Case No.: IT-95-14-R

Before:
Judge Fausto Pocar, Presiding
Judge Mehmet Güney
Judge Liu Daqun
Judge Andrésia Vaz
Judge Wolfgang Schomburg

Registrar:
Mr. Hans Holthuis

Decision of:
16 January 2006

The Office of the Prosecutor:

Ms. Carla Del Ponte
Mr. David Akerson
Ms. Rebecca Graham
Mr. Salvatore Cannata

Counsel for Tihomir Blaskic: Counsel for Marijacic & Rebic:

Mr. Anto Nobilo
Mr. Russell Hayman
Mr. Marin Ivanovic for Ivica Marijacic
Mr. Kresimir Krsnik for Markica Rebic

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 (“International Tribunal”) seized of the review proceedings in this case,

BEING SEIZED OF the “Prosecution’s Motion for a Variance of Protective Measures ” filed confidentially and ex parte¹ on 1 November 2005 (“Motion”), in which the Prosecution in the contempt case, Prosecutor v. Marijacic & Rebic,² requests that the protective measures granted by the Trial Chamber in this case with respect to Witness Johannes van Kuijk’s identity and statements (“Witness van Kuijk”), be lifted;

NOTING that the Prosecution specifically requests that: (i) all protective measures applicable to Witness van Kuijk that were granted on 6 June 1997,³ 16 December 1997,⁴ and 1 December 2000 ⁵ be lifted; and (ii) the parties in Marijacic & Rebic be allowed to refer to Witness van Kuijk by his actual name, to the fact that he testified in this case, and to his statement and transcripts in whole or in part;⁶

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), “[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before the Tribunal (the second proceedings),” such as the in Marijacic & Rebic case, “unless and until they are rescinded, varied or augmented in accordance with the procedure set out in this Rule […]”;⁷

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”;⁸

NOTING that in his testimony before the Trial Chamber in the Hearing of 16 December 1997, Witness van Kuijk stated that he was a First Lieutenant in the Dutch army stationed in Vitez municipality in Central Bosnia as part of the SFOR force in 1997;⁹

FINDING that because protective measures were ordered in the Decision of 6 June 1997 out of the Trial Chamber’s extreme 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,¹⁰ the Prosecution has failed in its Motion to establish that those protective measures are applicable to Witness van Kuijk, given that he testified that he was a Dutch army officer of the infantry stationed for a specific period of time in Central Bosnia;¹¹

NOTING that in the Hearing of 16 December 1997, the Trial Chamber ordered that Witness van Kuijk’s testimony be held in closed session and in the presence of a representative of the Dutch government in response to the request by the Prosecution and the Government of The Netherlands to do so, not out of concern for Witness van Kuijk’s own security, but because Witness van Kuijk would be “testifying about information that is extremely sensitive” and because the questioning could “intrude[] upon sensitive operational matters […]” (“Order of 16 December 1997”);¹²

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 December 1997 did grant protective measures applicable to Witness van Kuijk as allowed under Rule 79 of the Rules;

NOTING that in its Order of 1 December 2000, the Trial Chamber generally ordered that the publication of statements or testimonies of any protected witness in this case 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;¹³

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 Marijacic and Rebic case are published articles , which mention Witness van Kuijk by name as a protected witness and make reference to his statements to the Prosecution as well as his testimony before the Trial Chamber ;¹⁴

NOTING the Prosecution’s submission that if the protective measures granted with respect to Witness van Kuijk in this case are not lifted, “it will be unnecessarily difficult at trial [in Marijacic and Rebic] 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”;¹⁵

NOTING further that, according to the Prosecution, neither Witness van Kuijk nor the Dutch Ministry of Defence have any objection to the relief requested in the Motion;¹⁶

CONSIDERING that pursuant to Rules 78 of the Rules, all proceedings before a Trial Chamber shall be public unless there are exceptional reasons for keeping them confidential;

FINDING that no exceptional reasons exist for keeping the protective measures originally ordered with respect to Witness van Kuijk in the Hearing of 16 December 1997 in light of the stage of the proceedings in this case, the statements of Witness van Kuijk and the Dutch Ministry of Defence that such protective measures are no longer necessary, and 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 Marijacic and Rebic case;

ON THE BASIS OF THE FOREGOING and pursuant to Rule 75(G)(i) and (I) of the Rules, HEREBY GRANTS the Prosecution’s Motion in part and ORDERS that :

1) all protective measures granted with respect to Witness van Kuijk in the Hearing of 16 December 1997 be lifted; and

2) the fact that Witness van Kuijk 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.¹⁷

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

Dated this 16th day of January 2006,
At The Hague,
The Netherlands.

_________________________
Judge Fausto Pocar,
Presiding Judge

[Seal of the International Tribunal]