Ex parte material

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)

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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ICTR Rule Rule 66
Rule 68
ICTY Rule Rule 66
Rule 68
Notion(s) Filing Case
Decision on Access to Confidential Materials - 21.02.2007 KRAJIŠNIK Momčilo
(IT-00-39-A)

P. 5: CONSIDERING, however, that “ex parte material, being of a higher degree of confidentiality, by nature contains information which has not been disclosed inter partes because of security interests of a State, other public interests, or privacy interests of a person or institution”[1] and that “[c]onsequently, the party on whose behalf ex parte status has been granted enjoys a protected degree of trust that the ex parte material will not be disclosed”;[2]

FINDING that the Applicant has not demonstrated a legitimate forensic purpose in relation to such ex parte material;

[1] Prosecutor v. Miroslav Bralo, Case No. IT-95-17-A, Decision on Motions For Access to Ex Parte Portions of the Record on Appeal and for Disclosure of Mitigating Material, 30 August 2006 (“Bralo Decision”), para. 17. See already 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 (Simić Decision), p. 3.

[2] Bralo Decision, para. 17.

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

P. 5: CONSIDERING, however, that “ex parte material, being of a higher degree of confidentiality, by nature contains information which has not been disclosed inter partes because of security interests of a State, other public interests, or privacy interests of a person or institution”[1] and that “[c]onsequently, the party on whose behalf ex parte status has been granted enjoys a protected degree of trust that the ex parte material will not be disclosed”;[2]

FINDING that the Applicant has not demonstrated a legitimate forensic purpose in relation to such ex parte material;

[1] Prosecutor v. Miroslav Bralo, Case No. IT-95-17-A, Decision on Motions For Access to Ex Parte Portions of the Record on Appeal and for Disclosure of Mitigating Material, 30 August 2006 (“Bralo Decision”), para. 17. See already 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 (Simić Decision), p. 3.

[2] Bralo Decision, para. 17.

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

EMPHASIZING that, with regard to ex parte confidential material, the requesting party must meet a higher standard in order to establish a legitimate forensic purpose for accessing such material[1] as it by its nature contains information that has not been disclosed inter partes because of, inter alia, “privacy interests of a person” and that, therefore, “the party on whose behalf the ex parte status has been granted enjoys a protected degree of trust that the ex parte material will not be disclosed”;[2]

[1] Brđanin Decision of 24 January 2007 [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. 14.  

[2] Šainović Decision of 16 February 2010 [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], para. 10 and references cited therein.

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Notion(s) Filing Case
Order on Assignment of Counsel - 17.02.2016 NGIRABATWARE Augustin
(MICT-12-29)

Page. 2:

CONSIDERING that, in limited circumstances, particularly sensitive material could be included in an ex parte annex so long as the motion is prepared in such a way to allow for a meaningful response;[1]

[1] The Appeals Chamber notes that the requirement that an applicant provide information as to the potential grounds for review in the context of a request for the assignment of counsel at the expense of the Mechanism necessarily involves revealing certain aspects of the applicant’s strategy in connection with the eventual request for review. 

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

Page 5:

CONSIDERING […] that issuing public redacted versions of the Decisions will ensure the public nature of these proceedings to the extent possible while the interests of the parties on whose behalf the ex parte status was granted can be adequately protected by appropriate redactions;

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Notion(s) Filing Case
Decision on Redacted Versions of Rule 86(F) Filings - 24.01.2017 KARADŽIĆ Radovan
(MICT-13-55-A)

Pages 3-4: 

RECALLING that a request for access to confidential ex parte material can only be granted when the requesting party demonstrates a heightened showing of a legitimate forensic purpose in order to protect the interests of the party who designated its filing as ex parte and who enjoys a protected degree of trust that the ex parte material will not be disclosed;[1]

Pages 4-5: 

FINDING that issuing public redacted versions of the decisions and orders issued in this case pursuant to Rule 86(F) of the Rules as well as four filings made by the Registry of the Mechanism and the Prosecution will ensure the public nature of these proceedings to the extent possible and that the interests of the parties who designated their filings as ex parte can be adequately protected by appropriate redactions;

CONSIDERING that, in light of the varied circumstances of applications made under Rule 86(F) of the Rules, access to any future confidential ex parte materials in such cases should be determined upon any application made on a case-by-case basis;

[1] See The Prosecutor v. Miroslav Bralo, Case No. IT-95-17-A, Decision on Motions for Access to Ex Parte Portions of the Record on Appeal and for Disclosure of Mitigating Material, 30 August 2006, para. 17. See also Decision of 10 May 2016 [Decision on Motion for Access to Ex Parte Filings in Completed Cases, 10 May 2016], p. 3 and references cited therein.

[2] Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-R86F.2, Registrar’s Submission in Relation to the Order of 20 September 2016, 27 September 2016 (confidential and ex parte); Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-R86F.3, 27 September 2016, Registrar’s Submission in Relation to the Order of 20 September 2016 (confidential and ex parte); Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-R86F.2, Prosecution Request for Leave to File Further Submission in Response to Registrar’s Submission in Relation to the Order for Submissions of 20 September 2016, 29 September 2016 (confidential and ex parte); Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-R86F.3, Prosecution Request for Leave to File Further Submission in Response to Registrar’s Submission in Relation to the Order for Submissions of 20 September 2016, 29 September 2016 (confidential and ex parte). The Appeals Chamber notes that its finding does not extend to the confidential ex parte annexes attached to the Registry’s submissions of 29 September 2016.

[3] The Appeals Chamber notes that, with regard to two of the five proceedings at issue, Case No. MICT-13-55-R86.F.2, Case No. MICT-13-55-R86.F.3, the ex parte status of the requests made under Rule 86(F) of the Rules was lifted in these instances with respect to the Prosecution as the requests concerned Prosecution witnesses. The request filed as Case No. MICT-13-55-R86.F.1 was dismissed for lack of jurisdiction. Two other proceedings, Case No. MICT-13-55-R86.F.4 and Case No. MICT-13-55-R86.F.5, are currently pending and only assignment orders have been issued to date.

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MICT Rule Rule 86(F)