Refusal of guidelines on applicable procedure

Notion(s) Filing Case
Decision on Access to Ex Parte Materials and Disclosure of Mitigating Materials - 30.08.2006 BRALO Miroslav

15. The Appeals Chamber notes that Rules 66(C) and 68(iv) expressly provide for ex parte filing of documents in possession of the Prosecution, “the disclosure of which may prejudice further or ongoing investigations, or for any other reasons may be contrary to the public interest or affect the security interests of any State”. Under these circumstances, the Prosecution is required to provide the Chamber seized with such applications (and the Chamber only) with the information that is sought to be kept confidential and ex parte. Various other provisions of the Rules allow for ex parte proceedings by implication.[1] Given the variety of circumstances which may give rise to the need for ex parte status, the Appeals Chamber agrees that it is “neither possible nor appropriate to define the circumstances in which such [proceedings] are appropriate by any limiting definition”[2].

16. As a preliminary matter, with respect to the Appellant’s request for guidelines concerning review of access to ex parte materials,[3] the Appeals Chamber considers that it is not appropriate for it to promulgate a practice that would be applicable in all cases. The endorsement by the Appeals Chamber of a practice in one appeal is always given in the light of the circumstances of the given appeal.[4] In general, the Appeals Chamber has no powers of legislation. Moreover, the current jurisprudence of the Appeals Chamber on access to ex parte material is consistent and clear.[5] Therefore, the Appeals Chamber declines to consider the Appellant’s proposal any further.

20. With regard to the rest of the ex parte filings in this case,[6] the Appeals Chamber notes that these documents are part of the Trial Record certified for the purposes of the present appeal and are indexed […] with their respective translations and transmission sheets. The Appeals Chamber further notes that, while the Appellant has not been put on notice of the respective filings, he could identify their existence by reviewing page indexes of the documents available to him and identifying the ones missing, which he has not done for the purposes of his Request for Access. In its current submissions, the Prosecution has not expressed its position as to further maintaining the ex parte status of these specific filings and is directed to do so, within ten days of the date of the present decision, in order to assist the Appeals Chamber in its decision on the Appellant’s request to the documents listed above.[7] In the event that the Prosecution does not oppose the lifting of the ex parte status of all or some of these documents, it is invited to identify any Rule 70 material among them, as well as to apply for redactions where necessary.

[1] For instance, under Rule 47, a Prosecution’s application for review of an indictment before an arrest warrant may be issued is ex parte by necessity; Rule 50 provides for an ordinarily ex parte procedure for the Prosecution to seek leave to amend the indictment before the case is assigned to a Trial Chamber; pursuant to Rule 54bis, hearing a State’s submissions in relation to national security interests concerning the issue of a subpoena is in camera and ex parte; Rule 69 allows the Trial Chamber to consult the Tribunal’s Victims and Witnesses Section, on the ex parte basis, for the purposes of determination of the appropriate protective measures; in the same logic, applications by either party for protective measures are determined by a Trial Chamber on the basis of certain ex parte material; Rule 77 permits an ex parte notice of conduct of a person who may be in contempt of the Tribunal; Rule 108bis allows for an ex parte appeal hearing of an impugned decision affecting a State, unless otherwise decided in the interests of justice. These examples are surely not exhaustive. See, e.g., Prosecutor v. Ramush Haradinaj, Case No. IT-04-84-PT, [Confidential] Decision on Prosecution’s Motion for Exceptional Protective measures for a Potential Witness, 3 May 2006, p. 3; Prosecutor v. Milan Milutinović et al., Case No IT-99-37-I, Decision on Application by Dragoljub Ojdanić for Disclosure of Ex Parte Submissions, 8 November 2002 (“Milutinović 8 November 2002 Decision”), paras 22-23; Prosecutor v. Radoslav Brđanin and Momir Talić, Case No. IT-99-36-PT, Decision on Second Motion by Prosecution for Protective Measures, 27 October 2000, para. 14; Prosecutor v. Blagoje Simić et al., Case No IT-95-9-PT, Decision on (1) Application by Stevan Todorović to Re-Open the Decision of 27 July 1999, (2) Motion by ICRC to Re-Open Scheduling Order of 18 November 1999, and (3) Conditions for Access to Material, 28 February 2000 (“Simić 28 February 2000 Decision”), paras 38-42; Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-PT, Decision on the Defence Preliminary Motion on the Form of the Indictment, 20 May 1999, para. 11; Prosecutor v. Momir Talić, Case No. IT-99-36-PT, Decision on Motion for release, 10 December 1999, para. 9; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-AR108bis, Judgment on the Request of the Republic of Croatia for Review of Decision of Trial Chamber II of 18 July 1997, 29 October 1997 (“Blaškić 29 October 1997 Decision”), para. 68.

[2] Milutinović 8 November 2002 Decision, para. 23; Simić 28 February 2000 Decision, para. 41.

[3] Request, paras 14-16, 24.

[4] Prosecutor v. Tihomir Blaškić, Case No IT-95-14-A, Decision on Prosecution’s Motion for Clarification of the Appeals Chamber’s Decision Dated 4 December 2002 on Paško Ljubičić’s Motion for Access to Confidential Material, Transcripts and Exhibits in the Blaškić Case, 8 March 2004, para. 39; Prosecutor v. Tihomir Blaškić, Case No IT-95-14-A, Decision on “Prosecution’s preliminary Response and Motion for Clarification Regarding Decision on Joint Motion of Hadžihasanović, Alagić and Kubura of 24 January 2003”, 23 May 2003, para. 28.

[5] See para 15 supra and para. 17 infra [reproduced above].

[6] Provided that access to documents D182-D1 has already been dealt with by 2 May 2006 Decision.

[7] The Appeals Chamber notes, however, that the Prosecution does not control the access which a party may have to material available within the Tribunal. See, e.g., Prosecutor v. Enver Hadžihasanović et al., Case No IT-01-47-PT, Decision on Motion by Mario Čerkez for Access to Confidential Supporting Material, 10 October 2001, para. 13; Prosecutor v. Radoslav Brđanin and Momir Talić, Case No. IT-99-36-PT, Decision on Motion by Momir Talić for Access to Confidential Documents, 31 July 2000, para. 6.

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