Case No. IT-04-74-PT

BEFORE THE TRIAL CHAMBER

Before:
Judge Liu Daqun, Presiding
Judge Amin El Mahdi
Judge Alphons Orie

Registrar:
Mr. Hans Holthuis

Decision of:
1 July 2005

PROSECUTOR

v.

JADRANKO PRLIC
BRUNO STOJIC
SLOBODAN PRALJAK
MILIVOJ PETKOVIC
VALENTIN CORIC
BERISLAV
PUSIC

___________________________________________________

DECISION ON PRALJAKíS APPLICATION FOR AN ORDER TO THE PROSECUTION TO DISCLOSE INFORMATION ABOUT SENSITIVE WITNESSES

___________________________________________________

The Office of the Prosecutor:

Mr. Kenneth Scott

Counsel for the Accused:

Mr. Michael Karnavas for the accused Mr. Jadranko Prlic
Mr. Berislav Zivkovic for the accused Mr. Bruno Stojic
Mr. Bozidar Kovacic for the accused Mr. Slobodan Praljak
Ms. Vesna Alaburic for the accused Mr. Milivoj Petkovic
Mr. Tomislav Jonjic for the accused Mr. Valentin Coric
Mr. Fahrundin Ibrisimovic for the accused Mr. Berislav Pusic

 

TRIAL CHAMBER I ("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"),

RECALLING the Chamberís "Decision on Defenceís Motion for Access to Confidential Material" dated 9 March 2005, whereby the Chamber granted access to the Defence teams in the Prlic et al. case to the confidential material in the Prosecutor v. Zlatko Aleksovski, Prosecutor v. Tihomir Blaskic, Prosecutor v. Anto Furundzija, Prosecutor v. Zoran Kupreskic et al., Prosecutor v. Dario Kordic and Mario Cerkez cases ("Related Cases") concerning the conflicts between Bosnian Muslim and Bosnian Croats or between the Army of BiH and HVO on the territory of the BiH in 1992/93 subject to protective measures ("March Decision");

NOTING that the March Decision ordered that "sensitive witness" material should not be disclosed to the Defence teams in the Prlic et al. case except upon showing of a legitimate need;

NOTING that the March Decision defined "sensitive witness" as a witness whose existence and prior statement was disclosed to the opposing party in the Related Cases shortly before the sensitive witness was due to testify by virtue of a Chamberís decision;

NOTING "the Accused Slobodan Praljakís Application for an Order to the Prosecutor to Disclose Information about 'Sensitive Witnessí" filed on 14 March 2005, whereby the Defence for the accused Praljak requests that it be provided with basic information on sensitive witness materials in order to ultimately decide whether there is a legitimate need to have access to such material ("Motion");1

NOTING "the Accused Berislav Pusicís notice of Joinder to the Accused Slobodan Praljakís Application for an Order to the Prosecutor to Disclose Information about 'Sensitive Witnessí" filed on 14 March 2005;

NOTING the "Prosecutionís Response to the Accused Slobodan Praljakís Application for an Order to the Prosecutor to Disclose Information about Sensitive Witnessí" filed on 29 March 2005 ("Response"), whereby the Prosecution, inter alia, proposes, in relation to the disclosure of closed-session testimonies, to identify the testimonies of witnesses it considers particularly sensitive and for which only a "brief statement about the nature and content of the witnessís evidence" will be disclosed and the testimonies of not particularly sensitive witnesses which may be disclosed in their entirety to the Prlic et al. Defence teams;2

NOTING "the Accused Slobodan Praljakís Reply to Prosecutionís Response to Accused Slobodan Praljakís Application for an Order to the Prosecutor to Disclose Information about 'Sensitive Witnessí" filed on 31 March 2005, whereby the Defence for the accused Praljak argues that the Prosecution does not proceed in accordance with the March Decision but intend to arbitrarily determine which Prosecution witnesses are "particularly sensitive" instead of determining which are the "sensitive witness" "whose existence and prior statement was disclosed to the opposing party in the first proceedings shortly before the sensitive witness was due to testify by virtue of a Chamberís decision";

NOTING the "Prosecutionís Submission Concerning Non-public Materials in Related Cases, Concerning Trial Chamberís Decision Dated 9 March 2005" filed on 3 May 2005 ("Submission"), in which the Prosecution submits that it has identified 41 Prosecution witnesses who testified in closed-session in the Related Cases and that: (a) it will disclose anonymous summaries of - in the Prosecutionís view - particularly sensitive witnesses who testified in closed-sessions in order to allow the Defence to make a show of legitimate need3 (b) it suggests not to disclose the testimonies of 14 particularly sensitive witnesses whose evidence Ė it is deemed - has no bearing on or connection to the Prlic case (attached as Annex 1 to the Submission are brief summaries of that evidence)4 and (c) it will disclose in their entirety the testimony of non particularly sensitive witnesses who testified in closed-session5;

NOTING the "Accused Slobodan Praljakís Opposition to the Prosecutionís Submission Concerning Non-public Materials in Related Cases, Concerning Trial Chamberís Decision Dated 9 March 2005" filed on 6 May 2005 ("Response to Submission"), whereby the Defence for Praljak contends that: (1) the Prosecution is pursuing its own interpretation of the words "sensitive witnesses" and has unilaterally decided which Prosecutionís witnesses qualify as "sensitive witnesses" and (2) the information contained in the summaries in Annex 1 to the Submission is insufficient6;

NOTING "Jadranko Prlicís Motion to Join Accused Slobodan Praljakís Opposition to the Prosecutionís Submission Concerning Non-public Materials in Related Cases Concerning Trial Chamberís Decision Dated 9 March 2005" filed on 6 May 2005;

CONSIDERING that the Defenceís request to obtain summaries of "sensitive witness" evidence in order to show a legitimate need is reasonable;

CONSIDERING that the information to be provided by the Prosecution on "sensitive witness" material must be described as clearly as possible in order to make the determination, if any, of a legitimate need for access to material possible;

CONSIDERING that the Prosecution has pursued its own interpretation of what constitute "sensitive witness" materials and has disclosed to the Defence summaries of that evidence instead of identifying sensitive witnesses Ė in accordance with the definition provided in the March Decision- whose testimony may not be disclosed but in a summarised form and witnesses who testified in closed-session and whose testimony may be released in a redacted form;

CONSIDERING that the Chamber defined the meaning of a "sensitive witness" in the March Decision in order to provide the Prosecution with a clear criterion when reviewing material which required additional caution when disclosed; that such a criterion is necessary to set a threshold to the limitations made to the disclosure obligations;

CONSIDERING that the confidential materials which do not originate from a sensitive witness must be disclosed to the Defence in the Prlic case in a redacted form;

CONSIDERING that the Prosecutionís insistence on pursuing its own interpretation of what constitute "sensitive witness" materials may reflect serious concerns over the protection of witnesses; that the course of action is for the Prosecution not to pursue its own interpretation of what constitute "sensitive witness" materials but to request that protective measures be varied or augmented;

PURSUANT TO Rules 54 and 75 of the Rules of Procedure and Evidence;

HEREBY GRANTS the Motion in part and DIRECTS the Prosecution to file an application to vary or augment the protective measures for those witnesses it considers particularly sensitive and for other witnesses to comply with the terms of the March Decision.

 

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

Dated this 1st Day of July 2005,
At The Hague
The Netherlands

____________________
Judge Liu Daqun
Presiding

[Seal of the Tribunal]


1. The Defence submits that such information would include (a) the subject matter of a testimony, (b) correlation to other testimonies and (c) correlation with admitted documentary evidence, Motion, para. 5.
2. Response, para. 8.
3. Submission, para. 5.
4. Submission, paras 6-9.
5. Submission, para. 10.
6. The Defence submits that the summaries should include the following information: count of indictment the witness was called for, was there any documentary evidence introduced by a witness, was the witness confronted with any documentary or prior testimonies by the opposing party, was the evidence of a witness challenged and on which grounds, was there impeachment attempt by the opposing party and was there any other witness who testified about the same event or incident, Response to Submission, para. 11.