Before: Judge Gabrielle Kirk McDonald, Presiding

Judge Elizabeth Odio Benito

Judge Saad Saood Jan

Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of: 27 August 1997









The Office of the Prosecutor

Mr. Grant Niemann
Mr. Clint Williamson

Counsel for the Accused

Mr. Toma Fila
Ms. Jelena Lopicic





HAVING CONSIDERED the Confidential "Defence Motion to Protect Defence Witness", filed on 31 July 1997 (Official Record at Registry Page Number ("RP") D140-D142) (the "Motion"), in which the Defence requests that safe conduct be granted to protect a witness who will testify at the hearing scheduled for 8 September 1997;

HAVING CONSIDERED the "Prosecutor’s Response to the Defence Motion for Protection of a Witness", filed on 14 August 1997 (RP D484-D489), in which the Office of the Prosecutor ("Prosecution") objects to the Motion on the ground that the calling of the witness is unnecessary and requests that, should the Motion be granted, the safe conduct be of limited duration and restrictions be placed on the movements of the witness while he is in the Netherlands in order to reduce the risk of any attempted intimidation or harassment of refugees living in the country;

NOTING that the Motion seeks a safe conduct in terms which prevent the indictment or detention by the Prosecution of the witness, or any limit being placed on his personal freedom while in the Netherlands or the transit countries, and for a period of seven days prior to and seven days after the giving of his testimony at the seat of the International Tribunal;

FURTHER NOTING the Decision on the Defence Motions to Summon and Protect Defence Witnesses, and on the Giving of Evidence by Video-Link, rendered on 25 June 1996 by Trial Chamber II in Prosecutor v. Dusko Tadic, Case No. IT-94-1-T (RP D9148-D9162) (the "Tadic Decision"), which established that safe conduct, although not provided for in the Statute of the International Tribunal, can be ordered under the general power of Rule 54 of the Rules of Procedure and Evidence (the "Rules");

NOTING that "an order for safe conduct grants only a very limited immunity from prosecution" and only "with respect to crimes within the jurisdiction of the International Tribunal committed before coming to the International Tribunal and only for the time during

which the witness is present at the seat of the International Tribunal for the purpose of giving testimony" (Tadic Decision at paragraph 12);

NOTING that the physical presence of witnesses before the International Tribunal is of fundamental importance to the administration of justice;

PURSUANT TO Rule 54 of the Rules,

HEREBY GRANTS the Motion for safe conduct in the terms set out below;

DECIDES that the witness named in the Motion shall not be prosecuted, detained or subjected to any other restriction on his personal liberty while in the Netherlands, or in transit, for the purpose of attending the hearing of 8 September 1997, by or on behalf of the Prosecution, in respect of acts within the jurisdiction of the International Tribunal and allegedly committed prior to his departure from his home country;

DECIDES that the summons served on the witness shall contain the clause that safe conduct does not bar prosecution for offences which the witness might commit after his departure from his home country and during his stay in the Netherlands;

FURTHER DECIDES that the safe conduct shall be limited in time to two days prior to and one day after the giving of testimony, in other words, from Saturday 6 September 1997 to Tuesday 9 September 1997, subject to the witness no longer being required by the International Tribunal. In case of illness which prevents him from leaving the Netherlands, the witness will retain the safe conduct until he is able to travel again and for a period of one day thereafter, which is required for his return to his home country. If the witness is detained for a crime which he allegedly committed while in the Netherlands, the safe conduct will run from the date he is released from prison for a period of one day thereafter, which is required for his return to his home country;

FURTHER DECIDES that the witness shall be restricted to travelling between the port of entry or of exit and his lodgings, limited movements around the vicinity of his place of lodging, and between his lodgings and the International Tribunal.

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


Gabrielle Kirk McDonald

Presiding Judge

Dated this twenty-seventh day of August 1997

At The Hague

The Netherlands

[Seal of the Tribunal]