IN THE TRIAL CHAMBER
Before:
Judge Patrick Robinson, Presiding
Judge Richard May
Judge O-Gon Kwon
Registrar:
Mr. Hans Holthuis
Decision of:
27 May 2004
PROSECUTOR
v.
SLOBODAN MILOSEVIC
_________________________________________________
ORDER TO THE ACCUSED ON PROTECTIVE MEASURES FOR DEFENCE WITNESSES
__________________________________________________
The Office of the Prosecutor
Ms. Carla Del Ponte
Mr. Geoffrey Nice
Mr. Dermot Groome
Ms. Hildegard Uertz-Retzlaff
The Accused
Mr. Slobodan Milosevic
Amici Curiae
Mr. Steven Kay, QC
Prof. Timothy L.H. McCormack
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 ("the International Tribunal"),
NOTING the Accused’s "Confidential List of Witnesses" filed on 13 April 2004, in which the Accused sets out, pursuant to Rule 65 ter of the Rules of Procedure and Evidence of the International Tribunal ("Rules"), information concerning 1631 witnesses he proposes to call to testify in his defence, including "the name or pseudonym of each witness",1
NOTING that only a small number of these witnesses are named, the majority being referred to solely by a pseudonym, and that a note at the commencement of the witness list states that "most of the witnesses have not made a final decision on the use or type of protective measures" they would apply for,
NOTING that, whilst the Rules and the jurisprudence of the International Tribunal provide for the Prosecution’s obligation to disclose a witness’s identity and other information in advance of the commencement of the trial2 and, in exceptional circumstances, closer to the time at which the witness will testify,3 apart from a decision of the Trial Chamber in the Delalic case,4 there is little regulating the conduct of Defence in such matters,
CONSIDERING that
NOTING that the witnesses the Accused intends to call are entitled to apply for protective measures and that the Trial Chamber will consider any such application in accordance with the jurisprudence, already set out by the Trial Chamber in this case:
[F]or…protective measures…to be granted the applicant must show that, should it become publicly known that he testified, there is a real risk to his security or that of his family. Furthermore, something more than a general expression of fear by the witness for his safety must be shown. Some specific reason must be established and the Trial Chamber must be satisfied that the fear expressed has an objective foundation.6
CONSIDERING HOWEVER that the application for such measures should not interfere with the immediate disclosure to the Trial Chamber, Prosecution and Amici Curiae, but not the public, of the names of the witnesses the Accused intends to call, subject to an application for delayed disclosure to the Prosecution and Amici Curiae of the identity of those witnesses for whom exceptional circumstances can be shown,7
CONSIDERING that, at any rate, no reason exists for not disclosing immediately to the Trial Chamber the identities of all witnesses on the Accused’s witness list,
PURSUANT TO Articles 20 and 21 of the Statute and Rules 54 and 75 of the Rules
HEREBY ORDERS AS FOLLOWS:
Done in English and French, the English text being authoritative.
______________
Judge Robinson
Presiding
Dated this twenty-seventh day of May 2004
At The Hague
The Netherlands
[Seal of the Tribunal]