UNITED NATIONS NATIONS UNIES Mechanism for {4 International Criminal Tribunals Tribunaux P?naux Internationaux OFFICE OF THE PROSECUTOR BUREAU DU PROCUREUR M?canisme pour les Arusha, 17 April 2018 Ref: Dear Mr. Macki?, Your request for review of the OTP Access Focal Point decision to deny you acce ial you r'lested, dated 22 March 2018 refers. I am responding to your request for review as the Designat Recor 5, Pursuant to the Subject: OTP Response to Request for Review of the Decision to Deny Ace Tribunals Access Policy for the Records Held by the Mechanism for Int onal Cri The Request for Review Of?ce of the Prosecutor Access Focal cords (Request for Access) held by the uest for Review, you argue that the decision This is a response to your request to review the 21 Mar Point (OTP AFP) to deny your 18 March 2018 On 18 March 2018, you requeste other act, with which the war-crimes investigation of Alija Izetbegovic was initiated before ilable version of the indictment against Alija Izetbegovic, be it a draft or not, and regardless 1 ed or examined by a judge; and the order, or any other act, with zetbegovic was stopped upon his death.?1 I emptions provided for in Articles 10(d), and of the Access Policy, the requested documents om access pursuant to Articles 7 and 8 of the Access Policy. 4 rticle 70f 7 Article 7(1) provides that ?[t]he overall approach to the provision of access to records and information managed by the Mechanism is based on the principle that the work of the Mechanism shall be open and transparent, except where the nature of the records and information concerned is deemed classified.? Request for Access to Records, email dated 18 March 2018. 2 Email Response to 18 March 2018 email, dated 21 March 2018. Haki Road, Plot No.486 Block A, Lakilaki Area Churchillplein l, 2517 JW The Hague, The Netherlands PO. Box 6016, Arusha, Tanzania . m' r" PO. Box 13888, 2501 EW The Hague, The Netherlands Tel: +255 27 256 5347 Fax: +255 27 256 5099 'c ?0 ?7 Tel: +31 70 512 5170 - Fax: +31 70 512 8722 E?mail: E-mail: Article 8 of MIC 7 Article 8(1) provides that Principal of each Organ or their Designated Of?cer shall determine the security levels of, and shall be responsible for the application of the Policy to, records created or received by their respective Organ, and its Predecessor.? Documents produced by the OTP during investigations, are internal documents. By their nature, they form part of con?dential internal OTP work product. Such documents are even protected by Rule 76 of the Rules of Procedure and Evidence (the Rules), governing disclosure of material to the Defence. Rule provides: ?Notwithstanding the provisions of Rules 71 and 72, reports, memoranda, or other internal documents prepared by a Party, its assistants, or representatives in connection with the investigation, preparation, or presentation of the case are not subject to disclosure or noti?cation under those Rules.? Similarly, they are exempted from access by the public because of their nature as internal documents, as envisaged by Article 7(1) of the Access Policy. An ?order or any act? with which an investigation was initiated by the ICTY against Alija Izetbegovic and with which it was halted, if it exists, would be in the form of a report, memoranda, email message or other internal document prepared by the OTP. The OTP deems such documents classi?ed and therefore exempt from access under Articles 7 and 8 Although the investigative process against Alija Izetbegovic was halted when the suspect died, any indictment against him, be it a draft or not, and regardless of whether it was con?rmed or examined by a judge, would be exempt from access under Article 10(3)(d) of the Access Policy. Its disclosure could jeopardize investigations or prosecutions in other cases (by the or national jurisdictions) that may be related to Alija Izetbegovic?s case. Under the Access Policy, the OTP is not under an obligation to explain when or by whom or on what legal grounds any indictment or draft indictment was marked as con?dential or strictly con?dential. All the items requested fall into the category of documents exempted pursuant to Article 10(3)(6) of the Access Policy. A document initiating an investigation, a draft indictment or a document halting an investigation could if disclosed, undermine the Mechanism?s free and independent decision?making process. Under the Access Policy, the OTP is not under an obligation to prove that the disclosure of information sought would undermine a free and independent decision-making process. The Mechanism?s decision-making process in any matter, not just limited to the Alija Izetbegovic?s case, would be undermined if internal documents initiating investigations, charging suspects or halting investigations is made be accessible to the public. All the items requested are exempted for access under Article 10(3)(g) of the Access Policy as they must be deemed/are con?dential because of their content and the circumstances of their creation. Documents containing information relevant for initiating an investigation, drafting an indictment, and discontinuing an investigation must be deemed confidential. Under the Access Policy, the OTP is not under an obligation to explain how the content of the information sought necessitates it to be considered con?dential. Conclusion: The OTP AFP was right in rejecting your request to access the material sought. Your appeal is hereby denied. Veronic ht Senior Legal Of?cer Designated Of?cer of the OTP pursuant to Article 13 of the MICT Access Policy Of?ce of the Prosecutor