Case No. IT-04-82-PT
Judge Albin Eser, Pre-Trial Judge
Mr. Hans Holthuis
20 June 2005
DECISION ON PROSECUTION’S MOTION FOR PROTECTIVE MEASURES FOR VICTIMS AND WITNESSES
Counsel for the Prosecutor:
Accused/Counsel for the Accused:
Dragan Godzo for Ljube Boskoski
Antonio Apostolski for Johan Tarculovski
I, Albin Eser, Pre-Trial Judge 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 SEIZED OF the “Prosecution’s Motion for Protective Measures for Victims and Witnesses with Confidential and Ex Parte Annex A”, filed partly confidential and ex parte on 22 April 2005 (“Motion”), pursuant to Articles 20 and 22 of the Statute of the Tribunal (“Statute”) and Rules 54, 69, 73 and 75 of the Rules of Procedure and Evidence (“Rules”), in which the Prosecution seeks a number of protective measures in this case;
RECALLING the “Interim Decision on Prosecution’s Motion for Protective Measures for Victims and Witnesses”, issued by the pre-trial Judge on 28 April 2005 (“Interim Decision”);1
NOTING the “Prosecution’s Notice of Compliance with Disclosure Obligations Pursuant to Rule 66(A)(i) with Confidential Attachment 1”, filed partly confidentially on 3 May 2005, in which the Prosecution confirmed that it had disclosed the supporting materials, redacted in accordance with the Interim Decision, to both accused personally in a language that they understand;2
NOTING that the Defence had not filed any response by 23 May 2005;3
BEARING IN MIND that Article 20(1) of the Statute requires that the Trial Chamber “ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses ”;
CONSIDERING that Article 22 of the Statute requires the Tribunal to provide in its Rules “for the protection of victims and witnesses”;
CONSIDERING the provisions in the Rules concerning the protection of victims and witnesses;
CONSIDERING that the evidence in Confidential and Ex Parte Annex A to the Motion demonstrates that it is consistent with the rights of the accused, and appropriate for the privacy and protection of victims and witnesses, to order the non-disclosure to the public (including the media) of any material provided to the Defence by the Prosecution, including the identity of any witness or group of witnesses, except as reasonably necessary to allow the Defence to prepare for and participate in these proceedings and present a defence;4
CONSIDERING that the Prosecution has failed to provide any evidence or case -law to justify its request for an order that the Defence “not transmit any material disclosed to them by the Prosecution to anyone by any electronic means including email, internet and facsimile”,5 due to “the lack of security generally associated with the electronic transmission of information”;6
CONSIDERING that it is consistent with the rights of the accused, and appropriate for the privacy and protection of victims and witnesses, to order that the Defence return to the Registry all materials disclosed or provided by the Prosecution to them upon the conclusion of all proceedings in this case, including any appeal;7
CONSIDERING that although the non-disclosure obligations contained in this decision apply to all members of the Defence, such that it is the obligation of the Lead Counsel to ensure compliance by all members of the Defence, both during and after withdrawal from this case, the Trial Chamber finds that it is consistent with the rights of the accused, and appropriate for the privacy and protection of victims and witnesses, to order that should a member of the Defence withdraw from or otherwise leave the Defence team for either accused, all material disclosed or provided by the Prosecution in this case that is held or possessed by such a person must be returned to the Lead Counsel for that accused at that time;8
CONSIDERING that the maintenance by the Registry of a list identifying each person who is part of, or represents, the Defence9 is an appropriate order to promote compliance with and ensure the effectiveness of this order, and is consistent with the rights of the accused;10
CONSIDERING the evidence in Confidential and Ex Parte Annex A to the Motion, along with the case-law of the Tribunal concerning protective measures, including the “Decision and Order on Prosecution’s Motion for Protective Measures for Victims and Witnesses” in Prosecutor v. Ivan Cermak and Mladen Markac, dated 1 April 2004, in which this Trial Chamber recognized the need for “general protective measures” with respect to redacting materials provided to the Defence under Rules 66 and 68 related to the whereabouts of certain persons identified in such materials;
CONSIDERING that information protected under an order of the Trial Chamber retains its status as protected regardless of whether the accused or Defence have or obtain knowledge of that information from another source; therefore, the order of the Trial Chamber will be fashioned in such a way as to make this requirement clear;11
CONSIDERING that the Defence should only be able to obtain information on the current whereabouts of a witness from the Prosecution in this case if such information is reasonably necessary to allow the Defence to prepare for and participate in these proceedings and present a defence;12
CONSIDERING HOWEVER that in order to allow necessary and appropriate measures to be taken to protect a Prosecution witness, prior notice should be given by the Defence, or anyone acting on their behalf, to the Prosecution in the event that they intend to approach such a witness;13 and,
FURTHER CONSIDERING it is unnecessary and inappropriate in this case to require each member and representative of the Defence to sign a non-disclosure agreement and to file such a signed agreement with the Registry, in light of the obligations imposed by the Code of Professional Conduct for Defence Counsel Appearing before the Tribunal, Rule 77 (“Contempt of the Tribunal”), and other protective measures ordered in this decision;
FOR THE FOREGOING REASONS
PURSUANT TO Articles 20 and 22 of the Statute and Rules 54, 69, 73 and 75 of the Rules,
HEREBY GRANTS the Motion in part AND ORDERS as follows:
1. For the purposes of this decision:
2. As a general protective measure for the purposes of disclosure to the Defence under Rules 66 and 68, the Prosecution may, in fulfilling its disclosure obligations, redact from the statements, affidavits and formal statements of victims and witnesses :
3. For the purpose of this case and compliance with this decision, the Registry shall maintain a list identifying each person who is part of or who represents the Defence. The Defence for each respective accused shall file the initial listing of its members within ten days of the date of this decision, and the Registry shall be notified in writing of all changes to each list within ten days of such change occurring.
4. The Defence shall not in any way, either directly or indirectly, disclose to the public (including the media) any of the material (including, without limitation, witness testimony or statements) nor the identity of any witness or group of witnesses (expressly or by implication) provided to them by the Prosecution, except as reasonably necessary to allow them to prepare for and participate in these proceedings and present a defence, or as such material may become public in the course of public and open session proceedings in this case.
5. If the Defence is aware or becomes aware of a Prosecution witness’s current whereabouts, this information shall not be disclosed to the public (including the media), except as reasonably necessary to allow the Defence to prepare for and participate in these proceedings and present a defence or as such material may become public in the course of public and open session proceedings in this case.
6. To the extent reasonably necessary to allow the Defence to prepare for and participate in these proceedings and present a defence, the Defence may seek to obtain from the Prosecution the current whereabouts of a witness or potential witness. Neither the Defence, nor anyone acting on their behalf, shall approach the witness without prior written notice to the Prosecution, in such time and circumstances as will allow the Prosecution to take such steps as may be necessary and appropriate to protect the security and privacy of the witness.
7. After the conclusion of all proceedings in these cases, including any appeal, the Defence shall return to the Registry, for destruction, all of the material disclosed or provided to them by the Prosecution, together with all copies of such material. Should a situation arise where any member of the Defence withdraws from or otherwise leaves the Defence team for either of the accused in this case, all such material and copies of such material held or possessed by that person shall be transmitted or returned, without exception, to the person serving as Lead Counsel for the respective accused at that time.
8. Nothing herein shall preclude any party or person from seeking such other or additional protective measures or a variation of the terms of this decision, or from the Trial Chamber doing so proprio motu, as may be viewed appropriate concerning a specific witness or potential witness, or other evidence.
STATES that any breach of this decision will be dealt with in accordance with Rule 77 (“Contempt of the Tribunal”).
Done in English and French, the English version being authoritative.
Dated this twentieth day of June 2005,
At The Hague,
Judge Albin Eser
[Seal of the Tribunal]