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

Decision:
16 December 2003

PROSECUTOR

v.

SLOBODAN MILOSEVIC

_______________________________________

DECISION ON CONFIDENTIAL PROSECUTIONíS SECOND REQUEST FOR PERMISSION TO CALL WITNESS B-1717

_______________________________________

Office of the Prosecutor:

Mr. Geoffrey Nice
Ms. Hildegaard Uertz-Retzlaff
Mr. Dermot Groome

Amici Curiae:

Mr. Steven Kay
Mr. Branislav Tapuskovic
Prof. Timothy McCormack

The Accused:

Mr. Slobodan Milosevic

 

THIS 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 ("International Tribunal"),

BEING SEISED of a confidential "Prosecutionís Second Request for Permission to Call Witness B-1717", filed by the Office of the Prosecutor ("Prosecution") on 04 December 2003 ("Second Motion"), requesting leave to add Witness B-1717 to the Prosecutionís list of witnesses and the protective measure of third-party nondisclosure agreements ("protective measure"),

NOTING the Trial Chamberís "Decision on Prosecutionís Fourth Omnibus Motion for Leave to Amend the Witness List and Request for Protective Measures", issued 21 November 2003, refusing as hypothetical the Prosecutionís request to add Witness B-1717 to the Prosecutionís list of witnesses,

CONSIDERING the Trial Chamberís ruling subsequent to the filing of the Prosecutionís pre-trial material for the Croatia and Bosnia part of these proceedings that it would only allow the admission of additional material by the Prosecution on good cause being shown,1

CONSIDERING that, although the Prosecutionís second request to add Witness B-1717 to the Prosecutionís list of witnesses is still hypothetical, the Trial Chamber (1) accepts the explanation offered in the Second Motion Ė that the ability of the Prosecution to disclose the identity of Witness B-1717 and schedule his appearance to testify is dependent upon obtaining permission from a State invoking Rule 70 of the Rules of Procedure and Evidence of the International Tribunal ("Rules") and that the obtainment of such permission was the subject of protracted negotiations between the Prosecution and that State Ė and (2) is satisfied that the Trial Chamberís requirement that good cause be shown has been fulfilled,

CONSIDERING the nature of the testimony that Witness B-1717 would give and the reasons for the request for the protective measure, as set forth in the Second Motion,

NOTING that the Trial Chamber has set out in detail in its previous decisions the preconditions to be satisfied before particular protective measures sought will be granted2 and that the Trial Chamber will apply these preconditions to the relief sought in the Second Motion,

CONSIDERING that (1) the reasons for the protective measure requested by the Prosecution for Witness B-1717 are the particular security risks attaching to the witness and the important nature of the testimony it is said he will give; and (2) the Trial Chamber has applied the relevant criteria and determined that the protective measure is appropriate and consistent with the rights of the Accused,

CONSIDERING that the Trial Chamber will grant the Prosecutionís request for the protective measure for Witness B-1717, on the basis that it applies to a special and limited category of witnesses to which Witness B-1717 belongs,3

PURSUANT to Rules 54, 69, 70, and 75 of the Rules,

HEREBY GRANTS the Motion and ORDERS as follows:

  1. Witness B-1717 may be added to the Prosecutionís list of witnesses.

  2. With respect to the Prosecutionís request for the protective measure of third-party nondisclosure agreements for Witness B-1717:

    1. the Accused and his legal associates shall not disclose the witness statements and related exhibits to third-parties except to the extent directly and specifically necessary for the preparation and presentation of the defence case;

    2. the amici curiae shall not disclose the witness statements and related exhibits to third-parties except to the extent to which they are assisting the Trial Chamber; and
    3. the Accused and his legal associates and the amici curiae shall obtain nondisclosure agreements from third-parties (as provided by the Prosecution) as a precondition for release of the witness statements and related exhibits to them.

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

__________
Richard May
Presiding

Dated this sixteenth day of December 2003
At The Hague
The Netherlands

[ Seal of the Tribunal]


1. Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T, "Decision on Prosecution Request for Agreement of Trial Chamber to Amended Schedule of Filings", 18 April 2002, at page 3.
2. See Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T, "First Decision on Prosecution Motion for Protective Measures for Sensitive Source Witnesses", 03 May 2002, at paras 2-5.
3. This reflects the Trial Chamberís consistent position on this issue; see, e.g., Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T, "Decision on Prosecutionís Further Motion to Amend Witness List and for Protective Measures for Sensitive Source Witnesses", 01 May 2003; Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T, "Decision on Prosecution Motion for Protective Measures for Victims and Witnesses", 19 March 2002; Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T, "Decision on Prosecution Motion to Amend Witness List and for Protective Measures for Sensitive Source Witnesses", 13 March 2003.