Case No.: IT-95-14-R
IN THE APPEALS CHAMBER
Before:
Judge Fausto Pocar, Presiding
Judge Mehmet Güney
Judge
Liu Daqun
Judge Andrésia Vaz
Judge Wolfgang Schomburg
Registrar:
Mr. Hans Holthuis
Decision of:
24 January 2006
PROSECUTOR
v.
TIHOMIR BLASKIC
________________________________________________
DECISION ON PROSECUTION’S MOTION FOR VARIANCE OF PROTECTIVE MEASURES IN THE PROSECUTOR v. SESELJ & MARGETIC CASE
________________________________________________
The Office of the Prosecutor
Ms. Carla Del Ponte
Mr. Peter McCloskey
Mr. David Akerson
Mr.
Salvatore Cannata
Ms. Rebecca Graham
The Government of the Republic of Croatia
Mr. Thomas Osorio, Office of the President
The Government of Serbia and Montenegro
Counsel for Tihomir Blaskic
Mr. Anto Nobilo
Mr. Russell Hayman
Counsel for Seselj & Margetic
Mr. Zeljko Olujic for Mr. Stjepan Seselj
Mr. Domagoj Margetic
(self-represented)
THE APPEALS 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 ("Appeals Chamber" and "International Tribunal", respectively) seized of the review proceedings in this case,
BEING SEIZED OF the "Prosecution’s Motion for a Variance of Protective Measures" filed confidentially on 26 September 2005 ("Motion"), in which the Prosecution in the contempt case, Prosecutor v. Seselj & Margetic,1 requests that the protective measures granted by the Trial Chamber in this case with respect to Witness Stjepan Mesic (“Witness Mesic”) be lifted;
NOTING that the Prosecution specifically requests that: (i) all protective measures applicable to Witness Mesic that were granted on 6 June 1997,2 16 March 1998,3 and 1 December 20004 be lifted; and (ii) that the parties in Seselj & Margetic be allowed to refer to Witness Mesic by his actual name, to the fact that he testified in this case, and to his statement and transcripts in whole or in part;5
NOTING that Counsel for Tihomir Blaskic has notified the Appeals Chamber that Tihomir Blaskic does not object to the Prosecution’s Motion;
CONSIDERING that pursuant to Rule 75(A) of the Rules of Procedure and Evidence of the International Tribunal ("Rules"), "[a] Judge or a Chamber may [...] order appropriate measures for the privacy and protection of victims and witnesses [...]";
CONSIDERING that Rule 75(F)(i) stipulates that "[o]nce protective measures have been ordered in respect of a victim or witness in any proceedings before the Tribunal (the first proceedings)," as in this case, "such protective measures: shall continue to have effect mutatis mutandis in any other proceedings before the Tribunal (the second proceedings)," such as the in Seselj & Margetic case, "unless and until they are rescinded, varied or augmented in accordance with the procedure set out in this Rule […]";6
CONSIDERING that under Rule 75(G)(i) the Prosecution, as "[a] party to the second proceedings seeking to rescind, vary or augment protective measures ordered in the first proceedings" is required to apply "to any Chamber, however constituted, remaining seized of the first proceedings [...]" and has done so through its Motion;
FINDING therefore that the Prosecution’s Motion is properly before the Appeals Chamber as the Chamber seized of the first proceedings under Rule 75 of the Rules;
NOTING that in its Decision of 6 June 1997, the Trial Chamber ordered generally that "the accused, his counsels and their representatives not disclose to the public or to the media the name of the witnesses residing in the territory of the former Yugoslavia or any information which would permit them to be identified, unless absolutely necessary for the preparation of the defence" and also ordered other additional protective measures to be implemented by both parties in order to guarantee the satisfactory protection of these witnesses;7
FINDING that because protective measures were ordered in the Decision of 6 June 1997 in response to the disclosure of and publication in the Croatian press of Witness Mesic’s identity and statement8- and out of the Trial Chamber’s concern for the security of witnesses "residing in the territory of the former Yugoslavia" who may be called to make a statement before it during the trial,9 those protective measures are clearly applicable to Witness Mesic;
NOTING that in the Hearing of 16 March 1998, the Trial Chamber ordered that Witness Mesic’s testimony be held in closed session in response to the request by the Prosecution to do so out of concern for the considerable personal risk posed to Witness Mesic and his family (“Order of 16 March 1998");10
CONSIDERING that under Rule 79(A)(ii), "[t]he Trial Chamber may order that the press and the public be excluded from all or part of the proceedings" as a protective measure "for reasons of: […] safety, security or non-disclosure of the identity of a victim or witness as provided in Rule 75 […]";
FINDING therefore that the Trial Chamber’s Order of 16 March 1998 did grant protective measures applicable to Witness Mesic as allowed under Rule 79 of the Rules;
NOTING that on 1 December 2000, the Trial Chamber ordered that the publication of statements or testimonies of Witness Mesic, or generally of any protected witness, should cease immediately or otherwise be found in contempt of the International Tribunal, but that the Trial Chamber did not grant any additional protective measures therein;11
FINDING therefore that there are no protective measures granted under the Order of 1 December 2000 that may be varied pursuant to the Prosecution’s request in its Motion;
NOTING the Prosecution’s submission in its Motion that key evidence in
the contempt proceedings in the Seselj & Margetic case are articles
in the
Croatian press, which mention Witness Mesic by name as a protected
witness in this case and publish excerpts of his closed session testimony before
the Trial Chamber;12
NOTING the Prosecution’s submission that if the protective measures granted with respect to Witness Mesic in this case are not lifted, “it will be unnecessarily difficult at trial [in Seselj & Margetic] to deal with the content of the articles without repeatedly moving into closed or private session to avoid violating the protection measures still in place";13
NOTING further that, according to the Prosecution, Witness Mesic has no objection to the relief requested in the Motion14 and, in fact, wishes that the Appeals Chamber grants said relief;
CONSIDERING that pursuant to Rules 78 of the Rules, all proceedings before a Trial Chamber shall be public unless there are reasons for keeping them confidential;
FINDING that no reasons exist for keeping the protective measures originally ordered with respect to Witness Mesic in the Decision of 6 June 1997 and the Hearing of 16 March 1998 in light of (1) the time that has elapsed and the stage of the proceedings in this case; (2) the statement by Witness Mesic that such protective measures are no longer necessary; and (3) the fact that the repeated moving between closed and open session would, in the circumstances, be unnecessarily burdensome to the Trial Chamber and the parties in the Seselj & Margetic case;
ON THE BASIS OF THE FOREGOING and pursuant to Rule 75(G)(i) of the Rules, HEREBY GRANTS the Prosecution’s Motion in part and ORDERS that:
1) all protective measures granted with respect to Witness Mesic in the Decision of 6 June 1997 be lifted;
2) all protective measures granted with respect to Witness Mesic in the Hearing of 16 March 1998 be lifted; and
3) Witness Mesic’s actual name, the fact that Witness Mesic testified, his statements to the Prosecution, as well as his testimony transcripts in this case, may be referred to publicly and in open session.
DISMISSES the Prosecution’s Motion in all other respects.15
Done in English and French, the English text being authoritative.
Dated this 24th day of January 2006,
At The Hague,
The Netherlands.
_________________________
Judge Fausto Pocar, Presiding Judge
[Seal of the International Tribunal]