Material other than testimonies

Notion(s) Filing Case
Decision on Access (Karadžić) - 19.05.2009 MILOŠEVIĆ Dragomir

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.

[1] Prosecutor v. Enver Hadžihasanović et al., Case No. IT-01-47-AR73, Decision on Appeal from Refusal to Grant Access to Confidential Material in Another Case, 23 April 2002, p. 3.

[2] Cf. Blagojević and Jokić Decision [Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Motions for Access to Confidential Materials, 16 November 2005], para. 11.

[3] Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Motion by Radivoje Miletić for Access to Confidential Information, 9 September 2005 (“Miletić Decision”), p. 4.

[4] Blagojević and Jokić Decision, para. 11. See also, Miletić Decision, p. 4, where the Appeals Chamber considered that “the Trial Chamber’s decisions may help the Applicant to prepare his case by shedding light on the Trial Chamber’s treatment of legal and factual issues that may be common to the two cases”.  The Appeals Chamber further observes that the jurisprudence referred to by the Prosecution in para. 16 of its Response is not relevant to the case at hand. In particular, the Appeals Chamber notes that in the Šljivančanin Decision the Appeals Chamber denied access to two confidential exhibits because they were “not sought because they relate to any of the material facts arising in the Second Proceedings, but rather because they are alleged to be of assistance to the Applicant in interpreting the findings of the Appeals Chamber in the First Proceedings […] [a]s such, the Appeals Chamber is not satisfied that the Applicant has shown a legitimate forensic purpose justifying access to the exhibits sought” (Šljivančanin Decision [Prosecutor v. Mile Mrkšić and Veselin Šljivančanin, Case No. IT-95-13/1-A, Decision on Veselin Šljivančanin’s Motion Seeking Access to Confidential Material in the Kordić and Čerkez Case, 22 April 2008], para. 8). Conversely, in the present case Karadžić has based his request for access on a significant factual overlap between the two cases and has demonstrated a legitimate forensic purpose.

[5] See D. Milošević Decision [Decision on Momčilo Perišić’s Request for Access to Confidential Material in the Dragomir Milošević Case, 27 April 2009], paras 15, 19; Blagojević and Jokić Decision, paras 16, 19(c).

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