Case No. IT-02-54-T

IN THE TRIAL CHAMBER

Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy

Registrar:
Mr. Hans Holthuis

Decision:
18 May 2005

PROSECUTOR

v.

SLOBODAN MILOSEVIC

EX PARTE

___________________________________________

DECISION ON PROSECUTION APPLICATION FOR VARIATION OF PROTECTIVE MEASURES

___________________________________________

 

Office of the Prosecutor:

Ms. Carla Del Ponte

 

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"), is seised of a confidential and ex parte "Prosecutorís Application for Variation of Protective Measures", filed 22 April 2005 ("Motion"), and herein renders its decision thereon.

Procedural history

On 11 and 22 February 2005, the Chief Prosecutor of the Prosecutorís Office of Bosnia and Herzegovina ("Bosnia Prosecutor") requested the Registryís assistance in obtaining confidential information regarding trials before the International Tribunal for use in an investigation being conducted by the Bosnia Prosecutor. On 31 March 2005, the Registry sought the advice of the President regarding the request. On 6 April 2005, the President rendered his opinion that pursuant to Rule 75 of the Rules of Procedure and Evidence ("Rules"), "it is only one of the parties, defined in Rule 2 as the Prosecution and Defence, who can make an application to a Chamber for variation of measures imposed."1 On 13 April 2005, the Bosnia Prosecutor sought the assistance of the Office of the Prosecutor of the International Tribunal ("Prosecution") in obtaining the confidential information.

On 22 April 2005, the Prosecution filed the Motion, requesting, pursuant to Rule 75 of the Rules, the following:

  1. that the Chamber request the Victims and Witness Section ("VWS") to consult with and ascertain whether the protected witnesses consent to have their identities, current whereabouts, and transcripts/statements disclosed to the Bosnia Prosecutor;

  2. request VWS to report to the Chamber as soon as it has completed its consultation; and

  3. order that the Bosnia Prosecutor provide an undertaking that

    1. the witnessesí identities and confidential material will be treated as confidential;

    2. only members of the Special Department for War Crimes of the Bosnia Prosecutor would be permitted access to the material;

    3. the materials would not be disclosed to any other persons or parties; and

    4. the Bosnia Prosecutor will take all necessary measures, both legal and practical, in order to ensure the safety and security of the witnesses.

On 25 April 2005, the Trial Chamber issued instructions to VWS to: (1) contact the witnesses mentioned in the Annex to the Motion in order to ask them whether they consent to have their identities, current whereabouts, and transcripts/statements disclosed to the Bosnia Prosecutor, in connection with the ongoing investigation referred to in Annex A of the Motion; and (2) report back to the Trial Chamber once it completed its consultations. After being contacted by VWS, the two witnesses that are the subject of the Motion before this Chamber, namely Prosecution Witnesses Esad Velic2 and B-10683 ("witnesses"), consented to their names, addresses, and evidence being released to the Bosnia Prosecutor.

Discussion

The Trial Chamber notes that the Prosecution has filed similar applications with other Chambers of the International Tribunal.4

The Prosecution made the relief requested in the Motion contingent upon the consent of the witnesses, and the Trial Chamber instructed VWS to explain the context and the terms of the Motion to the witnesses and to enquire whether they consented to the disclosure of the requested information. After being contacted by VWS, the witnesses consented to their names, addresses, and evidence being released to the Bosnia Prosecutor.

A Chamber of the International Tribunal that is seised of a proceeding has the inherent authority to modify orders made previously in the proceedings, including orders made pursuant to Rule 75(A) of the Rules. It is thus within the competence of a Chamber of the International Tribunal to vary protective measures in a proceeding of which it is seised upon the request of the party that requested them, provided that the party has demonstrated a legitimate purpose for the variation. In the present case, the Trial Chamber finds that the purpose for variation described in the Motion is legitimate because the Prosecution has a duty to assist the Bosnia Prosecutor, where appropriate.5 The fact that there is good cause to vary the protective measures ordered at trial is underscored by United Nations Security Council Resolutions stating that national institutions prosecuting violations of international humanitarian law in the former Yugoslavia are to be assisted in their work; these Resolutions also specifically mention the War Crimes Chamber.6

It is also within the competence of a Chamber of the International Tribunal to order a State to comply with an order intended to protect the safety of victims and witnesses. States, under Article 29 of the Statute of the International Tribunal, "shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including, but not limited to" a variety of situations as enumerated therein (emphasis added).

The Trial Chamber notes that, in the event that the Bosnia Prosecutor eventually brings charges stemming from its current investigations, it may become necessary to disclose the confidential information to the accused in that case.

Finally, the Prosecution states that the Motion was made confidentially in order not to prejudice the ongoing investigation of the Bosnia Prosecutor. While Annexes A and B contain confidential information, the Motion itself contains no sensitive information and should be made public. Moreover, the Presidentís Decision discussed the substance of this matter and was filed publicly. There is thus no reason for the Motion to be confidential.

Disposition

Pursuant to Article 29 of the Statute of the International Tribunal and Rules 54 and 75 of the Rules, the Trial Chamber hereby REQUESTS the Registry of the International Tribunal to alter the status of the Motion (but not the Annexes thereto) from confidential to public; GRANTS the Motion; VARIES the protective measures concerning the witnesses; and ORDERS as follows:

    1. The Prosecution may release the names, contact information, and evidence of the witnesses referenced herein to the Bosnia Prosecutor, provided that the Bosnia Prosecutor has submitted a written undertaking, addressed to the Trial Chamber and the Prosecution, agreeing to respect the Orders of the Trial Chamber concerning this matter, and specifically accepting the following:

      1. The information disclosed will be treated as confidential, and will be released to no one except members of the Special Department for War Crimes of the Bosnia Prosecutor and the courts of Bosnia and Herzegovina as necessary for the purposes of proceedings involving the suspect currently in the custody of Bosnia and Herzegovina, and to that suspect and his counsel as specified in paragraph (b) below.

      2. The information disclosed will not be released to the suspect and/or his counsel unless the Bosnia Prosecutor obtains assurances under threat of criminal sanction that the suspect and/or his counsel will strictly maintain the confidentiality of the information.

      3. The Government of Bosnia and Herzegovina will take all necessary measures, both legal and practical, in order to ensure the safety and security of the witnesses.

    2. The Government of Bosnia and Herzegovina shall comply, upon release of the requested material to it, with the above-stated conditions.

 

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

______________
Judge Robinson
Presiding

Dated this eighteenth day of May 2005
At The Hague
The Netherlands

[Seal of the Tribunal]


1. (Public) Decision on Registrarís Submission on a Request from the Office of the Chief Prosecutor of Bosnia and Herzegovina Pursuant to Rule 33(B), Case No. IT-05-85-Misc 2, 6 April 2005 ("Presidentís Decision"), at para. 16.
2. On 19 August 2002, the Prosecution submitted to the Trial Chamber that this witness would not require any protective measures. Public with Confidential Annexes Prosecution Schedule of Current Status of Protective Measures Needs of Witnesses (Witnesses testifying to charges relating to events in Bosnia and Herzegovina), filed 19 August 2002. On 10 October 2003, the written statement of the witness was granted admission into evidence pursuant to Rule 92bis(A) of the Rules. Decision on Prosecution Motion for the Admission of Witness Statements Relevant to Events in Br~ko, Fo~a, Bijeljina and Bosanska Krupa Municipalities in Lieu of Viva Voce Testimony Pursuant to Rules 54, 75 and 92bis, issued 10 October 2003. On 21 November 2003, the Trial Chamber granted the witness the trial-related protective measure of image-distortion and other related protective measures, such as nondisclosure to the public of the whereabouts of the witness. Decision on Prosecution Motion for Trial-Related Protective Measures for Witness B-1353, issued 21 November 2003. The witness testified with facial distortion before the Trial Chamber on 24 and 26 November 2003 (T. 29567-29615), and his written statement was formally admitted into evidence on 24 November 2003 as a public exhibit. Exhibit 599.
3. On 17 September 2002, the Trial Chamber ordered that this witness shall be referred to by pseudonym. Decision on Prosecution Schedule of Current Status of Protective Measures Needs of Witnesses (Croatia), issued 17 September 2002. On 17 December 2003, the witnessí trial transcript and related exhibits from the Brdjanin trial were granted admission into evidence pursuant to Rules 92bis(D) of the Rules, without the witness being required to appear for cross-examination. Decision on Prosecution Motion for Admission of Transcripts and Portions of a Statement Pursuant to Rules 92bis(D) and 89(F) for Witnesses B-1068, B-1021, 1266, 1354, and B-1695, issued 17 December 2005. On 25 February, the Prosecution requested that the Trial Chamber confirm the exhibit number for the witnessí evidence (Prosecution Notification of the Completion of Its Case and Motion for the Admission of Evidence in Written Form, filed 25 February 2004), the Prosecution submitted to the Trial Chamber that the protective measures from previous proceedings continued to have effect pursuant to Rule 75(F)(i) of the Rules (Confidential Prosecution Motion for Trial Related Protective Measures for 92 bis Witnesses Admitted Without Cross-Examination and Confidential and Ex Parte Annexe, filed 25 February 2005), and the Trial Chamber confirmed the exhibit numbers for the witnessí evidence (Exhibit 651, tabs 1-2 (under seal), 3, 4 (under seal), 5-8, and 9-11 (under seal)), thereby formally admitting the exhibits into evidence. Decision on Notification of the Completion of Prosecution Case and Motion for the Admission of Evidence in Written Form, issued 25 February 2005.
4. Prosecutor v. Brdjanin, Case No. IT-99-36-A; Prosecutor v. Krajisnik, Case No. IT-00-39-T.
5. See, e.g., United Nations Security Council Resolutions 1503/2003 and 1534/2004; cf. Rule 11bis(D)(iii) of the Rules.
6. See United Nations Security Council Resolutions 1503/2003 and 1534/2004.