Case No. IT-99-36-T
IN TRIAL CHAMBER II
Before:
Judge Carmel Agius, Presiding
Judge Ivana Janu
Judge Chikako Taya
Registrar:
Mr. Hans Holthuis
Decision of:
12 June 2003
PROSECUTOR
v.
RADOSLAV BRDJANIN
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DECISION ON PROSECUTION’S MOTIONS FOR ADMISSION OF STATEMENTS PURSUANT TO RULE 92BIS – BOSANSKI PETROVAC AND TESLIC
__________________________________
The Office of the Prosecutor:
Ms. Joanna Korner
Mr. Andrew Cayley
Counsel for the Accused:
Mr. John Ackerman
Mr. David Cunningham
TRIAL CHAMBER II (“Trial Chamber”) of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“Tribunal”):
BEING SEISED OF the following motions from the Office of the Prosecution (“Prosecution”) (collectively referred to as the “Motions”), each of which request the Trial Chamber to admit into evidence, pursuant to Rule 92bis of the Rules of Procedure and Evidence (“Rules”), written statements of one or more witnesses in relation to certain municipalities, with one motion additionally asking for protective measures in relation to certain witnesses:
NOTING the following responses from the defence of Radoslav Brdjanin (“Defence ”) (collectively referred to as the “Responses”):
NOTING that by agreeing to Rule 92bis treatment of testimonies and statements of witnesses, the Defence does not concede the accuracy of any statements or assertions made by any witness;
CONSIDERING that the Trial Chamber has a duty to ensure that the requirements for the admission into evidence of witnesses’ statements and relevant attachments pursuant to Rule 92bis are met, and that the application of this Rule in the instant case does not prejudice the rights of the accused envisaged in Article 21 of the Statute of the Tribunal (“Statute”);
CONSIDERING that the Trial Chamber is satisfied that the written statements which the Prosecution requests to admit into evidence go to proof of matters other than the acts and conduct of Radoslav Brdjanin (“Accused”) as charged in the Indictment ;
FINDING therefore that the requirements of Rule 92bis are met and that it is in the interests of justice to admit the statements of witnesses 7.151 , 7.121, 7.82, 7.148, 7.149, 7.141, 7.83, 7.115 and 7.60 into evidence;
CONSIDERING that the Prosecution justifies its request for pseudonyms for witnesses 7.121, 7.148 and 7.141 on the following bases:
NOTING the “Addendum to Prosecution’s Eleventh Motion for Protective Measures for Victims and Witnesses (Filed on 26 June 2002)”, filed confidentially and under seal by the Prosecution on 12 September 2002 and related to the present security assessment in the municipalities covered by the Indictment, including the municipality of Teslic, in which it is stated that Teslic remains a sensitive place in a difficult area and that there is higher risk for a Bosniak or a Croat testifying against a Serb;
NOTING that in the Responses the Defence does not raise any objections to the protective measures requested for witnesses 7.121, 7.148 and 7.141;
NOTING the standing objections of the Defence expressed during the hearings of 1 July 20023 and 22 November 2002 4 to testimonies being heard in closed session;
CONSIDERING that the Prosecution bases the request for protective measures on an objective foundation including safety concerns for the witness and the witness’ family members;
CONSIDERING the Trial Chamber’s duty to analyse the protective measures sought and determine their compatibility with the rights of the accused, and its duty to balance the right of the accused to a public hearing against the need to grant victims and witnesses appropriate protection;
CONSIDERING that protective measures for witnesses 7.121, 7.148 and 7.141 in the form of a pseudonym are appropriate to safeguard the interests of these witnesses even if they do not appear for cross-examination;
FOR THE FOREGOING REASONS
PURSUANT TO Articles 20, 21 and 22 of the Statute and to Rules 75, 79 and 92bis of the Rules;
HEREBY ORDERS THAT:
Done in French and English, the English version being authoritative.
Dated this 12th day of June 2003.
At The Hague
The Netherlands
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Carmel Agius
Presiding Judge
[Seal of the Tribunal]