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:
7 July 2003

PROSECUTOR
v.
RADOSLAV BRDJANIN

___________________________________

DECISION ON PROSECUTIONíS MOTIONS FOR ADMISSION OF STATEMENTS PURSUANT TO RULE 92BIS Ė KOTOR VAROS MUNICIPALITY

___________________________________

 

The Office of the Prosecutor:

Ms. Joanna Korner

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 "Prosecutionís Motion for Admission of Statements Pursuant to Rule 92bis Kotor Varos Municipality" together with "Confidential Annex A" and "Confidential Annex B" ("Kotor Varos Motion"), filed on 6 June 2003, requesting the Trial Chamber to

  1. admit into evidence, pursuant to Rule 92bis of the Rules of Procedure and Evidence ("Rules"), the written statements or relevant attachments of witnesses 7.123, 7.91, 7.92 and 7.26, and
  2. grant protective measures to witness 7.26 (pseudonym, image and voice distortion) and witness 7.92 (pseudonym and closed session) respectively should they be called for cross-examination;

BEING FURTHER SEISED OF the Prosecutionís oral motion of 25 June 2003 ("Oral Motion"), requesting the admission of the written statements of witnesses 7.90 and 7.26, two alleged victims of sexual assault, neither of whom is willing to testify in The Hague;1

NOTING the Defenceís oral response of 1 July 2003 stating that it does not object to Rule 92bis treatment of the witnesses referred to in the Kotor Varos Motion, and agreed to the admission into evidence, pursuant to Rule 92bis of the Rules, of the written statements of the witnesses referred to in the Oral Motion, provided that the parts that are not related to the sexual assaults are redacted;

NOTING that witness 7.26 is addressed in both the Kotor Varos Motion and the Oral Motion, and that while the Defence does not object to the Rule 92bis treatment of witness 7.26 in its Kotor Varos Motion, it submits the need to redact that statement in its Oral Motion;

NOTING the redactions suggested by the Defence and the Prosecutionís agreement thereto;

FINDING that the written statements of witnesses 7.26 and 7.90 shall be redacted as suggested by the Defence;

CONSIDERING that the Trial Chamber has a duty to ensure that the requirements for the admission into evidence of witnessesí 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 unredacted written statements of witnesses 7.123, 7.91 and 7.92, as well as the redacted written statements of witnesses 7.26 and 7.90, 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 into evidence the unredacted written statements of witnesses 7.123, 7.91 and 7.92, as well as the redacted written statements of witnesses 7.26 and 7.90;

CONSIDERING that the Prosecution bases its request for protective measures on an objective foundation, notably the protection of the privacy of witness 7.26, being an alleged victim of sexual assault, and safety concerns for witness 7.92 and that witnessí family members;

NOTING that in its oral response, the Defence does not raise any objections to the protective measures requested for witnesses 7.26 and 7.92;

NOTING the standing objections of the Defence expressed during the hearings of 1 July 20022 and 22 November 20023 to testimonies being heard in closed session;

NOTING the "Addendum to Prosecutionís 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 Kotor Varos Municipality, in which it is stated that in Kotor Varos there exists "still considerable risk for a Bosniak or Croat testifying against a Serb";

CONSIDERING the Trial Chamberís 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 7.26 and 7.92 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 and 92bis of the Rules;

HEREBY ORDERS THAT:

  1. The unredacted written statements of witnesses 7.123, 7.91 and 7.92, as well as the redacted written statements of witnesses 7.26 and 7.90 are admitted into evidence under Rule 92bis;
  2. The witnesses identified as 7.26 and 7.92 shall be referred to by the pseudonyms BT 75 and BT 76 respectively whenever referred to in the course of the proceedings whether during the hearing or in documents;
  3. The written statements of witnesses BT 75 and BT 76 shall be sealed and shall not be released to the public or media in any form;
  4. The name, address, whereabouts of and identifying information for witnesses BT 75 and BT 76 shall be sealed and not included in any of the public records of the Tribunal;
  5. To the extent the name, address, whereabouts of, or other identifying data concerning witnesses BT 75 and BT 76 is contained in existing public documents of the Tribunal, that information shall be expunged from those documents;

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

Dated this 7th day of July 2003.
At The Hague
The Netherlands
______________
Carmel Agius
Presiding Judge

[Seal of the Tribunal]


1. Witness 7.90 has been granted protective measures in form of pseudonym (BT 74) and closed session in the "Decision on the Prosecutionís Eleventh Motion for Protective Measures for Victims and Witnesses" of 10 October 2002.
2. T 7692.
3. T 12003.