IN THE TRIAL CHAMBER

Before:
Judge Richard May
Judge Mohamed Bennouna
Judge Patrick Robinson

Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh

Order of:
15 January 1999

PROSECUTOR

v.

DARIO KORDIC
MARIO CERKEZ

___________________________________________________________

ORDER FOR MEASURES TO PROTECT VICTIMS AND WITNESSES

___________________________________________________________

The Office of the Prosecutor:

Mr. Geoffrey Nice
Ms. Susan Somers
Mr. Patrick Lopez-Terres
Mr. Kenneth Scott

Counsel for the Accused:

Mr. Mitko Naumovski, Mr. Leo Andreis, Mr. Turner Smith, Mr. David Geneson and Mr. Ksenija Durkovic, for Dario Kordic
Mr. Bozidar Kovacic, for Mario Cerkez

 

THIS TRIAL 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"),

BEING SEISED of the "Prosecutor’s Motion for Amended Protective Order and Measures to Protect Victims and Witnesses" ("the Motion"), and confidential memorandum in support thereof, filed by the Office of the Prosecutor ("Prosecution") on 9 October 1998, together with the Response to the Motion ("the Defence Response") filed jointly by the Defence on 23 October 1998, the confidential Prosecution Reply to the Defence Response filed on 24 November 1998 and the Defence Reply thereto filed 4 December 1998,

HAVING HEARD the parties in closed session on 8 January 1999,

NOTING that the material submitted by the Prosecution shows a clear need for protective measures for witnesses and potential witnesses in this case,

NOTING the existing Orders granting protective measures in this case issued on 27 January 1998, 27 November 1998 and 13 January 1999,

CONSIDERING that Article 20 of the Statute of the International Tribunal ("the Statute") requires the Trial Chamber to ensure that proceedings are conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses,

CONSIDERING the rights of the accused as set forth in Article 21 of the Statute and, in particular, the right of the accused to have adequate time and facilities for the preparation of his defence,

CONSIDERING that Article 22 of the Statute requires the International Tribunal to provide in its Rules of Procedure and Evidence ("Rules") for the protection of victims and witnesses,

CONSIDERING the provisions of Rules 69, 75 and 79 of the Rules concerning the protection of witnesses,

CONSIDERING ALSO the obligations imposed by the Code of Professional Conduct for Defence Counsel Appearing before the International Tribunal and the codes of any national body or organization to which counsel may belong,

PURSUANT TO Articles 20 and 22 of the Statute and Rules 69, 75 and 79 of the Rules

HEREBY ORDERS as follows:

1. For the purposes of this Order:

  1. "The Prosecutor" means and includes the Prosecutor of the Tribunal and her staff;
  2. "Kordic Defence" means and includes only the accused Dario Kordic and such counsel, legal assistants, staff and others as are specifically identified in a list to be maintained by the Kordic defence counsel and filed with the Trial Chamber ex parte and under seal within ten days of the entry of this Order; all additions and deletions in respect of any of the above categories of persons who are necessarily and properly involved in the preparation of the defence to this list shall be notified to the Trial Chamber in similar fashion within seven days thereafter;
  3. "Cerkez Defence" means and includes only the accused Mario Cerkez and such counsel, legal assistants, staff and others as are specifically identified in a list to be maintained by the Cerkez defence counsel and filed with the Trial Chamber ex parte and under seal within ten days of the entry of this Order; all additions and deletions in respect of any of the above categories of persons who are necessarily and properly involved in the preparation of the defence this list shall be notified to the Trial Chamber in similar fashion within seven days thereafter;
  4. "the public" means and includes all persons, governments, organisations, entities, clients, associations and groups, other than the Judges of the International Tribunal and the staff of the Registry, the Prosecutor, the Kordic Defence and the Cerkez Defence, as defined above. "The public" specifically includes, without limitation, families, friends and associates of the accused; the accused in other cases or proceedings before the International Tribunal; defence counsel in other cases or proceedings before the International Tribunal; the media; and journalists;

2. all material that has been disclosed to the Kordic Defence and Cerkez Defence in redacted form pursuant to the Order for the Disclosure of Documents and Extension of Protective Measures issued by this Trial Chamber on 27 November 1998 shall be disclosed to the Kordic Defence and Cerkez Defence in full, without redaction, not less than twenty-one days prior to the date set for commencement of the trial;

3. the Prosecutor may, with the approval of the Trial Chamber, make limited redactions to any written statement or testimony which was not part of the material supporting the original Indictment or the Amended Indictment concerning the identity and whereabouts of the person making or providing such written statement or testimony;

4. if the person making or providing any such written statement or testimony is a current or former citizen, national or subject of the former Yugoslavia or any of its parts, the written statements and testimony of such person, as redacted, shall be disclosed to the Kordic Defence and Cerkez Defence immediately and shall be disclosed to the Kordic Defence and Cerkez Defence in full, without redaction, not less than twenty-one days prior to the date set for commencement of the trial;

5. if the person making or providing any such written statement or testimony is not a current or former citizen, national or subject of the former Yugoslavia or any of its part, the written statements and testimony of such person, as redacted, shall be disclosed to the Kordic Defence and Cerkez Defence immediately and shall be disclosed to the Kordic Defence and Cerkez Defence in full, without redaction, not less than thirty days prior to the date set for commencement of the trial;

6. to the extent that the disclosure of a person’s written statement or testimony, or any other evidence, is directly covered by a protective order or other protective measure granted by another Trial Chamber, relief from such order or measure will be obtained from the Trial Chamber which entered such order, prior to such statement, testimony or evidence being disclosed;

7. save as is directly and specifically necessary for the preparation and presentation of this case, the Prosecutor, the Kordic Defence and the Cerkez Defence shall not disclose to the public: (a) the names, identifying information or whereabouts of any witness or potential witness identified to them by the Prosecutor, until such time as the witness testifies publicly in open session; (b) any evidence (including documentary, physical and other evidence) or any written statement of a witness or potential witness, or the substance, in whole or part, of any such evidence or statement that has not already been made public, except in the course of public trial and other public proceedings before the International Tribunal (where not protected by further, specific protective measures); (c) the non-public or otherwise protected testimony of a witness or potential witness identified or listed by the Prosecutor, or of a person whose written statement(s) has been disclosed by the Prosecutor, except that a person may review his or her own written statement(s) and testimony (and such documentary, physical or similar evidence which is directly related to or included in his or her statement or testimony); and to the extent reasonably necessary to his or her work, an expert witness may review the statements and testimony of other persons, as well as other evidence;

8. if the Prosecutor, the Kordic Defence or the Cerkez Defence find it directly and specifically necessary to disclose such information for the preparation and presentation of this case, they shall inform each person among the public to whom a written statement or non-public or otherwise protected testimony of a witness (or any portion of such a statement or testimony) or other non-public evidence is shown or disclosed, that such person is not to copy, reproduce or publicise such statement or evidence, and is not to show or disclose it to any other person. If provided with the original or any copy or duplicate of such statement or evidence, such person shall return it to the Prosecutor, the Kordic Defence or the Cerkez Defence when such statement or evidence is no longer reasonably necessary for the preparation and presentation of this case;

9. the family, friends and associates of Dario Kordic or Mario Cerkez (other than the Kordic Defence or the Cerkez Defence) shall not contact any witness or potential witness who has been identified to the Kordic Defence or the Cerkez Defence by the Prosecutor, or whose unredacted written statement(s) or non-public or protected testimony has been disclosed by the Prosecutor, concerning or in connection with this case;

10. the Kordic Defence and Cerkez Defence may only on reasonable prior written notice to the Prosecutor contact a witness or potential witness identified to them by the Prosecutor, or a person whose written statement(s) or non-public or protected testimony has been disclosed by the Prosecutor;

11. nothing herein shall preclude any party or person from seeking such other or additional protective orders or measures as may be viewed appropriate concerning a particular witness or other evidence.

 

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

_______________________________

Richard May
Presiding

Dated this fifteenth day of January 1999
At The Hague
The Netherlands

[The seal of the Tribunal]