Case No. IT-03-67-PT

IN TRIAL CHAMBER II

Before:
Judge Carmel Agius, Presiding
Judge Jean-Claude Antonetti
Judge Kevin Parker

Registrar:
Mr. Hans Holthuis

Order of:
11 February 2004

PROSECUTOR

v.

VOJISLAV SESELJ

_______________________________________

DECISION ON "PROSECUTIONíS MOTION FOR NON-DISCLOSURE OF MATERIALS PROVIDED PURSUANT TO RULES 66(A)(ii) AND 68 AND FOR PROTECTIVE MEASURES FOR WITNESSES DURING THE PRE-TRIAL PHASE"

____________________________________

The Office of the Prosecutor:

Hildegard Uertz-Retzlaff
Urlich Mussemeyer
Daniel Saxon

Standby Counsel for the Accused:

Aleksandar Lazarevic

The Accused:

Vojislav Seselj

 

TRIAL CHAMBER II ("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 confidential "Prosecutionís Motion for Non-disclosure of Materials Provided pursuant to Rules 66(A)(ii) and 68 and for Protective Measures for Witnesses during the Pre-trial Phase" with confidential and ex parte Annexes A, B, C and D ("Motion"), filed by Office of the Prosecutor ("Prosecution") on 15 September 2003;

NOTING that the Prosecution in its Motion applies for

  1. an order of non-disclosure to the public of any material provided to the accused Vojislav Seselj ("Accused") pursuant to Rules 66(A)(ii) and 68 of the Rules of Procedure and Evidence ("Rules") ("First Request");

  2. protective measures at the pre-trial stage in relation to certain witnesses identified in the confidential and ex parte Annexes to the Motion ("Second Request");

NOTING the Accusedís oral response during the Status Conference objecting to the First and the Second Request;1

NOTING with respect to the First Request this Trial Chamberís prior "Decision on Prosecutionís Motion for Order of Non-disclosure" dated 13 March 2003, granting an order for non-disclosure to the public of all supporting materials disclosed to the Accused under Rule 66(A)(i) of the Rules;

NOTING the obligation of the Prosecution under Rule 66(A)(ii) of the Rules to provide the Accused with copies of the statements of all witnesses whom the Prosecution intends to call to testify at trial and copies of all statements taken in accordance with Rule 92 bis of the Rules;

NOTING the obligation of the Prosecution under Rule 68 of the Rules to disclose to the Accused all exculpatory material known to the Prosecution;

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

CONSIDERING that the Prosecution justifies the First Request by arguing that the exceptional circumstances relate not only to the unique circumstances of these proceedings, namely that the proceedings involve the prosecution of a prominent political figure which makes the trial complex and historical significant, but also to the unique circumstances of the accused, meaning that the Accused has frequently expressed his intention to obstruct these proceedings;

CONSIDERING that such justifications may only apply to the statements from, or materials related to, those victims and witnesses that have not been used before in other proceedings of this Tribunal or have been subject to protective measures;

CONSIDERING THEREFORE that an order for non-disclosure is only justified insofar as it relates to witness statements and other materials that are not in the public domain;

TURNING NEXT to the Second Requests, namely the request for protective measures;

CONSIDERING that the Prosecution in its Motion does not provide this Trial Chamber with sufficient information in order to assess the nature of the protective measures granted in other proceedings before this Tribunal, and to determine what protective measures are sought for each relevant witness and whether the protective measures sought meet the standard set out in the Statute and the Rules, and expanded in the jurisprudence of this Tribunal;

PURSUANT TO Rules 53(A), 54, 66(A)(ii) and 68 Rules;

HEREBY ORDERS as follows:

  1. The Prosecution to provide this Trial Chamber with additional information in respect of the nature of the protective measures requested for each relevant witness and the reasons underlying the Second Request;

  2. For the purposes of non-disclosure pursuant to Rule 53(A) of the Rules, the Trial Chamber defines:

    1. "Prosecution" as the Prosecutor of the Tribunal and her staff;

    2. "Accused" as Vojislav Seselj;

    3. "Defence" as the Accused Vojislav Seselj and any "Stand-by Counsel" appointed by the Registrar pursuant to the Trial Chamberís "Decision on Prosecutionís Motion for Order Appointing Counsel to Assist Vojislav Seselj with his Defence";2

    4. The "public" as all persons, governments, organisations, entities, clients, associations, and groups other than the Judges of the Tribunal, the staff of the Registry (assigned to either Chambers or the Registry), and the Prosecutor and Defence defined above. The "public" specifically includes, without limitation, family, friends and associates of the Accused; accused persons in other cases or proceedings before the Tribunal; defence counsel in other cases or proceedings before the Tribunal; and the media and journalists.

    5. The "media" as all video, audio and print media personnel, including journalists, authors, television and radio personnel, their agents and representatives.

  3. Upon disclosing the material to the Accused under Rules 66(A)(ii) and 68 of the Rules, the Prosecution shall identify clearly which parts of this material are already in the public domain and which parts include statements from victims and witnesses that have not been used before in other proceedings of this Tribunal or have been subject to protective measures and are therefore not in the public domain;

  4. Unless directly and specifically necessary for the preparation and presentation of this case, the Accused shall not disclose to the public any material disclosed to the Accused pursuant to Rules 66(A)(ii) and 68 of the Rules that has been identified by the Prosecution as not being in the public domain, including:
    1. The identities and whereabouts of witnesses to the extent that these are known to the Accused;
    2. 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 non-public evidence, statement or prior testimony disclosed to the Accused pursuant to Rules 66(A)(ii) and 68 of the Rules.

  5. If the Accused finds it directly and specifically necessary for the preparation and presentation of his case to disclose protected information to a member of the public, he shall inform each person among the public to whom non-public material or information is shown or disclosed, that that member of the public shall not copy, reproduce or publicise such material or information, in whole or in part, or show or disclose it to any other person. If provided with the original or any copy or duplicate of such material, such member of the public shall return it to the Accused when the material is no longer necessary for the preparation and presentation of the Accusedís case.
  6. In the event that the Accused appoints or has assigned legal advisers or Standby counsel, the term "Defence" shall include such persons and any immediate legal assistance and staff to be specifically identified in a list filed with the Trial Chamber. Any additions or deletions to the initial list shall be notified to the Trial Chamber within seven days of such additions or deletions. If a person named on this list withdraws from the case, any confidential or non-public material in his or her possession shall be returned to the lead Defence counsel or the Accused and, upon the conclusion of the case or upon lead Defence counsel ceasing to represent the Accused, the Defence shall return to the Registry of the Tribunal all disclosed material and copies thereof which are not included in the public record.

STATES that any breach of paragraphs 2 to 6 of this Order will be dealt with in accordance with Rule 77 ("Contempt of the Tribunal").

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

Dated this 11th day of February 2004,
At The Hague
The Netherlands

_____________
Judge Carmel Agius
Presiding Judge

[Seal of the Tribunal]


1. Prosecutor v. Vojislav Seselj, case No. IT-03-67-PT, Status Conference, 29 October 2003, Transcript pp. 125-135.
2. Prosecutor v. Vojislav Seselj, case No. IT-03-67-PT, Decision on Prosecutionís Motion for Order Appointing Counsel to Assist Vojislav Seselj with his Defence, 9 May 2003.