Case No. IT-02-54-T
IN THE TRIAL CHAMBER
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy
Mr. Hans Holthuis
30 August 2005
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 ("Tribunal"), is seized of an ex parte with confidential annexes "Prosecutorís Application for Variation of Protective Measures", filed 24 August 2005 ("Motion"),-1- and herein renders its decision thereon.
In the Motion, the Prosecution has requested, pursuant to Rules 54 and 75 of the Rules of Procedure and Evidence of the Tribunal ("Rules") and Article 29 of the Statute of the Tribunal, that the Trial Chamber (a) vary protective measures for Prosecution witnesses Husein Cajic-2- and B-1021-3- who gave evidence in the above-referenced proceedings ("witnesses"); (b) authorise the Prosecution to release the names, contact information, and evidence of the witnesses to the Chief Prosecutor of the Prosecutorís Office of Bosnia and Herzegovina ("Bosnia Prosecutor"); and (c) order the Bosnia Prosecutor and the Government of Bosnia and Herzegovina ("Bosnia and Herzegovina") to comply, upon release of the requested materials and information, with the conditions as stated in the written undertaking attached to the Motion.
The Trial Chamber notes that a similar request made by the Prosecution was decided in the Chamberís "Decision on Prosecution Application for Variation of Protective Measures", issued 18 May 2005. The principles set out in that decision will be applied to the Motion of the Prosecution.
The Trial Chamber notes that the witnesses, after having been contacted by the Prosecution, consented to the disclosure of their identities and evidence to the Bosnia Prosecutor and requested that the Tribunal ensure that any confidential information in relation to them be kept confidential.
The Chamber notes that the Bosnia Prosecutor already has furnished the Prosecution with a written undertaking (attached to the Motion) to respect the Orders and Decisions of the Trial Chamber concerning this matter, and specifically guaranteeing the following:
The Trial Chamber notes that Bosnia and Herzegovina already has furnished the Prosecution with a written undertaking (attached to the Motion) to respect the Orders and Decisions of the Trial Chamber concerning this matter and to take all necessary measures within its authority, both legal and practical, to ensure the safety and security of the witnesses.
A Chamber of the International Tribunal that is seized of a proceeding has the inherent authority to modify orders made previously in the proceedings, including orders made pursuant to Rule 75(A). It is thus within the competence of a Chamber of the International Tribunal to vary protective measures in a proceeding of which it is seized 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.-4- 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.-5-
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.
Pursuant to Article 29 of the Statute and Rules 54 and 75 of the Rules, the Trial Chamber hereby GRANTS the Motion and thus: VARIES the protective measures concerning the witnesses; AUTHORISES the Prosecution to release the names, contact information, and evidence of the witnesses referenced herein to the Bosnia Prosecutor; and ORDERS the Bosnia Prosecutor and the Government of Bosnia and Herzegovina, upon release of the requested material to it, to comply with the conditions set forth in the written undertakings attached to the Motion.
Done in both English and French, the English text being authoritative.
Dated this thirtieth day of August 2005
At The Hague
[Seal of the Tribunal]