Case: IT-00-39-T

IN THE TRIAL CHAMBER

Before:
Judge Alphons Orie
Judge Joaquín Martín Canivell
Judge Claude Hanoteau

Registrar:
Mr Hans Holthuis

Order of:
1 September 2005

PROSECUTOR

v.

MOMCILO KRAJISNIK

__________________________________________

EX PARTE

ORDER ON THE PROSECUTION’S APPLICATION FOR VARIATION OF PROTECTIVE MEASURES

__________________________________________

Office of the Prosecutor:

Ms. Carla Del Ponte

TRIAL CHAMBER I (the "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 "Tribunal");

BEING SEIZED of the ex parte motion "Prosecutor’s Application for Variation of Protective Measures", with confidential annexes, filed on 24 August 2005 and the confidential and ex parte "Supplement and Corrigendum to Prosecutor’s Application for Variation of Protective Measures", filed on 26 August 2005 (the "Motion");

NOTING that in the Motion, the Prosecution requested, pursuant to Article 29 of the Statute of the Tribunal and Rules 54 and 75 of the Rules of Procedure and Evidence of the Tribunal (the "Rules"), that the Trial Chamber: (a) vary protective measures for Prosecution witnesses 188¹ and 26² (the "witnesses"), who gave evidence in the present case; (b) authorize the Prosecution to release the names, contact information, and evidence of the witnesses to the Chief Prosecutor of the Prosecutor’s Office of Bosnia and Herzegovina (the "Bosnia Prosecutor"); and (c) order the Bosnia Prosecutor and the Government of Bosnia and Herzegovina to comply, upon release of the requested materials and information, with the conditions stated in the written undertaking attached to the Motion;

NOTING that a similar request made by the Prosecution was decided in the Trial Chamber’s "Decision on Prosecution Application for Variation of Protective Measures", issued 18 May 2005, and that the principles set out in that decision will be applied in deciding the present Motion;

NOTING that the witnesses were contacted by the Prosecution, consented to the disclosure of their identities and evidence to the Bosnia Prosecutor, and requested that the Tribunal ensure that any confidential information in relation to them be kept confidential;

NOTING that the Bosnia Prosecutor has already furnished the Prosecution with a written undertaking (attached to the Motion) to respect the orders and decisions of the Trial Chamber concerning this matter, and specifically guaranteeing the following:

1. The information disclosed to the Bosnia Prosecutor will be treated as confidential, and will be released to no one except members of the Special Department for War Crimes and the court of Bosnia and Herzegovina as necessary for the purposes of proceedings involving the suspect currently in the custody of Bosnia and Herzegovina, and to that suspect and his counsel as specified in paragraph (b) below;

2. The information disclosed will not be released to the suspect and/or his counsel unless the Bosnia Prosecutor obtains assurances, under threat of criminal sanction as stipulated in Article 240 of the Criminal Code of Bosnia and Herzegovina, that the suspect and/or his counsel will strictly maintain the confidentiality of the information; and

3. The Bosnia Prosecutor will take all necessary legal and practical measures within its powers, as provided for in the Law on Protection of Witnesses Under Threat and Vulnerable Witnesses as well as the Criminal Procedure Code of Bosnia and Herzegovina, to ensure the safety and security of the witnesses;

NOTING that the Government of Bosnia and Herzegovina already has furnished the Prosecution with a written undertaking (attached to the Motion) to respect the orders and decisions of the Trial Chamber concerning this matter and to take all necessary measures within its authority, both legal and practical, to ensure the safety and security of the witnesses;

CONSIDERING that a Trial Chamber that is seized of a proceeding has the inherent authority to modify orders made previously in the proceedings, including orders made pursuant to Rule 75(A), and thus, that it is within the competence of a Trial Chamber to vary protective measures in a proceeding of which it is seized upon the request of the party that requested the protective measures, provided that the party has demonstrated a legitimate purpose for the variation;

CONSIDERING that it is also within the competence of a Trial Chamber to order a State to "comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including, but not limited to" a variety of situations as enumerated in Article 29 of the Statute;

FINDING that the purpose for variation described in the Motion is legitimate and that the existence of good cause to vary the protective measures ordered at trial is underscored by United Nations Security Council Resolutions stating that national institutions prosecuting violations of international humanitarian law in the former Yugoslavia are to be assisted in their work;³

FOR THE FOREGOING REASONS, the Trial Chamber, pursuant to Article 29 of the Statute and Rules 54 and 75 of the Rules,

HEREBY GRANTS the Motion,

VARIES the protective measures concerning witnesses 188 and 26;

AUTHORIZES the Prosecution to release the names, contact information, and evidence of these witnesses to the Bosnia Prosecutor; and

ORDERS the Bosnia Prosecutor and the Government of Bosnia and Herzegovina, upon release of the requested material, to comply with the conditions set out in the written undertakings attached to the Motion.

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

_____________________
Alphons Orie
Presiding Judge

Dated this 1st day of September 2005
At The Hague
The Netherlands

[Seal of the Tribunal]