Judicial Supplement 20 - The Prosecutor v. Radoslav Brdjanin and Momir Talic

The Prosecutor v. Radoslav Brdjanin and Momir Talic - Case No. IT-99-36-PT

"Second Decision on Motions by Radoslav Brdjanin and Momir Talic for Access to Confidential Documents"

15 November 2000
Trial Chamber II (Judges Hunt [Presiding], Mumba and Liu)

Rules 66(A), 68 and 75(D) of the Rules of Procedure and Evidence - Protected witnesses - Identity - Disclosure - Burden of proof - Access to confidential material.

(1) In relation to the identity of witnesses who are to give evidence against the accused or of persons whose statements accompanied the indictment when confirmation was sought, which the Prosecution is required to disclose pursuant to Rule 66(A) of the Rules of Procedure and Evidence, or of witnesses who gave evidence in other cases which the Prosecution is required to disclose pursuant to Rule 68 of the said Rules, the burden lies upon the Prosecution to justify non-disclosure, not upon the accused to justify disclosure;
(2) In relation to the identity of protected witnesses in other proceedings to whose evidence Rule 68 does not apply, the burden lies on the party seeking disclosure to justify that disclosure, not on the parties to those other proceedings to justify non-disclosure;
(3) When it can be demonstrated that access to a protected witness may materially assist the accused person in some identified way in the conduct of his defence and that such assistance is not otherwise reasonably available to him, consideration may be given to whether access to the witness, direct or indirect, should be granted, and the nature of any variation to the protective measures in favour of those protected witnesses which is required.

Procedural Background

On 12 July and 1 August 2000 respectively, Radoslav Brdjanin and Momir Talic filed Motions in which they applied to Trial Chamber II "for access to documents and transcripts from four other proceedings before the Tribunal". These documents and transcripts relate to the region and period in which the events alleged in the indictment against them in these proceedings occurred. "The application was limited to confidential material - that is, material not available to the public, either because it was evidence heard in a closed or private session" or filed on a confidential basis. The basis of the application by Radoslav Brdjanin and Momir Talic was that access to such material, already available to the prosecution, would place them on the same basis as the prosecution and may have significant value in their preparation for trial. One of the other proceedings was the case The Prosecutor v. Miroslav Kvocka et al.1 (hereinafter the "Kvocka case"), currently being tried by Trial Chamber I.
On 31 July 2000, Trial Chamber II issued the Decision on the Motion by Momir Talic for Access to Confidential Documents in which the Judges invited the Registrar "to transfer the application to Trial Chamber I" pursuant to Rule 75(D) of the Rules of Procedure and Evidence2 (para. 9).
On 3 October 2000, Trial Chamber I issued the Decision on the Defense Request for Release of Confidential Material and delegated to Trial Chamber II the question of the conditions under which access "in the Kvocka case should be granted to Brdjanin and Talic." (page 3)
On 30 October 2000, the Prosecution filed its submissions seeking redaction of those parts of "the material which will reveal the identity of any prosecution witnesses prior to its disclosure to Brdjanin and Talic."
On 7 and 10 November 2000 respectively, the two co-accused responded and objected to any redactions.

The Reasoning

The Trial Chamber held that the situation was very different from the situation under Rules 66(A)3 or 68.4 At this stage, Radoslav Brdjanin and Momir Talic "do not need to know the identity of the witnesses" who gave the evidence in order to determine whether any particular piece of the evidence will, in fact, assist them in preparing their case.

If after the two co-accused had considered the material and wished to consider particular evidence further, either with a view to calling the witness in the trial or to interviewing the witness in order to obtain additional information, at that stage, and at that stage only, would they be in a position to justify disclosure to them of the identity of that protected witness.

"In this very different situation, the onus [was] the reverse of that involved in the disclosure by the prosecution of the materials" referred to in Rules 66(A) and 68. "In relation to the identity of witnesses who are to give evidence against the accused or of persons whose statements accompanied the indictment when confirmation was sought, which the prosecution is required to disclose pursuant to Rules 66(A), or of witnesses who gave evidence in other cases which the prosecution is required to disclose pursuant to Rule 68, the burden lies upon the prosecution to justify non-disclosure, not upon the accused to justify disclosure.5 In relation to the identity of protected witnesses in other proceedings to whose evidence Rule 68 does not apply, the burden lies upon the party seeking disclosure to justify that disclosure, not upon the parties to those other proceedings to justify non-disclosure. The purpose of the protective measures granted in favour of those witnesses in the other proceedings would be destroyed if the benefit of those protective measures could be lost merely because there is a good chance that their evidence would materially assist an accused person in other proceedings."

"When it can be demonstrated -

(1) that access to such a witness may materially assist that accused person in some identified way in the conduct of his defence [...], and

(2) that such assistance is not otherwise reasonably available to him,

consideration may be given to -

(a) whether access to the witness, direct or indirect, should be granted, and
(b) the nature of any variation to the protective measures in favour of those protected witnesses which is required."

"That can be demonstrated only after the accused person seeking disclosure has looked at the evidence in a redacted form."

When Radoslav Brdjanin and Momir Talic are "able to demonstrate a real need" to know the identity of any witnesses, "it would be appropriate for the Trial Chamber to consult the Victims and Witnesses Section, which in turn would contact those witnesses. [...] Then, and only then, c[ould] the Trial Chamber properly decide (on the basis of the information provided by the Victims and Witnesses Section) whether, and under what circumstances, the identity of those witnesses may be revealed to the accused."

The Decision

Accordingly, Radoslav Brdjanin and Momir Talic were granted:

(1) "access to the material produced by Trial Chamber I" after redaction by the Registry of those parts "which will reveal the identity of any witness who gave evidence for either party on a confidential basis, and

(2) leave to make an application at the appropriate time" justifying disclosure to them of "the identity of any particular witness."

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1. The Prosecutor v. Miroslav Kvocka et al. ("Omarska & Keraterm Camps"), Case No. IT-98-30/1-T, Trial Chamber I.
2. "Once protective measures have been issued in respect of a victim or witness, only the Chamber granting such measures may vary or rescind them or authorise the release of protected material to another Chamber for use in other proceedings. If, at the time of the request for variation or release, the original Chamber is no longer constituted by the same Judges, the President may authorise such variation or release."
3. "Subject to the provisions of Rules 53 and 69, the Prosecutor shall make available to the defence in a language which the accused understands
(i) within thirty days of the initial appearance of the accused, copies of the supporting material which accompanied the indictment when confirmation was sought as well as all prior statements obtained by the Prosecutor from the accused; and
(ii) within the time-limit prescribed by the Trial Chamber or by the pre-trial Judge appointed pursuant to Rule 65 ter, copies of the statements of all witnesses whom the Prosecutor intends to call to testify at trial, and copies of all affidavits and formal statements referred to in Rule 94 ter; copies of the statements of additional prosecution witnesses shall be made available to the defence when a decision is made to call those witnesses."
4. "The Prosecutor shall, as soon as practicable, disclose to the defence the existence of evidence known to the Prosecutor which in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence."
5. The Prosecutor v. Radoslav Brdjanin and Momir Talic ("Krajina"), Case No. IT-99-36-PT, Trial Chamber II, Decision on Motion by Prosecution for Protective Measures, 3 July 2000 (summarised in Judicial Supplement No. 18), para. 16; Decision on Second Motion by Prosecution for Protective Measures, 27 October 2000 (summarised in Judicial Supplement No. 19), para. 31; Decision on Third Motion by Prosecution for Protective Measures, 8 November 2000, para. 4.