the circumstances of this case, the Appeals Chamber finds that should the Prosecution take steps to fulfil its disclosure obligations, a risk would arise that privileged communications would be exposed to the Prosecution to the detriment of the Defendants. This creates a conflict for the Prosecution, which must meet its disclosure obligations under Rules 66 and 68 of the Rules while currently in possession of the Potentially Privileged Material [the potentially privileged material received from the Serbian Authorities on 22 January 2010 and 9 March 2010].

8. Despite it being within the ambit of the Appeals Chamber to review the Potentially Privileged Material, there also exists a risk that communications between any of the Defendants and their legal counsel could be revealed to the Appeals Chamber. Additionally, as the Potentially Privileged Material comprises a voluminous amount of documentation,[1] should the Appeals Chamber review the Potentially Privileged Material there will be a considerable delay in the appellate proceedings. In light of the above, and out of concern for efficiency and expeditiousness, the Appeals Chamber considers that the best course of action under the circumstances presented is for a Judge of the Tribunal not sitting on the Popović et al. Bench to review the Potentially Privileged Material in order to determine whether lawyer-client privilege attaches to any of the material in question.

98. The Appeals Chamber recalls that, pursuant to Rule 97 of the ICTY Rules, all communications between lawyer and client shall be regarded as privileged, and consequently not subject to disclosure at trial, unless: (i) the client consents to such disclosure; or (ii) the client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure. This privilege is vital to the defence of an accused or appellant by allowing for open communication between counsel and client that is necessary for effective legal assistance as guaranteed under Article 21(4)(d) of the ICTY Statute.[1]

See also paras. 99-103. Wherein the Appeals Chamber addressed, inter alia, the waiving of lawyer-client privilege when “loud and audible” statements are made by an accused in the courtroom and are overheard by the Prosecution team.