Case No.: IT-02-54-T

IN THE TRIAL CHAMBER

Before:
Judge Richard May, Presiding

Judge Patrick Robinson
Judge O-Gon Kwon

Registrar:
Mr. Hans Holthuis

Order of:
19 March 2002

PROSECUTOR
v.
SLOBODAN MILOSEVIC

PARTLY CONFIDENTIAL AND EX PARTE

_________________________________________________

DECISION ON PROSECUTION MOTION FOR PROTECTIVE MEASURES FOR VICTIMS AND WITNESSES

_________________________________________________

The Office of the Prosecutor

Ms. Carla Del Ponte Ms. Hildegard Uertz-Retzlaff
Mr. Geoffrey Nice Mr. Dermot Groome

The Accused

Slobodan Milosevic

Amici Curiae

Mr. Steven Kay, QC
Mr. Branislav Tapuskovic
Prof. Mischa Wladimiroff

 

I. BACKGROUND

1. The Office of the Prosecutor ("Prosecution") filed a confidential and partly ex parte motion entitled "Prosecution Motion for Protective Measures for Victims and Witnesses" on 5 March 2002 ("the instant Motion"). The Motion seeks specific protective measures for witnesses whose statements form part of the supporting material for the Bosnia Indictment as well as other specified orders. It follows an initial request by the Prosecution for provisional protective measures;1 a Decision by the Trial Chamber on that Motion;2 a request by the Prosecution for further time to contact witnesses3 and an Order by the Trial Chamber granting the Prosecution more time.4

2. In particular, the instant Motion seeks orders that

(a) disclosure to the accused of the statements in unredacted form of witnesses covered by protective measures in other proceedings and identified in Appendix A of the instant Motion be delayed until 1 June 2002 or such other date as the Trial Chamber may deem appropriate;

(b) disclosure to the accused of the statements in unredacted form of witnesses for whom protective measures are sought pursuant to Rule 69 (A) (as identified in Appendix B of the instant Motion) be delayed until 1 June 2002 or such other date as the Trial Chamber may deem appropriate;

(c) the amici curiae be required not to disclose Rule 66 (A)(i) information to the public except for specified purposes and under certain conditions as set out in the instant Motion; and

(d) the accused and amici curiae be required to effectuate the signing of non -disclosure agreements and the maintenance of a record of disclosure in the same manner as required in respect of the Kosovo supporting material.

II. THE LAW

3. The Prosecution relies upon Articles 20, 21 and 22 of the Statute of the Tribunal ("Statute") and Rules 53, 54, 69, 73 and 75 of the Rules of Procedure and Evidence of the Tribunal ("Rules").

4. The Trial Chamber, having made its orders with respect to the need for the Prosecution to make out a case for particular protective measures on a witness by witness basis , now considers the applications made in the instant Motion. Rule 69 (A) provides that non-disclosure of the identity of a victim or witness who may be in danger or at risk may "in exceptional circumstances" be ordered until such person is brought under the protection of the Tribunal. In its Decision, the Trial Chamber noted that there were several criteria that would need to be considered in respect of applications made under Rule 69 (A) for specific protective measures for witnesses, including :

(a) 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 the public ;

(b) the extent to which the power to make protective orders can be used not only to protect individual victims or witnesses in the particular trial, and measures which simply make it easier for the Prosecution to bring cases against other persons in the future; and

(c) the length of time before the trial at which the identity of the victims and witnesses must be disclosed to the accused (the time allowed for preparation must be time before trial commences rather than before the witness gives evidence). In one case concerning the period for disclosure pursuant to Rule 69 (C), it was held that thirty days before a firm trial date was considered reasonable.5

5. The Prosecution itself refers to a further passage from the Decision of the Trial Chamber in the Brdanin case, in which it was held that fears expressed by potential witness were not in themselves sufficient to establish a real likelihood that they may be in danger or at risk. What is required to interfere with the rights of the accused in this respect is something more.6 The Trial Chamber sees this as an important element of the first criterion set out above.

6. The Prosecution applications concerning witnesses set out in its Appendix B will be assessed on these criteria.

III. DISCUSSION OF THE PROSECUTIONíS APPLICATION

7. The Prosecution informs the Trial Chamber in the instant Motion that to date the statements of 93 witnesses from the supporting materials in the Bosnia Indictment have been disclosed to the accused in unredacted form. This includes:

(a) 16 originally provided in January 2002;

(b) a further 3 provided in March 2002;

(c) 66 further witnesses identified in Schedules B or C of the Decision who are not seeking protective measures under Rule 69 (A);

(d) 3 witnesses identified in Schedules B or C of the Decision who have subsequently died;7 and

(e) 5 witnesses identified in Schedules B or C of the Decision who now refuse to testify.

8. The Prosecution has also identified a further 12 witnesses from the list of witnesses in its supporting material who have either been granted protective measures in other proceedings or who have made applications that have not yet been determined. The Prosecution seeks to have these witnesses granted the same protected status as those set out in Schedule A of the Decision.

9. The Prosecution makes applications for delayed disclosure under Rule 69 (A) for 10 witnesses at this time.8 The particulars of these applications are appended in ex parte appendices to the instant Motion and the further Corrigendum and supported by the statements of four investigators of the Prosecution. These applications include four witnesses identified in Schedule C of the Decision, being witnesses for whom provisional protective measures were not initially sought but for whom they are now sought on the basis of changed circumstances .9

10. With reference to the factors to be considered by the Trial Chamber in determining the particular protective measures applications, the Prosecution submits as follows :

(a) these applications are based on genuine danger or risk attaching to these particular witnesses and not simply to make it easier for the Prosecution to bring cases against other persons in the future;

(b) the period of thirty days before the firm trial date for disclosure to the accused of the unredacted witness statements is an appropriate time. Given the timetabled trial date of 1 July 2002 for the Croatia and Bosnia charges, it is submitted that the Prosecution be required to provide the statements in unredacted form on 1 June 2002 or any later date the Trial Chamber may subsequently deem appropriate; and

(c) the particulars of the dangers or risks to witnesses for whom measures are sought are included in ex parte appendices to the instant Motion and establish the basis for the protective measures sought on their behalf.

11. Finally, the Prosecution seeks orders with respect to the amici curiae and the accused. First, it requests an order binding the amici curiae in the same manner as the accused is bound in order (3) of the Decision dealing with non -disclosure of supporting material to the public. Secondly, it seeks an order requiring the accused and amici curiae to arrange the signing of non-disclosure agreements and the maintenance of a record of disclosure in the same manner as required in respect of the supporting material in the Kosovo part of this case.10

III. DECISION

12. The extension to the amici curiae of orders made by the Trial Chamber that relate to non-disclosure to the public of Rule 66 (A)(i) material is appropriate . However, the Trial Chamber does not believe that it is useful to impose on the amici curiae and the accused the orders sought concerning the signing of disclosure agreements and keeping records of disclosure.

13. Orders are sought with respect to witnesses in the Bosnia Indictment supporting material who have either been granted protective measures in other proceedings or who have made applications that have not yet been determined. In its Decision, the Trial Chamber extended protective measures to those witnesses who had received such measures in other proceedings. In its Further Time Order, the Chamber extended the same relief with respect to other witnesses identified as having been granted protective measures in other proceedings since the Prosecution had made its initial Motion. The Trial Chamber is of the view that the six further witnesses identified in the instant Motion as having been granted protective measures should have these measures extended under the same conditions as those set out in Schedule A of the Decision . The other six witnesses identified by the Prosecution in the instant Motion as having made unresolved applications for protective measures in other proceedings , should have the same measures extended, excepting that if such applications are unsuccessful the Prosecution should immediately make an application for protective measures in these proceedings or disclose the statements of these witnesses to the accused in unredacted form. Confidential and ex parte Schedule A will be attached to this Decision identifying those witnesses for whom protective measures will be ordered.

14. With respect to protective measures sought on behalf of the ten witnesses identified in ex parte appendix B to the instant Motion and the Further Corrigendum, the Trial Chamber has applied the criterion set out above and determined that the Prosecution has satisfied the Chamber that protective measures under Rule 69 (A) are appropriate in respect of eight of these ten witnesses. In respect of two witnesses for whom such applications have been made, the Trial Chamber notes that no specific or satisfactory information has been provided which would enable the Chamber to identify the basis for asserting the presence of a real risk or danger. Confidential and ex parte Schedule B will be attached to this Decision identifying those witnesses for whom protective measures will be ordered.

15. Finally, the Trial Chamber believes that a period of 30 days prior to the timetabled trial date is an appropriate time within which the Prosecution must disclose the statements of witnesses granted protective measures under Rule 69 (A). As 1 July 2002 has been scheduled as the date for commencement of the Croatia and Bosnia parts of this trial, the Prosecution will be required to disclose the statements of such witnesses in unredacted form on 1 June 2002.

IV. DISPOSITION

16. For the foregoing reasons, the Trial Chamber ORDERS as follows:

(1) The amici curiae shall not disclose to the public:

(a) the supporting material disclosed to the accused pursuant to Rule 66 (A)(i) of the Rules, except to the limited extent that such disclosure to members of the public is directly and specifically necessary to provide assistance to the Trial Chamber ;

(b) knowledge of the identities and whereabouts of the witnesses mentioned in the supporting material; or

(c) any evidence or any written statement of a witness or potential witness, or the substance, in whole or part, of any such non-public evidence, statement or prior testimony disclosed to the accused pursuant to Rule 66 (A)(i) of the Rules.

(2) The six witnesses identified in Appendix A of the instant Motion who have been granted protective measures in other proceedings before the Tribunal will have those measures extended under the same conditions as those set out in Schedule A of the Decision. The names and references of these witnesses are set out in attached confidential and ex parte Schedule A to this Decision.

(3) The other six witnesses identified in Appendix A of the instant Motion as having made unresolved applications for protective measures in other proceedings before the Tribunal, shall have the same measures extended excepting that if such applications are unsuccessful, the Prosecution shall immediately make an application for protective measures in these proceedings or disclose the statements of these witnesses to the accused in unredacted form. If applications for protective measures under Rule 69 (A) are made by the Prosecution on behalf of such witnesses, the same conditions as set out in Order (2) of the Decision shall extend to these witnesses. The names and references of these witnesses are set out in attached confidential and ex parte Schedule A to this Decision.

(4) The application by the Prosecution to redact the identifying information from the statements of eight of the ten witnesses identified in Appendix B of the instant Motion and the Further Corrigendum shall be granted. The statements of the remaining two witnesses shall be disclosed immediately to the accused in unredacted form. The names and references of these witnesses are set out in attached confidential and ex parte Schedule B to this Decision.

(5) The statements of all witnesses for whom protective measures are granted pursuant to Rule 69 (A) shall be disclosed to the accused in unredacted form by 1 June 2002 , unless otherwise ordered by the Trial Chamber.

For the purposes of these Orders:

"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 Chambers 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 counsel in other cases or proceedings before the Tribunal; and

"Rule 66 (A)(i) information" is any written statement, transcript of prior testimony , document or other information provided to the accused pursuant to Rule 66 (A)( i), or copies of that information which are provided to the amici curiae.

Confidential and ex parte Schedules A and B are attached to this Decision.

 

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

__________________
Richard May
Presiding

Dated this Nineteenth day of March 2002
At The Hague
The Netherlands

[Seal of the Tribunal]


1 - "Prosecution Motion for Provisional Protective Measures Pursuant to Rule 69" on 4 January 2002 ("First Motion") and "Prosecution Motion for Provisional Protective Measures Pursuant to Rule 69: Prosecution Response to Order for Further Submissions" ("Second Motion"), which together made up the initial request.
2 - "Decision on Prosecution Motion for Provisional Protective Measures" issued on 19 February 2002 ("the Decision").
3 - "Prosecution Request for Further Time to Contact Witnesses", filed on 1 March 2002 ("Further Time Request").
4 - Decision on Prosecution Request for Further Time to Contact Witnesses" issued on 5 March 2002 ("Further Time Order").
5 - Prosecutor v. Tadic, "Decision on the Prosecutorís Motion Requesting Protective Measures for Witness L", Case No. IT-94-1-T, 14 November 1995, para. 21.
6 - Prosecutor v. Brdjanin and Talic, "Decision on Motion by Prosecution for Protective Measures", Case No. IT-99-36-PT, 3 July 2000 ("Brdjanin Decision"), para. 31.
7 - An additional witness, whose unredacted statement had been disclosed, was identified as deceased in the instant Motion. The Prosecution filed a "Corrigendum to Prosecution Motion for Protective Measures for Victims and Witnesses" on 6 March 2002, noting the error. As no further action is required in respect of this witness, the matter is simply noted.
8 - Fourteen of these witnesses are identified in the instant Motion and a further two are identified in a "Further Corrigendum to Prosecution Motion for Protective Measures for Victims and Witnesses" filed on 7 March 2002 ("Further Corrigendum").
9 - The Trial Chamber, in its Further Time Order, granted the Prosecution permission to make applications on before of this category of witnesses in its supporting material.
10 - Decision on Prosecutionís Motion for Order of Non-Disclosure, 19 July 2001.