Before: Judge Claude Jorda, Presiding

Judge Fouad Riad

Judge Mohamed Shahabuddeen

Registrar: Mr. Jean-Jacques Heintz, Deputy Registrar

Order of: 30 September 1998








The Office of the Prosecutor:

Mr. Mark Harmon
Mr. Andrew Cayley
Mr. Gregory Kehoe

Defence Counsel:

Mr. Anto Nobilo
Mr. Russell Hayman


TRIAL CHAMBER I 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,

PURSUANT to Articles 20, 21, and 29 of the Statute and Rules 69 and 75 of the Rules of Procedure and Evidence (hereinafter "the Rules");

NOTING the Defence Motion for protective measures for Defence witnesses, filed on 7 September 1998 (hereinafter "the Motion");

NOTING the Response of the Prosecutor dated 18 September 1998 (hereinafter "the Response");

NOTING the Reply of the Defence filed on 28 September 1998 (hereinafter "the Reply");

NOTING the Decision of Trial Chamber I on the requests of the Prosecutor of 12 and 14 May 1997 in respect of the protection of witnesses, rendered in the present case on 6 June 1997 (hereinafter "the Decision of 6 June 1997");

NOTING the Decision of Trial Chamber I on the Prosecution Motion for seven (7) day advance disclosure of the name of Defence witnesses and Defence witness statements, dated 3 September 1998 (hereinafter "the Decision of 3 September 1998");

CONSIDERING that the Defence requests that the Trial Chamber order the Prosecutor not to disclose to any third party the identity of the Defence witnesses residing in the territory of the former Yugoslavia before their testimony, in order to limit any intimidation to which they might be subjected, inter alia by certain governmental organisations; that the Defence bases its request on Rules 69 and 75 of the Rules, as well as on a Decision rendered by the Trial Chamber on 6 June 1997 to protect the Prosecution witnesses;

CONSIDERING that, in view of the case-law of the Tribunal, the Prosecutor considers the Defence request excessive and that it would deprive the Prosecution of its possibility to refer to the provisions of Article 29 of the Statute to obtain the assistance and co-operation of States, inter alia in respect of the production of evidence;

CONSIDERING that the Defence replies that Article 29 of the Statute establishes no right for the Prosecutor in respect of cross-examination and in no way limits the power of the Trial Chamber to adopt protective measures for witnesses; that, moreover, Defence witnesses run a greater risk of being subjected to pressure than do Prosecution witnesses, because the testimony of the Defence witnesses may be contrary to the interests of the government of the Republic of Bosnia and Herzegovina;

CONSIDERING that the Trial Chamber is ever mindful of its obligation to ensure effective protection for the victims and witnesses of both the Prosecution and the Defence; that grounds exist therefore for applying mutatis mutandis the relevant provisions of Rules 69 and 75 of the Rules to the Defence witnesses;

CONSIDERING that the Trial Chamber considers that the concerns expressed by the Defence in respect of the safety of the Defence witnesses are legitimate, and that the Trial Chamber is therefore responsible for taking the appropriate measures to ensure their protection;

CONSIDERING that the Trial Chamber notes that it was seized of a similar request from the Prosecutor which it granted in its Decision of 6 June 1997 ordering the non-disclosure of the identity or any identifying information in respect of the witnesses residing in the former Yugoslavia, "unless absolutely necessary for the preparation of the Defence";

CONSIDERING, however, that, in the case in point, the Defence is requesting a more restrictive protective measure for which no exception would be permitted;

CONSIDERING that, as regards the protection of witnesses, the Trial Chamber applies only the measures which are absolutely necessary; that in its Decision of 3 September 1998, the Trial Chamber ordered that the Defence disclose to the Prosecutor the identity of the witnesses it intends to call, as well as the summary of the facts about which they will testify at least seven days before the date of their appearance, in order to permit the Prosecutor to prepare her cross-examination; that to grant the Defence Motion would amount to stripping the core of the substance of the Decision; that restricting the possibility of the Prosecutor to disclose the name or personal information of the Defence witnesses to third parties by placing the same obligations on the Prosecutor that were placed on the Defence appears sufficient in the present case.


Ruling inter partes and unanimously,

ORDERS the Prosecutor not to disclose to any third party outside the Tribunal before their testimony the identity of the Defence witnesses residing in the territory of the former Yugoslavia, unless absolutely necessary for cross-examination by the Prosecutor;

ORDERS the Prosecutor and the Defence to maintain a log indicating the name, address and position of each person who has received a copy of the witness statement as well as the date it was transmitted and to submit the log to the Trial Chamber whenever it so requests;

ORDERS the Prosecutor and the Defence to instruct those persons who have received a copy of the statements not to reproduce them, under penalty of sanction for contempt of the Tribunal, and to return the said documents as soon as they are no longer required;

ORDERS the Prosecutor and the Defence to verify whether the individuals who received a copy of the statements are complying strictly with their obligation not to reproduce them and to return them as soon as they are no longer required;


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

Done this thirtieth day of September 1998,

At The Hague

The Netherlands.



Claude Jorda

Presiding Judge Trial Chamber I

[Seal of the Tribunal]