Recently, in the Gotovina et al. case (ICTY), the Defence requested the Trial Chamber to issue a restraining order precluding Croatia from taking investigative steps against offices, computers and files of the members of the Defence team without a prior order of the Chamber.
In its Decision of 12 March, the Chamber held that, when faced with a request for a significant intervention in a domestic jurisdiction, which is being exercised in a way that would infringe the right to a fair trial of an accused before the Tribunal, the Chamber is, in exceptional circumstances, competent to make such an intervention under Rule 54. The Chamber should also consider what other measures, if any, may be taken to resolve the issue before it.
The Chamber recalled that the ICTY Rules protect the privileged relationship between lawyer and client, in which lawyer and client should be free to communicate without fear of such communications becoming available to outside parties. In this regard, the Chamber noted that Croatia’s search and seizure of materials from the Defence may lead to a situation in which the protection is not ensured.
Accordingly, the Chamber decided that Croatia shall initially desist from inspection of the contents of the materials seized from the members of the Defence team. It shall provide the Defence with access to the seized materials, in such a manner that the Defence can review their content and that the integrity of the seized materials is protected. The Defence and Croatia shall then communicate with a view to seeking agreement on which items are and which are not protected under the ICTY Rules. Croatia shall not inspect the contents of the materials during such communications. Instead, the Defence shall provide brief descriptions of the items it considers protected under the Rules.