IN THE TRIAL CHAMBER

Before: Judge Richard May, Presiding

Judge Antonio Cassese

Judge Florence Ndepele Mwachande Mumba

Registrar: Dorothee de Sampayo Garrido-Nijgh

Decision of: 12 May 1998

PROSECUTOR

v.

MILAN KOVACEVIC

_______________________________________________________________

DECISION ON PROSECUTION MOTION TO PROTECT VICTIMS AND WITNESSES

_______________________________________________________________

Office of the Prosecutor:

Ms. Brenda Hollis
Ms. Ann Sutherland
Mr. Michael Keegan

Counsel for the Accused:

Mr. Dusan Vucicevic
Mr. Anthony D’Amato

 

THE TRIAL CHAMBER

NOTING the Motion To Protect Victims And Witnesses filed by the Office of the Prosecutor ("Prosecution") on 20 April 1998 ("the Prosecution Motion") requesting protective measures for all victims and witnesses who might be called to appear during the trial, the Defence Reply to the Prosecution Motion filed on 1 May 1998 ("the Defence Reply") in which the Defence made various requests for relief, including: (a) a request for pre-trial interviews with Prosecution witnesses; (b) an order that the Prosecution reveal whether any Prosecution witness has received psychiatric or psychological treatment or counselling; and (c) disclosure of any interrogation, counselling, financial or other support provided to the Prosecution witnesses by state security and intelligence services or social and religious organizations; and the Reply To The Defence Reply and Response To Motion For Relief Contained In The Defence Reply, both filed by the Prosecution on 7 May 1998 with leave of the Trial Chamber,

NOITNG that the Prosecution has agreed to approach its witnesses and enquire as to their willingness to give pre-trial interviews to the Defence and to enquire as to whether they have received psychiatric or psychological treatment or counselling and to convey that information to the Defence,

HAVING HEARD the arguments of the parties on 11 May 1998 and having reserved its Decision on both the Prosecution Motion and the requests contained in the Defence Reply to a later date,

CONSIDERING the obligation on the Trial Chamber to provide for the protection of victims and witnesses mandated by Article 22 of the Statute of the International Tribunal ("Statute") and by Rule 75 of the Rules of Procedure and Evidence of the International Tribunal ("Rules"),

CONSIDERING ALSO that in the case of Prosecutor v. Delalic et al, Case No. IT-96-21, in a decision of Trial Chamber II dated 18 March 1997, it was held that the Defence does not have any right to obtain information concerning Prosecution witnesses for the purpose of conducting pre-trial interviews, this Trial Chamber endorses that Decision, as there is no right to conduct such interviews: no such right is reflected in Article 21 of the Statute or in Article 14 of the International Covenant on Civil and Political Rights and, as such, the conduct of interviews in these circumstances does not form part of the practice of the International Tribunal, even when acceded to by the Prosecution,

CONSIDERING FURTHER that there is a danger that pre-trial interviews may add further to the distress of victims and witnesses,

PURSUANT to Article 22 of the Statute and to Rule 75 of the Rules of Procedure and Evidence of the International Tribunal,

HEREBY GRANTS THE PROSECUTION MOTION, REFUSES THE RELIEF SOUGHT IN THE DEFENCE REPLY, AND ORDERS as follows:

  1. The Prosecutor, the accused, his counsel and their representatives shall not disclose to the public, to the media or to family members and associates the identity, whereabouts or any other identifying information of witnesses, except for reasons related to the preparation of their cases;
  2. The Prosecutor, the accused, his counsel and their representatives shall not disclose to the public, to the media or to family members and associates the substance, in part or in whole, of the witness statements which the Prosecutor provides pursuant to discovery, except for reasons related to the preparation of their cases;
  3. The Prosecutor and the Defence shall each maintain a log indicating the name, address and position of each person or entity which receives a copy of a witness statement, as well as the date of disclosure. If there is a perceived violation of the orders described herein, either the Prosecutor or the Defence shall notify the Trial Chamber which may either review the alleged violations or may refer the matter to a designee, such as the duty Judge. If the Trial Chamber refers the matter to a duty Judge, the duty Judge shall review the disclosure logs, make factual determinations, and report back to the Trial Chamber with a recommendation as to whatever action seems appropriate;
  4. The Prosecutor and the Defence shall instruct those persons who have received a copy of the statements not to reproduce them, under pain of sanction for contempt of the Tribunal, and to return the said documents as soon as they are no longer required;
  5. The Prosecutor and the Defence shall verify that those individuals who have received a copy of the statements comply strictly with their obligations not to reproduce them, and to return them as soon as they are no longer required.

For the purposes of this Decision, the term "public" does not include those entities or persons who are assisting the accused, his counsel or the Prosecutor in the preparation of their cases.

 

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

_________________________

Richard May

Presiding Judge

Dated this twelfth day of May 1998

At the Hague

The Netherlands

[Seal of the Tribunal]