IN TRIAL CHAMBER II

Before:
Judge David Hunt, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Liu Daqun

Registrar:
Mr Hans Holthuis

Decision of:
2 April 2001

PROSECUTOR

v

Radoslav BRÐANIN & Momir TALIC

 _____________________________________________________ 

DECISION ON PROSECUTION APPLICATION

_____________________________________________________ 

The Office of the Prosecutor:

Ms Joanna Korner
Mr Nicolas Koumjian
Mr Andrew Cayley
Ms Anna Richterova
Ms Ann Sutherland

Counsel for Accused:

Mr John Ackerman for Radoslav Brdanin
Maître Xavier de Roux and Maître Michel Pitron for Momir Talic

 

1 The background

1. The Trial Chamber has given a number of decisions in this case concerning protective measures sought by the prosecution whereby the identity of its witnesses would be withheld from the accused and their defence teams.1 In its First Protective Measures Decision, the Trial Chamber ordered the prosecution to supply unredacted statements to the accused on or before 24 July 2000; excepted from that order were those statements in relation to which such protective measures had been sought within that period.2

2. The prosecution subsequently filed four further motions seeking such protective measures. It was successful in relation to some witnesses but unsuccessful in relation to others. The effect of the refusal of protective measures for any particular witness was that the prosecution had to comply with the order in the First Protective Measures Decision, by supplying the unredacted statement of that witness to the accused. The prosecution sought leave to appeal against each of those refusals, without success.3 Although no order had been sought staying the order in the First Protective Measures Decision until the applications for leave to appeal against the other Protective Measures Decisions had been disposed of, the prosecution did not comply with the Trial Chamber’s order.

 

2 Application for extension of time

3. The prosecution now seeks an extension of time in which to comply with that order.4 It says that it is contacting the relevant witnesses to inform them of the rulings, but that four witnesses cannot be contacted by telephone and will be seen in person by an investigator. The Trial Chamber sees no reason why the prosecution cannot comply with its order without first informing others of its obligation to do so. However, the period sought (seven days) cannot disadvantage the defence any more than it has already been disadvantaged by the unjustified stand which the prosecution took in relation to protective measures generally. It is a shorter period that would be required to permit a response from the defence to the Prosecution Motion. The extension will therefore be granted.

 

3 Application for clarification

4. The prosecution has also sought "clarification" from the Trial Chamber concerning its Fourth Protective Measures Decision, in respect of the Trial Chamber’s refusal to permit the prosecution to withhold from the accused and their defence teams the identity of the witness numbered 7.47.5 The motion which led to the Fourth Protective Measures Decision sought that relief solely upon the basis that, although the prosecution is required by Rule 66(A) (i) of the Tribunal’s Rules of Procedure and Evidence ("Rules") to make available to the accused copies of the supporting material which accompanied the indictment when confirmation was sought (which included the statement of witness 7.47), the prosecution did not intend to call him as a witness at the trial.6 For the reasons which it had earlier given in its Second Protective Measures Decision,7 the Trial Chamber refused the application.8 The appeal against that refusal was dismissed.

5. The prosecution has now informed the Trial Chamber, for the first time, that the relevant supporting material which accompanied the indictment consisted only of the redacted transcript (that is, the public version of the transcript) of the evidence given by witness 7.47 in the Tadic trial and his statement. In the former, the witness was referred to only by a pseudonym (in accordance with protective measures granted by the Tadic Trial Chamber). The latter was redacted to remove any identifying features. This material has already been disclosed to the defence in that form.9 It is unfortunate that the prosecution failed to inform the Trial Chamber of this new information at the time when the protective measures were being sought.10 The Trial Chamber can only act upon the material which the parties put before it, and it is entitled to assume that the parties do not act negligently or incompetently in relation to the material which is available.

6. It is clear that the obligation imposed by Rule 66(A)(i) upon the prosecution does not oblige it to make available to the accused anything more than copies of the supporting material in the form in which that material accompanied the indictment when confirmation was sought, although an obligation to disclose the identity of any witness will arise if that material also falls within the terms of Rule 66(A)(ii) (statements of witnesses whom the prosecution intends to call to give evidence) or Rule 68 (exculpatory material). If the identity of the witness 7.47 was not disclosed to the confirming judge, it need not be disclosed to the defence pursuant to Rule 66(A)(i).

7. If, therefore, this information had been given to the Trial Chamber at the time when it should have been given to it, the Trial Chamber would have given such a ruling instead of refusing to permit the prosecution to withhold from the accused and their defence teams the identity of witness 7.47. To make the ruling now, however, constitutes more than just a "clarification" of the order made in the Fourth Protective Measures Decision,11 as the prosecution seeks. It requires a variation of that order by:

(i) deleting from the third order made the word and figures "7.19, 7.28 and 7.47" and substituting for them the word and figures "7.19 and 7.28", and

(ii) adding a fourth order:

4. The prosecution has satisfied its obligation under Rule 66(A)(i) in relation to witness 7.47 by making available to the accused the relevant supporting material in the form in which that material accompanied the indictment when confirmation was sought.

The Trial Chamber will order that variation.

 

4 The President’s Order

8. The Trial Chamber does, however, draw the attention of the prosecution to the relevance to this application of the orders made by President Jorda on the motions by the two accused for access to the confidential information in, inter alia, the Tadic case.12 The Registrar was required, in full cooperation with the Office of the Prosecutor, to disclose to the accused in the present case "the confidential hearing transcripts and exhibits" relating to the Tadic trial, subject to "the same protective measures mutatis mutandis" which were ordered in the Tadic trial.13 The President stated that, since defence counsel in the present case must respect the protective measures ordered in the Tadic trial, this did not mean that the transcripts and exhibits must be disclosed to them in a redacted form, but that the prosecution may request this Trial Chamber –

[…] to order additional protective measures such as the assignment of different pseudonyms and the prohibition against stating that a witness has already been heard by the Tribunal […].14

The current situation, therefore, is that the Registrar is required to disclose to the defence in the present case the confidential transcript and exhibits in the case, subject only to the protective measures ordered in the Tadic trial – which did not withhold from counsel the identity of witness 7.47. The defence are therefore entitled by the President’s Orders to know his identity.

9. This situation was addressed by the prosecution in its subsequent filing, entitled "Prosecution’s Submissions in Respect of Confidential Material Relating to the Tadic and Kovacevic Cases",15 by which (despite its title) the prosecution sought relief, purportedly in accordance with the quoted statement by the President in his Second Order, in the form of further protective measures by which the identity of any Tadic witness (including witness 7.47) would not be disclosed to the defence until it has demonstrated that access to such a witness may materially assist the defence in some identified way in the conduct of his defence and that such assistance is not otherwise reasonably available to him.16

10. No action has so far been taken in relation to the Prosecution’s Motion for Relief, because its disposition was necessarily dependent upon the decision of the Appeals Chamber on the prosecution’s applications for leave to appeal from the Protective Measures Decisions referred to earlier. As leave to appeal has now been refused, the Prosecution’s Motion for Relief must be dealt with. Neither of the accused has filed a response – perhaps because of the misleading title given to it by the prosecution – and the Trial Chamber will issue a Scheduling Order requiring any Response to be filed within fourteen days.

 

5 Disposition

11. For the foregoing reasons, Trial Chamber II orders:

1. The prosecution is to comply with the order made by the Trial Chamber in its First Protective Measures Decision on 3 July 2000 by supplying unredacted statements to the accused, except where protective measures have been ordered in favour of the relevant witness, on or before 9 April 2001.

2. The orders made by the Trial Chamber in its Fourth Protective Measures Decision on 15 November are varied by:

(i) deleting from the third order made the word and figures "7.19, 7.28 and 7.47" and substituting for them the word and figures "7.19 and 7.28", and

(ii) adding a fourth order:

4. The prosecution has satisfied its obligation under Rule 66(A)(i) in relation to witness 7.47 by making available to the accused the relevant supporting material in the form in which that material accompanied the indictment when confirmation was sought.

 

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

Dated this 2nd day of April 2000,
At The Hague,
The Netherlands.

________________________
Judge David Hunt
Presiding Judge

[Seal of the Tribunal]


1. Decision on Motion by Prosecution for Protective Measures, 3 July 2000 ("First Protective Measures Decision"); Decision on Second Motion by Prosecution for Protective Measures, 27 Oct 2000 ("Second Protective Measures Decision"); Decision on Third Motion by Prosecution for Protective Measures, 8 Nov 2000 ("Third Protective Measures Decision"); Decision on Fourth Motion by Prosecution for Protective Measures, 15 Nov 2000 ("Fourth Protective Measures Decision"); Decision on Fifth Motion by Prosecution for Protective Measures, 15 Nov 2000 ("Fifth Protective Measures Decision").
2. First Protective Measures Decision, par 65.2.
3. Decision on the Prosecutor’s Applications for Leave to Appeal the Decisions of Trial Chamber II of 27 October, 8 November and 15 November 2000, 22 Mar 2001.
4. Prosecution’s Notification of Compliance of [sic] Trial Chamber’s Decisions and Request for Clarification, 26 Mar 2001 ("Prosecution Application"), par 2.
5. Prosecution Application, pars 3-4.
6. Prosecution’s Fourth Motion for Protective Measures for Victims and Witnesses, 21 Sept 2000 ("Fourth Motion"), par 10.
7. Paragraphs 26-32.
8. Fourth Protective Measures Decision, par 19.
9. Prosecution Application, par 3.
10. It would not appear to have been brought to the attention of the Appeals Chamber either, but it may not have been appropriate to do so.
11. Paragraph 20.3.
12. Order on the Motions of Momir Talic and Radoslav Brdanin for Access to Confidential Information in the Cases The Prosecutor v Tadic and The Prosecutor v Kovacevic, 11 Sept 2000 ("President’s First Order"), as clarified by Order on the Prosecution’s Motion for Reconsideration of the Order Issued by the President on 11 September 2000, 11 Jan 2001 ("President’s Second Order").
13. President’s First Order, p 4 (English translation).
14. President’s Second Order, p 4 (English translation).
15. 26 Jan 2001 ("Prosecution’s Motion for Relief").
16. Prosecution’s Motion for Relief, pars 14-17. The prosecution relies upon the formulation by this Trial Chamber in its decision in the present case, Second Decision on Motions by Radoslav Brdanin and Momir Talic for Access to Confidential Documents, 15 Nov 2000, par 12.