THE TRIAL CHAMBER

Before:
Judge Claude Jorda, Presiding
Judge Jules Deschênes
Judge Fouad Riad

Registrar:
Mr. Dominique Marro, Deputy Registrar

Decision of :
18 September 1996

THE PROSECUTOR

v.

TIHOMIR, also known as TIHOFIL, BLASKIC


DECISION REJECTING THE REQUEST OF THE PROSECUTOR
FOR EX PARTE PROCEEDINGS


The Office of the Prosecutor:

M. Eric Ostberg
M. Gregory Kehoe
M. Andrew Cayley

Counsel for the Defence:

M. Zvonimir Hodak
M. Russell Hayman
Mme Nela Pedisic

 

TRIAL CHAMBER I

NOTING the application of the Prosecutor of 24 June 1996 for the non-disclosure of specific witness statements pursuant to Rules 72 and 75 (A);

NOTING the order of the Presiding Judge of this Trial Chamber dated 26 August 1996 inviting inter alia the Defence to present its observations on the application of the Prosecutor as soon as possible, and, at the latest, by 16 September 1996,

NOTING the brief filed in response by the Defence, dated 16 September 1996, objecting to the applications of the Prosecutor,

NOTING the brief of the Prosecutor dated 18 September 1996, in response to the opposition of the Defence to the request of the Prosecutor for the non-disclosure of specific witness statements and the application for measures for the protection of victims and witnesses,

PURSUANT to Rules 66 (C) and 75 of the Rules of Procedure and Evidence (hereafter "the Rules"),

HAVING HEARD the parties at the hearing in camera on 18 September 1996;

CONSIDERING that, in his application of 24 June 1996, the Prosecutor seeks to be relieved from the obligation to disclose all or any part of 10 of 86 witness statements which are required to be made available to the Defence in accordance with Rule 66(A) of the Rules; that the Prosecutor asks that any oral presentation requested by the Trial Chamber be ex parte and in camera;

CONSIDERING that in his brief of 16 September 1996 in which it presents its response, the Defence affirms that ex parte proceedings undermine the basic foundation of the adversarial system of justice;

CONSIDERING that, pursuant to Article 20 of the Statute, the Trial Chambers shall ensure that a trial is fair and expeditious, with full respect for the rights of the accused and due regard for the protection of victims and witnesses; that for this purpose, the Trial Chamber must guarantee hearings with both parties present;

CONSIDERING that any limits placed on the rights of the accused must be narrowly interpreted and can only occur pursuant to a specific provision;

CONSIDERING that no provision of the Statute and the Rules envisages the possibility of holding an ex parte hearing after the initial appearance of the accused before a Trial Chamber of the Tribunal;

CONSIDERING that, although it is true that Rule 66 (C ) in fine does provide for ex parte disclosure by the Prosecutor to the Trial Chamber of the information for which confidentiality is sought, it in no manner authorises the holding of ex parte hearings on all the measures to be taken to ensure the protection of the witnesses as part of proceedings before the Tribunal;

CONSIDERING further that Rule 75 (A) of the Rules states that a Judge or a Chamber may order appropriate measures for the protection of victims and witnesses, provided that the measures are consistent with the rights of the accused; that, in accordance with this principle, paragraph (B) of the said article provides only for the possibility of an in camera hearing but not an ex parte hearing;

CONSIDERING, therefore, that the application of the Prosecutor on this point should be rejected;

FOR THE FOREGOING REASONS

REJECTS the application of the Prosecutor for the holding of an ex parte hearing for any oral presentation relating to the protection of the victims and witnesses as stated in the application of 24 June 1996.

 

Done in French and English with the French version being authoritative.

(signed)
_____________________________
Claude Jorda,
Presiding Judge of Trial Chamber I

Done this eighteenth day of September 1996
At The Hague, The Netherlands

(SEAL OF THE TRIBUNAL)