IN THE TRIAL CHAMBER
Judge Claude Jorda, Presiding
Judge Fouad Riad
Judge Mohamed Shahabbudeen
Mr. Jean-Jacques Heintz, Deputy-Registrar
6 May 1998
DECISION ON PROSECUTOR'S REQUEST FOR AUTHORIZATION TO DELAY DISCLOSURE OF RULE 70 INFORMATION
The Office of the Prosecutor:
Mr. Mark Harmon
Mr. Andrew Cayley
Mr. Gregory Kehoe
Mr. Anto Nobilo
Mr. Russell Hayman
1. On 6 January 1998, the Prosecution filed a confidential request for authorisation to delay the disclosure of Rule 70 information of the Rules of Procedure and Evidence (hereinafter "the Rules") concerning the witnesses from a humanitarian organisation (hereinafter "the Request"). The Defence submitted its response in opposition to the request on 26 January 1998 (hereinafter "the Response"). Finally, the Prosecution filed its reply to the Defence opposition on 11 March 1998 (hereinafter "the Reply").
The Trial Chamber will first analyse the claims of the parties and then discuss all the factual and legal points in contention.
I. ANALYSIS OF THE CLAIMS OF THE PARTIES
2. In its Request, the Prosecution asks the Trial Chamber to order, pursuant to Rule 75 of the Rules, additional protective measures for three witnesses who are members of a humanitarian organisation, that is, to delay the disclosure of their prior statements to the Defence until one week before they testify, in order to reduce the risks for the staff members of this organisation. The Prosecution justifies the need for such measures by referring to the previous breach of confidentiality of statements made in closed session by two members of the said humanitarian organisation before the Trial Chamber on 23 June 1997 and their publication in a Zagreb newspaper the very next day.
In support of its Request, the Prosecution first submits that, as regards the information provided on a confidential basis, Rule 70 of the Rules is applicable in this case to the prior witness statements, and that, consequently, disclosure of the said statements to the Defence can take place solely with the consent of the humanitarian organisation concerned.
Second, the Prosecution asserts that because no time frame is provided in Rule 70, it must be assumed, interpreted in light of Sub-rule 66(A) of the Rules, that the provider of the confidential information, in this case the humanitarian organisation, will determine when disclosure to the Defence may occur.
The Prosecution then submits that the requested delay for disclosure will not substantially prejudice the rights of the accused to a fair and public hearing (Article 21(2) of the Statute of the Tribunal) and to examine or have examined the witnesses against him (Article 21(4)(e) of the Statute of the Tribunal). In fact, according to the Prosecution, the request refers to only three of the more than four hundred statements submitted to the Defence which already knows the identity of each of these witnesses.
3. In its response, the Defence objects to the Prosecutors request and asks for the immediate disclosure of the prior statements of the three witnesses from the humanitarian organisation, or in the alternative, that their appearance be barred.
The Defence first submits that the Prosecutors request constitutes an implicit and unfounded assertion that the Defence is responsible for the leak of confidential information which occurred on 23 June 1997 and underscores that, even if this were the case, such an additional measure would be totally ineffective.
The Defence then asserts that the request runs contrary to the provisions of the Rules, particularly Sub-rule 66(A), and Rules 70 and 75. According to the Defence, although the person or entity having provided confidential information must in fact consent to its being given in evidence, pursuant to Sub-rule 70(B) of the Rules, its consent is not required for the disclosure of prior statements, and if necessary, for the time frame in which such disclosure must take place. To interpret this Rule otherwise would retroactively authorise and approve the Prosecutors violation of her obligation to disclose prior statements "as soon as practicable" in accordance with Rule 66(A) of the Rules. The Defence also underscores that "neither Sub-rule 75(A), nor the Trial Chamber1s Decision authorizes the Prosecutor to delay turning over witness statements to the Defense"2.
Finally the Defence argues that the additional measure requested by the Prosecutor violates the rights of the accused as recognised in Articles 21(2) and 21(4)(e) of the Statute of the Tribunal, as well as in Sub-rule 75(A) of the Rules which stipulates that the protective measures for victims and witnesses should be consistent with the rights of the accused. The fact that the Prosecutor has disclosed four hundred witness statements to the Defence, as well as the fact that the Defence knows the identity of the witnesses concerned are not sufficient guarantees to enable the Defence to prepare a proper cross-examination of the said witnesses.
4. In its reply, the Prosecution asserts that its proposal for a one-week time limit for the disclosure of prior statements constitutes a compromise between the need to protect the interest of the humanitarian organisation and respect for the rights of the accused.
The Prosecution then recalls that the said humanitarian organisation has not given its consent for its staff members to testify before the International Tribunal and that the conditions for this consent were reassessed following the incident of 23 June 1997.
With respect to the Defence allegation that the Prosecutor has continually violated her disclosure obligation under Sub-rule 66(A) of the Rules, the Prosecution replies that the assertion does not take into account the contradiction it deems to exist between this provision and Sub-rule 70(B) of the same Rules.
Lastly, the Prosecution indicates that the right of the accused to a fair trial and to examine Prosecution witnesses is not absolute and may be limited inter alia for reasons of confidentiality, with the Trial Chamber, in any case, reserving the right to exclude all or parts of the testimony pursuant to Sub-rule 89(D) of the Rules.
5. The Trial Chamber must rule whether to grant an additional protective measure for three witnesses from a humanitarian organisation, consisting of postponing the disclosure of their prior statements to the Defence to one week before their hearing. Two of the said witnesses are already protected, in accordance with this Trial Chambers decision of 10 July 19973.
6. The general practice for the disclosure of documents by the Prosecutor is governed by Rule 66 of the Rules. The measure, requested in the name of witness protection, would clearly be an exception to this practice, and the Trial Chamber must determine whether it is included in the exceptions provided by Rules 66 and 70 of the Rules. The Trial Chamber will then examine whether this measure may be ordered as an "appropriate measure" for the protection of witnesses pursuant to Rule 75 of the Rules, as maintained by the Prosecutor while basing her argument however on an interpretation of Sub-rule 70(B).
A. The requested measure does not enter into the scope
of exceptions to the obligation to disclose prior witness statements
7. Sub-rule 66(A) of the Rules requires that the Prosecutor disclose certain documents to the Defence, including prior witness statements. This obligation is general and permanent. The Trial Chamber had already concluded on this issue that:
"[t]he principles [...] in support of the interpretation of Sub-rule 66(A) lead the Trial Chamber to the decision that all the previous statements of the accused which appear in the Prosecutors file, whether collected by the Prosecution or originating from any other source, must be disclosed to the Defence immediately. [...] Furthermore, the Trial Chamber considers that the same criteria as those identified in respect of the accuseds previous statements must apply mutatis mutandis to the previous statements of the witnesses also indicated in Sub-rule 66(A)."4
The Rules provide a limited number of exceptions to this principle, that is, Sub-rule 66(C) and Rule 70 of the Rules.
8. Sub-rule 66(C) of the Rules permits the Prosecutor to apply to the Trial Chamber for relief from the obligation to disclose certain documents to the Defence, insofar as such disclosure may prejudice further or ongoing investigations, be contrary to the public interest or affect the security interests of any State. In this regard, the Trial Chamber is of the opinion that it is clear from the provision that it applies only to documents mentioned in Sub-rule 66(B) (that is, "any books, documents, photographs, and tangible objects" in the Prosecutors custody or control) and not to those documents mentioned in Sub-rule 66(A). In fact Sub-rule 66(C) explicitly states that it provides relief from "the obligation to disclose pursuant to Sub-rule (B)". Yet, the prior witness statements undeniably fall solely under Sub-rule 66(A) of the Rules and cannot therefore be subject to an exception under Sub-rule 66(C).
9. Rule 70, formally entitled "Matters not Subject to Disclosure" provides other circumstances relieving the Prosecutor of the said obligation. Sub-rule 70(A) refers to "reports, memoranda, or other internal documents prepared by a party, its assistants, or representatives in connection with the investigation or preparation of the case." It is clear that the prior Prosecution witness statements may not in any event be considered to be included in this category of documents.
10. The Trial Chamber deems it necessary however to review more thoroughly the interpretation offered by the Prosecutor for the implementation of Sub-rule 70 (B) of the Rules.
The Prosecution first submits that the prior statements of the witnesses concerned constitute confidential information, used solely to gather new evidence, within the meaning of Rule 70 of the Rules. The Prosecution then deduces from this fact that the disclosure of the said prior statements is governed by Sub-rule 70(B) of the Rules and that it is subject to the consent of the humanitarian organisation which provided them.
11. Sub-rule 70(B) of the Rules states:
"If the Prosecutor is in possession of information which has been provided to the Prosecutor on a confidential basis and which has been used solely for the purpose of generating new evidence, that initial information and its origin shall not be disclosed by the Prosecutor without the consent of the person or entity providing the initial information and shall in any event not be given in evidence without prior disclosure to the accused."
12. The conditions linked to the applicability of Sub-rule 70(B) of the Rules5 to the statements in questions were considered previously during the proceedings giving rise to the decision of 10 July 1997. Indeed, the Trial Chamber reached the following conclusion:
"As regards the application of Rule 70 of the Rules to this case, the Trial Chamber considers that [...] the Prosecution provided the proof that the information which the two witnesses had supplied to it were confidential at the time it was provided. It notes, moreover, that, pursuant to Sub-rule 70(B) of the Rules, the information was used solely for the purpose of generating new evidence."6
13. As regards the consent of the entity which provided the information governed by Sub-rule 70(B), that is the humanitarian organisation, in that same decision, the Trial Chamber noted that consent had been given. In fact, the humanitarian organisation gave its consent further to the adoption of several particularly stringent witness protective measures. The Trial Chamber, out of concern not to prejudice the mission of the humanitarian organisation in any way, granted the requested measures. In so doing, it duly noted the unequivocal consent of the humanitarian organisation to the use of the said information as evidence.7
14. It appears from Sub-rule 70(B) that once the humanitarian organisation has clearly consented to the use of the statements of its representatives as evidence, the accused, pursuant to Sub-rule 66(A) of the Rules, has the right to the discovery of the said statements. According to the Trial Chamber, once its consent has been given, the humanitarian organisation cannot determine if, and if necessary, when it is appropriate to the disclose the prior statements.
Therefore, on the subject of documents provided in accordance with Sub-rule 70(B), the Trial Chamber noted in its decision of 11 November 1997 that:
"where a person or entity having information has consented to its total or partial disclosure, [he/it] must be subject to a comprehensive and full cross-examination by the Defence [...]."8
The Trial Chamber, in the framework of its general supervision of the respect of the rights of the Defence, and pursuant to Sub-rule 70(G) of the Rules, deems that the principle of the consent of the entity providing the confidential information does not extend to the right to prior disclosure, which constitutes the "core" which will preserve the principle of an inter partes trial and the rights of the accused which derive therefrom.
In this spirit, the Trial Chamber notes that, further to its Decision of 10 July 1997, all the conditions required to apply Rule 70 to the statements of the witnesses from the humanitarian organisation were satisfied, and consequently, the aforementioned statements should have been disclosed to the Defence without delay.
15. The Trial Chamber therefore rejects the Prosecutions interpretation. It is convinced that the requested measure cannot legally constitute an exception to the obligation to disclose the prior witness statements to the Defence on the basis of Rule 70 of the Rules. However, the Trial Chamber notes that the measure requested by the Prosecutor is designed to provided increased protection to the witnesses through the disclosure of statements they made previously. It is therefore appropriate to consider this measure in light of Rule 75 of the Rules.
B. The requested measure is however appropriate for the protection of
witnesses from the humanitarian organisation.
16. First, the Trial Chamber recalls that the protection of witnesses who may be called to testify before it at trial remains a constant priority.9 The principle of witness protection is sanctioned by Articles 20 and 22 of the Statute of the Tribunal, which stipulate that the Rules shall provide for the organisation of such protection. More specifically, the relevant provisions of Sub-rule 75(A) provide that:
"A Judge or a Chamber may [...] order appropriate measures for the privacy and protection of victims and witnesses, provided that the measures are consistent with the rights of the accused."
In this regard, the case-law of the Tribunal has underscored the sovereign power of the Judges to evaluate the measures which they deem appropriate, the list of measures proposed in Rule 75 of the Rules not being exhaustive.10 In so doing, the Judges are the guarantors of the fundamental balance between witness protection and respect for the rights of the accused, in accordance with Article 20(1) of the Statute of the Tribunal.
17. The Trial Chamber wishes to stress the particular nature of the humanitarian organisation in question as well as its responsibilities. It is well known that the representatives of that organisation must carry out their missions in difficult circumstances, including armed conflicts, and that they provide vital support to the civilian populations most affected.
The exceptional nature of this mission justifies, even demands, certain specific protective measures for the representatives concerned. Before the Tribunal, this may involve limiting the rights of the accused, as shown in the Trial Chamber Decision of 10 July 1997 which grants six particularly stringent protective measures to the staff members of this humanitarian organisation, including their in camera testimony, the redaction of the names and identifying information from all public documents of the Tribunal, as well as the prohibition against divulging any information about the witnesses and their testimonies imposed on the parties, subject to authorisation being given to the Defence to do so by the Trial Chamber, further to an ex parte request.
To be sure, the Trial Chamber is aware that any decisions it may render will permit the representatives of the humanitarian organisation to come to testify without risk to themselves or to their organisation.
18. Conversely, the Trial Chamber notes that the requested measure might be prejudicial to the accused and, more particularly, to the rights of the Defence to prepare a proper cross-examination, in accordance with Articles 21(2) and 21(4)(e) of the Statute. The Judges therefore must offer the accused the possibility of exercising his rights.
19. To this end, the Trial Chamber grants the Prosecutors request but also grants the Defence the possibility to have one or more of the witnesses concerned appear again during the time allotted to the Prosecution for the presentation of its evidence.11 The sole limitation the Trial Chamber places on this right is that the Defence be obliged to justify specifically why it allegedly did not have the necessary time to prepare for its cross-examination.
FOR THE FOREGOING REASONS
Trial Chamber I,
Ruling inter partes and unanimously,
STATES that, pursuant to Rule 75 of the Rules, the Prosecutor may disclose to the Defence the statements of the witnesses referred to in her request only seven days before the date of their scheduled appearance,
STATES that the Defence shall be responsible for submitting a reasoned request for the possibility to have the said witnesses appear again during the time of the Prosecutions presentation of evidence.
Done in French and English, the French version being authoritative.
Done this sixth day of May 1998
At The Hague,
Presiding Judge Trial Chamber I
(Seal of the Tribunal)