Review of potentially privileged material

Notion(s) Filing Case
Decision on Lawyer-Client Privilege - 16.07.2012 POPOVIĆ et al.

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.

[1] See OTP Report of 29 January 2010 [Confidential OTP Report of Investigator Blaszczyk Tomasz [REDACTED] dated 29 January 2010, annexed to the Motion [Prosecution Motion for the Appointment of Independent Counsel to Review Material Potentially Subject to Lawyer-Client Privilege, 18 November 2011 (confidential with confidential annexes)], paras 2, 10.

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