Before: Judge McDonald, Presiding Judge Stephen Judge Vohrah Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh Decision: 10 August 1995 PROSECUTOR v. DUSKO TADIC A/K/A "DULE" ___________________________________________________________________________
SEPARATE OPINION OF JUDGE STEPHEN ON THE PROSECUTOR'S MOTION REQUESTING PROTECTIVE MEASURES FOR VICTIMS AND WITNESSES ___________________________________________________________________________ The Office of the Prosecutor: Mr. Grant Niemann Counsel for the Accused: Mr. Michail Wladimiroff DECISION OF JUDGE STEPHEN This Tribunal is faced, in this its first case, the prosecution of Dusko Tadic, with a
problem posed for it by an interlocutory application by the prosecution seeking protective
measures regarding the identity of certain prosecution witnesses. Although the application is concerned only with the case of Dusko Tadic and this
Chamber must decide it solely by reference to this case, it is clear that the problem
which the Chamber confronts will not be unique to this case but is most likely to recur in
many, if not most, cases that will come before it. The problem concerns the extent to which, if at all, the identity of witnesses who fear
for their safety or that of their family or associates should they give evidence can be
kept from the public, from the defence or from both. It is a problem inherent in the
circumstances of the Tribunal. The Tribunal has no police force or protection service that
can care for the safety of witnesses once they leave the precincts of the Tribunal. It has
no witness protection programme nor the funds to provide one. A number of the witnesses
live in the territory of former Yugoslavia or have family there and fear that they or
their family may be harmed, either in revenge for having given evidence or in order to
deter others. Other witnesses may fear that even as refugees in other countries they may
be at risk. In the event, a number of witnesses in this case have sought anonymity, either
as a condition of giving evidence or as a request that may mature into such a condition. The problem is, of course, how to respond to the very natural concern of witnesses
while at the same time according justice to the accused and ensuring a fair trial. An understanding of the problem begins with an appreciation of the origins of this
Tribunal. Earlier resolutions of the Security Council in 1991 and 1992 led to Resolution
808 (1993) which decided that an international tribunal for the prosecution of persons
responsible for serious violations of international humanitarian law in former Yugoslavia
be established and requested the Secretary General to submit a report on all aspects of
the matter. This the Secretary General did and in dealing with trials to be conducted by
the Tribunal paragraph 99 of his Report reads:
Paragraph 103 reads:
Each of the four above paragraphs is followed by recommended Articles to give effect to
them. On adoption by the Security Council , these became Articles 20, 21 and 22 of the
Statute of the Tribunal. Article 20(1) and (4), parts of Article 21 and the whole of Article 22 are of direct
relevance to this application. Indeed they set the scene for the problem raised by the
application. They read as follows: Article 20(1): Commencement and Conduct of Trial Proceedings
Article 20(4):
Article 21: Rights of the Accused
Article 22: Protection of Victims and Witnesses
In conformity with Article 15 of the Statute, the judges of the Tribunal have adopted
rules of procedure and evidence. Relevant to the present application are the following
rules which seek to give effect to the above Articles of the Statute: Rule 66: Disclosure by the Prosecutor (A) The Prosecutor shall make available to the defence, as soon as practicable after
the initial appearance of the accused, copies of the supporting material which accompanied
the indictment when confirmation was sought as well as all prior statements obtained by
the Prosecutor from the accused or from prosecution witnesses. (B) The Prosecutor shall on request, subject to Sub-rule (C) permit the defence to
inspect any books, documents, photographs and tangible objects in his custody or control,
which are material to the preparation of the defence, or are intended for use by the
Prosecutor as evidence at trial or were obtained from or belonged to the accused." Rule 67: Reciprocal Disclosure
Rule 68: Disclosure of Exculpatory Evidence
Rule 69: Protection of Victims and Witnesses
Rule 70: Matters not Subject to Disclosure
Rule 75: Measures for the Protection of Victims and Witnesses
Rule 79: Closed Sessions
Beginning with the Report of the Secretary-General and carrying on through the above
provisions of the Statute and the Rules there can be discerned an apparent concern for
and, indeed, a degree of tension between what the Secretary-General calls the
"axiomatic" need fully to respect "unconditionally recognised standards
regarding the rights of the accused" and the quite distinct need "to ensure the
protection of victims and witnesses." It is the reconciliation of these two needs
that is the concern of this Chamber in this application. Before turning to decided cases for whatever assistance they may provide, it is proper
first to examine the terms of the Statute and Rules set out above. It is noteworthy that
it was very much part of the prosecution case that it is the Statute and Rules that are
determinative and that little is to be gained from case law because of the unique nature
of this Tribunal. Article 20(1) instructs Trial Chambers to ensure that a trial is "fair" and
"that proceedings are conducted......with full respect for the rights of the accused
and due regard for the protection of victims and witnesses." Then Article 21 sets out
what are those rights of the accused that are to be given full respect, while Article 22
directs the Tribunal to make rules for witnesses' protection including but not limited to
in camera proceedings and protection of identity. There is a marked contrast, its significance conceded by the prosecution, to be seen in
the language of Article 20(1) between what it says about ensuring that proceedings are
conducted with full respect for the rights of the accused and what it then says
about proceedings being conducted with due regard for the protection of victims and
witnesses. This is, if anything, given more emphasis by the further contrast between the
detailed and emphatic enumeration of distinct rights of the accused in Article 21 and the
rule-making direction in Article 22, which does no more than direct that provision be made
in the Rules for witness protection, in particular two specific forms of such protection,
in camera proceedings and protection of identity. While these Articles, rather than resolving the current problem, essentially lay the
ground for it, they do at the same time provide some guidance towards its resolution.
First are the contrasts noted above in both the tone and the substance of Articles 21 and
22; secondly there is the striking difference between the entitlement to a "fair and
public trial" conferred by Article 21(2), expressly made "subject to article
22", and all the other rights of the accused specified in the remainder of Article
21, which are wholly unqualified by any reference to Article 22. The fact that Article
21(2) is made subject to Article 22 makes all the more significant the unqualified
nature of the other rights conferred on the accused by Article 21. It surely is tantamount
to an assertion that the remainder of Article 21 is not subject to Article 22; otherwise I
find the confining of the reference to Article 22 solely to Article 21(2) as inexplicable.
That phrase "subject to Article 22" itself repays analysis. What it is in
Article 21(2) that is to be subject to Article 22 can scarcely be the combined concept
which precedes that phrase, the concept of "a fair and public hearing." It must
rather be only one component of that concept, the public quality of the hearing and not
its fairness, that is made subject to Article 22, and this for two reasons: first,
because, while Article 22 specifically contemplates non-public hearings, it certainly does
not contemplate unfair hearings; secondly, because Article 20(1) itself, unqualifiedly and
quite separately from Article 21, requires a Trial Chamber to ensure that a trial is
"fair." If this understanding of the phrase "subject to Article 22" be
correct and it is primarily the public quality, not the fairness, of a hearing that may
have to give way to the need to protect victims and witnesses, that in turn suggests that
the kind of protection being thought of in Article 22 is essentially those measures that
will affect the public nature of the trial, rather than its fairness. Perhaps it is permissible to seek further guidance from the Secretary-General's Report
and this in two ways; first, in paragraph 108, which introduces Article 22, he refers to
the need for protection measures for victims and witnesses "especially in cases of
rape or sexual assault." What is special about such witnesses is not, of course, that
by giving evidence they or their family, more than other victims who give evidence, have
reason to fear retaliation. What does make their case special is the combination of
possible social consequences of it becoming generally known in communities in the former
Yugoslavia that a woman has been a rape victim and also the often acute trauma of facing
one's attacker in court and being made to relive the experience of the rape. The customary
protection measures to guard against these two possible consequences are in camera
proceedings, devices to avoid confrontation with the accused in court and careful control
of cross-examination. That being so, it leads me to the conclusion that it is measures
such as those, and not any wholesale anonymity of witnesses, that Article 22 primarily
contemplates. While no one of these several considerations is on its own conclusive as to the meaning
of the Statute, their combined effect is, to me, convincing. Add to this the express and
unqualified terms of Article 21 with its spelling out of specific rights of the accused,
including the "minimum guarantees" in (4), as to all of which Article 20(1)
requires the Trial Chamber to ensure that they are accorded full respect, and it seems
clear that the according of anonymity to prosecution witnesses in the way proposed in the
present application, which is likely substantially to disadvantage the defendant, is not a
measure contemplated by the terms of the Statute. The express terms of Article 21: that all persons shall be equal and that the accused
shall have "the following minimum guarantees, in full equality" including a
guarantee of being tried in his own presence and of having the right "to examine, or
have examined, the witnesses against him....." is wholly consistent with this
interpretation of the Statute and sits ill with any other view of it. My conclusion therefore is that the Statute does not authorise anonymity of witnesses
where this would in a real sense affect the rights of the accused specified in Article 21
and in particular the "minimum guarantee" in (4). Of course, the Statute clearly
mandates the protection of victims and witnesses, including protection of their identity.
But this is not to say that it mandates unqualified anonymity of witnesses. Simple
protection of identity is something that in appropriate cases, as with offences involving
minors, in certain matrimonial cases and where gross indecency and rape are involved, has
been habitually accorded by Courts in many jurisdictions for very many years but by
recourse to in camera proceedings or restrictions on media reporting without involving the
ultimate step of concealing the identity of a witness from the accused and his counsel. Before leaving the Statute it should be appreciated what full anonymity of a witness
could entail were all the relief sought by this application to be granted and fully
availed of by the prosecution. The cumulative effect would permit, for the testimony of
these important and vulnerable witnesses, hearings in camera, the name and other
identifying data of a witness withheld from the defence and the testimony given from a
special room linked to the courtroom by closed circuit television and the use of voice
altering devices and the image of the witness either so distorted as to be unrecognisable
or not transmitted at all to the defence. The consequence could be that to the defence the
accuser would appear as no more than a disembodied and distorted voice transmitted by
electronic means. Yet this could be the means of bringing before the Chamber evidence
which the prosecution has described as either very important or important, evidence which
could lead to the accused's conviction on very serious charges. In view of my conclusion as to the Statute I need spend less time in examining the
Rules. Those that I have set out above, which I believe to be the relevant Rules, largely
speak for themselves. Rules 66, 67 and 68 are all concerned with ensuring full and early
disclosure of all evidence, including details of witnesses to be called. They set the
pattern for the rest of the Rules, a pattern concerned to ensure, in compliance with the
Statute, a fair trial of an accused. The only provisions at all dealing with anonymity of witnesses occur in Rules 69, 70
and 75. But Rule 69 is telling in the very partial nature of its exception to full
disclosure; it is confined to "exceptional circumstances" and even then only
permits of non-disclosure of identity until a victim or witness "is brought under the
protection of the Tribunal." Rule 70 is inapplicable to the present case but its
presence, like that of Rule 69, is significant, stressing as it does that it is a very
limited exception to the general rule of full disclosure. Rule 75(A) is made expressly subject to "the rights of the accused" and is
not specifically concerned with anonymity but very generally with "the privacy and
protection of victims and witnesses." In view of what I say below with regard to
certain witnesses who were apparently in the role of mere bystanders, it has some present
operation in their case but subject always to the observance of the "guaranteed"
rights of the accused. Rule 75(B) is highly significant since it expressly provides for an
application such as the present but, while being entirely precise as to what may be
ordered, confines itself in para. (i) to preventing disclosure of identity of victims or
witnesses "to the public or the media" There is thus in (i) no question of
non-disclosure to the accused. The closest that Rule 75 comes to that is in (B) (iii) but
that reference may refer to no more than relieving a witness from the ordeal of
confrontation thus, as it says, facilitating the testimony of vulnerable victims and
witnesses. Rule 75B(iii) would clearly cover the relieving of a witness from the ordeal of
face to face confrontation and in the case of vulnerable witnesses it would also extend to
non-disclosure of their names where this does not in a real sense affect the rights of the
accused. But as to any general anonymity in the case of witnesses who have had dealings
with the defendant and are known to him, I would regard it as curious indeed for the
Rules, after such specific and elaborate provisions for full disclosure, to introduce so
radical a concept of anonymity by such indirect and ambiguous wording. That said, there are some of the witnesses for whom protection is sought by the
prosecution with whom I deal below and to whom special circumstances apply. In discussing
below the decided cases I refer to Jarvie's case and the concept of identity as known
to the accused. That concept can be significant in two quite different ways. The first
is the common case with under-cover police witnesses, as instanced in Jarvie, where
the accused has known the witness in the past but only by a false name. In that case what
justice may require, when protection of witnesses is important, is that only the false
name should be revealed. The second significance of the concept is where the witness has
been a mere chance observer who is not known to the accused by any name or at all, having
had no direct contact with him but having seen occurrences involving the accused to which
he can testify. In the case of two witnesses, J and K, bystanders having no other involvement with the
accused than as coincidental observers of alleged acts of his, on the information at
present disclosed to the Chamber there would seem to be no question of their identity
being either already known to him or possessing particular significance for his defence if
revealed to him. If, as rather appears from the material before the Chamber, witness J and K do fall
into this category then different considerations apply to them from those affecting
witnesses who have had direct prior dealings with the accused and whose identity as know
to him seem to me to be essential so that he and his counsel can make sense of their
evidence and place it in its contextual setting, thus allowing the defence to be conducted
effectively. This was a distinction acknowledged by defence counsel in his submission before us as
possibly applying to witness J and K and it leads to different consequences in their case.
True, to conceal the names and addresses of these two witnesses may prevent the making of
prior enquiry, conceivably going to their credit, but in no way hinders the defence in
understanding the role of the witness and what part, if any, he or she played as an
observer of the events which the witness describes. If it proves to be the case that witnesses J and K do, in fact, clearly fall into this
category of mere chance observers then, having regard to all the circumstances of
understandable fear of consequences that witnesses have, I would favour the non-disclosure
of the name and address of such witnesses since knowledge of their identity would not add
to the information which the defence needs to cross-examine them about the events to which
they testify Such non-disclosure may, it is true, impede or perhaps prevent enquiries as
to the past history of these witnesses, which might go to credit, but it will not obstruct
cross-examination as to the matters observed by them and of which they give evidence. It
therefore does not so hinder the defence as to deny that element of fairness stipulated
for in Articles 20(1) and Article 21(2) nor do violence to his guaranteed rights under
Article 21(4); at the same time it gives effect to Article 22. I can conclude my survey of the Rules by saying, in sum, that they give no support for
anonymity of witnesses at the expense of fairness of the trial and the rights of the
accused spelt out in Article 21. In this they are, in their entirety, consistent with the
Statute I turn now to the cases. They are, quite generally and in a variety of jurisdictions,
in favour of allowing an accused and his counsel to see and hear the witnesses as they
give their evidence and are cross-examined. I begin with a general proposition, from English law, unaffected as it is by any
special statutory or constitutional provision. In D v National Society for the
Prevention of Cruelty to Children 1978 AC at p. 232 Lord Simon of Glaisdale said: "The public interest that no innocent man should be convicted of crime is so
powerful that it outweighs the general public interest that sources of police information
should not be divulged,.............:". Then, in the leading case of Kostovski 1989 Series A no. 166, the European Court
of Human Rights (the EC of HR) expressed general views on the question of anonymous
witnesses. The background of the case is informative and emphasises its particular
relevance. The Dutch Supreme Court in Kostovski had given effect "with the increase in
violent, organised crime" to a felt need "to protect those witnesses who had
justification for fearing reprisals, by granting them anonymity." The Dutch
Government had set up in 1984 a Commission on Threatened Witnesses which had reported that
"In some cases one cannot avoid anonymity of witnesses.....at present there are forms
of organised criminality of a gravity that the legislature of the day would not have
considered possible." It added that "in a society governed by the needs of
law.....the frustration of the course of justice resulting [from this situation] cannot
possibly be accepted." The Commission accordingly recommended that, where a witness
would run an unacceptable risk if his or her identity were known, an anonymous statement
might be admitted in evidence if the witness had been examined by an examining magistrate,
the accused being given a right of appeal against the latter's decision to grant
anonymity. The Dutch Government decided to defer the enacting of legislation to implement
these recommendations of the Commission pending the EC of HR's decision in Kostovski. Kostovski relied on the European Convention for the Protection of Human Rights and
Fundamental Freedoms, Article 6, paras. 1 and 3(d), which are the antecedent of and hence
strikingly similar to Article 21 paras. 2 and 4(d) of our Statute, save that in our
Statute para. 2 is made subject to Article 22; not so of course, as noted above, the
detailed provisions of para. 4 of Article 21. It is noted that no equivalent of Article 22
appears in the European Convention; decisions on it must be read in the light of that
fact. What the EC of HR said in Kostovski about anonymity is of particular relevance
to the present case. It said, at p. 21: "The right to a fair administration of justice holds so prominent a place in a democratic society......that it cannot be sacrificed to expediency. The Convention does not preclude reliance, at the investigation stage of criminal proceedings, on sources such as anonymous informants. However, the subsequent use of anonymous statements as sufficient evidence to found a conviction, as in the present case, is a different matter. It involved limitations on the rights of the defence which were irreconcilable with the guarantees contained in Article 6. In fact the Government accepted that the applicant's conviction was based 'to a decisive extent' on the anonymous statements." It is noteworthy that the relevant part of Article 6 of the European Convention is
almost word for word the same as Article 21 (4) of the Statute of the Tribunal. The Court
had earlier said, at p. 20, that: "If the defence is unaware of the identity of the person it seeks to question, it
may be deprived of the very particulars enabling it to demonstrate that he or she is
prejudiced, hostile or unreliable. Testimony or other declarations inculpating an accused
may well be designedly untruthful or simply erroneous and the defence will scarcely be
able to bring this to light if it lacks the information permitting it to test the author's
reliability or cast doubt on his credibility. The dangers inherent in such a situation are
obvious." Kostovski is a recent decision. It relied upon the Court's earlier decision in Unterpertinger
1986 Series A no. 110 where there had been a reading out in Court of statements made by
witnesses to the police without any opportunity for cross-examination. In that case the EC
of HR, at p. 11, said of this use of these statements that: "the use made of them as evidence must nevertheless comply with the rights of the
defence, which it is the object and purpose of Article 6 to protect. This is especially so
where the person 'charged with a criminal offence', who has the right under Article 6
para. 3(d) to 'examine or have examined' witnesses against him, has not had an opportunity
at any stage in the earlier proceedings to question the persons whose statements are read
out at the hearing." The Court went on to say that the Austrian Court had treated these statements to the
police: "as proof of the truth of the accusations made by the women at the time. Admittedly, it was for the Court of Appeal to assess the material before it as well as the relevance of the evidence which the accused sought to adduce; but Mr. Uterpertinger was nevertheless convicted on the basis of 'testimony' in respect of which his defence rights were appreciably restricted. That being so, the applicant did not have a fair trial and there was breach of
paragraph 1 of Article 6 of the Convention, taken together with the principles inherent in
paragraph 3(d)". There are a number of recent decisions of the EC of HR which bear on the matter and
which follow the decision in Kostovski and Unterpertinger and specifically
cite with approval the decision in Kostovski - Windisch v Austria (Case 25
of 1989) Delta v France (Case 26 of 1989) and Ludi v Switzerland, a 1992
decision of the Court. The first two of these cases found a violation both of the
accused's right to a fair and public hearing and of his right to examine or have examined
witnesses against him at trial, a right conferred by the European Convention. The relevant
words of the Convention are, of course, very similar to the relevant Articles of our
Statute; not suprisingly since the Convention formed a model on which these parts of the
International Covenant on Civil and Political Rights was based. That Covenant in turn was
the inspiration for much in the Statute of this Tribunal; thus the Secretary-General
refers in paragraph 106 of his Report to Article 21 of our Statute as giving effect to
those internationally recognised standards regarding the rights of the accused which are
"in particular, contained in Article 14 of the International Covenant." The 1992 case of Ludi v Switzerland distinguished on the facts the cases of Kostovoski
and Unterpertinger but nevertheless held that the rights of the defence were so
restricted as to violate the right to a fair trial. While acknowledging the absence from
the Convention of an equivalent of Article 22 of our Statute, nevertheless there exists a
solid body of decisions in the EC of HR which is consistent with the interpretation which
I place upon the Statute and Rules of the Tribunal. There are decision which have been able to take a different view by emphasising that
admissibility and assessment of evidence is primarily a matter for regulation by national
law and national courts - first Asch v Austria, 1990. in which the Court
distinguished Unterpertinger and Delta on the very special facts present in Asch;
it did not, in any event, concern an anonymous witness but, rather the case of hearsay
evidence. Then in Hayward v Sweden 1990, a decision not of the Court but of the
Commission, reliance was again placed upon admissibility of evidence being a matter for
national Courts. This is not, however, a consideration of any relevance in the case of
this Tribunal. In an interesting article by Osborne in [1993] Criminal Law Review p. 255
all these EC of HR cases are discussed and the conclusion is reached that Unterpringer,
Kostovski and Windisch correctly state the effect of the European
Convention. With respect, I am of the same view; the general principle enunciated by the
EH of HR in those cases and in particular in Kostovski I regard as providing clear
guidance as to what are internationally recognised standards regarding the rights of an
accused. In the United States the situation is affected by the 6th Amendment and its provision
for confrontation of accusers. In the case of Delaware v Van Arsdall 1989 the
Supreme Court, at p. 683, cited with approval Pointer v Texas 1965 380 US 400 to
the effect that "the main and essential purpose of confrontation is to secure for
the opponent the opportunity of cross-examination" (the Court's own emphasis).
After acknowledging that there might be imposed reasonable limits on cross-examination
based on concerns about harassment, prejudice, confusion of the issues, the witness'
safety and so on, the Court said that there was nevertheless a guarantee of an opportunity
for effective cross-examination and by cutting off all questioning about a particular
event that might have given a witness a motive for favouring the prosecution, the trial
court had violated the accused's constitutional right of confrontation. The Supreme Court, by a majority, did not in fact set aside the conviction because,
under well established doctrine, the constitutional error was, in the particular
circumstances of the case "harmless beyond a reasonable doubt" However it left
no room for doubt that there is a violation of an accused's constitutional rights if he
is: "prohibited from engaging in otherwise appropriate cross-examination designed to
show a prototypical form of bias on the part of the witness". Passing from the special case of the U.S. and its constitutional right of confrontation, other jurisdictions have dealt with the problem. In Jarvie v Magistrates' Court of Victoria a 1994 decision of the Appeal
Division of the Supreme Court of Victoria, the facts were very special. The identity as
known to the accused of the undercover police witnesses was, of course, well known to
the accused but not their true names. It was their true names that the Court held
might be concealed. There was therefore no question of the defence not knowing who was
testifying, only ignorance of their true identity. This is very different from the sort of
anonymity in question in the present case, where, if granted, the defence would be left in
ignorance of who it is who is giving evidence of dealings the accused is alleged to have
had with the witness. It was cross-examination as to credit, and only credit, not as to relevant facts, that
was in issue in Jarvie. Hence the decision. Brooking J. in the leading judgment,
while holding that the true identity could be withheld, said that: "the overriding need for a fair trial must mean that in no circumstances can the
identity of a witness be withheld from a defendant if there is good reason to think that
disclosure may be of substantial assistance to the defendant in combating the case for the
prosecution. ....... whatever the strength of the case in favour of non-disclosure, it
cannot prevail. ........the right to a fair trial must not be substantially
impaired." Two English cases, R. v. Watford Magistrates [1992] TLR 285 and R. v. Taylor
[1994] TLR 484, which might be thought to support the prosecution case, also turn on very
special facts. The first related only to part-hear committal proceedings before a
magistrate. The defendants were "a group of youths [who] rampaged through Watford
city centre, violently attacking four persons", apparently total strangers to them.
The Divisional Court upheld the magistrate, who had allowed the defendants' counsel but
not the defendants to see the witnesses. However, it might well be, the Court said, that,
when the matter came to trial, on substantial grounds being shown justice would require
the witnesses' identity to be disclosed. The Court added that, were the accused in due
course to be committed for trial, the question of the witnesses' anonymity would be for
the trial judge to determine. From the scant report it seems that the matters of identity
of the witnesses were irrelevant, they simply happened to be present when the rampage
occurred. In this respect, the positions of witness J and K are, to a degree, comparable. In R. v.Taylor again only counsel, but not the defendants, had been permitted to
see a witness, whose name and address was not revealed, give her evidence in person and be
cross-examined. The Court of Appeal held that "the fundamental right of a defendant to see and
know the identity of his accusers, including witnesses for the Crown" might only be
denied "in rare and exceptional circumstances." The Court then specified various
factors to which, in exercising his discretion, a trial judge should have regard. One was
that "The Crown must satisfy the Court that the creditworthiness of the witness had
been fully investigated" and the Court said that there were in that case no
"grounds for supposing that the witness was not impartial or had an axe to
grind." In the present case the prosecution has very frankly admitted that it cannot
investigate creditworthiness since the enquiries in former Yugoslavia which that would
necessitate would themselves result in wide disclosure of the identity of the witness in
question. A special factor in Taylor was that the defendants could, in any event,
see the witness giving evidence on a video screen. In all the circumstances the Court
determined that it should not interfere with the exercise of discretion of the trial
judge. These cases of quite special circumstances apart, the authorities appear to me to
provide strong support for the view that in this case to permit anonymity of witnesses
whose identity is of significance to the defendant will not only adversely affect the
appearance of justice being done, but is likely actually to interfere with the doing of
justice. It should be added that Counsel for the defendant, a Dutch lawyer assigned by the
Tribunal to act for the allegedly indigent defendant, has, very understandably, said that
he cannot continue to represent the defendant if only he, and not the defendant, is made
aware of witnesses' identities. He points out the effect that that would have on the
relationship between him and his Yugoslav client and on his ability adequately to conduct
the defence. Accordingly, even if it were thought proper to confine knowledge in this way
only to counsel, that course is not open to this Chamber. From my examination of the Statute, the Rules and such decided cases as we have been
referred to, I conclude that the present motions should be disposed of by granting most of
the relief sought by the prosecution, much of which is assented to by the defence, but
stopping short of denying to the defence, including the accused, the right to see and hear
witnesses give evidence before the Tribunal and know their identity as known to the
accused, which may not always be their true identity. I would however, as explained above,
not apply to J and K this requirement of disclosure if indeed J and K were, as I believe,
mere bystanders at the events to which they will attest and were wholly unknown to the
accused. In the case of all vulnerable witnesses their present whereabouts, the name under which
he or she presently goes and the whereabouts and present names of his or her family do not
appear to me to be matters necessary to be disclosed in order to satisfy a fair trial and
the rights of the accused. Likewise, having regard to the quite special task of the Tribunal, to the express provisions of its Statute and Rules and to the very understandable concerns of certain witnesses regarding consequences for them should the evidence they give become public property, I have no difficulty in acceding to the Prosecutor's application for the evidence of all these vulnerable witnesses to be given in camera. The material that has been furnished to the Chamber in respect of such witnesses makes such an application entirely reasonable and appropriate and will in no way detract from the fairness of the trial. Since the hearing of this motion memoranda have been received form the parties which
somewhat alter details of the precise form of orders that are appropriate. First, it
appears that in the case of some vulnerable witnesses their identity is already known to
the accused as a result of past media statements made by them. This is so with witness G,
probably also with witness H and perhaps, too, with witness I. In each case the defence
has now named the person known to be, or thought to be, represented by each of those
letters and seeks confirmation from the Prosecution, which the latter is not prepared to
give for reasons of the security of witnesses. An order for disclosure of names, as I would in any event have made, will either
confirm or correct the belief of the accused as to the identity of these witnesses and I
believe that the accused is entitled to be thus informed. Accordingly, in their case the
memoranda occasions no change to the orders which I would have proposed. In the case of witnesses F, J and K the accused remains in ignorance of their identity.
The name of F as known in the Omarska camp, including any nickname applied to her in the
camp, should be disclosed to the accused but there will, of course be no disclosure of her
present name, if different, nor any past or present address. The nicknames applied in the
Omarska camp to other vulnerable witnesses not already correctly identified by the accused
should also be disclosed and if they were known only by nickname then their real names at
that time need not be disclosed. As to J and K, the two bystanders, the identity of neither is known to the accused, who
seeks the address where they lived at the time of which they are to give evidence so that
their then neighbours may be questioned about events to which these witnesses are to
depose. I can well appreciate the very real need for such information to be available to
the accused so that his defence may be properly conducted. Much depends upon facts as yet
either unknown or imperfectly known to this Chamber, for instance, the significance of the
evidence of J and K to the charge to which their evidence relates and the availability of
alternative evidence of equal worth from witness who are less vulnerable for any of a
number of reasons. In the absence of real insight into such matters, and to ensure both the reality and
the appearance of a fair trial of the accused, the general locality where each of the
witnesses J and K saw what they did should be revealed. What "general locality"
means can only be interpreted by the prosecution, which alone knows the facts. However it
should be sufficiently precise as to allow the Defence to make enquiries of others in the
vicinity as to what they saw of the incidents of which J and K speak, while not
sufficiently precise as to disclose the addresses of J and K. To the extent to which an order in the terms that I propose prevents the Defence from
calling particular witnesses, that may simply be the price to be paid for ensuring a fair
trial. The form of order which I propose has made it unnecessary for me to investigate the
extent to which vulnerable witnesses have already exposed their identity by means of media
statements. It follows that I would make the following orders on the prosecution's motions: I would grant the orders sought in paragraphs (1), (2), (3) as amended, (4), (5), (6),
(9), (10), (12), (13) and (14). In all these cases I would omit reference to witness A, in
respect of whom the prosecution no longer seeks any order. There remain the orders sought
in paragraphs (7) (8) and (11). I would refuse the order sought in paragraph (7) but would
grant an order providing for the shielding of these vulnerable witnesses, if they so
request it, from direct confrontation with the accused by providing a one-way shielding
device permitting the accused to see the witness but not requiring the witness to see the
accused. I would refuse the order sought in paragraph (8). It is implicit in all I have
written that I would also refuse the order sought in alternative (a) of paragraph (11) as
amended. I would instead make an order in the form sought in (11), alternative (b)
including nicknames where applicable, but in the case of witness J and K and upon
confirmation that they are indeed in the category of mere bystanders as described above,
omitting their names from disclosure while providing a description of relevant
"general localities" Date: ____________________ Signed: _______________________ Judge Sir Ninian Stephen |