Case No. IT-95-11-PT

IN TRIAL CHAMBER I

Before:
Judge Bakone Justice Moloto, Presiding
Judge Janet Nosworthy
Judge Frank Höpfel

Registrar:
Mr. Hans Holthuis

Decision of:
9 December 2005

PROSECUTOR

v.

MILAN MARTIC

___________________________________________

DECISION ON PROSECUTIONíS MOTION TO AMEND ITS RULE 65 TER WITNESS LIST

___________________________________________

The Office of the Prosecutor:

Ms. Hildegard Uertz-Retzlaff
Mr. Alex Whiting
Ms. Nisha Valabhji

Counsel for the Accused:

Mr. Predrag Milovancevic

 

TRIAL CHAMBER I ("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 Leave to Amend Its Rule 65 ter Witness List," filed by the Office of the Prosecutor ("Prosecution") on 19 July 2005 ("Motion"), whereby the Prosecution seeks:

1. Leave to amend the Rule 65 ter witness list filed on 7 May 2004 by adding five witnesses MM-075, MM-076, MM-077, MM-078, MM-079 and supplementing the statement of Witness MM-058,1

2. Protective measures for Witness MM-078, namely the attribution of a pseudonym and use of image distortion when testifying in light of the security concerns surrounding this witness,2

3. Protective measures for Witness MM-079, namely the attribution of a pseudonym, use of image distortion when testifying and the disclosure of the un-redacted statement and related documents 10 days prior to the testimony, in light of the security concerns surrounding this witness;3

NOTING that the Defence did not file a response to the Motion;

NOTING the "Prosecution Notification regarding Certain Witnesses on its Rule 65 ter List", filed on 24 November 2005, in which the Prosecution indicated, in light of its earlier filing that it does not intend to pursue the charges related to Prnjavor, Sipovo, and Bosanska Gradiska,4 that it will not seek to admit the evidence of fourteen witnesses, including Witness MM-058, whose evidence is related to these charges.

I. Leave to amend the witness list

CONSIDERING that in relation to leave to amend the Rule 65ter witness list, the Prosecution demonstrates the significance of the additional witness statements and explains in its Motion why the statements were not available prior to May 2004;

CONSIDERING the stage of the proceedings and considering that the Defence has not raised any objections to the Motion;

II. Pseudonym and Facial Distortion

NOTING Rule 53 (A) of the Rules according to which a Judge or a Trial Chamber may, in exceptional circumstances and in the interests of justice, order the non-disclosure to the public of any documents or information until further order;

NOTING Rule 69 (A) of the Rules which provides that in exceptional circumstances, the Prosecutor may apply to a Judge or a Chamber to order the non-disclosure of the identity of a victim or witness who may be in danger or at risk until such person is brought under the protection of the Tribunal;

CONSIDERING that in relation to the request for the attribution of a pseudonym to and the use of image distortion for the Witnesses MM-078 and MM-079, the party seeking such protective measures must demonstrate the existence of an objectively grounded risk to the security or welfare of the witness or the witness's family should it become publicly known that the witness gave evidence;

CONSIDERING that in relation to the request for protective measures for Witness MM-078, the Prosecution submits that Witness MM-078 lives presently in Knin with his family, close to family members of the Accused and that he is concerned that he and his family will be the object of reprisals from the family of the Accused;

CONSIDERING that in relation to the request for attribution of a pseudonym to and the use of image distortion for Witness MM-078, the Motion, in particular its confidential and ex parte Annex B, shows that there is a considerable security risk regarding Witness MM-078 and his family and that it is therefore proper that this witness be attributed a pseudonym and that image distortion be used during his testimony;

III. Delayed Disclosure of MM-079ís un-redacted statement and related documents

NOTING that Article 20(1) of the Statute provides that proceedings are conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses and Article 22 of the Statute states that the Tribunal shall provide in its Rules for the protection of victims and witnesses;

NOTING the obligation of the Prosecution under Rule 66 (A) (ii) of the Rules to provide the accused in a language he understands with copies of the statements of all witnesses whom the Prosecutor intends to call to testify at trial subject to the provisions of Rules 53 and 69 of the Rules;

RECALLING Rule 69 (A) of the Rules and NOTING that under Rule 69 (C) of the Rules, subject to Rule 75 of the Rules, the identity of the victim or the witness shall be disclosed in sufficient time prior to the trial to allow adequate time for preparation of the defence;

NOTING that Rule 75 of the Rules states in particular that a Judge or a Chamber may order appropriate measures for the privacy and protection of victims and witnesses, provided that the measures are consistent with the rights of the accused;

RECALLING that the burden rests on the party seeking protective measures to justify in each case why the measures requested should be granted;5

CONSIDERING that the Trial Chamber has considered the three following criteria set out by the jurisprudence in respect of applications made under Rule 69 (A) of the Rules for specific protective measures for witnesses: 1) the likelihood that Prosecution witnesses will be interfered with or intimidated once their identity is made known to the accused and his counsel, but not to the public, 2) the extent to which the power to make protective orders can be used not only to protect individual victims and witnesses in the particular case but also to assist the task of the Prosecution to bring other cases against other persons in the future, and 3) the length of time before the trial at which the identity of the victims and witnesses must be disclosed to the accused;6

CONSIDERING that the concerns expressed as to Witness MM-079ís safety and the safety of his family are legitimate and that the exceptional circumstances listed in the Motion are factors justifying non-disclosure of the un-redacted statement and related documents concerning Witness MM-079, to the Accused and the Defence for the time being and to the public;

CONSIDERING that there are exceptional circumstances as set forth in Rule 69 (A) of the Rules and that the measures requested by the Prosecution satisfy the requirement of Rule 69 (C) of the Rules;

CONSIDERING that it is appropriate to order that disclosure of the un-redacted statement and related documents of Witness MM-079 be delayed until 10 days prior to the date on which the witness is expected to testify;7

CONSIDERING that granting the protective measures requested does not infringe on the rights of the Accused to a fair and public trial as the protective measures sought are appropriate and necessary;

PURSUANT TO Articles 20, 21 and 22 of the Statute and Rules 53, 69, 73, 75 and 79 of the Rules,

HEREBY GRANTS the Motion, and

STATES that:

For the purpose of this disposition:

"The Accused" means and includes only the accused Milan Martic and his counsel and their immediate assistant(s) and staff, and others specifically assigned by the Tribunal to the accusedís trial defence team and specifically identified in a list to be maintained by lead counsel. 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 identified 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 Chamber or the Registry), and the Prosecutor and the Accused. The public specifically includes, without limitation, family, friends and associates of the Accused, accused in other cases or proceedings before the Tribunal and defence counsels 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.

ORDERS that

  1. Witnesses MM-078 and MM-079 shall be identified and referred to by these pseudonyms at all times and in all public documents used throughout the trial. These pseudonyms shall be used whenever referring to those witnesses in proceedings before the Tribunal and in discussions amongst the parties;

  2. The un-redacted statement and related exhibits of Witness MM-079 shall be disclosed to the Accused and the Defence at the latest 10 days before the witness is expected to testify;

  3. Upon disclosure of the un-redacted statement and related documents of Witnesses MM-078 and MM-079, the Accused and the Defence shall not disclose any documents to third parties except to the extent directly and specifically necessary for the preparation and the presentation of the defence case and they shall obtain non-disclosure agreements from third parties as a precondition for the release of the material to them. The third party shall not copy, reproduce or publicise the statements and shall not 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 Accused Defence when such material is no longer necessary for the preparation and the presentation of this case.

  4. The names, addresses, whereabouts or other identifying data of Witnesses MM-078 and MM-079 will remain sealed from the date of issuance of this order, and shall be expunged from existing public documents of the Tribunal;

  5. To the extent that the names of Witnesses MM-078 and MM-079, or other identifying data are contained in existing public documents of the Tribunal, such names and other identifying data shall be expunged from those documents;

  6. Documents of the Tribunal identifying Witnesses MM-078 and MM-079 shall not be disclosed to the public or the media.

STATES that any breach of this Order will result in proceedings under Rule 77 of the Rules ("Contempt of the Tribunal").

 

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

Dated this ninth Day of December 2005,
At The Hague,
The Netherlands.

______________________
Judge Bakone Justice Moloto, Presiding

[Seal of the Tribunal]


1. As referred to in the attached confidential Annex A.
2. The security concerns surrounding the witness are described in the attached Annexes A to C.
3. The security concerns surrounding the witness are described in the attached Annexes A to C.
4. Prosecutor v. Milan Marti}, "Prosecutionís Estimate of Time Required for Prosecution Case".
5. See e.g., Prosecutor v. Pavle Strugar, Miodrag Jokic and others, "Order on Prosecutionís motions for protective measures", 16 January 2002, page 5.
6. "Decision on Motion by Prosecution for Protective Measures", The Prosecutor v. Radoslav Brdjanin and Momir Talic, 3 July 2000, paras. 24 to 33.
7. Cf., for instance: "First Decision on Prosecutionís Motion for Protective Measures for Sensitive Source Witness", Prosecutor v. Momcilo Krajisnik and Biljana Plavsic, Case No. IT-00-39&40, 24 May 2002 and the "Decision on Prosecutionís Second Motion for Protective Measures or Sensitive Source Witness", Prosecutor v. Momcilo Krajisnik and Biljana Plavsic, Case No. IT-00-39&40, 26 July 2002. Cf. also, the confidential "Decision on Prosecutionís Third motion for Protective Measures", Prosecutor v. Momcilo Krajisnik, Case No. IT-00-39-PT, 13 May 2003.