IN TRIAL CHAMBER II
Judge David Hunt, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Fausto Pocar
Mrs Dorothee de Sampayo Garrido-Nijgh
3 July 2000
Radoslav BRDANIN & Momir TALIC
DECISION ON MOTION BY PROSECUTION FOR PROTECTIVE MEASURES
The Office of the Prosecutor:
Ms Joanna Korner
Mr Michael Keegan
Ms Ann Sutherland
Counsel for Accused:
Mr John Ackerman for Radoslav Brdanin
Maître Xavier de Roux and Maître Michel Pitron for Momir Talic
1 The application
1. On 10 January 2000, the Prosecutor filed a motion seeking orders directed to the two accused (Radoslav Brdanin and Momir Talic) and their legal teams collectively described as the Brdanin and Talic Defence in the following terms:
(1) The Brdanin and Talic Defence shall not disclose to the media any confidential or non-public materials provided by the Prosecutor.
(2) Save as is directly and specifically necessary for the preparation and presentation of this case, the Brdanin and Talic Defence shall not disclose to the public:
(a) the names, identifying information or whereabouts of any witness or potential witness identified to them by the Prosecutor;
(b) any evidence (including documentary, physical or other evidence) or any written statement of a witness or potential witness, or the substance, in whole or part, of any such non-public evidence, statement or prior testimony;
(3) If the Brdanin and Talic Defence find it directly and specifically necessary to disclose such information for the preparation and presentation of this case, they shall inform each person among the public to whom non-public material or information (such as witness statements, prior testimony, or videos, or the contents thereof ), is shown or disclosed, that such a person is not to copy, reproduce or publicise such statement or evidence, and is not to show or disclose it to any other person . If provided with the original or any copy or duplicate of such material, such person shall return it to the Brdanin and Talic Defence when such material is no longer necessary for the preparation and presentation of this case;
(4) With regard to (3) above, the Brdanin and Talic Defence shall maintain a log indicating the name, address and position of each person or entity receiving such information and the date of disclosure. If there is a perceived violation of the orders described herein, the Prosecutor shall notify the Trial Chamber which may either review the alleged violations or may refer the matter to a designee, such as a duty Judge. If the Trial Chamber refers the matter to a duty Judge, the duty Judge shall review the disclosure log, make factual determinations, and report back to the Trial Chamber with a recommendation as to whatever action seems appropriate .
(5) If a member of the Brdanin and Talic Defence team withdraws from the case, all material in his or her possession shall be returned to the lead defence counsel. The Brdanin and Talic Defence shall return to the Registry, at the conclusion of the proceedings in this case, all disclosed materials and copies thereof, which have not become part of the public record.
(6) The Prosecutor may make limited redactions to witness statements or prior testimony concerning the identity and whereabouts of vulnerable victims or witnesses. The identities of such persons shall be disclosed to the Brdanin and Talic Defence within a reasonable period before commencement of trial, unless otherwise ordered.(1)
Paragraph 2 of the Motion defines, in wide terms, the expressions the Prosecutor , Brdanin and Talic Defence, the public and the media.(2) The Motion was filed on a confidential basis.
2. The orders sought numbered (1), (2) and (3) were not opposed. The others were opposed.
2 The Statute and the Rules
3. There are three provisions of the Tribunals Statute which are relevant to this application. Article 20 (Commencement and conduct of trial proceedings) provides , so far as is here relevant:
1. The Trial Chambers shall 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.
4. The hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with its rules of procedure and evidence.
Article 21.2 (Rights of the accused) provides:
2. In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute.
Article 22 (Protection of victims and witnesses) provides:
The International Tribunal shall provide in its rules of procedure and evidence for the protection of victims and witnesses. Such protection measures shall include , but shall not be limited to, the conduct of in camera proceedings and the protection of the victims identity.
4. There are also a number of the Rules of Procedure and Evidence (Rules) which are relevant to the application. Rule 66(A)(i) (Disclosure by the Prosecutor) is in the following terms:
Subject to the provisions of Rules 53 and 69, the Prosecutor shall make available to the defence in a language which the accused understands
(i) within thirty days of 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; [ ]
Rule 53(A) (Non-disclosure) provides:
In exceptional circumstances, a Judge or a Trial Chamber may, in the interests of justice, order the non-disclosure to the public of any documents or information until further order.
Rule 69 (Protection of Victims and Witnesses) provides:
(A) In exceptional circumstances, the Prosecutor may apply to a Trial Chamber to order the non-disclosure of the identity of a victim or witness who may be in danger or at risk until such person is brought under the protection of the Tribunal.
(B) In the determination of protective measures for victims and witnesses, the Trial Chamber may consult the Victims and Witnesses Section.
(C) Subject to Rule 75, the identity of the victim or witness shall be disclosed in sufficient time prior to the trial to allow adequate time for preparation of the defence.
Rule 75(A) (Measures for the Protection of Victims and Witnesses) provides:
A Judge or a Chamber may, proprio motu or at the request of either party, or of the victim or witness concerned, or of the Victims and Witnesses Section, order appropriate measures for the privacy and protection of witnesses, provided that the measures are consistent with the rights of the accused.
3 The redactions made by the prosecution
5. On 11 January, the prosecution purported to comply with its obligation under Rule 66(A)(i) by serving on counsel for the two accused copies of the supporting material which had accompanied the indictment when confirmation was sought. Every statement served had been redacted to remove the name and any other material which would identify either the persons who had made the statements or their whereabouts , notwithstanding the references in par (6) of the orders presently sought to limited redactions and vulnerable victims or witnesses. The documents were accompanied by a letter which requested counsel to respect the protective measures sought in the Motion until such time as the Trial Chamber had ruled upon it. (3)
6. It was conceded by the prosecution that this redaction had been effected without having first obtained an order pursuant to Rule 69, but it was said that the redaction had been carried out in advance of such an order for safetys sake.(4) The first issue to be determined in the Motion is, therefore, whether pursuant to Rule 69(A) the prosecution is entitled to the redaction of the name and identifying features of every person who has made a statement until a reasonable period before [the] commencement of [the] trial, as sought by the Motion.(5)
7. In relation to the power to provide appropriate protection for victims and witnesses in the Statute and Rules, it was held by the Trial Chamber in the Prosecutor v Tadic(6) that:
[ ] in the fulfilling of its affirmative obligation to provide such protection, [the Tribunal] has to interpret the provisions within the context of its own unique legal framework in determining where the balance lies between the accuseds right to a fair and public trial, the right of the public to access of information and the protection of victims and witnesses. How the balance is struck will depend on the facts of each case. (7)
The balance between the right of the accused to a fair and public trial and the protection of victims and witnesses within its unique legal framework had also been referred to in earlier decisions in the same case.(8)
8. The prosecution, however, relies not only upon the facts of this particular case but also upon the facts and circumstances concerning Tribunal cases generally to justify the redaction of all identification of every person who had made the relevant statements and their whereabouts. It says that Bosnia and Herzegovina continues to be a dangerous place, where each ethnic or political group is viewed as the enemy of another, and where
[ ] much of the war is still being fought, with indictees [sic] or suspects and their supporters (as well as supporters of those detained in The Hague) still at large and where witnesses against them are considered the enemy.(9)
The Motion proceeds:
10. In the past two years, there have been increasing instances involving interference with and intimidation of Tribunal witnesses, including breaches and violations of witness protection orders (including non-disclosure orders) and other security measures . The situations range from witnesses having their lives threatened, to repeated instances of witness statements that have been disclosed to accused and their counsel being published in the media or otherwise made public (despite the existence of non-disclosure orders), to numerous threatening telephone calls, to loss of jobs or job opportunities, to witnesses general fear and apprehension that they or their families will be harmed or harassed or otherwise suffer if they testify or co-operate with the Tribunal.
11. In light of these past breaches of confidentiality and other serious problems , and their effect on victims and witnesses, the Prosecutor has grave concerns that the safety of witnesses, their willingness to testify and the integrity of these proceedings will be substantially jeopardised if witnesses identities, whereabouts and statements are prematurely disclosed in circumstances where they cannot be protected . The Prosecutor submits that the requested protective measures greatly assist in minimising these concerns.
9. The prosecution submits that the future of this and all other Tribunal cases depends upon the ability and willingness of witnesses to give evidence. Absent evidence, there will be no trials, or no trials which accomplish justice. It says :(10)
If witnesses will not come forward or if witnesses refuse or are otherwise unwilling to testify, there is little evidence to present. Threats, harassment, violence, bribery and other intimidation, interference and obstruction of justice are serious problems, for both the individual witnesses and the Tribunals ability to accomplish its mission.
10. It was frankly conceded by the prosecution that the basic argument underlying its submissions was that the requirements of Rule 69(A) that exceptional circumstances must be shown before protective measures will be ordered by the Trial Chamber are satisfied in relation to every witness in every case at this stage (that is, at the time for service on the accused of the supporting material which accompanied the indictment when confirmation was sought).(11) It was also frankly conceded by the prosecution that it is difficult to argue that every witness must be vulnerable.(12)
11. In the opinion of the Trial Chamber, the prevailing circumstances within the former Yugoslavia cannot by themselves amount to exceptional circumstances . This Tribunal has always been concerned solely with the former Yugoslavia, and Rule 69(A) was adopted by the judges against a background of ethnic and political enmities which existed in the former Yugoslavia at that time. The Tribunal was able to frame its Rules to fit the task at hand; the judges who framed them feared even at that time that many victims and witnesses of atrocities would be deterred from testifying about those crimes or would be concerned about the possible negative consequences which their testimony could have for themselves or their relatives.(13) Accordingly, the use by those judges of the adjective exceptional in Rule 69(A ) was not an accidental one. To be exceptional, the circumstances must therefore go beyond what has been, since before the Tribunal was established, the rule or the prevailing (or normal) circumstances in the former Yugoslavia. As was made clear by the Second Tadic Protective Measures Decision, the circumstances of each case must be examined.
12. The prosecution submits that the Second Tadic Protective Measures Decision should no longer be followed, as it was the Tribunals first case, and that there had been numerous documented instances of interference since that time.(14) Even if the situation has changed since the Second Tadic Protective Measures Decision and the Trial Chamber is not satisfied that there has been any significant change the wording of Rule 69(A) has nevertheless remained the same, and the phrase exceptional circumstances in its ordinary usage does not permit any interpretation which equates it with what is now said to be the rule in the former Yugoslavia.
13. The action of the prosecution in redacting the name and identifying features in every statement, although no doubt administratively convenient, was both unauthorised and unjustified on the basis which the prosecution has now put forward .
4 An alternative procedure?
14. During the course of the oral hearing of the Motion, on 24 March 2000, there was discussion as to whether a procedure could be devised which would avoid the need for a witness-by-witness application by the prosecution to the Trial Chamber for protective measures before complying with its obligation under Rule 66(A)(i) to serve copies of its supporting material upon the accused.
15. The prosecution proposed a procedure whereby
(i) it would take it upon itself to redact the identity of every witness who has asked for his or her identity not to be revealed and who, in its judgment, is a vulnerable witness,
(ii) the accused could make a reasonable request to it for the identity of particular victims and witnesses to be revealed, giving reasons why their identity was required at an earlier stage than (say) thirty days before the commencement of the trial, and
(iii) if that request were refused, the accused could then seek relief from the Trial Chamber.(15)
Should the accused require the name of a witness because there are, for example, features directly implicating the accused, the name would be supplied unless there is a very good reason why the prosecution wished to withhold it.(16)
16. Such a proposal, however, has two basic defects. First, it continues to assume that every witness (or at least those who ask for their identity not to be disclosed) is in fact in danger or at risk (as Rule 69(A) describes them), or vulnerable (as the Motion describes them). As already decided, that is not so . Secondly, the proposal completely reverses the appropriate onus. Rule 69(A) places the onus upon the prosecution to demonstrate the exceptional circumstances justifying an order for non-disclosure, whereas this proposal places the onus upon the accused to justify disclosure.
17. There is another problem. The prosecution asserted that, as it has a responsibility to ensure that the accused is given a fair trial, it should be trusted in effect to perform the role which the Rules give to the Trial Chamber in determining which victims and witnesses are vulnerable.(17) It asks the accused to accept that there are very good reasons why the identity is not being provided.(18) This does not even begin to discharge the onus which the prosecution bears under Rule 69(A ). One of the supporting documents served on the accused in the present case consists of the transcript of evidence which a proposed witness gave in open session in another case before the Tribunal, with all material identifying the witness redacted. As it would be a simple thing for the accused to find the relevant transcript and thus to identify the witness in question, there could be no exceptional circumstances warranting a redaction of that witnesss name. This example suggests a perhaps less than dispassionate approach by the prosecution to its task.(19)
18. The proposal was opposed by both accused, and the Trial Chamber accepts that its implementation would be contrary to both the Statute and the Rules.
5 A conflict between the Rules?
19. The prosecution claims that there is a conflict which needs to be resolved between the obligation placed upon it by Rule 66(A)(i) to disclose the supporting material to the accused within thirty days of his initial appearance and the protection afforded to victims and witnesses provided by Rule 69(A).(20)
20. The Trial Chamber does not accept that there is any such conflict. As already decided, Rule 69(A) does not provide the blanket protection asserted by the prosecution. Before protective measures will be granted, Rule 69(A) requires the prosecution first to establish exceptional circumstances. This is in accordance with the balance carefully expressed in Article 20.1: that proceedings are conducted [ ] with full respect for the rights of the accused and due regard for the protection of victims and witnesses. As the prosecution correctly concedes, the rights of the accused are made the first consideration, and the need to protect victims and witnesses is a secondary one.(21) The reference to proceedings in Article 20 is not limited to the actual trial; it includes every phase of the litigation which affects the determination of the matter in issue.(22)
21. If the prosecution is able to demonstrate exceptional circumstances justifying the non-disclosure of the identity of any particular victims or witnesses at this early stage of the proceedings, then its obligations of disclosure under Rule 66 (A)(i) will be complied with if it produces copies of the statements with the names and other identifying features of only those witnesses redacted.
6 Rule 69(A)
22. It is necessary initially to say one thing about Rule 69(A) if only for the purpose of putting it on one side. The Rule expresses the power to make a non-disclosure order in relation to a victim or witness who may be in danger or at risk until such person is brought under the protection of the Tribunal. This rather curious wording appears to assume that the Tribunal has a witness protection program or scheme which will render the non-disclosure order no longer necessary once it comes into operation. In fact, the Tribunal does not have any such program or scheme.(23) The Rule has always been interpreted as including the power to make non-disclosure orders which continue throughout the proceedings and thereafter. If necessary, such a power is justified by Rule 53(A), which permits a non-disclosure order (so far as the public is concerned) to be made in relation to any document or information until further order but, again, only [i]n exceptional circumstances. So far as the accused is concerned, Rule 69(C) requires the identity of the victim or witness to be disclosed to him in sufficient time prior to the trial to allow adequate time for preparation of the defence.(24)
23. There is therefore clear power to make what may be described as the usual non -disclosure orders in relation to particular victims and witnesses once exceptional circumstances have been shown. That, however, is not what is sought by the prosecution in the present motion. In substance, the present motion seeks only to justify the prosecutions right to make the blanket redactions already made. In that endeavour , the prosecution has been unsuccessful, and it will be necessary to file a fresh motion in which it seeks to justify a non-disclosure order in relation to particular victims and witnesses.(25) As some of the issues which will arise in relation to such a fresh motion have been debated in relation to the present motion, it is appropriate to express the views of the Trial Chamber in relation to those issues at this stage.
24. The first issue concerns the likelihood that prosecution witnesses will be interfered with or intimidated once their identity is made known to the accused and his counsel , but not to the public. The prosecution says, and the Trial Chamber accepts, that the greater the length of time between the disclosure of the identity of a witness and the time when the witness is to give evidence, the greater the potential for interference with that witness.(26) Paragraph 10 of the Motion makes the general allegation that there has been an increasing number of instances in which there have been breaches and violations of witness protection orders, thus justifying grave concerns that such instances will increase further if the identity of the witnesses is disclosed earlier than is necessary.
25. The prosecution subsequently gave four examples of these instances.(27) In the first, counsel for an accused was charged (with his client) with contempt arising from alleged interference with a prospective witness for that client. The charge of contempt has been dismissed upon the basis that the Trial Chamber was not satisfied beyond reasonable doubt that the interference had occurred.(28) In the second example, counsel in one case named in open session a person as having been a witness in an associated case who had been granted protective measures in that other case. When charged with contempt, Counsel claimed that he had drawn the inference that that person had given evidence in the associated case from the fact that it was known that he had been in The Hague at the time. The prosecution did not assert that this knowledge had been gained as a result of a breach by anyone bound by the protective measures order in the associated case.(29) In the third example, a witness list was published in a newspaper in Sarajevo. In the fourth example, a witness statement was published in a newspaper in Croatia . The prosecution asserted that:(30)
As a result of these actions, Prosecution witnesses who had previously agreed to appear before the Tribunal refused to testify.
The reference to these actions appears to be limited to the third and fourth examples .
26. It is, however, important to recall the terms of the rule under which the prosecution seeks a non-disclosure order. Rule 69(A) applies only to the non-disclosure of the identity of a victim or witness who may be in danger or at risk. Any fears expressed by potential witnesses themselves that they may be in danger or at risk are not in themselves sufficient to establish any real likelihood that they may be in danger or at risk. Something more than that must be demonstrated to warrant an interference with the rights of the accused which these redactions represent. Most judges can identify cases in which it is obvious that witnesses have been interfered with, but it is by no means so obvious that this has resulted from breaches by defence team members of witness protection orders. The examples of violations in the four cases following (in a temporal sense only) the disclosure of the identity of the witnesses to the defence are accompanied by the prosecutions assertion that they show a history of violations in virtually every case that has been brought before this Tribunal.(31) This piece of hyperbole does not assist.
27. Counsel for the accused have, with some justification, complained that their integrity has been impugned by these assertions. Such an intention has been denied by the prosecution, which has attempted to explain the relevance of its assertions in this way:(32)
It is submitted that if, before an order is to be made, the Prosecutor is required to demonstrate that there are grounds for believing that a particular defence counsel would behave improperly and/or until interference with witnesses or improper disclosure of confidential material has taken place, then the purpose of the order (which does no more than comply with the statutory obligation to protect victims and witnesses ), has been negated.
This was expanded at the oral hearing:(33)
Were suggesting that the interference may and has in the past come from persons who have a vested interest in, whether actively sought by the accused or no, helping them. And one of the foolish ways which they see help being given is by interference with witnesses.
These explanations do not entirely eradicate the suggestion by the prosecution that there is a presumption that impropriety will occur, particularly when the terms of Order (4) are considered.(34)
28. The Trial Chamber accepts that, once the defence commences (quite properly) to investigate the background of the witnesses whose identity has been disclosed to them, there is a risk that those to whom the defence has spoken may reveal to others the identity of those witnesses, with the consequential risk that the witnesses will be interfered with. But it does not accept that, absent specific evidence of such a risk relating to particular witnesses, the likelihood that the interference will eventuate in this way is sufficiently great as to justify the extraordinary measures which the prosecution seeks in this case in relation to every witness.
29. A second issue which arose relates to the extent to which the power to make protective orders can be used not only to protect individual victims and witnesses in the particular case but also to assist the task of the prosecution to bring other cases against other persons in the future. This issue arises from the prosecutions assertion quoted earlier:(35)
If witnesses will not come forward or if witnesses refuse or are otherwise unwilling to testify, there is little evidence to present. Threats, harassment, violence, bribery and other intimidation, interference and obstruction of justice are serious problems, for both the individual witnesses and the Tribunals ability to accomplish its mission.
That is a statement which could easily be misunderstood. In the view of the Trial Chamber, when the required balancing exercise is undertaken before protective measures are ordered, a clear distinction must be drawn between measures to protect individual victims and witnesses in the particular trial and measures which simply make it easier for the prosecution to present its other cases against other persons.
30. Whilst the Tribunal must make it clear to prospective victims and witnesses in other cases that it will exercise its powers to protect them from, inter alia , interference or intimidation where it is possible to do so, the rights of the accused in the case in which the order is sought remain the first consideration . It is not easy to see how those rights can properly be reduced to any significant extent because of a fear that the prosecution may have difficulties in finding witnesses who are willing to testify in other cases.
31. The Trial Chamber accepts that the need to carry out any balancing exercise which limits the rights of the accused necessarily results in a less than perfect trial. On the other hand, it also accepts that such a result does not necessarily mean that the trial will not be a fair one. Those propositions were stated by the majority of the Trial Chamber in the First Tadic Protective Measures Decision ,(36) and they have never been disputed . The question here is whether the extent to which it is necessary to deny the rights of the accused in order to assist the prosecution to have indeterminate victims and witnesses testify on its behalf in future cases tilts the balance too far. The right to a fair trial holds so prominent a place in a democratic society that it cannot be sacrificed to expediency.(37)
32. That said, however, the Trial Chamber accepts that, where the likelihood that a particular victim or witness may be in danger or at risk has in fact been established, it would be reasonable, for the reasons already given, to order non -disclosure of the identity of that victim or witness until such time that there is still left, in the words of Rule 69(C), adequate time for preparation of the defence before the trial. Counsel for Brdanin in the end realistically accepted that the real issue was when.(38) Counsel for Talic did not accept the right of the prosecution to have any documents redacted,(39) although his co-counsel emphasised the requirement of Rule 69(A) that redaction be allowed only in exceptional circumstances.(40)
33. A third issue which arose relates to the length of that time before the trial at which the identity of the victims and witnesses must be disclosed to the accused. The prosecution accepts that, although the greater the length of time between the disclosure and the time when the witness is to give evidence, the greater the potential for interference with that witness, the time to be allowed for preparation must be time before the trial commences rather than before the witness gives evidence .(41)
34. The prosecution has also very realistically conceded that what is a reasonable time will depend upon the particular category in which the witness in question falls .(42) For example, where (as in the present matter) the case against the accused does not suggest that either of the accused personally did the acts in question, the witnesses who are to prove the basic facts for which the accused is said to be responsible (either as a superior or by way of aiding and abetting) do not themselves directly implicate the accused , and knowledge of their identity would do little to assist the defence in its preparation for the trial.(43) The witnesses whose identity is of much greater importance to the accused in the preparation of the defence are those who directly implicate the accused as having superior authority or as aiding and abetting.(44) The distinction is a valid one, but the problem is that it is in relation to the witnesses who fall into the second category that the prosecution has the greater concerns and whom it seeks to keep anonymous until the last moment.
35. All three of these issues will be relevant to the determination of the fresh motion which the prosecution must now file in which it seeks to justify a non-disclosure order in relation to particular witnesses.
36. The prosecution has suggested that a disclosure of its witnesses identity thirty days before the trial would be sufficient to allow the accused to be ready for trial . The prosecution asserts that the name of the witness is
[ ] normally only relevant to issues of credit and is, therefore, generally only a small part of any case preparation that the Defence may undertake.(45)
The prosecution asked rhetorically:(46)
[E]ven if [the defence] have the name of a witness, how would this assist them preparing the defence of either of the two accused?
These statements are quite unrealistic when applied to those witnesses who fall within the category of giving evidence which directly implicates the accused. There can be no assumption by counsel for the accused that these witnesses will be telling the truth.(47) There are well documented cases where, upon a careful investigation, witnesses called by the prosecution have turned out not to have been where they say they were,(48) or have subsequently retracted their evidence.(49) The Appeals Chamber has placed a firm obligation upon those representing an accused person to make proper inquiries as to what evidence is available in that persons defence.(50) Some of the prosecution witnesses are likely to be of such importance that it will be necessary for at least the final stage of the investigation into those witnesses to be done by counsel who is to appear for the accused at the trial. That is obvious to anyone with experience of criminal trials. The earlier stages can be conducted by the investigator(s) retained for the accused in the field. Many more than one person may well need to be spoken to before appropriate information becomes available.
37. One difficulty which is said by both accused to have arisen in the present case results from the fact that the indictment was sealed, and has remained sealed except in relation to these two accused. Persons whom the defence teams wish to interview have declined to co-operate for fear that they are also named in that indictment , or perhaps in another sealed indictment. This difficulty was said to arise in relation to prospective witnesses for the defence whom the defence teams wish to interview, which is hardly relevant to the present issue, which concerns prosecution witnesses.(51) However , the Trial Chamber recognises that such a difficulty may well arise also in relation to those from whom the defence teams seek information in relation to the prosecution witnesses.
38. The Trial Chamber does not believe that it is possible to lay down in advance any particular period which would be applicable to all cases. Everything will depend upon the number of witnesses to be investigated, and the circumstances under which that investigation will have to take place. Some accused may have better resources of their own than others, depending upon their position prior to their arrest. That period can only be determined after the protective measures are in place. However, from evidence given in other cases,(52) the Trial Chamber accepts that the pre-trial investigation process in which any defence team is involved is a difficult one, and that (unless very few witnesses have been made the subject of protection orders) a period somewhat longer than thirty days before the trial is likely to be necessary in most cases if the accused is to be properly ready for trial.
7 Return of documents
39. Order (5), if made, would oblige counsel for the accused to return all statements of witnesses to the Registry at the conclusion of the proceedings. It is said that, as the statements were provided to the accused only to enable him to prepare for the trial, they should be returned to the Registry thus ensuring that what may be described as the non-public information which the statements contain can never be disclosed to the public.(53) The prosecution would not have access to the documents when they are returned.(54)
40. It was argued on behalf of Talic that the documents became the property of the accused as soon as they are provided to him, and that he should be entitled to keep them so that he could use them properly in the future.(55) The prosecution replied that property in the documents does not pass to the accused .(56) The Trial Chamber does not find it necessary to determine this issue, as it accepts the alternative submission made on behalf of Brdanin, that the work product of counsel (being the notations inevitably made by counsel on those documents during the preparation and the course of the trial) does become the property of the accused and that it is of a confidential nature.(57) It is unnecessary to determine whether that confidentiality stems from the legal professional privilege which arises (at least in the common law systems) between attorney and client; it is sufficient to say that the work product is confidential, and that the accused should not ordinarily be required to divulge it. The issue therefore becomes whether the risk of disclosure is of such a nature that the documents ought nevertheless be returned .
41. When pressed as to how realistic the risk was that the non-public material in these statements would be disseminated if the documents were kept by counsel after the case has been concluded (when the protective measures still operate), the prosecution first referred to the refusal by one defence counsel in another case to return his papers at the conclusion of the trial, and then suggested that:(58)
One keeps papers in ones office, people wander in and out of the office, or one leaves papers somewhere, and unless theyre returned and accounted for, [ ] theres always that risk. Thats the difficulty.
If there is a deliberate refusal by counsel to return the documents when ordered to do so, he or she would be subject to punishment for contempt. Such a refusal does not lead inevitably to a deliberate disclosure of the documents; however, even punishment for contempt would not cure the damage should there be a deliberate disclosure. But what realistically is the likelihood of a repeat of an event such as this? And what realistically is the likelihood that counsel who has kept the statements after the conclusion of the case would leave them in a situation where there would be an unintentional disclosure to somebody who has wandered into his or her office? All but one of the documented disclosures to which the prosecution has referred in the Motion occurred either during the pre-trial phase or during the trial itself. The exception occurred when counsel in one completed case provided an unredacted statement of a witness to counsel in an associated case who had at that time received from the prosecution only a redacted statement of that witness .(59)
42. The Trial Chamber does not accept that the risk is of such significance as to warrant the concern which the prosecution has expressed. There is in any event some difficulty in determining the exact time when the proceedings have concluded , which the prosecution has proposed as the time for the statements to be returned . It was agreed at the oral hearing that, if such documents were to be returned to the Registry at the conclusion of the trial, they would for practical reasons be destroyed, rather then stored.(60) Whether an appeal is to be lodged would be known fairly quickly, and counsel could perhaps be permitted to keep the statements until the time for filing an appeal has expired and, if an appeal is filed, until the appeal is disposed of. But what if, at some later stage, an application is made for a review pursuant to Rule 119 ? Counsel retained for the accused in that procedure would have lost a very valuable resource if the work product on the statements has been destroyed. This would be unfair to the accused. It was suggested by the prosecution that the answer would be for defence counsel to keep his or her work product separately from the statements supplied. The Trial Chamber regards that submission as quite impractical.
43. The Trial Chamber does not accept that the likely risk of either deliberate or unintentional disclosure after the conclusion of the case is of such significance as to justify the unwieldy and possibly unfair consequences of an order that the documents be returned in every case. The fact that orders for the return of statements have been made in similarly general terms in other cases does not impress the Trial Chamber,(61) as the present case appears to be the first in which objection has been taken to orders of the nature sought in this case, and the first in which there has been any examination of what is involved in those orders.
44. The Trial Chamber is prepared to make an order in the terms of the first part of Order (5) that, if a member of the Brdanin and Talic Defence team withdraws from the case, all the material in his or her possession shall be returned to the lead defence counsel. Such an order is justified as that member of the team no longer has any need for the documents. But the Trial Chamber is not prepared at this stage to make any further order in relation to the return of documents. It accepts that such orders may be warranted in a particular case. Counsel for Brdanin suggested that an order may be warranted where a document was akin to a national security document,(62) but the Trial Chamber would not limit the occasions when an order may be appropriate to that class of case. Such orders are better considered at the end of the trial, when the risk involved may more easily be identified. The risk has not been identified in the present case at this stage. The order is therefore otherwise refused, without prejudice to any further application at a later stage.
8 Maintaining a log
45. The accused have not objected to Order (3), which obliges their Defence team (as defined) to inform each person among the public to whom they find it directly and specifically necessary to disclose confidential or non-public materials that such person is not to copy, reproduce or publicise the information disclosed, is not to show or disclose that information to any other person, and is to return the original or any copy of such material provided to that person. Order (4), if made , would oblige counsel to maintain a log indicating the names, addresses and position of each person or entity receiving any of the non-public information in the materials provided by the prosecution. The prosecution points out that similar statutory requirements exist in relation to statements, photographs and medical reports in sexual cases in the United Kingdom.(63) Such a regime was said to be necessary in Tribunal cases as the only way of tracing these things.(64) An expanded explanation was given in these terms:(65)
[ ] if there is a leak of confidential material, and the Trial Chamber has to conduct an investigation, the only way they can properly do so is by a log being kept. And thats the reason that we are asking for that [ ]
The procedure laid down by Order (4) is that, if a perceived violation of the non-disclosure order occurs, the Trial Chamber, or a designee [sic] such as a duty judge, may review the disclosure log so that appropriate action may be taken. The prosecution asserts that the log will not be disclosed to it..(66)
46. The accused Talic objects to such an order upon the basis that it infringes the confidentiality of his defence teams investigations,(67) in that (a) it will permit both the prosecution and the Tribunal to know those whom his defence team is meeting in order to organise his defence,(68) and (b) it will permit the prosecution to prosecute those persons secretly.(69) The prosecution denies that legal professional privilege applies to that information . Again, it is unnecessary for the Trial Chamber to determine whether the confidentiality as to the identity of persons to whom the defence team have spoken in the preparation of the case for the accused stems from legal professional privilege, as it is sufficient to say that such information is confidential, and the accused should not ordinarily be requested to divulge it.
47. It is significant, in the view of the Trial Chamber, that the review of this log is contemplated only in the event of a perceived violation of the non-disclosure order. As that order is binding only upon the Brdanin and Talic Defence (which term is limited by its definition to the accused themselves, their counsel and all staff assigned to them by the Tribunal), Order (4) appears to be intended specifically to provide the basis for appropriate action against only those persons responsible for maintaining the log. The appropriate action could well include prosecution for contempt of the Tribunal.
48. If, however, any member of the defence team is to be prosecuted for contempt , it is perhaps disingenuous of the prosecution to assert that the log will not be disclosed to it, as it would be the prosecution to which the Trial Chamber would necessarily have to turn for assistance in proceedings for contempt pursuant to Rule 77. Again, if any member of the defence team is to be prosecuted for contempt , he or she is entitled to the same presumption of innocence and right to silence which any other accused person has. The obligation to keep the log upon which such a prosecution is to be based would require that accused person to provide evidence against him or herself, contrary to Article 21 of the Tribunals Statute. Such a procedure could be justified only where the situation were so grave that substantial damage was being caused by improper disclosures.(70) The Trial Chamber is not satisfied that such a situation exists here.
49. A requirement that such a log be kept so that any improper disclosure could be traced to a person to whom the defence team has quite properly disclosed the identity of the witness (in its investigation into the background of that witness ) would not give rise to these problems, but the non-disclosure order is not binding upon those other persons, and the Tribunal is powerless to take any action against them if such a disclosure by them does occur. The Trial Chamber does not accept that it is appropriate to require such a log to be maintained by the defence team for the purpose contemplated by Order (4). The order is refused.
9 Confidential filings
50. An issue was also raised by the Trial Chamber itself as to the action of the prosecution in filing its Motion on a confidential basis. At the time when the Motion was filed, a Scheduling Order was made which, inter alia, lifted its confidentiality.(71) An informal request was made by the prosecution to rescind that order,(72) but the order was merely stayed until further order, so that both the confidentiality of this document and the right of a party without leave to file a document on a confidential basis simply by labelling it Confidential could be argued at the oral hearing.(73) The Registrar was also invited to make representations pursuant to Rule 33(B) upon the second of those issues, as well as upon the issue as to whether there should be a requirement that any party wishing to file a document on a confidential basis (other than one seeking protective orders for specific persons) must first, on an ex parte basis and before filing it, seek leave from the Pre-Trial Judge to do so on such a basis .(74) A submission of the Registrar was filed.(75)
51. The purported basis for filing the Motion as a confidential document was the fear that, if the material contained in par 10 of the Motion which is quoted in par 8 of this Decision could be read by anyone, including those who are potential witnesses and those who have an interest in preventing such witnesses from giving evidence, it could well lead to those witnesses refusing to co-operate,(76) and to the possibility of interference with witnesses being planted in the minds of those who have a vested interest in ensuring that evidence which implicates these two accused is not given.(77)
52. The Trial Chamber repeats what it said earlier,(78) that the issue is the likelihood that prosecution witnesses may be interfered with or intimidated, and that any fears expressed (or held) by potential witnesses themselves that they may be approached are not in themselves sufficient to establish the likelihood that they may be interfered with or intimidated. The Trial Chamber regards the suggestion that those already minded to prevent evidence being given against these two accused would, by reading a publicly filed document such as this Motion, be incited to interfere with or intimidate witnesses as merely fanciful.(79) The reality is that there have already been serious allegations made publicly that witnesses in other cases have been interfered with. In one case, the allegations were upheld in proceedings for contempt against the counsel concerned.(80) In another case, the allegations against other counsel and the accused for whom he appeared were dismissed.(81) Both judgments are public documents, and may be read by anyone. The second was given only recently, but no-one has suggested that there has been an upsurge of interference with witnesses in the period since the first of those judgments was given. Nor could they.
53. There was no justification for filing the Motion on a confidential basis. Article 20.4 of the Tribunals Statute provides:
The hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with its rules of procedure and evidence.
Pursuant to that Article, Rule 79 provides that a Trial Chamber may exclude the press and the public from the proceedings only for one of three specified reasons (one being the safety, security or non-disclosure of the identity of a victim or witness as provided by Rule 75). Both these provisions make it clear that the proceedings must be in public unless good cause is shown to the contrary.(82)
54. The prosecution has submitted that these provisions relate only to hearings, and not to the filing of motions. That is strictly true, but they indicate a intention that everything to do with proceedings before the Tribunal should be done in public unless good cause is shown to the contrary. As a matter of general policy , this must be so. A necessary consequence of the filing of this Motion on a confidential basis has been that the oral argument upon the Motion which dealt with matters of great importance took place in closed session, although it was subsequently conceded by the prosecution that nothing said during that oral hearing other than the references to par 10 of the Motion was confidential in nature.(83) If par 10 of the Motion did not justify it being filed on a confidential basis, then the public has been denied its right of access to a hearing, a right which both the prosecution and the Tribunal should have been anxious to enforce.
55. The prosecution also asked rhetorically:(84)
[W]hat interest can the public have in [ ] unnecessarily knowing that theres an application for protection of witnesses and/or that there have been successful attempts in the past?
The answer is that there is a public interest in the workings of courts generally (including this Tribunal) not just in the hearings, but in everything to do with their working which should only be excluded if good cause is shown to the contrary . The attitude displayed by the prosecution in the present case appears to be part of an unfortunately increasing trend in proceedings before the Tribunal for matters to be dealt with behind closed doors. When the prosecution seeks to have anything dealt with confidentially, the accused does not usually object because it is in his interest that the less that is made public concerning his case the better.(85) This trend is a dangerous one for the public perception of the Tribunal, and it should be stopped.
56. The stay on the order lifting the confidentiality of the Motion is removed, and the filings by the parties in relation to the Motion, and the transcript and video-recording of the oral hearing on the Motion, will also be made public.
57. The remaining issues concerning confidentiality were the right of a party without leave to file a document on a confidential basis simply by labelling it Confidential , and whether there should be a requirement that any party wishing to file a document on a confidential basis (other than one seeking protective orders for specific persons ) must first, on an ex parte basis and before filing it, seek leave from the Pre-Trial Judge to do so on such a basis.
58. The parties made no specific submissions in relation to these issues, although the prosecution did identify some convenient categories into which its confidential filings fall, to which reference will be made later.
59. The Registrar has identified as being relevant to this issue Article 12.1 of the Directive for the RegistryJudicial DepartmentCourt Management and Support Services (Directive),(86) which provides :
Documents which are confidential in whole or in part, or which include words or phrases which should not be disclosed to the public, are filed and classified in accordance with the procedure described in Article 11 herein. These documents remain a part of the relevant case file, but they are placed in a distinct folder which is not accessible to the public.
The classification of documents described in Article 11 of the Directive makes no reference to the classification of documents as confidential. The Registrar has submitted that, as it is her view that her Office is not in a position to make decisions that affect the judicial rights of the parties,(87) and in accordance with the current practice of the Registry, the parties do have the right to file a document without leave on a confidential basis simply by labelling it Confidential.(88) Such a practice, she says(89)
[ ] is the most appropriate mechanism for satisfying the dual objectives of maintaining the security of each partys documents, and maintaining a transparent and impartial filing system.
60. The Trial Chamber respectfully takes issues with a number of these assertions . First, Article 12 makes it clear that the documents to which it relates are those which are in fact confidential, not those which are merely claimed to be so, and to documents which should not be disclosed to the public. On the face of it, the Article does require the Registry staff to make a determination . Secondly, it is by no means the universal practice of the Registry to leave it to the parties to nominate whether they wish to have the documents filed on a confidential basis, and decisions are made by Registry staff on occasions as to whether a document should be filed on a confidential basis.(90) Thirdly, the Directive cannot be interpreted according to the ability of the Registrar to provide staff who are able to apply it. And, lastly, the argument that, by making a determination as to whether a document should be filed on a confidential basis , the Registry staff will no longer be seen as impartial is illogical. The Trial Chamber does not accept the Registrars conclusion that the parties have the right to file a document without leave on a confidential basis simply by labelling it Confidential.
61. In relation to the suggested requirement that a party seeking to file a document on a confidential basis must first obtain leave to do so, the Registrar asserts that it would be contrary to the Directive, which can only be amended by the Registrar after consultation with the judges and the Prosecutor.(91) As the parties require documents to be filed on a continuous basis throughout the day, and in some cases after hours, she also asserts that any requirement of leave could potentially result in delays because of the unavailability of the Pre-Trial Judge or the Trial Chamber.(92)
62. Once again, the Trial Chamber respectfully takes issue with these assertions . The contents of the Directive are irrelevant to the suggested requirement of leave. The Directive does not impinge upon the power of a Trial Chamber to control the particular proceedings before it. The Trial Chamber may direct the parties to file certain documents, without infringing the Directive. It may equally direct the parties not to file certain documents without first obtaining leave, again without infringing the Directive. The suggested requirement of leave does not require the Registry staff to act in any particular way. If a party seeks to file a document merely labelled Confidential on such a basis without leave to do so, and if the Registry staff does not draw the partys attention to that requirement , then the Trial Chamber will exercise its power to order that its confidentiality be lifted, a power which the Registrar recognises.(93) The requirement that leave be obtained in advance will merely ensure that usually this power will not have to be exercised after the filing has been accepted.
63. In relation to the argument of inconvenience, the prosecution informed the Trial Chamber that its confidential filings fell into the following categories:(94)
(i) witness protection measures,
(ii) ongoing investigations, pending indictments and sealed indictments, and
(iii) responses to confidential motions filed by the defence and to Trial Chamber decisions which relate to confidential hearings or motions.
Filings in the second category are almost inevitably ex parte in nature and so are almost inevitably also confidential in nature. Filings in the third category would also appear to be necessarily confidential in nature. It is therefore with filings in the first category that the issue of inconvenience principally arises , although the Trial Chamber recognises that there may well be other categories in which it would be appropriate to file a document on a confidential basis.
64. If the requirement that leave be sought prior to filing were couched in terms which excluded
(a) all ex parte applications, whatever their nature,
(b) all inter partes applications for witness protection which relate to specific persons, and
(c) all applications which fall within the second and third of the prosecutions categories,
there are few documents which would require leave. The prosecution was unable to supply figures,(95) but it was not suggested that there were many such documents. There would be no significant inconvenience ; rather, there will be an opening up of the proceedings to public scrutiny in every case except where confidentiality is really warranted. The Trial Chamber proposes to give such a system a trial in particular cases.
65. For the foregoing reasons, Trial Chamber II makes the following orders:
1. For the purposes of these orders:
(a) the Prosecutor means the Prosecutor of the Tribunal and her staff;
(b) Brdanin and Talic Defence means only the accused Radoslav Brdanin and Momir Talic and such defence counsel and their immediate legal assistants and staff, and others specifically assigned by the Tribunal to Radoslav Brdanin and Momir Talics trial defence teams and specifically identified in a list to be maintained by each lead counsel and filed with the Trial Chamber ex parte and under seal within ten days of the entry of this order. Any and all additions and deletions to the initial list in respect of any of the above categories of persons who are necessarily and properly involved in the preparation of the defence shall be notified to the Trial Chamber in similar fashion within seven days of such additions or deletions ;
(c) the public means all persons, governments, organisations, entities, clients , associations and groups, other than the judges of the Tribunal and the staff of the Registry (assigned to either Chambers or the Registry), and the Prosecutor, and the Brdanin and Talic Defence, as defined above. The public specifically includes, without limitation, family, friends and associates of the accused, the co-accused, the accused in other cases or proceedings before the Tribunal and defence counsel in other cases or proceedings before the Tribunal; and
(d) the media means all video, audio and print media personnel, including journalists , authors, television and radio personnel, their agents and representatives.
2. The Prosecutor is to comply, on or before 24 July 2000 at 4.00 pm, with her obligation under Rule 66(A)(i) of the Rules of Procedure and Evidence to supply to each of the accused copies in unredacted form of the supporting material which accompanied the indictment when confirmation was sought as well as all prior statements obtained by her from that accused;
provided that, in the event that the Prosecutor files a motion within that period for protective measures in relation to particular statements or other material or particular victims or witnesses (which shall be identified in such motion by a number or pseudonym), she need not supply unredacted copies of those statements or that other material identified in that motion until that motion has been disposed of by the Trial Chamber, and subject to the terms of any order made upon that motion .
3. The Brdanin and Talic Defence shall not disclose to the media any confidential or non-public materials provided by the Prosecutor.
4. Save as is directly and specifically necessary for the preparation and presentation of this case, the Brdanin and Talic Defence shall not disclose to the public:
(a) the names, identifying information or whereabouts of any witness or potential witness identified to them by the Prosecutor; or
(b) any evidence (including documentary, physical or other evidence) or any written statement of a witness or potential witness, or the substance, in whole or part, of any such non-public evidence, statement or prior testimony.
5. If the Brdanin and Talic Defence find it directly and specifically necessary to disclose such information for the preparation and presentation of this case, they shall inform each person among the public to whom non-public material or information (such as witness statements, prior testimony, or videos, or the contents thereof ), is shown or disclosed, that such a person is not to copy, reproduce or publicise such statement or evidence, and is not to show or disclose it to any other person . If provided with the original or any copy or duplicate of such material, such person shall return it to the Brdanin and Talic Defence when such material is no longer necessary for the preparation and presentation of this case.
6. If a member of the Brdanin and Talic Defence team withdraws from the case, all material in his or her possession shall be returned to the lead defence counsel.
7. The stay imposed by the Variation of Scheduling Order of 27 January 2000 dated 2 February 2000, which lifted the confidentiality of the Motion for Protective Measures dated 10 January 2000, is removed.
8. The confidentiality of the filings in response to the Motion for Protective Measures dated 10 January 2000, of the filings in reply to those responses and of the oral hearing of the Motion on 24 March 2000 is lifted.
9. The remaining orders sought by the Motion for Protective Measures dated 10 January 2000 are refused.
10. Nothing herein shall preclude any party or person from seeking such other or additional protective orders or measures as may be viewed as appropriate concerning a particular witness or other evidence.
Done in English and French, the English text being authoritative.
Dated this 3rd day of July 2000,
At The Hague,
Judge David Hunt
[Seal of the Tribunal]
1. Motion for Protective Measures, 10 Jan
2000 (Motion), par 14.
2. Those definitions formed the general basis
for the definitions given in par 65.1 of this Decision. The prosecution
also seeks to preserve the right of the parties and any other person to seek
such other or additional protective orders or measures as may be appropriate
concerning a particular witness or other evidence.
3. Transcript, 11 Jan 2000, p 40.
4. Transcript, 24 Mar 2000, p 77.
5. Motion, par 14(6).
6. Case IT-94-1-T, Decision on the Prosecutions
Motion Requesting Protective Measures for Witness R, 31 July 1996
(Second Tadic Protective Measures Decision), at 4.
7. The emphasis has been added.
8. Prosecutor v Tadic, Decision on the
Prosecutors Motion Requesting Protective Measures for Victims and Witnesses,
(1995) I JR ICTY 123 (First Tadic Protective Measures Decision),
at 151 (par 30). See also Prosecutor v Tadic, Decision on the Prosecutors
Motion Requesting Protective Measures for Witness L, (1995) I JR ICTY 307
at 318-319 (par 11).
9. Motion, par 9.
10. Ibid, par 4.
11. Transcript, p 78.
12. Ibid, p 88.
13. First Tadic Protective Measures Decision,
at 145-147 (par 23).
14. Transcript, p 135.
15. Ibid, p 84, 87-88, 92.
16. Ibid, p 86.
17. Ibid, p 86-87, 93-94.
18. Ibid, p 140.
19. Whatever fears that witness may have in
being identified as one who is going to give evidence in this trial, it is difficult
to see how the prosecution, having used the transcript as supporting material
when the indictment was confirmed, could argue that there were exceptional circumstances
justifying a non-disclosure in relation to that witness.
20. Transcript, p 140.
21. Further and Better Particulars of Motion
for Protective Measures, 8 Feb 2000 (Further Particulars),
par 4; Transcript, p 83. See also First Tadic Protective Measures
Decision, at 215.
22. First Tadic Protective Measures Decision,
at 157 (par 38), citing Axen v Federal Republic of Germany, ECHR decision
of 8 Dec 1983, Series A, no 72 (see at par 27).
23. First Tadic Protective Measures Decision,
at 175 (par 65), 201.
24. This is subject to Rule 75, which
permits appropriate measures to be ordered for the privacy and protection of
witnesses unlimited in time, but only if the measures are consistent with
the rights of the accused. No issue arises in the present motion in relation
to that power, which is discussed in the First Tadic Protective Measures Decision,
by the majority at 169-175,179 (pars 53-66, 71) and by Judge Stephen, dissenting,
at 221, 225-235.
25. It was submitted by the prosecution that
such a motions should proceed ex parte (Transcript, p 86). That would be
appropriate only if the identity of the particular witnesses would otherwise
be identified: Prosecutor v Simic, Case IT-95-9-PT, Decision on (1) Application
by Stevan Todorovic to Re-open the Decision of 27 July 1999, (2) Motion
by ICRC to Re-open Scheduling Order of 18 November 1999, and (3) Conditions
for Access to Material, 28 Feb 2000, pars 40-41. Whether ex parte
or inter partes, it would nevertheless be appropriate for the application to
be made on a confidential basis.
26. Further Particulars, par 12; Transcript,
27. Further Particulars, par 8.
28. Prosecutor v Simic, Case IT-95-9-R77,
Oral Judgment, 29 Mar 2000, Transcript, pp 904-905.
29. Prosecutor v Zlatko Aleksovski, Case
IT-95-14/1-T, Finding of Contempt of the Tribunal, 11 Dec 1998.
30. Further Particulars, par 8
31. Ibid, par 9.
32. Ibid, par 10.
33. Transcript, p 90.
34. This provides for a log to be maintained
by counsel of those to whom they have disclosed the non-public information in
the material provided by the prosecution, and which may be reviewed by the Trial
Chamber in the event of a perceived violation by counsel or others
within the defence team. See Section 8 of this Decision.
35. Paragraph 9 of this Decision.
36. At 179 (par 72). It is perhaps instructive
that the authority upon which the majority relied a decision of
the Appellate Division of the Supreme Court of Victoria (Australia), in Jarvie v
Magistrates Court of Victoria  VR 84 at 90, delivered by Mr Justice
Brooking on behalf of the Court involved a witness who had been
well known to the accused, although only by a pseudonym and not his real name
(he was an undercover police officer): First Tadic Protective Measures Decision,
per Judge Stephen, at 233.
37. Kostovski v Netherlands, ECHR decision
of 20 Nov 1989, Series A, no 166, at 21 (par 44).
38. Transcript, p 115.
39. Transcript, p 123.
40. Transcript, pp 126-128. This is more
consistent with the written response filed on behalf of Talic: Response of General
Talic to the Further Particulars Provided by the Prosecutor Relating to the
Motion for Protective Measures, 10 Feb 2000, par 5.
41. Transcript, p 81.
42. Ibid, p 80.
43. Ibid, pp 83-84. In other words, it
is unlikely that there will be any real dispute about their evidence: Prosecutor v
Krnojelac, Case IT-97-25-PT, Decision on Preliminary Motion on Form of Amended
Indictment, 11 Feb 2000, par 18(A).
44. Transcript, p 89.
45. Further Particulars, par 13.
46. Transcript, p 84.
47. Counsel for Brdanin quoted Lord Owen:
Never before in over thirty years of public life have I had to operate
in such a climate of dishonour, propaganda and dissembling. Many of the people
with whom I have had to deal in the former Yugoslavia were literally strangers
to the truth. (Balkan Odyssey, David Owen, 1996, Indigo Edition, p 1.)
48. See, for example, Prosecutor v Tadic,
Case IT-94-1-T, Decision on Prosecution Motion to Withdraw Protective Measures
for Witness L, 5 Dec 1996, par 4; Prosecutor v Tadic, Case
IT-94-1-A, Judgment, 15 July 1999, pp 26-28 (pars 57-65).
49. See, for example, Prosecutor v Tadic,
Case IT-94-1-A-R77, Judgment on Allegations of Contempt Against Prior Counsel,
Milan Vujin, 31 Jan 2000, pars 46, 136.
50. Prosecutor v Aleksovski, Case IT-95-14/1-AR73,
Decision on Prosecutors Appeal on Admissibility of Evidence, 16 Feb
1999, par 18.
51. So far as defence witnesses are concerned,
the attention of defence counsel is directed to the provisions of Article 29
of the Tribunals Statute.
52. See, for example, Prosecutor v Tadic,
Case IT-94-1-A-R77, Judgment on Allegations of Contempt Against Prior Counsel,
Milan Vujin, 31 Jan 2000.
53. Motion, par 13.
54. Transcript, p 134.
55. Ibid, p 120.
56. Ibid, p 142.
57. Ibid, pp 131, 133-134.
58. Ibid, p 97.
59. Further Particulars, par 15
60. Transcript, p 94-95.
61. Further Particulars, par 16.
62. Ibid, p 133. See also a reference
by the prosecution to such documents, at Transcript, pp 99-100.
63. Sexual Offences (Protected Materials)
Act 1997, which contains elaborate provisions to prevent disclosure of such
material to any person (including the accused person, even if unrepresented)
in such a way which permits that person to retain possession of it at any time
or to make a copy of it: Further Particulars, par 18.
64. Transcript, p 97.
65. Ibid, p 134.
66. Ibid, p 134.
67. Response [by Talic] to Prosecutors
Motion, 31 Jan 2000, par 3.
68. Transcript, p 130.
69. Ibid, p 130-132.
70. Such a situation has been justified in
some domestic jurisdictions for example, where lorry drivers are
required to keep log books as to their working hours and rest periods.
71. Scheduling Order, 27 Jan 2000, p 3.
72. Letter from James Stewart, Chief of Prosecutions,
to the Pre-Trial Judge, 31 Jan 2000 (Stewart letter). The prosecution
was subsequently required to file the letter: Variation of Scheduling Order
of 27 January 2000, 2 Feb 2000, p 2.
73. Variation of Scheduling Order of 27 January
2000, 2 Feb 2000, p 2.
74. Scheduling Order, 29 Feb 2000, p 4.
75. Submission of the Registrar on the Confidential
Filing Issue in Accordance with Rule 33(B), 7 Mar 2000 (Registrars
76. Stewart letter, par (a).
77. Ibid, par (b); Transcript, p 102.
78. Paragraph 26 of this Decision.
79. The Trial Chamber has not overlooked that
publicity may be given to such documents when publicly filed, although none
was in fact given to this Motion notwithstanding its public release when its
confidentiality was lifted. In any event, so far as the point made by the Trial
Chamber is concerned, it does not matter how the allegations in the filed document
might become known to those persons already minded to prevent evidence being
given against these two accused.
80. Prosecutor v Tadic, Case IT-94-1-A-R77,
Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 Jan
2000, a judgment of the Appeals Chamber.
81. Prosecutor v Simic, Case IT-95-9-R77,
Judgment in the Matter of Contempt Allegations Against an Accused and his Counsel,
30 June 2000.
82. See also Article 21.2 of the Tribunals
83. Transcript, p 148.
84. Ibid, p 104.
85. One example of the approach of the parties
to hearing matters in closed session may be seen in Prosecutor v Tadic,
Case IT-94-1-A-R77, Judgment on Allegations of Contempt Against Prior Counsel,
Milan Vujin, 31 Jan 2000, at par 11. In Prosecutor v Kunarac,
Case IT-96-23-T, Order on Defence Motion Pursuant to Rule 79, 22 March
2000, the defence has sought a closed hearing for the evidence of all the prosecution
witnesses who had accused the defendant of rape. The application was refused.
86. IT/121, 1 March 1997, as approved by the
Judges sitting in Plenary Session on 25 June 1996.
87. Registrars Submission, par 3.
88. Ibid, par 4.
89. Ibid, par 4.
90. A recent example was the wise decision
within the Registry to file a document on a confidential basis, notwithstanding
the absence of any label of confidentiality, because it included references
to the transcript of evidence given in closed session: Prosecutor v Delalic,
Case IT-96-21-A, Order Relating to Appeal Brief Filed on Behalf of Zegnil Delalic,
26 May 2000. There have been many other such occasions.
91. Registrars Submission, par 5.
92. Ibid, par 6.
93. Ibid, par 4.
94. Ibid, p 100.
95. Transcript, p 99.