Case No. IT-03-67-PT

IN TRIAL CHAMBER II

Before:
Judge Carmel Agius, Presiding
Judge Kevin Parker
Judge Jean Claude Antonetti

Registrar:
Mr. Hans Holthuis

Decision of:
8 December 2005

PROSECUTOR

v.

VOJISLAV SESELJ

__________________________________________

DECISION ON PROSECUTION’S SIXTH MOTION FOR PROTECTIVE MEASURES FOR WITNESSES

__________________________________________

The Office of the Prosecutor:

Ms. Hildegard Uertz-Retzlaff
Mr. Alex Whiting
Mr. Ulrich Müssemeyer

The Accused:

Mr. Vojislav Seselj

Standby counsel:

Mr. Tjarda Eduard van der Spoel

TRIAL CHAMBER II (“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 (“Tribunal”);

BEING SEISED OF “Prosecution’s Motion for Non-Disclosure of Unredacted Statements of Sensitive Witnesses with Confidential and Ex Parte Annexes A and B” (“ Motion”), filed by the Office of the Prosecutor (“Prosecution”) confidentially and partly ex parte on 5 October 2005,1 wherein the Prosecution requests protective measures in relation to statements of twenty-one (21) witnesses out of thirty-four (34) witnesses, submitted as a part of the supporting material to the Prosecution’s proposed amendment to the indictment ;2

NOTING that the proposed amendment to the indictment was granted on 2 June 2005,3 and that a further appearance of the accused Vojislav Seselj (“Accused”) was held on 3 October 2005 and 3 November 2005 pursuant to Rule 50(B) of the Rules of Procedure and Evidence of the Tribunal (“Rules”);4

NOTING that according to Rule 66(A)(i), the Prosecution is obliged to make available to the Accused copies of the supporting material that accompanied the proposed amended indictment, including the above-mentioned witness statements, within thirty (30) days of the further appearance of the Accused;

NOTING that in the Motion, the Prosecution requests that the following protective measures be granted in relation to the above-mentioned witness statements, when it discharges the obligation under Rule 66(A)(i):

(1) the assignment of pseudonyms to the twenty-one (21) witnesses as specified in the confidential and ex parte Annexes A and B to the Motion (“First Request”); 5

(2) the delayed disclosure of the identities of the same twenty-one (21) witnesses to the Accused and the Standby-Counsel, by way of disclosing their redacted witness statements within thirty (30) days of the further appearance of the Accused, placing their unredacted witness statements under seal and disclosing the unredacted statements not less than thirty (30) days before each witness is expected to testify (“Second Request”);6 and

(3) an order directing that the unredacted statements may only be disclosed to third parties by the Accused and the Standby-Counsel to the extent that such disclosure is directly and specifically necessary for the preparation of the defence (“Third Request (a)”), and that the disclosure to third parties require them to obtain signatures of the third parties on non-disclosure agreements (“Third Request (b)”);7

NOTING that the Accused objected to the protective measures requested by the Prosecution in his submission number 114;

NOTING the Trial Chamber’s previous decisions on protective measures for witnesses;8

CONSIDERING Rule 69 of the Rules, which provides that “(A) In exceptional circumstances, the Prosecutor may apply to a Judge or Trial Chamber to order the non-disclosure of the identity of a victim or witness who may be in danger or at risk until such person is brought under the protection of the Tribunal. S...C (C ) Subject to Rule 75, the identity of the victim or witness shall be disclosed in sufficient time prior to the trial to allow adequate time for preparation of the defence”;

CONSIDERING Rule 75 of the Rules, which provides that “(A) A Judge or a Chamber may S...C order appropriate measures for the S...C protection of victims and witnesses , provided that the measures are consistent with the rights of the accused”;

CONSIDERING that the Trial Chamber has a duty to strike a fair balance between the protection of victims and witnesses on the one side, and the right of the public to access information and the right of the Accused to a fair trial on the other side, the latter encompassing, in particular, the Accused’s right to be allowed adequate time for the preparation of his defence, and to cross-examine witnesses testifying against him;

CONSIDERING that any curtailment of the Accused’s right to a fair trial must be justified by a genuine fear for the safety of the witness or the members of his /her family;9

FINDING that with regard to the First Request, the Trial Chamber is satisfied that the fears expressed by these witnesses as to their personal safety and/or the safety of their relatives are legitimate and justified, and believes that the assignment of pseudonyms is warranted in order to protect the privacy and security of the witnesses and their relatives;

CONSIDERING that in the Second Request, the Prosecution seeks to withhold the identifying information of twenty-one (21) witnesses out of thirty-four (34) witnesses from the Accused until at least thirty (30) days prior to the expected date of their testimony;

CONSIDERING that the Accused should be allowed adequate time for the preparation of his defence;

CONSIDERING that the protective measure of a pseudonym will prevent the public , but not the Accused, from knowing the identity of a particular witness, whereas the protective measure of the delayed disclosure of the identity of a witness withholds this information also from the Accused, the delayed disclosure therefore offering a higher degree of protection;10

CONSIDERING that the more extreme the protection sought, the more onerous will be the obligation upon the applicant to establish the risk asserted;11

NOTING the jurisprudence of the Tribunal that sets out elements to be taken into account in determining applications made under Rule 69 (A) of the Rules;12

CONSIDERING that Rule 66(C) of the Rules, upon which the Prosecution relies for the purposes of the Second Request, is not applicable to the present case;13

FINDING that with regard to the Second Request, having reviewed the circumstances of each particular witness described in the confidential and ex parte Annexes A and B to the Motion, the Trial Chamber is satisfied that in relation to witnesses VS-030 and VS-1024, as specified in the Annexes, the strict requirements of Rule 69(A) of the Rules have been met, and that the delayed disclosure of the identifying information of these witnesses to the Accused and the Standby-Counsel is warranted ;

FURTHER FINDING that in light of the previous practice of this Trial Chamber in the present case14, the Accused and the Standby Counsel should be entitled to view the identifying information of these witnesses no later than thirty (30) days before the commencement of the trial , not thirty (30) days “before each witness is expected to testify”, as proposed by the Prosecution;15

NOTING, in relation to the date of the delayed disclosure, that if, by the time the Prosecution will be required to disclose the identifying information of these witnesses to the Accused, the Prosecution is still convinced that a further delay of this disclosure is warranted, it may apply for a variation of these protective measures, and supply the Trial Chamber with a new risk assessment;

FINDING that in light of the information provided by the Prosecution in the confidential and ex parte Annexes A and B to the Motion, the circumstances of the following witnesses do not justify the delayed disclosure of their identifying information to the Accused and the Standby-Counsel: VS-1028, VS-1067, VS-1111, VS -1057, VS-1109, VS-1026, VS-1035, VS-1110, VS-1068, VS-1069, VS-1022, VS-1023, VS -1051, VS-1025, VS-1060, VS-1019, VS-1096, VS-1064 and VS-1095;

FINDING that the protective measure suggested in the Third Request (a) was previously regulated by this Trial Chamber in the March 2003 Seselj Decision and the February 2004 Seselj Decision, whereby, pursuant to Rule 53(A) of the Rules, the Trial Chamber inter alia ordered the Accused not to disclose , to the “public”,16 any material disclosed to the Accused under Rule 66(A)(i) and (ii) and Rule 68 of the Rules that has been identified by the Prosecution as not being in the public domain;17

FURTHER FINDING that the protective measures laid out in the March 2003 Seselj Decision and the February 2004 Seselj Decision shall be respected both by the Accused and the Standby Counsel, and that it extends to the witnesses identified in the present Decision;

CONSIDERING that in its previous motions for protective measures, the Prosecution has not requested non-disclosure agreements as proposed in the Third Request (b);

FINDING that with respect to the Third Request (b), it is unnecessary or inappropriate to require the Accused and the Standby-Counsel to have third parties sign non-disclosure agreements, in light of a general duty imposed on both parties not to disclose material classified as confidential by the Trial Chamber, and other protective orders in place, including those in the present Decision, the March 2003 Seselj Decision and the February 2004 Seselj Decision;18

FOR THE FOREGOING REASONS, pursuant to Articles 21 and 22 of the Statute of the Tribunal and Rules 53(A), 54, 69 and 75 of the Rules

HEREBY GRANTS the Motion in part and ORDERS as follows:

1. Those witnesses who were granted pseudonyms in earlier proceedings before this Tribunal (VS-1111, VS-1035, VS-1022, VS-1096, VS-1064, VS-1095) shall continue to be protected thereby, in accordance with Rule 75(F)(i) and (ii) of the Rules. The pseudonyms of these witnesses may be varied to reflect those assigned by the Prosecution to witnesses in this case.

2. The following witnesses mentioned in the confidential and ex parte Annexes A and B to the Motion are assigned pseudonyms for use when referring to the protected witnesses in public until such time when the witnesses are called to testify, and the protection set out in the present Decision shall apply to the protected witnesses until further Order: VS-1028, VS-1067, VS-1057, VS-1109, VS-1026, VS-1110, VS-1068 , VS-1069, VS-030, VS-1024, VS-1023, VS-1051, VS-1025, VS-1060 and VS-1019.

3. The delayed disclosure of witness statements of the following witnesses is granted : VS-030 and VS-1024. The Prosecution shall disclose to the Accused and to the Standby Counsel the unredacted witness statements of these witnesses no later than thirty (30) days before the commencement of the trial, or unless otherwise ordered by the Trial Chamber.

4. The delayed disclosure of witness statements of the following witnesses is denied : VS-1028, VS-1067, VS-1111, VS-1057, VS-1109, VS-1026, VS-1035, VS-1110, VS-1068 , VS-1069, VS-1022, VS-1023, VS-1051, VS-1025, VS-1060, VS-1019, VS-1096, VS-1064 and VS-1095.

5. The obligations detailed in the Trial Chamber’s March 2003 Seselj Decision and February 2004 Seselj Decision apply both to the Accused and the Standby Counsel, are not limited by date and continue in force throughout the proceedings or until further Order.

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

Dated this eighth day of December 2005
At The Hague
The Netherlands

______________________
Judge Carmel Agius
Presiding

[Seal of the Tribunal]


1 - Dated 29 September 2005.
2 - Prosecution’s Motion for Leave to Amend the Indictment with Confidential and Ex Parte Supporting Materials, 1 November 2004 (dated 22 October 2004).
3 - Decision on Prosecution’s Motion for Leave to Amend the Indictment, 2 June 2005 (dated 27 May 2005).
4 - Further Appearance of 3 October 2005, T. 421-462; Further Appearance of 3 November 2005, T. 463-466.
5 - Requested in the description of each witness in “Ex Parte and Confidential Annex A Prosecution’s Motion for Protective Measures to Sensitive Witnesses” attached to the Motion.
6 - Motion, para. 18.
7 - Ibid.
8 - Decision on Prosecution’s Motion for Order of Non-Disclosure, 13 March 2003 (“March 2003 Seselj Decision”); Decision on “Prosecution’s Motion for Non-Disclosure of Materials Provided Pursuant to Rules 66(A)(ii) and 68 and for Protective Measures for Witnesses during the Pre-Trial Phase”, 13 February 2004 (dated 11 February 2004) (“February 2004 Seselj Decision”); Confidential and Ex Parte Decision on Prosecutor’s Motion for Protective Measures for Witnesses During the Pre-Trial Phase, 21 December 2004 (dated 16 December 2004) (“December 2004 Seselj Decision”); Decision on Prosecutor’s Third and Fourth Motion for Protective Measures for Witnesses During the Pre-Trial Phase with Confidential and Ex Parte Annex, 1 June 2005 (dated 27 May 2005) (“June 2005 Seselj Decision”); Decision on Prosecution’s Fifth Motion for Protective Measures for Witnesses During the Pre-Trial and Trial Phases, 6 July 2005 (“July 2005 Seselj Decision” ).
9 - Prosecutor v. Tadic, Case No. IT-94-1-T, Decision on the Prosecutor’s Motion Requesting Protective Measures for Witness R, 31 July 1996, para. 6; Prosecutor v. Mrksic, Radic & Sljivancanin, Case No. IT-95-13/1-PT, Decision on Confidential Prosecution Motions for Protective Measures and Non-Disclosure and Confidential Annex A, 9 March 2005, pp. 4-5.
10 - June 2005 Seselj Decision, p. 4.
11 - Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T, Decision on Prosecution’s Motion for Trial Related Protective Measures (Bosnia), 30 July 2002, para. 5; December 2004 Seselj Decision, para. 16.
12 - Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T, Partly Confidential and Ex Parte Decision on Prosecution Motion for Provisional Protective Measures Pursuant to Rule 69, 19 February 2002, paras 25-26; Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T, First Decision on Prosecution Motion for Protective Measures for Sensitive Source Witnesses, 3 May 2002, paras 3-4; Prosecutor v. Jovica Stanisic and Franko Simatovic, Case No. IT-03-69-PT, Decision on Confidential Prosecution Motions for Protective Measures, 26 October 2004 (“Stanisic Decision”), p. 4 and footnote 5; December 2004 Seselj Decision, paras 9, 13-14.
13 - Prosecutor v. Radoslav Brdjanin, Case No. IT-99-36-T, Ex-Parte – Confidential – Under Seal Decision on Prosecution’s Motion to Exempt Specific Material from Immediate Disclosure, 6 June 2003, para. 16.
14 - December 2004 Seselj Decision; June 2005 Seselj Decision; July 2005 Seselj Decision.
15 - Also see the following recent decisions where the delayed disclosure no later than thirty days prior to the anticipated start of trial was granted, despite the Prosecution’s requests to delay the disclosure until thirty days prior to the expected date of the concerned witnesses’ testimony: Prosecutor v. Ramush Haradinaj, Idriz Balaj, Lahi Brahimaj, Case No. IT-04-84-PT, Decision on Prosecution’s Application for Pre-Trial Protective Measures for Witnesses, 20 May 2005 (“Haradinaj Decision”); Stanisic Decision; and Prosecutor v. Momcilo Perisic, Case No. IT-04-81-PT, Decision on Prosecution Motion for Protective Measures for Witnesses, 27 May 2005.
16 - The March 2003 Seselj Decision (p. 3) and the February 2004 Seselj Decision (p. 4) define the “public” as “all persons, governments, organisations, entities, clients, associations, and groups other than the Judges of the Tribunal, the staff of the Registry (assigned to either Chambers or the Registry), and the Prosecutor and the Defence [including the Accused and the Standby-Counsel].” The Decisions further state that “[t]he ‘public’ specifically includes, without limitation, family, friends and associates of the Accused; accused persons in other cases or proceedings before the Tribunal; defence counsel in other cases or proceedings before the Tribunal; and the media and journalists.”
17 - This includes, (a) the identities and whereabouts of witnesses to the extent that these are known to the Accused; and (b) any evidence (including documentary, physical or other evidence) or any written statement of a witness or potential witness, or the substance, in whole or in part, of any non-public evidence, statement or prior testimony disclosed to the Accused pursuant to Rules 66(A)(i) and (ii) and 68 of the Rules. (The March 2003 Seselj Decision, pp. 3-4; the February 2004 Seselj Decision, p. 4)
18 - Also see, Prosecutor v. Sefer Halilovic, Case No. IT-01-48-PT, Decision on Prosecution’s Request for Order of Non-Disclosure, 22 January 2004, p. 3; Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T, Partly Confidential and Ex Parte Decision on Prosecution Motion for Protective Measures for Victims and Witnesses, 19 March 2002, para. 12; Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T, Decision on Prosecution Request to File Confidentially Rule 65 ter Witness and Exhibit Lists and Witness Statements Required by Rule 66(A)(ii), 21 March 2002, p. 3; Haradinaj Decision, pp. 5-6; Prosecutor v. Ljube Boskoski and Johan Tarculovski, Case No. IT-04-82-PT, Decision on Prosecution’s Motion for Protective Measures for Victims and Witnesses, 20 June 2005, p. 4.