Before: Judge Claude Jorda, Presiding

Judge Fouad Riad

Judge Mohamed Shahabuddeen

Registrar: Mr. Jean-Jacques Heintz, Deputy Registrar

Decision of: 25 September 1998








The Office of the Prosecutor:

Mr. Gregory Kehoe
Mr. Mark Harmon
Mr. Andrew Cayley

Defence Counsel:

Mr. Anto Nobilo
Mr. Russell Hayman


Trial Chamber I (hereinafter the "Trial Chamber") of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (hereinafter "the Tribunal"),

PURSUANT to Articles 20(1) and 22 of the Statute of the Tribunal and Rules 54 and 75 of the Rules of Procedure and Evidence (hereinafter "the Rules"),

NOTING the Decision of the Trial Chamber dated 3 September 1998 on the Prosecutor’s Motion for seven days advance disclosure of Defence witnesses and Defence witness statements (hereinafter "the Decision"),

NOTING the ex parte confidential Defence Motion dated 15 September 1998 for protective measures for witnesses "D/H" and "D/I" (hereinafter "the Motion"),

NOTING the materials provided confidentially and ex parte in support of the Motion on 18 September 1998,

NOTING the closed ex parte hearing held on 23 September 1998 to hear the Defence arguments on its Motion (hereinafter "the Hearing"),

CONSIDERING that the Trial Chamber is authorised to order protective measures for witnesses when so justified by circumstances, provided that such measures do not prejudice the rights of the accused,

CONSIDERING that, in the case in point, the request has been made by the Defence in order to ensure that the witnesses identified by the pseudonyms "D/H" and "D/I" in fact appear before the Trial Chamber and are not subject to any type of pressure prior to their appearance before the Trial Chamber; that, to achieve this objective, the Defence is requesting from the Trial Chamber that, as an exception to its Decision, the names of the witnesses "D/H" and "D/I" not be disclosed to the Prosecutor before they appear; that the decision of the Trial Chamber be filed under seal in order to avoid any identification of the witnesses in question; that both be covered by a separate decision; and, lastly, that during the first witness’ testimony, no mention be made that the Defence Motion concerns a second witness,

CONSIDERING that the Trial Chamber must ensure that the trial is fair and expeditious,

CONSIDERING that, in view of establishing the truth, this principle requires that there be no excessive infringement on the rights of the Prosecution, inter alia the right to conduct an effective cross-examination of the Defence witnesses,

CONSIDERING that during the Hearing the Defence agreed to the idea that, in order to grant the Motion in part, the Trial Chamber would set a two-day time period for disclosing to the Prosecution the names of the witnesses,

CONSIDERING that the materials provided in support of the Motion permit the Trial Chamber to consider therefore that the exception which would be granted to the Decision would not excessively infringe on the rights of the Prosecution which, if so required, the Trial Chamber will ensure are fully respected,

CONSIDERING that in view of the above, the further requests of the Defence are not justified and must be rejected,


The Trial Chamber, ruling ex parte and unanimously,

DECIDES that the identity of the witnesses "D/H" and "D/I", and the summary of all the facts about which they will testify respectively may be disclosed to the Prosecution by the Defence only two working days before the date scheduled for each testimony,

STATES that the time period will be calculated to the hour,

REJECTS, in addition, the Defence requests,

STATES that the Motion, together with the materials provided by the Defence in support thereof, will be kept under seal by the Registry until the date that the two witnesses have completed their testimony.


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

Done this twenty-fifth day of September 1998

At The Hague

The Netherlands



Claude Jorda

Presiding Judge of Trial Chamber I

(Seal of the Tribunal)