Case No.: IT-97-24-PT

IN TRIAL CHAMBER II

Before: Judge Wolfgang Schomburg, Pre-Trial Judge

Registrar: Mr. Hans Holthuis

Decision of: 10 December 2001

PROSECUTOR

v.

MILOMIR STAKIC

____________________________________________________________

ORDER ON PROSECUTIONíS MOTION FOR PROPOSED PROTECTIVE ORDER AND MEASURES TO PROTECT VICTIMS AND WITNESSES

____________________________________________________________

Counsel for the Prosecutor:

Ms. Susan L. Somers

Counsel for the Accused:

Mr. Branko Lukic

 

I, Wolfgang Schomburg, Judge of Trial Chamber II 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 ("the Trial Chamber"),

HAVING BEEN APPOINTED pre-trial Judge in this matter by virtue of the "Order Appointing a Pre-Trial Judge" issued by Trial Chamber II on 28 November 2001;

BEING SEIZED OF the "Prosecutionís Motion For Proposed Protective Order And Measures To Protect Victims And Witnesses", filed confidentially by the Office of the Prosecution on 23 October 2001 ("the Motion)";

NOTING the "Motion Objecting to the Prosecutionís Motion For Proposed Protective Order And Measures To Protect Victims And Witnesses", filed by the defence of Milomir Stakic ("the Defence") on 29 October 2001;

NOTING that in the Motion, the Prosecution requests various protective measures concerning inter alia, the disclosure of witness identities of "any witness, potential witness, or relatives of a witness or potential witness" included in material disclosed to the Defence pursuant to Rule 66 of the Rules of Procedure and Evidence ("the Rules");

CONSIDERING that the general reference made in the Motion to the "facts and circumstances concerning Tribunal cases generally and this particular case" lacks specificity and fails to identify particular witnesses in respect of which witness protection measures are sought;

CONSIDERING that it appears that the redaction by the Prosecution of the names and identification data of witness statements was not authorised by a Judge of the Trial Chamber previously seized of this matter;

CONSIDERING that the Prosecution is under an obligation to comply the requirements of Rule 66(A)(i) and to supply to the Defence, copies in unredacted form of the supporting material which accompanied the indictment when confirmation was sought as well as all prior statements obtained by the Prosecution from the accused provided that in the event that the Prosecution files a motion within the period as stated in Rule 66(A)(i) for protective measures in relation to particular statements or other material or particular victims or witnesses (which shall be identified in such motion by a number or pseudonym), it need not supply unredacted copies of those statements or that other material identified in that motion until that motion has been disposed of by the Trial Chamber, and subject to the terms of any order made upon that motion1;

CONSIDERING that the present submissions made in the Motion do not enable the Trial Chamber to make a determination as to whether the redactions and protective measures sought are consistent with the rights of the accused;

CONSIDERING that pursuant to Rule 69(A) prior to the granting of protection measures the Prosecution is required to establish exceptional circumstances in each case vis à vis concrete evidence and not in abstracto;

CONSIDERING that Rule 69(C) further provides that, "Subject to Rule 75, the identity of the victim or witness shall be disclosed in sufficient time prior to the trial to allow adequate time for preparation of the defence";

CONSIDERING FURTHER that in the determination of whether the Prosecution is entitled to redact witness statements to protect their identity until 30 days prior to their testimony the Trial Chamber is to have regard to the specific circumstances of each witness;

CONSIDERING that there is no justification for filing the Motion on a confidential basis when it does not seek a protective order for specific persons;

PURSUANT TO Rules 54 and 75 of the Rules;

HEREBY ORDERS that:

(i) the Prosecution comply with all its obligations under Rule 66 of the Rules and in particular, disclose to the Defence all copies in unredacted form of the supporting material which accompanied the indictment when confirmation was sought as well as all prior witness statements obtained by the Prosecution within fourteen (14) days from the date of the filing of this order;

    (ii) the Prosecution be at liberty to file a fresh motion seeking a non-disclosure order in relation to particular victims and witnesses;

    (iii) the Defence be at liberty to file its response to any Prosecution motion in this respect within fourteen (14) days of the filing of the Prosecutionís motion; and

    (iv) the "confidentiality" of the Motion is lifted.

 

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

_____________________

Judge Wolfgang Schomburg
Pre-Trial Judge

Dated this tenth day of December 2001
At The Hague,
The Netherlands.

[Seal of the Tribunal]


1 - Prosecutor v. Radoslav Brdjanin & Mimor Talic, Decision on Motion by Prosecution for Protective Measures, 3 July 2000.