Access to material from another case

Notion(s) Filing Case
Decision on Access - 17.05.2012 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

The Appeals Chamber reiterated that that the interests of justice require that Rule 75(F)(i) of the Rules be interpreted to provide for the variation of protective measures even when the second proceedings are not before the Tribunal, but before another jurisdiction and that the procedure set out in Rule 75(G)(i) of the Rules may apply mutatis mutandis to variations requested by a judge, a court, or a party for proceedings before another jurisdiction. Nonetheless, the Appeals Chamber specifies for the first time that, while any judge or bench, as a judicial authority, may directly apply for the variation of protective measures ordered pursuant to Rule 75 of the Rules, a party to proceedings before another jurisdiction should be authorized by an appropriate judicial authority to apply for such variation.

12. Rule 75(F)(i) of the Rules provides that “[o]nce protective measures have been ordered in respect of a victim or witness in any proceedings before the Tribunal (the ‘first proceedings’), such protective measures […] shall continue to have effect mutatis mutandis in any other proceedings before the Tribunal (the ‘second proceedings’) unless and until they are rescinded, varied or augmented in accordance with the procedure set out in this Rule”. Pursuant to Rule 75(G) of the Rules, “[a] party to the second proceedings seeking to rescind, vary or augment protective measures ordered in the first proceedings must apply: (i) to any Chamber, however constituted, remaining seised of the first proceedings; or (ii) if no Chamber remains seised of the first proceedings, to the Chamber seised of the second proceedings.”

13. In this case, variation is not sought for a case before the Tribunal, and Mr. Mungwarere is not “a party to the second proceedings” within the meaning of Rule 75 of the Rules. However, while Rule 75 of the Rules does not provide for such variation, the Appeals Chamber has held that the interests of justice require that Rule 75(F)(i) of the Rules be interpreted to provide for the variation of protective measures even when the second proceedings are not before the Tribunal, but before another jurisdiction, as in the present case.[1] The Appeals Chamber has also considered that the procedure set out in Rule 75(G)(i) of the Rules may apply mutatis mutandis to variations requested by a judge, a court, or a party for proceedings before another jurisdiction.[2]

14. However, the Appeals Chamber considers that a distinction must be drawn between requests from a judge or a court from another jurisdiction, and requests emanating from a party to proceedings before another jurisdiction. While any judge or bench, as a judicial authority, may directly apply for the variation of protective measures ordered pursuant to Rule 75 of the Rules, the Appeals Chamber considers that a party to proceedings before another jurisdiction should be authorized by an appropriate judicial authority to apply for such variation.

16. The Appeals Chamber notes that Mr. Mungwarere expressly refers to the legal standard applicable to requests for access to confidential material by an accused in another case before the Tribunal.[3] However, the Appeals Chamber emphasizes that, in the present instance, access to confidential material is not sought by an accused in another case before the Tribunal, but by an accused before another jurisdiction.

17. In such a case, the Appeals Chamber considers that the material sought should be specifically identified.[4] In addition, as is the case with requests by an accused in proceedings before the Tribunal, the applicant seeking access to confidential material for proceedings before another jurisdiction must demonstrate a legitimate forensic purpose. The Appeals Chamber recalls in this regard that consideration must be given to the relevance of the material sought, which may be demonstrated by showing the existence of a nexus between the applicant’s case and the case from which such material is sought.[5] The applicant must further establish that this material is likely to assist his case materially, or that there is at least a good chance that it would.[6]

18. Moreover, the Appeals Chamber has repeatedly underscored the importance of the protected witness’s consent to the disclosure of confidential material for proceedings before another jurisdiction.[7] In the absence of such consent, variation of protective measures may only be granted where the applicant demonstrates that the protective measures are no longer justified or that exceptional circumstances warrant the variation sought.[8]

[1] See, e.g., Dominique Ntawukulilyayo v. The Prosecutor, Case No. ICTR-05-82-A, Decision on Prosecutor’s Motion to Rescind Protective Measures for Witnesses, ex parte and confidential, 17 May 2011, para. 3; Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Order in Relation to Prosecutor’s Motion to Vary Protective Measures for Witnesses [redacted], ex parte and confidential, 23 July 2010, para. 3; Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Order in Relation to Prosecutor’s Motion to Rescind Protective Measures for Witness [redacted], ex parte and confidential, 26 February 2010 (“Bagosora et al. Order of 26 February 2010”), para. 3.

[2] See, e.g., The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Order in Relation to Prosecution Motion to Vary Protective Measures for Witnesses [redacted], ex parte and confidential, 8 February 2012 (“Nyiramasuhuko et al. Order”), para. 2; Jean-Baptiste Gatete v. The Prosecutor, Case No. ICTR‑00-61-A, Decision on Prosecution’s Motion for Variation of Protective Measures Relating to German Proceedings, confidential, 15 July 2011 (“Gatete Decision of 15 July 2011”), para. 6; Jean-Baptiste Gatete v. The Prosecutor, Case No. ICTR-00-61-A, Order in Relation to [redacted] Application for Variation of Protective Measures and Disclosure of Documents, confidential, 1 June 2011 (“Gatete Order of 1 June 2011”), p. 2; Bagosora et al. Order of 26 February 2010, para. 4. The Appeals Chamber emphasizes that, while it has stated on several occasions that the procedure set out in Rule 75(G)(i) of the Rules may apply mutatis mutandis to variations requested, inter alia, by a party, it has never granted a request for variation of protective measures which was not from State authorities.

[3] See Motion [Jacques Mungwarere’s Urgent Motion for Access to Material in the Nyiramasuhuko et al. Case, 22 March 2012], paras. 10, 11; Reply to Kanyabashi [Reply to Joseph Kanyabashi’s Response to ‘Jacques Mungwarere’s Urgent Motion for Access to Material in the Nyiramasuhuko et al. Case’, 27 March 2012], para. 3; Reply to the Prosecution [Reply to Prosecutor’s Response to Jacques Mungwarere’s Urgent Motion for Access to Material in the Nyiramasuhuko et al. Case, 10 April 2012], para. 12. The legal standard applicable to requests for access to confidential material from an accused in another case before the Tribunal as defined by the Appeals Chamber is as follows:

A party [before the Tribunal] is entitled to seek material from any source, including another case before the Tribunal, to assist in the preparation of its case. Where a party requests access to confidential material from another case, such material must be identified or described by its general nature and a legitimate forensic purpose must be demonstrated. Consideration must be given to the relevance of the material sought, which may be demonstrated by showing the existence of a nexus between the requesting party’s case and the case from which such material is sought. Further, the requesting party must establish that this material is likely to assist its case materially, or that there is at least a good chance that it would. Once it is determined that confidential material filed in another case may materially assist an applicant, the Chamber shall determine which protective measures shall apply to the material, as it is within the Chamber’s discretionary power to strike the balance between the rights of a party to have access to material to prepare its case and guaranteeing the protection and integrity of confidential information.

See, e.g., Tharcisse Muvunyi v. The Prosecutor, Case No. ICTR-00-55A-A, Decision on Ildephonse Nizeyimana’s Request for Access to Closed Session Transcripts, 31 March 2011, para. 3 (internal references omitted), referring to Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Michel Bagaragaza’s Motion for Access to Confidential Material, 14 May 2009, para. 7. See also, e.g., Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Augustin Ngirabatware’s Motion for Disclosure of Confidential Material Relating to Witness DAK, 23 July 2010, paras. 10, 11.

[4] The date of the witness’s testimony, the pseudonym used to identify the witness, and/or the exhibit number should, for example, be provided.

[5] See supra, fn. 36 [equivalent to fn. 3 here].

[6] See supra, fn. 36 [equivalent to fn. 3 here].

[7] See, e.g., Nyiramasuhuko et al. Order, para. 5; Gatete Order of 1 June 2011, p. 2; Bagosora et al. Order of 26 February 2010, para. 7. See also Gatete Decision of 15 July 2011, paras. 7, 10, 11.

[8] Cf. Nizeyimana Trial Decision [The Prosecutor v. Ildéphonse Nizeyimana, Case No. ICTR-00-55C-T, Decision on Defence Motion for Variance of Witness Protective Measures and International Cooperation of the Government of Canada, 23 June 2011], paras. 14, 18; The Prosecutor v. Callixte Nzabonimana, Case No. ICTR-98-44D-T, Decision on Prosecutor’s Urgent Ex Parte Motion to Vary Protective Measures for Prosecution Witness CNAT, 16 September 2010, para. 11; Simba Trial Decision [The Prosecutor v. Aloys Simba, Case No. ICTR-01-76-R75, Decision on Charles Munyaneza’s Motion for Disclosure of Documents Related to Protected Witnesses Before the Tribunal, 9 April 2008], para. 8. Cf. also Rule 81(B) of the Rules (“The Trial Chamber may order the disclosure of all or part of the record of closed proceedings when the reasons for ordering the non disclosure no longer exist.”).

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ICTR Rule Rule 75 ICTY Rule Rule 75
Notion(s) Filing Case
Decision on Refusal to Grant Access - 23.04.2002 HADŽIHASANOVIĆ et al.
(IT-01-47-AR73)

CONSIDERING that a party may not engage in a fishing expedition, but that, provided it does not do so, it may seek access to confidential material in another case if it is able to describe the documents sought by their general nature as clearly as possible even though it cannot describe them in detail, and if it can show that such access is likely to assist his case materially;

 

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Notion(s) Filing Case
Decision on Further Investigations - 08.12.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

The Appeals Chamber reiterated that a party is always entitled to seek material from any source, including from another case before the Tribunal, to assist in the preparation of its case if the material sought has been identified or described by its general nature and if a legitimate forensic purpose for such access has been shown. The Appeals Chamber specified the criteria for granting such access and considered that it had jurisdiction under Rule 75(G)(ii) to grant to the Appellant access to a confidential guilty plea entered in another case after having consulted with the Judges of the Trial Chamber concerned and afforded the Prosecution the possibility to apply for redactions.[1]

12. La Chambre d’appel a affirmé de manière constante qu’une partie a toujours le droit de chercher à obtenir des documents provenant de n’importe quelle source afin de l’aider à préparer son dossier, à condition d’identifier les documents recherchés, ou de décrire leur nature générale, et de démontrer l’existence d’un but légitime juridiquement pertinent justifiant l’obtention de cet accès[2]. La pertinence des pièces demandées par une partie peut être établie du fait de l’existence d’un lien entre l’affaire de ladite partie et la ou les affaires dans le cadre desquelles ces pièces ont été présentées, par exemple, lorsque ces affaires découlent d’événements qui auraient eu lieu dans la même région et à la même époque ou s’il existe d’autres recoupements[3]. Il suffit que la partie requérante démontre que l’accès à ces pièces est susceptible de l'aider de manière substantielle à présenter sa cause ou, tout au moins, qu'il existe de bonnes chances pour qu'il en soit ainsi[4]. En se prononçant sur une telle demande, il appartient à la Chambre d’appel de trouver un juste équilibre entre le respect du droit d’une partie à avoir accès à des pièces nécessaires à la préparation de sa cause et l’obligation du Tribunal de garantir la protection et la préservation d’informations confidentielles[5].

13. La Chambre d’appel considère qu’elle est compétente, en vertu de l’article 75(G)(ii), pour statuer sur la demande relative à la convention de plaidoyer de Joseph Serugendo, puisque aucune Chambre n’est saisie de la première affaire[6], la procédure ayant été terminée par le prononcé du Jugement le 12 juin 2006 et le décès de Joseph Serugendo le 22 août 2006. Ainsi, la Chambre d’appel se voit habilitée à modifier le niveau de classification des documents protégés[7].

14. La Chambre d’appel est satisfaite que l’Appelant a, d’une part, décrit avec suffisamment de précision la pièce demandée comme il lui incombait de le faire et, d’autre part, démontré l’existence d’un but légitime juridiquement pertinent justifiant la consultation de ladite pièce. Conformément à l’article 75(H) du Règlement, la Chambre d’appel a obtenu toutes les informations nécessaires des Juges composant la Chambre de première instance I qui a prononcé le Jugement dans l’affaire Serugendo et décide d’accorder à l’Appelant l’accès à la convention de plaidoyer de Joseph Serugendo.

15. La Chambre d’appel accorde au Procureur quatorze (14) jours à compter de la date de la présente décision pour déposer une requête aux fins d’expurgation, s’il peut établir l’existence de motifs suffisants justifiant l’expurgation de certaines informations contenues dans ledit document. Les mesures de protection que la Chambre de première instance a adoptées s’agissant de cette pièce restent en vigueur.

[1] See also para. 29 of the present Decision for specific conditions of granting the access to the confidential document in question.

[2] Prosecutor v. Blagoje Simić, Case No It-95-9-A, Decision on Defence Motion by Franko Simatovic for Access to Transcripts, Exhibits, Documentary Evidence and Motion Filed by the Parties in the Simic et al. Case, 13 avril 2005  (« Décision Simić du 13 avril 2005 »), p. 3 ; Momir Nikolic c/ Le Procureur, affaire n° IT-02-60/1-A, Décision relative à la Requête urgente aux fins d’obtenir l’accès à des documents confidentiels, 4 février 2005, p. 6 ; Prosecutor v. Tihomir Blaškic, Case No IT-95-14-A, Decision on Dario Kordić and Mario Čerkez’s Request for Access to Tihomir Blaškic’s Fourth Rule 115 Motion and Associated Documents, 28 janvier 2004, p. 4; Le Procureur c/ Mladen Naletilić, alias “Tuta”, & Vinko Martinović, alias“Stela”, Affaire n° IT-98-34-A, Décision relative à la Requête conjointe déposée par la Défense de Enver Hadžihasanovic et Amir Kubura aux fins d’accès à tous les documents, écritures, comptes rendus d’audience et pièces à conviction confidentiels de l’affaire Naletilić et Martinović, 7 novembre 2003, p. 3-4.

[3] Prosecutor v. Tihomir Blaškić, Case No IT-95-14-R, Decision on “Defence Motion on Behalf of Rasim Delić Seeking Access to all Confidential Material in the Blaškić Case”, 1 juin 2006 (« Décision Blaškić du 1 juin 2006 »), p. 9 ; Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on Momčilo Perišić’s Motion Seeking Access to Confidential Material in the Galić Case, 16 février 2006 ((« Décision Galić du 16 février 2006 »), par. 3 ; Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No IT-02-60-A, Decision on Momčilo Perišić Motion Seeking Access to Confidential Material in the Blagojević and Jokić Case”, 18 janvier 2006 (« Décision Blagojević du 18 janvier 2006 »), par. 4 ; Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No IT-02-60-A, Decision on Motions for Access to Confidential Materials, 16 novembre 2005, par. 8 ; Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Decision on Motion by Hadžihasanović, Alagić and Kubura for Access to Confidential Supporting Material, Transcripts and Exhibits in the Kordić and Čerkez Case, 23 janvier 2003, pp. 4-5 ; Le Procureur c/ Tihomir Blaškić, affaire n° IT-95-14-A, Décision relative à la Requête des Appelants Dario Kordić et Mario Čerkez aux fins de consultation de Mémoires d’appel, d’écritures et de comptes rendus d’audience confidentiels postérieurs à l’appel déposés dans l’affaire Le Procureur c/ Blaškić, 16 mai 2002 (« Décision Blaškić du 16 mai 2002 »), par. 15.

[4] The Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-A, Decision on Ojdanić’s application for access to exhibit P92, 3 novembre 2006, par. 6; Décision Blaškić du 1 juin 2006, p. 9 ; Décision Galić du 16 février 2006, par. 3 ; Décision Blagojević du 18 janvier 2006, par. 4 ; Décision Blagojević du 16 novembre 2005, par. 8 ; Décision Simić du 13 avril 2005, p. 3 ; Le Procureur c/ Miroslav Kvočka et al., affaire n° IT-98-30/1-A, Décision relative à la requête des Momćilo Gruban aux fins d’accéder à des pieces, 13 janvier 2003 (« Décision du 13 janvier 2003 »), par. 5 ; Le Procureur c/ Milan Milutinović et consorts, affaire n° IT-99-37-I, Décision relative à la Requête de Dragoljub Ojdanić aux fins de communication de conclusions ex parte, 8 novembre 2002, par. 18 ; Décision Blaškić du 16 mai 2002, par. 14.

[5] Miroslav Bralo v. The Prosecutor, Case No. IT-95-17-A, Decision on Motion of Miroslav Bralo for Access to Certified Trial Record, 2 mai 2006, p. 4 ; Le Procureur c/ Vidoje Blagojević et Dragan Jokić, affaire n° IT-02-60-A, Décision [confidentielle] relative à la Requête de l’Accusation aux fins d’expurger les documents confidentiels communiqués à Momčilo Perišić, 9 mars 2006, p. 2 ; Décision Galić du 16 février 2006, par. 10 ; Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, [Confidential] Decision on Prosecution request for Redactions, 17 janvier 2006, p. 1 ; Décision Blaškić du 16 mai 2002, par. 29.

[6] Prosecutor v. Blagoje Simić, Case No IT-95-9-A, Order Proprio Motu Granting Access to Confidential Material, 3 février 2006, p. 1.

[7] La Chambre d’appel considère qu’il convient d’appliquer mutatis mutandis la même procédure que celle prévue pour la modification des mesures de protection accordées à des témoins en vertu de l’article 75 du Règlement dans le cas de documents protégés, tel l’accord sur le plaidoyer ; à ce sujet voir Le Procureur c/ Slobodan Milosević, affaire n°IT-02-54-T, Décision aux fins de lever la confidentialité de l’accord sur le plaidoyer conclu dans l’affaire Erdemović, 26 août 2003, p. 2. L’article 75 (G) du Règlement est rédigé en des termes similaires à celui du Règlement du TPIY : « (…) Une partie à la deuxième affaire, qui souhaite obtenir l’annulation, la modification ou le renforcement de mesures ordonnées dans la première affaire, doit soumettre sa demande : i) à toute Chambre encore saisie de la première affaire, quelle que soit sa composition, ou ii) à la Chambre saisie de la deuxième affaire, si aucune Chambre n’est plus saisie de la première affaire. ». 

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ICTR Rule Rule 75 ICTY Rule Rule 75
Notion(s) Filing Case
Decision on Access to Confidential Material - 22.04.2009 RUTAGANDA George
(ICTR-96-3-R)

Rutaganda, whose case had already been decided on appeal, applied for access to confidential material from another case. His request was denied by the relevant Trial Chamber (including the request for reconsideration)[1] and he seized the Appeals Chamber with a request for leave to appeal the Trial Chamber’s decision. On 22 January 2009, the Appeals Chamber found that the Applicant was entitled to appeal the Decision of 3 April 2008 (Rutaganda Order on Rule 75 Appeal):[2]

p. 2: CONSIDERING that Rule 75(G) of the Rules of Procedure and Evidence of the Tribunal (“Rules”) which allows for the possibility of seeking to rescind, vary, or augment protective measures ordered at trial does not provide for an appeal as of right, nor do the Rules address the issue of whether a decision rendered by a Trial Chamber after the close of trial and appeal proceedings is subject to appeal;

CONSIDERING that the Appeals Chamber has previously held that an applicant is entitled to lodge an appeal against a decision rendered by a Trial Chamber, pursuant to Rule 75(G) of the Rules, after the close of trial and appeal proceedings;[3]

FINDING therefore that the Applicant is entitled to appeal the Decision of 3 April 2008

Rule 75 of the Rules was subsequently amended to state that appeals in such cases lie as of right.[4] In light of the fact that the dead-lines established in the new Rule had expired at the time of the motion, the Appeals Chamber established case-specific dead-lines for Rutaganda’s appeal (“Rutaganda Decision on Leave to Appeal”).[5]

See also, the present decision, para. 6:

6. Rule 75(J) of the Rules of Procedure and Evidence (“Rules”), provides that decisions under paragraph (G) are subject to appeal directly to a full bench of the Appeals Chamber by either party.  

[1] The Prosecutor v. Tharcisse Renzaho, Case No. ICTR-97-31, Decision on Rutaganda’s Motion for Reconsideration or Alternatively, Certification to Appeal the Decision of 3 April 2008 on Request for Closed Session Testimony and Sealed Exhibits, 13 November 2008 (“Decision of 13 November 2008”).

[2] Georges A.N. Rutaganda v. The Prosecutor, Case No. ICTR-96-3-R, Order to the Registrar Concerning Georges Rutaganda’s Access to Documents, 22 January 2009.

[3] Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R75, Decision on Motion for Clarification, 20 June 2008, para. 14. The Appeals Chamber held that issues related to access to confidential material by a convicted person concern the important question of balancing between the right of a convicted person to access potentially exculpatory material and the need to guarantee the protection of victims and witnesses.

[4] The Appeals Chamber subsequently applied this reasoning in another case involving a similar request (Emmanuel Ndindabahizi v. The Prosecutor, Case No. ICTR-01-71-R75, Decision on Emmanuel Ndindabahizi’s Motion for Leave to File an Appeal against the Trial Chamber’s Decision of 13 November 2008 and an Extension of Time, 19 February 2009, p. 4).

[5] Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-3-R, Decision on Georges A.N. Rutaganda’s Motion for Leave to File an Appeal Against the Trial Chamber’s Decision of 3 April 2008 and an Extension of Time, 16 February 2009. 

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ICTR Rule Rule 75 ICTY Rule Rule 75
Notion(s) Filing Case
Decision on Access to Confidential Material - 22.04.2009 RUTAGANDA George
(ICTR-96-3-R)

10. The Appeals Chamber recalls that where a party requests access to confidential material from another case, such material must be identified or described by its general nature and a legitimate forensic purpose for accessing it must be demonstrated.[1] Consideration must be given to the relevance of the material sought, which may be demonstrated by showing the existence of a nexus between the requesting party’s case and the case from which such material is sought.[2] Such a factual nexus may be established, for example, “if the cases stem from events alleged to have occurred in the same geographic area at the same time,”[3] although this may not always be necessary or sufficient.[4] Rather, a case-specific analysis is required in each instance.[5] A Chamber must be satisfied that the requesting party has established that this material is likely to assist its case materially or that there is at least a good chance that it would.[6]

11. Once it is determined that confidential material filed in another case may materially assist an applicant, the Chamber shall determine which protective measures shall apply to the material, as it is within the Chamber’s discretionary power to strike a balance between the rights of a party to have access to material to prepare its case, and guaranteeing the protection and integrity of confidential information.[7] Failure by the Trial Chamber to apply this approach amounts to a discernible error based on an incorrect interpretation of the governing law.[8]

[1] Nahimana et al. Decision, para. 12.

[2] See Niyitegeka Decision of 23 October 2008 [Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R75, Decision on Eliézer Niyitegeka’s Appeal Concerning Access to Confidential Materials in the Muhimana and Karemera et al. Cases, 23 October 2008], para. 21, referring to Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Decision on Appellants Dario Kordić and Mario Čerkez’s Request for Assistance of the Appeals Chamber in Gaining Access to Appellate Briefs and Non-Public Post Appeal Pleadings and Hearing Transcripts filed in the Prosecutor v. Blaškić, 16 May 2002 (“Blaškić Decision”), para. 15.

[3] See Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Momčilo Perišić’s Motion Seeking Access to Confidential Material in the Blagojević and Jokić Case, 18 January 2006 (“Blagojević and Jokić Decision”), para. 4 (internal quotations and citations omitted); Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on Momcilo Perisić’s Motion Seeking Access to Confidential Material in the Galić Case, 16 February 2006, para. 3.

[4] Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-A, Decision on Haradinaj Motion for Access, Balaj Motion for Joinder, and Balaj Motion for Access to Confidential Materials in the Limaj Case, 31 October 2006 (“Limaj et al. Decision”), para. 7, citing Blaškić Decision, paras. 15, 16.

[5] Limaj et al. Decision, para. 7.

[6] Niyitegeka Decision of 23 October 2008, referring to Blaškić Decision Decision, para. 15. For discussion of the circumstances which would be relevant to establishing the requisite nexus, see, e.g., Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Decision on Motion by Mićo Stanišić for Access to All Confidential Material in the Krajišnik Case, 21 February 2007, p. 5; Blagojević and Jokić Decision, para. 5; Blaškić Decision, para. 16; Prosecutor v. Milan Martić, Case No. IT-95-11-A, Decision on Motion by Jovica Stanišić for Access to Confidential Testimony and Exhibits in the Martić Case, 22 February 2008, para. 10.

[7] See Niyitegeka Decision of 23 October 2008, para. 21, citing Prosecutor v. Mladen Naletilić et al., Case No. IT-98-34-A, Decision on “Slobodan Praljak’s Motion for Access to Confidential Testimony and Documents in Prosecutor v. Naletilić and Martinović” and “Jadranko Prlić’s Notice of Joinder to Slobodan Praljak’s Motion for Access”, 13 June 2005, p. 7; Blagojević and Jokić Decision, para. 7.

[8] Niyitegeka Decision of 23 October 2008, para. 23.

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ICTR Rule Rule 75 ICTY Rule Rule 75
Notion(s) Filing Case
Decision on Access to Confidential Material - 22.04.2009 RUTAGANDA George
(ICTR-96-3-R)

23. In its Impugned Decision [The Prosecutor v. Tharcisse Renzaho, Case No. ICTR-97-31, Decision on Request for Closed Session Testimony and Sealed Exhibits, 3 April 2008], the Trial Chamber noted that “a significant factual, geographical and temporal overlap” between the cases constitutes a legitimate forensic purpose.[1] The Appeals Chamber emphasises that a requesting party is not required to establish a “significant” overlap between the cases - be it factual, geographic or temporal - in order to demonstrate a legitimate forensic purpose. However, the Appeals Chamber further notes that the Trial Chamber, having reviewed the requested material, went on to conclude that the Appellant’s conviction in relation to Cyahafi concerned the distribution of weapons, and that since the requested material shed no light on the Appellant’s conduct in this regard, it was unlikely to materially assist him.[2] The Appeals Chamber is satisfied with the Trial Chamber reasoning in this respect. Moreover, the Appeals Chamber is not persuaded by the Appellant’s contention that the lack of reference to him in the evidence of Witness AWE in and of itself makes this evidence exculpatory within the meaning of Rule 68 and is therefore of “material assistance” to his case. The Appeals Chamber accordingly finds that the Trial Chamber did not abuse its discretion and dismisses this ground of appeal.

[1] Impugned Decision, para. 6 (internal citations omitted).

[2] Impugned Decision, para. 6, referring to Trial Judgement, paras. 174 et seq. See also Rutaganda Appeal Judgement, paras. 294-341, 589 and Disposition. 

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ICTR Rule Rule 75 ICTY Rule Rule 75
Notion(s) Filing Case
Decision on Clarification - 20.06.2008 NIYITEGEKA Eliézer
(ICTR-96-14-R75)

Eliézer Niyitegeka filed a motion for review before the Appeals Chamber, requesting the Appeals Chamber, inter alia, to admit excerpts of closed session transcripts from other cases to which he had not been granted access. The Appeals Chamber declined to examine those excerpts “obtained in direct violation of Trial Chambers’ orders”.[1] Following the Appeals Chamber’s decision, Eliézer Niyitegeka requested access to the relevant closed session transcripts to the relevant Trial Chambers. His requests were denied, together with his requests for reconsideration and for certification of an appeal. Eliézer Niyitegeka then filed a motion for clarification before the Appeals Chamber.

8.       […] the Appeals Chamber recalls that, in its Decision on Third Request for Review, it stated that the closed session material submitted by the Applicant in support of his Third Request for Review had been “obtained in direct violation of Trial Chambers’ orders”.[2] The Appeals Chamber was well aware that the Applicant was not a party to the proceedings in which the protective measures were ordered. However, it considered that, by obtaining and making use of closed session material to which he undoubtedly knew that he was not authorized to have access, the Applicant took part in the breach of the Trial Chambers’ orders committed by those who were directly bound by them. The Applicant therefore participated in the violation of the orders for protective measures imposed by the Trial Chambers and, thereby, “seriously undermine[d] the integrity of the Tribunal’s proceedings”.[3]    

11.     […] the Appeals Chamber clarifies that, although the Applicant was not a party to the cases in which the protective measures were ordered, he was bound by the Trial Chambers’ orders not to disclose confidential material from the moment it came into his possession. Similar to what the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia found in respect of closed session orders,[4] the Appeals Chamber considers that the orders of protective measures apply to all persons coming into possession of protected information. This is necessary, in particular, in order to comply with the Tribunal’s obligation pursuant to Article 21 of the Statute to protect witnesses on whose behalf protective measures have been ordered. Such orders would be meaningless if third parties were allowed to disclose confidential information on the sole ground that the orders were not expressly directed to them.

[1] Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Third Request for Review, 23 January 2008 (“Decision on Third Request for Review”), para. 9.

[2] Decision on Third Request for Review, para. 9, citing The Prosecutor v. Mikaeli Muhimana, Case No. ICTR-95-1B-T, Decision on Defence Motion for Protective Measures for Defence Witnesses, 6 July 2004 and The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-R75, Order on Protective Measures for Prosecution Witnesses, 10 December 2004.

[3] Decision on Third Request for Review, para. 9.

[4] See Prosecutor v. Josip Jović, Case No. IT-95-14 & 14/2-R77-A, Judgement, 15 March 2007, para. 22; Prosecutor v. Ivica Marijačić and Markica Rebić, Case No. IT-95-14-R77.2-A, Judgement, 27 September 2006, para. 24. 

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ICTR Rule Rule 75 ICTY Rule Rule 75
Notion(s) Filing Case
Decision on Clarification - 20.06.2008 NIYITEGEKA Eliézer
(ICTR-96-14-R75)

Eliézer Niyitegeka filed a motion for review before the Appeals Chamber, requesting the Appeals Chamber, inter alia, to admit excerpts of closed session transcripts from other cases to which he had not been granted access. The Appeals Chamber declined to examine those excerpts “obtained in direct violation of Trial Chambers’ orders”.[1] Following the Appeals Chamber’s decision, Eliézer Niyitegeka requested access to the relevant closed session transcripts to the relevant Trial Chambers. His requests were denied, together with his requests for reconsideration and for certification of an appeal. Eliézer Niyitegeka then filed a motion for clarification before the Appeals Chamber.

14.     Rule 75(G) of the Rules, which allows for the possibility of seeking to rescind, vary, or augment protective measures ordered at trial does not provide for an appeal as of right, nor do the Rules address the issue of whether a decision rendered by a Trial Chamber after the close of trial and appeal proceedings is subject to appeal. However, because issues related to access to confidential material by a convicted person concern the important question of balance between the right of the convicted person to access potentially exculpatory material and the need to guarantee the protection of victims and witnesses,[5] the Appeals Chamber considers, proprio motu, that an applicant is entitled to challenge a decision by a Trial Chamber, pursuant to Rule 75(G) of the Rules, rendered after the close of trial and appeal proceedings before the Appeals Chamber.

[1] Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Third Request for Review, 23 January 2008 (“Decision on Third Request for Review”), para. 9.

[2] Decision on Third Request for Review, para. 9, citing The Prosecutor v. Mikaeli Muhimana, Case No. ICTR-95-1B-T, Decision on Defence Motion for Protective Measures for Defence Witnesses, 6 July 2004 and The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-R75, Order on Protective Measures for Prosecution Witnesses, 10 December 2004.

[3] Decision on Third Request for Review, para. 9.

[4] See Prosecutor v. Josip Jović, Case No. IT-95-14 & 14/2-R77-A, Judgement, 15 March 2007, para. 22; Prosecutor v. Ivica Marijačić and Markica Rebić, Case No. IT-95-14-R77.2-A, Judgement, 27 September 2006, para. 24.

[5] Cf. Prosecutor v. Enver Had‘ihasanović et al., Case No. IT-01-47-AR73, Decision on Application for Leave to Appeal, 1 February 2002, p. 2. 

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ICTR Rule Rule 75 ICTY Rule Rule 75
Notion(s) Filing Case
Decision re Prosecution Witnesses - 29.01.2016 NIYITEGEKA Eliézer
(MICT-12-16)

9. […] Given that the proceedings against Niyitegeka have been concluded, the only legitimate forensic purpose for obtaining access to this material is to establish a “new fact” capable of constituting the basis for a review of Niyitegeka’s convictions.[1] In this regard, Niyitegeka merely advances a broad and speculative assertion that any evidence provided by the witnesses in other proceedings before the ICTR necessarily serves a legitimate forensic purpose.[2] It follows from jurisprudence that the requesting party may not engage in a “fishing expedition”.[3] In the absence of more particularized submissions, the mere fact that witnesses may have testified in more than one case does not necessarily reflect that their evidence is relevant to establishing a “new fact” in the context of review proceedings, or demonstrate that any related material may be of material assistance to the preparation of a review application. […]

[1] See Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-3-R, Decision on Georges A. N. Rutaganda’s Appeal against Decision on Request for Closed Session Testimony and Sealed Exhibits, 22 April 2009, para. 16. See also Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33-R86.2, Second Decision on Motion for Access to Confidential Material from the Nshogoza Case, 9 November 2015, para. 5.

[2] [Eliézer Niyitegeka v. The Prosecutor, Case No. MICT-12-16-R, Urgent Request for Orders Relating to Prosecution Witnesses, 21 December 2015 (public with public and confidential annexes) (“Motion”)], paras. 35-36.

[3] See Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-A, Decision on Radovan Karadžić’s Motion for Access to Confidential Material in the Dragomir Milošević Case, 19 May 2009, para. 11, referring to 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.

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Notion(s) Filing Case
Decision on Clarification - 26.05.2003 BLAŠKIĆ Tihomir
(IT-95-14-A)

26.     The Appeals Chamber considers that the ultimate concern behind a more elaborate regime of access […] is […] to strike a reasonable balance between the rights of the accused (or appellant) and the protection of witnesses and victims.  That concern can be addressed through protection of different degrees, but the measures employed to achieve such protection do not have to be identical. […] it is not likely that the refusal of confidential witnesses to give consent to have their testimony disclosed to the Applicants can prevent such testimony from being disclosed at the expense of the rights of the accused.  This is because the testimony once given in court becomes part of the trial record, thus part of the record of the Tribunal.  The use of such record in other proceedings before the Tribunal, or its possible use, if any, outside of the Tribunal, is subject to, and only subject to, existing protective measures indicated by the Chambers pursuant to the Rules and having considered the legitimate concerns of the witnesses prior to their testimony.  Those existing protective measures, however, can be varied under Rule 75 to safeguard the rights of the accused before the International Tribunal.

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Notion(s) Filing Case
Decision on Access - 16.05.2002 BLAŠKIĆ Tihomir
(IT-95-14-A)

14. Access to confidential material may be granted whenever the Chamber is satisfied that the party seeking access has established that such material may be of material assistance to his case.[1] A party is always entitled to seek material from any source to assist in the preparation of his case if the material sought has been identified or described by its general nature and if a legitimate forensic purpose for such access has been shown.[2]

15. The relevance of the material sought by a party may be determined by showing the existence of a nexus between the applicant’s case and the cases from which such material is sought, i.e. if the cases stem from events alleged to have occurred in the same geographic area and at the same time.[3] It is sufficient that access to the material sought is likely to assist the applicant’s case materially, or that there is at least a good chance that it would.[4]

16. Not always would mere geographical and temporal overlap between two cases be sufficient in every instance to conclude that there is a legitimate forensic purpose. […]

[1] Prosecutor v. Enver Hadžihasanović, et al, Decision on Motion by Mario Čerkez for Access to Confidential Supporting Material, Case No. IT-01-47-PT, 10 October 2001, at para 10.

[2] Ibidem.

[3] See 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, at para 8.

[4] See The Prosecutor v. Blaškić, Decision on Appellant’s Motion Requesting Assistance of the Appeals Chamber in Gaining Access to Non-Public Transcripts and Exhibits From the Aleksovski Case, 8 March 2002, at page 3. Where the Appeals Chamber held that the Appellant had described the documents sought by their general nature as clearly as he possibly could, and had shown that such access was likely to assist his appeal materially.

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Notion(s) Filing Case
Decision on Access to Aleksovski case - 08.03.2002 BLAŠKIĆ Tihomir
(IT-95-14-A)

CONSIDERING that the Appeals Chamber is satisfied that the Appellant is entitled to access the material sought since he has described the documents sought by general nature as clearly as he possibly could, and has shown that such access is likely to assist his appeal materially;

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Notion(s) Filing Case
Decision on Access to Ex Parte Materials and Disclosure of Mitigating Materials - 30.08.2006 BRALO Miroslav
(IT-95-17-A)

19. The Appeals Chamber recalls that the protective measures in question were ordered in the Blaškić Review Proceedings.[1] Consequently, pursuant to Rule 75(G) of the Rules, the Appellant should bring any motion for variation of protective measures before the Blaškić Appeals Chamber. The Appeals Chamber in the present case has no jurisdiction to decide on the Appellant’s respective request and therefore finds that it should be dismissed.

[1] Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R, Decision on Prosecution’s Proposed Public Redacted Version of its Request for Review or Reconsideration, 29 June 2006, The Appeals Chamber in Blaškić Review Proceedings has specifically ordered, inter alia, that paragraphs 63 and 76 of the Blaškić be redacted as proposed by the Prosecution (Ibid., pp. 8-9).

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ICTR Rule Rule 75 ICTY Rule Rule 75
Notion(s) Filing Case
Decision on Access (Perišić) - 27.04.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

4. The Appeals Chamber recalls that “a party is always entitled to seek material from any source, including from another case before the Tribunal, to assist in the preparation of its case if the material sought has been identified or described by its general nature and if a legitimate forensic purpose for such access has been shown”.[1]

5. The Appeals Chamber further notes that access to confidential material may be granted when a Chamber is satisfied that the party seeking access has established that such material “is likely to assist the [party’s] case materially, or […] there is a good chance that it would”.[2] This standard is met by showing the existence of a factual nexus between the two cases such as a “geographical, temporal or otherwise material overlap”.[3]

[1] See Prosecutor v. Milan Martić, Case No. IT-95-11-A, Decision on Motion by Jovica Stanišić for Access to Confidential Testimony and Exhibits in the Martić Case Pursuant to Rule 75(G)(i), 22 February 2008 (“Martić Decision”), para. 9; Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Decision on “Motion by Mićo Stanišić for Access to All Confidential Materials in the Krajišnik Case”, 21 February 2007, p. 4.

[2] Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Motions for Access to Confidential Materials, 16 November 2005 (“Blagojević and Jokić Decision”), para. 8.

[3] Prosecutor v. Dario Kordić and Mario Ćerkez, Case No. IT-95-14/2-A, Decision on Motion by Hadžihasanović, Alagić and Kubura for Access to Confidential Supporting Material, Transcripts and Exhibits in the Kordić and Ćerkez Case, 23 January 2003, p. 4; see also Martić Decision, para. 9.

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Notion(s) Filing Case
Decision on Access (Perišić) - 27.04.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

14. The Appeal Chamber notes that protective measures ordered in one proceeding “shall continue to have effect mutatis mutandis in any other proceeding before the Tribunal”.[1] It further recognises that once the Appeals Chamber has granted access to confidential materials from another case, it then determines if and what additional protective measures are necessary in order to “strike a balance between the rights of a party to have access to material to prepare its case and guaranteeing the protection and integrity of confidential information”.[2]

15. The Appeals Chamber finds that existing protective measures should continue to apply to any material released to Perišić. It will further give the opportunity to the parties to the Dragomir Milošević case to request additional protective measures, if they so choose.

[1] Rule 75(F)(i) of the Rules; see also Galić Decision, para. 11.

[2] Blagojević and Jokić Decision, para. 16, referring to Naletilić Decision, p. 7. 

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ICTR Rule Rule 75 ICTY Rule Rule 75
Notion(s) Filing Case
Decision on Access (Perišić) - 27.04.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

13. The Appeals Chamber notes that, under Rule 70(B) of the Rules, information “provided to the Prosecutor on a confidential basis and which has been used solely for the purpose of generating new evidence […] shall not be disclosed by the Prosecutor without the consent of the person or entity providing the initial information”. The same restriction may be applied to information in possession of the Defence under Rule 70(F) of the Rules. In respect of motions seeking access to confidential material in another case, the Appeals Chamber has previously ruled that material provided under Rule 70 of the Rules shall not be released to the accused in another case unless the provider consents to such disclosure.[1] Accordingly, the Appeals Chamber holds that any material that has been provided to the Prosecution under Rule 70(B) of the Rules, in addition to any material that may have been provided to Milošević under Rule 70(F) of the Rules, shall not be released to Perišić unless and before the providers give their consent.

[1] Galić Decision [Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on Momčilo Perišić’s Motion Seeking Access to Confidential Material in the Galić Case, 16 February 2006], para. 12, referring to Prosecutor v. Mladen Naletilić, aka “Tuta” and Vinko Martinović, aka “Štela”, Case No. IT-98-34-A, Decision on “Slobodan Praljak’s Motion for Access to Confidential Testimony and Documents in Prosecutor v. Naletilić and Martinović” and “Jadranko Prlić’s Notice of Joinder to Slobodan Praljak’s Motion for Access”, 13 June 2005 (“Naletilić Decision”) p. 8.

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ICTR Rule Rule 70 ICTY Rule Rule 70
Notion(s) Filing Case
Decision on Access (Karadžić) - 19.05.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

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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ICTR Rule Rule 75 ICTY Rule Rule 75
Notion(s) Filing Case
Decision on Access (Karadžić) - 19.05.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

The Prosecution requested that it be able to withhold material from Karadžić that may relate to protected witnesses in Dragomir Milošević who may be called in the Karadžić case and for whom delayed disclosure may be justified. The Prosecution therefore suggested that the Registry withhold access to this material in accordance with the time frames set out in such orders as may be issued by the Karadžić Trial Chamber or, at least, until the Prosecution is required to file its witness list in the Karadžić case. It further submitted that, should it subsequently decide to not call one or more protected witnesses from the Dragomir Milošević case in the Karadžić case, it will notify the Registry, which may allow access to the materials relating to those witnesses. The Appeals Chamber considered that the particular time frames of the Karadžić case favoured the approach suggested by the Prosecution and held:

14. […] The Appeals Chamber considers that the Trial Chamber seized of the Karadžić case is best placed to evaluate, pursuant to Rule 69 of the Rules, whether exceptional circumstances exist to warrant delayed disclosure of the materials related to Prosecution witnesses. Considering the fact that the Prosecution was to provide its witness list by 18 May 2009, the Appeals Chamber deems that, in these circumstances, it is in the interests of judicial expediency to adopt the suggested approach. Accordingly, the Appeals Chamber allows the Prosecution to withhold the material until the Trial Chamber seized of the Karadžić case decides on the Prosecution’s requests for delayed disclosure of inter partes confidential material from the Dragomir Milošević case. The Appeals Chamber holds that the Prosecution will have to file any such requests for delayed disclosure before the Trial Chamber seized of the Karadžić case by 26 May 2009.

In paragraphs 15-17, the Appeals Chamber restated its usual approach concerning access to Rule 70 material and other protective measures.

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ICTY Rule Rule 69;
Rule 75
Notion(s) Filing Case
Decision on Variation of Protective Measures - 08.10.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

6. […] when the Appeals Chamber becomes seised of an appeal against a trial judgement, it becomes the Chamber “seised of the first proceedings” within the meaning of Rule 75(G)(i) of the Rules.[1] The Appeals Chamber, therefore, finds that the Applicant, as a party to the second proceedings,[2] properly filed his Motion before the Appeals Chamber.

7. The Appeals Chamber further recalls that, pursuant to Rule 75(F) of the Rules, protective measures that have been ordered in any proceedings before the Tribunal continue to have effect mutatis mutandis in any other proceedings before the Tribunal unless and until they are rescinded, varied or augmented. Rule 75(G) confers the competence to consider requests to vary protective measures on the Chamber seised of the first proceedings.[3] As previously observed by the Appeals Chamber, if the Chamber seised of the first proceedings were to transfer this competence to the Chamber seised of the second proceedings by way of a general referral, “the regulatory regime of Rule 75(G)(i) of the Rules would be frustrated and an important protection feature for victims and witnesses before the Tribunal would be circumvented”.[4]

8. The Krajišnik Decisions do not contradict the above interpretation.[5] These decisions concerned applications to, inter alia, rescind or vary the measure of delayed disclosure to the accused of witness identities, ordered by the Chamber seised of the first proceedings pursuant to Rule 69 of the Rules.[6] The question addressed in the Krajišnik Decisions is materially different from the present situation, where the Applicant seeks a general referral that any protective measure ordered by the Chamber seised of the first proceedings pursuant to Rule 75 of the Rules may subsequently be varied by the Chamber seised of the second proceedings.[7]

9. On the basis of the above, the Appeals Chamber reiterates that Rule 75(G) of the Rules clearly defines the procedure to be followed if a party seeks to vary protective measures ordered in previous proceedings.[8] As the Motion seeks a de facto circumvention of this Rule, it shall be denied without further consideration.

[1] Prosecutor v. Milan Lukić and Sredoje Lukić, Case No. IT-98-32/1-A, Decision on Radovan Karadžić’s Motion for Variance of Protective Measures, 25 September 2009, (“Lukić Decision”) para. 7, referring to Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Momčilo Perišić’s Motion Seeking Access to Confidential Material in the Blagojević and Jokić Case, 18 January 2006, para. 3. See also Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Michael Bagaragaza’s Motion for Access to Confidential Material, 14 May 2009.

[2] Prosecutor v. Radovan Karadžić, Case No. IT-95/18-PT.

[3] See Rule 75(G)(i) of the Rules.

[4] Lukić Decision, para. 8.

[5] Lukić Decision, para. 9.

[6] Krajišnik Decisions [Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Order Regarding Rule 75 Motion by Mićo Stanišić, 22 August 2007; Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Order Regarding Rule 75 Motion by Stojan Župljanin, 25 February 2009], p. 1, respectively.

[7] Motion, paras 1, 9.

[8] Lukić Decision, para. 10. 

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ICTR Rule Rule 75 ICTY Rule Rule 75
Notion(s) Filing Case
Decision on Access to Confidential Materials - 21.02.2007 KRAJIŠNIK Momčilo
(IT-00-39-A)

Pp. 4: CONSIDERING that a party is always entitled to seek material from any source, including from another case before the International Tribunal, to assist in the preparation of its case if the material sought has been identified or described by its general nature and if a legitimate forensic purpose for such access has been shown;[1]

CONSIDERING that “the relevance of the material sought by a party may be determined by showing the existence of a nexus between the applicant’s case and the cases from which such material is sought, i.e. if the cases stem from events alleged to have occurred in the same geographic area and at the same time”;[2]

CONSIDERING that “access to confidential material from another case may be granted wherever the Chamber is satisfied that the party seeking access has established that such material may be of material assistance to his case”[3] and that “it is sufficient that access to the material sought is likely to assist the applicant’s case materially, or that there is at least a good chance that it would”;[4]

P. 5: FINDING that the Applicant has sufficiently identified and described by its general nature the inter partes confidential material in the Prosecutor v. Krajišnik trial and appeals proceedings to which he seeks access;

FINDING FURTHER that there is a substantial geographical and temporal overlap between the Prosecutor v. Stanišić and Prosecutor v. Krajišnik cases such that the inter partes confidential material filed in the trial and appeals proceedings in Prosecutor v. Krajišnik is likely to be of material assistance in the preparation of the defence in Prosecutor v. Stanišić, and that therefore, the Applicant has demonstrated a legitimate forensic purpose for access to said confidential material;

P. 7: CONSIDERING that once an Appeals Chamber determines that confidential material filed in another case is likely to materially assist an applicant, the Appeals Chamber shall determine which protective measures shall apply to said material as it is within the Appeals Chamber’s discretionary power to strike a balance between the rights of a party to have access to material to prepare its case and guaranteeing the protection and the integrity of confidential information;[5]

[1] See Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R, Decision on “Defence Motion on Behalf of Rasim Delić Seeking Access to All Confidential Material in the Blaškić Case”, 1 June 2006 (“Blaškić 2006 Decision”), p. 8 with further references in footnote 34.

[2] Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Decision on Appellants Dario Kordić and Mario Čerkez’s Request for Assistance of the Appeals Chamber in Gaining Access to Appellate Briefs and Non-Public Post Appeal Pleadings and Hearing Transcripts filed in the Prosecutor v. Blaškić, 16 May 2002 (“Blaškić 2002 Decision”), para. 15.

[3] Ibid., para. 14; see for further references Blaškić 2006 Decision, footnote 36.

[4] Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Momčilo Perišić’s Motion Seeking Access to Confidential Material in the Blagojević and Jokić Case, 18 January 2006 (“Blagojević and Jokić Decision”), para. 4; see for further references Blaškić 2006 Decision, footnote 37.

[5] Simić Decision [Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Decision on Defence Motion by Franko Simatović for Access to Transcripts, Exhibits, Documentary Evidence and Motions Filed by the Parties in the Simić et al. Case, 12 April 2005], p. 7. 

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Notion(s) Filing Case
Decision on Access to Confidential Materials - 21.02.2007 KRAJIŠNIK Momčilo
(IT-00-39-A)

Pp. 4: CONSIDERING that a party is always entitled to seek material from any source, including from another case before the International Tribunal, to assist in the preparation of its case if the material sought has been identified or described by its general nature and if a legitimate forensic purpose for such access has been shown;[1]

CONSIDERING that “the relevance of the material sought by a party may be determined by showing the existence of a nexus between the applicant’s case and the cases from which such material is sought, i.e. if the cases stem from events alleged to have occurred in the same geographic area and at the same time”;[2]

CONSIDERING that “access to confidential material from another case may be granted wherever the Chamber is satisfied that the party seeking access has established that such material may be of material assistance to his case”[3] and that “it is sufficient that access to the material sought is likely to assist the applicant’s case materially, or that there is at least a good chance that it would”;[4]

P. 5: FINDING that the Applicant has sufficiently identified and described by its general nature the inter partes confidential material in the Prosecutor v. Krajišnik trial and appeals proceedings to which he seeks access;

FINDING FURTHER that there is a substantial geographical and temporal overlap between the Prosecutor v. Stanišić and Prosecutor v. Krajišnik cases such that the inter partes confidential material filed in the trial and appeals proceedings in Prosecutor v. Krajišnik is likely to be of material assistance in the preparation of the defence in Prosecutor v. Stanišić, and that therefore, the Applicant has demonstrated a legitimate forensic purpose for access to said confidential material;

P. 7: CONSIDERING that once an Appeals Chamber determines that confidential material filed in another case is likely to materially assist an applicant, the Appeals Chamber shall determine which protective measures shall apply to said material as it is within the Appeals Chamber’s discretionary power to strike a balance between the rights of a party to have access to material to prepare its case and guaranteeing the protection and the integrity of confidential information;[5]

[1] See Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R, Decision on “Defence Motion on Behalf of Rasim Delić Seeking Access to All Confidential Material in the Blaškić Case”, 1 June 2006 (“Blaškić 2006 Decision”), p. 8 with further references in footnote 34.

[2] Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Decision on Appellants Dario Kordić and Mario Čerkez’s Request for Assistance of the Appeals Chamber in Gaining Access to Appellate Briefs and Non-Public Post Appeal Pleadings and Hearing Transcripts filed in the Prosecutor v. Blaškić, 16 May 2002 (“Blaškić 2002 Decision”), para. 15.

[3] Ibid., para. 14; see for further references Blaškić 2006 Decision, footnote 36.

[4] Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Momčilo Perišić’s Motion Seeking Access to Confidential Material in the Blagojević and Jokić Case, 18 January 2006 (“Blagojević and Jokić Decision”), para. 4; see for further references Blaškić 2006 Decision, footnote 37.

[5] Simić Decision [Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Decision on Defence Motion by Franko Simatović for Access to Transcripts, Exhibits, Documentary Evidence and Motions Filed by the Parties in the Simić et al. Case, 12 April 2005], p. 7. 

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Notion(s) Filing Case
Decision on Access (Karadžić) - 19.05.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

9. The Appeals Chamber has previously stated that “[t]he first element of gaining access to confidential material is not considered particularly onerous”.[1] […] The Appeals Chamber understands that Karadžić is seeking access to all inter partes confidential material in the Dragomir Milošević case and is satisfied that Karadžić has identified the material sought with sufficient particularity.

[1] Brđanin Decision [Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Mićo Stanišić’s Motion for Access to All Confidential Materials in the Brđanin Case, 24 January 2007], para. 11.

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ICTR Rule Rule 75 ICTY Rule Rule 75
Notion(s) Filing Case
Decision on Access to Ex Parte Filings - 10.05.2016 KARADŽIĆ Radovan
(MICT-13-55-A)

CONSIDERING that, with regard to confidential material, the Mechanism must “find a balance between the right of a party to have access to material to prepare its case and the need to guarantee the protection of witnesses”;[1]

RECALLING that a request for access to confidential material from another case can only be granted if the material sought has been identified or described by its general nature and a legitimate forensic purpose for gaining such access is shown;[2]

RECALLING ALSO that the party seeking access to confidential material bears the burden to justify its request;[3]

RECALLING FURTHER that the requesting party must establish that such material is likely to assist its case materially, or that there is at least a good chance that it would, and that this standard may be met by showing the existence of a nexus between the applicant’s case and the cases from which such material is sought;[4]

[1] Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Mićo Stanišić’s Motion for Access to All Confidential Materials in the Brđanin Case, 24 January 2007 (“Brđanin Decision of 24 January 2007”), para. 10. See Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Vlastimir Đorđević’s Motion for Access to Transcripts, Exhibits and Documents, 16 February 2010 (“Šainović Decision of 16 February 2010”), para. 19.

[2] See, e.g., Prosecutor v. Vujadin Popović et al., Case Nos. IT-05-88-A & IT-09-92-T, Decision on Motion by Ratko Mladić for Access to Confidential Material, 20 February 2013 (“Popović Decision of 20 February 2013”), p. 2; Tharcisse Muvunyi v. The Prosecutor, Case No. ICTR-2000-55A-A, Decision on Ildephonse Nizeyimana’s Request for Access to Closed Session Transcripts, 31 March 2011 (“Muvunyi Decision of 31 March 2011”), para. 3; Šainović Decision of 16 February 2010, para. 9. See also Eliézer Niyitegeka v. Prosecutor, Case No. MICT-12-16, Decision on Niyitegeka’s Urgent Request for Orders Relating to Prosecution Witnesses, 29 January 2016, para. 8; Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33-R86.2, Second Decision on Motion for Access to Confidential Material from the Nshogoza Case, 9 November 2015, para. 4.

[3] See Brđanin Decision of 24 January 2007, para. 14.

[4] See Popović Decision of 20 February 2013, p. 2; Muvunyi Decision of 31 March 2011, para. 3; Brđanin Decision of 24 January 2007, para. 12.

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Notion(s) Filing Case
Decision on Redacted Versions of Decisions - 18.07.2016 KARADŽIĆ Radovan
(MICT-13-55-A)

Page 3:

RECALLING that, with regard to confidential material, the Mechanism must find a balance between the right of a party to have access to material to prepare its case and the need to guarantee the protection of witnesses and the confidentiality of sensitive information;[1]

[1] See Decision on Motion for Access to Ex Parte Filings in Completed Cases, 10 May 2016 (“Appeals Chamber Decision of 10 May 2016”), p. 2 and references cited therein. 

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