Case No. IT-95-10/1-PT
IN THE TRIAL CHAMBER
Judge Liu Daqun, Presiding
Judge Amin El Mahdi
Judge Alphons Orie
Mr. Hans Holthuis
19 July 2002
ORDER ON PROSECUTIONíS MOTION FOR PROTECTIVE MEASURES
The Office of the Prosecutor:
Mr. Mark B. Harmon
Mr. Vojislav Nedic
THIS 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 ("the International Tribunal");
BEING SEISED of the "Prosecutionís Motion for Protective Measures," filed on 21 June 2002, for an order to protect the confidentiality of non-public materials disclosed to the accused, including statements taken from potential witnesses and from victims of the events at issue in this case, in order to safeguard the security and privacy of victims and witnesses and to safeguard the integrity of the evidence and these proceedings (the "Motion");
NOTING that the Defence has not filed a response to the Motion;
NOTING that Article 20(1) of the Statute of the International Tribunal (the "Statute") provides that "[ t] he Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses"; that Article 21(2) of the Statute provides that "[ i] n the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute"; and that Article 22 of the Statute states that "[ t] he International Tribunal shall provide in its rules of procedure and evidence for the protection of victims and witnesses. Such protection measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victimís identity";
NOTING FURTHER that Rules 69 of the Rules of Procedure and Evidence of the International Tribunal (the "Rules") provides, inter alia, that "the Prosecutor may apply to a Trial Chamber to order the non-disclosure of the identity of a victim or witness"; that Rule 75 provides, inter alia, that "[ a] Judge or a Chamber may, proprio motu or at the request of either party, or of the victim or witness concerned, or of the Victims and Witnesses Section, order appropriate measures for the privacy and protection of victims and witnesses, provided that the measures are consistent with the rights of the accused";
NOTING the obligations imposed generally by "[ t] he Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal" and the codes of any national body or organisation to which counsel may belong;
CONSIDERING that non-public material is disclosed to the accused Ranko Cecic (the "Accused") and his Defence team (the "Cesic Defence") for the purpose of allowing him to prepare to meet the charges against him and for no other purpose;
CONSIDERING that the Trial Chamber is concerned in safeguarding non-public materials provided to the Accused to enable him to prepare for trial and in safeguarding the security and privacy of victims and witnesses;
PURSUANT TO Articles 20, 21 and 22 of the Statute and Rules 54, 69 and 75 of the Rules;
HEREBY GRANTS the Motion and ORDERS as follows:
- For the purposes of this disposition:
- the "Prosecution" means the Prosecutor of the Tribunal and her staff;
- the "Cesic Defence" as designated above, means and includes only
the accused Ranko Cesic and such counsel and their immediate legal assistants
and staff, and others specifically assigned by the Tribunal to the accusedís
trial defence teams and specifically identified in a list to be maintained
by each lead counsel and filed with the Trial Chamber ex parte and
under seal within ten days of the entry of this order. Any and all additions
and deletions to the initial list in respect of any of the above categories
of persons who are necessarily identified and properly involved in the preparation
of the defence shall be notified to the Trial Chamber in similar fashion
within seven days of such additions or deletions;
- the "public" means all persons, governments, organisations, entities,
clients, associations and groups, other than the judges of the Tribunal
and the staff of the Registry (assigned to either Chambers or the Registry),
and the Prosecutor, and the Cesic Defence, as defined above. The "public"
specifically includes, without limitation, family, friends and associates
of the Accused, family, friends and associates of the co-accused, the accused
in other cases or proceedings before the Tribunal and defence counsel in
other cases or proceedings before the Tribunal;
- the "media" means all video, audio and print media personnel, including
journalists, authors, television and radio personnel, their agents and representatives.
- The Cesic Defence shall not disclose to the media any confidential or non-public materials provided by the Prosecution.
- Save as is directly and specifically necessary for the preparation and presentation of this case, the Cesic Defence shall not disclose to the public:
- the names, identifying information or whereabouts of any witness or potential
witness identified to them by the Prosecution; or
- any evidence (including documentary, physical or other evidence) or any
written statement of a witness or potential witness, or the substance, in
whole or in part, of any such non-public evidence, statement or prior testimony
disclosed to them.
- If the Cesic Defence find it directly and specifically necessary to disclose such information for the preparation and presentation of this case, they shall inform each person among the public to whom non-public material or information (such as witness statements, prior testimony, or videos, or the contents thereof), is shown or disclosed, that such a person is not to copy, reproduce or publicise such statement or evidence, and is not to show or disclose it to any other person. If provided with the original or any copy or duplicate of such material, such person shall return it to the Cesic Defence when such material is no longer necessary for the preparation and presentation of this case.
- If a member of the Cesic Defence team withdraws from the case, all material in his or her possession shall be returned to their lead defence counsel.
- The Cesic Defence shall return to the Registry, at the conclusion of the proceedings in this case, all disclosed materials and copies thereof, which have not become part of the public record.
- The Prosecution is granted leave to redact from the statements of all witnesses whom it proposes to call to give evidence in this case any information concerning the current whereabouts of each witness; if the Cesic Defence becomes aware of Prosecution witnessesí current whereabouts, no approach is to be made without notification to the Prosecution, in timely manner, prior contact being made.
- Nothing herein shall preclude any party or person from seeking such other or additional protective orders or measures as may be viewed appropriate concerning a particular witness or other evidence.
Done in both English and French, the English text being authoritative.
Judge Liu Daqun
Dated this nineteenth day of July 2002
At The Hague,
[Seal of the Tribunal]