IN TRIAL CHAMBER II
Judge David Hunt, Presiding Judge
Judge Florence Ndepele Mwachande Mumba
Judge Liu Daqun
Mrs Dorothee de Sampayo Garrido-Nijgh
8 November 2000
Radoslav BRÐANIN & Momir TALIC
DECISION ON THIRD MOTION BY PROSECUTION
FOR PROTECTIVE MEASURES
The Office of the Prosecutor:
Ms Joanna Korner
Ms Anna Richterova
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. Rule 66(A)(ii) of the Tribunals Rules of Procedure and Evidence ("Rules") requires the prosecution to disclose to the accused, within the time limit prescribed by the Trial Chamber or the Pre-Trial Judge, copies of the statements of all witnesses whom it intends to call to testify at the trial. This disclosure requirement is made subject to the provisions of Rules 53 and 69,1 made in accordance with Article 22 of the Tribunals Statute.2 Such a time limit has been prescribed in the present case but, in lieu of disclosure of any particular statement, the prosecution was permitted to file a motion within that time seeking protective measures in relation to the identity of the proposed witness who gave that statement.3
2. The present application seeks certain protective measures in relation to the witnesses whom the prosecution intends to call to give evidence in the trial.4 The measures sought would preclude the disclosure at this stage of the identity and current whereabouts of the prosecutions witnesses to the accused and their defence teams.5 This application is not concerned with the protective measures more usually sought, which preclude the disclosure of that information to the public but permit it to the accused. The relief sought is twofold:
1. leave to redact from the statement of all witnesses whom the prosecution proposes to call any information concerning the current whereabouts of each witness, such information to be disclosed to the two accused and their defence teams "upon a reasonable showing";6 and
2. leave to redact from the statements of four witnesses any information concerning the identity of those witnesses, such information to be disclosed to the two accused and their defence teams at a time "closer to trial".7
2 Non-disclosure of current whereabouts
3. The redactions sought relating to the current whereabouts of all the prosecutions witnesses are not opposed by the accused Momir Talic (Talic).8 The accused Radoslav Brdanin (Brdanin) does not oppose that relief, provided that the information is disclosed to him no later than sixty days before trial.9
4. As the relief sought is not opposed, subject only to a determination of the accuseds right to the eventual disclosure of the information redacted, an order will be made granting it. It is unnecessary at this stage to determine just when, if at all, those current whereabouts must be disclosed. In relation to that issue, however, it is pointed out once again that the onus lies upon the party seeking protective measures pursuant to Rule 69 to justify the redactions, not upon the other party to justify disclosure.10 If there is a dispute concerning this issue, it will therefore be for the prosecution to justify the continued non-disclosure of the current whereabouts of these witnesses.
3 Delayed disclosure of identity
5. The delayed disclosure sought of the identity of the four witnesses in question is completely opposed by Talic, and partly so by Brdanin.
Ex parte basis
6. In relation to two of the witnesses (identified as witnesses 7.74 and 7.75),11 the prosecution has tendered all of the material upon which it relies on an ex parte basis only. Talic objects to such use of ex parte communications, and he has submitted that the arguments advanced to justify the protective measures sought should be set out in such a way that the basis for the application is disclosed as far as possible without revealing the identity of the particular witness for whom the protection is sought.12
7. The use of ex parte communications in these circumstances was discussed recently by the Trial Chamber in relation to the prosecutions application pursuant to Rule 66(A)(i), which concerned the disclosure of the identity of those persons whose statements had been part of the supporting material accompanying the indictment when confirmation was sought.13 It was determined that the procedure adopted by the prosecution there, and which has been repeated by the prosecution here, of producing all the material tendered as justifying the relief sought on an ex parte basis deprives the accused of any opportunity of deciding whether to oppose the application, and that the basis of the application must be disclosed as far as possible without revealing the identity of the particular witness for whom the protection is sought.14 The party seeking relief on an ex parte basis must identify with some care for the Trial Chamber why the disclosure of the detail of the application to the other party to the proceedings would cause unfair prejudice to either the party making the application or some other person involved in or related to that application.15
8. Because that decision of the Trial Chamber was based upon a statement of general principle one which was not limited to issues relating to discovery16 the same procedure must be applicable to applications made pursuant to Rule 66(A)(ii) as well.
9. The extent to which the ex parte procedure was adopted by the prosecution in the present case was not warranted. It is difficult to see how the non-disclosure of every detail of the material supporting the application could ever be warranted. A hypothetical example may be given (which does not relate to either of the two ex parte applications made in the present case) to demonstrate how the salient details of an application for protective measures could be given on an inter partes basis without revealing the identity of the witness. The prosecution could state (on a confidential basis only):
The witness, who is a Bosnian Muslim, currently resides outside the former Yugoslavia, but he proposes to return within a month to live in the Federation of Bosnia and Herzegovina in a municipality where the majority of persons are Bosnian Serbs and in relation to which the [XYZ Agency] has reported that there is presently a high risk of retaliation if it were known that a Bosnian Muslim was to give evidence against a Bosnian Serb.
It is proposed that the witness will give evidence directly relating to the participation of the accused in planning certain incidents alleged in the indictment. He has expressed fears to an OTP investigator concerning his security, and the security of his family, should the accused learn of his identity, and he has stated as the objective basis for those fears that he has heard from other proposed witnesses for the prosecution that they have received anonymous telephone calls threatening them and their families with violence if they give evidence in this case. The persons making those threats claimed to be acting on behalf of the accused. Such threats had already been reported to the OTP by those other proposed witnesses. The OTP has formal, sworn, statements by the witness and by the other proposed witnesses verifying these facts. The OTP has been unable to verify that the persons making these threats were in fact acting on behalf of the accused.
Any investigation on behalf of the accused would necessarily take place at least in part within the municipality where the witness will be living.
The details could then be completed on an ex parte basis, which would identify the municipality involved, the nature of the evidence to be given, and any relationship between the witness and the accused. The prosecution could also file on an ex parte basis the additional objective material (including the formal, sworn, statements) upon which it relies for its claim that, despite the obligations imposed upon the accused and their defence teams, there should be no disclosure even to them at this stage.17
10. Such an application by the prosecution for protective measures could not identify the witness, but it would provide the accused with sufficient information to decide whether to oppose the application.
11. The prosecution is directed to file, on a confidential basis only and without revealing the identity of the witnesses 7.74 and 7.75, its justification for the non-disclosure of their identity to the accused and their defence teams in such a way that the accused are given sufficient information to enable them to determine whether to oppose the relief sought. The prosecution may also, if it so desires, add to the material presently filed on an ex parte basis.
Inter partes basis
12. In relation to the other two witnesses whose identity the prosecution seeks to disclose to the accused and their defence teams at a time closer to the trial (identified as witnesses 7.72 and 7.73), the material upon which the prosecution seeks has been disclosed on a confidential inter partes basis. The relief sought is opposed by Talic,18 and the prosecutions entitlement to it is doubted by Brdanin, upon the basis that the application appears to be based solely upon the witnesses expressions of concern.19
13. The following propositions may now be taken to have been established by the recent jurisprudence of this Trial Chamber:
(1) What must be shown by the prosecution, in support of an application for protective measures requiring the non-disclosure of the identity of a particular witness to the accused and the defence team until a later stage of the proceedings, is that such disclosure at this stage, despite the obligations imposed upon the accused and his defence team in relation to disclosure by them to the public ("save as is directly and specifically necessary for the preparation and presentation of this case") or to the media (non-disclosure in any circumstances),20 may put the witness "in danger or at risk".21
(2) The fears of the potential witness himself that he may be in danger or at risk are not in themselves sufficient to establish any real likelihood that he may be in danger or at risk from such a disclosure to the defence, and something more than that must be demonstrated before an interference with the right of the accused to know that identity is warranted.22 What is required is that there be some objective foundation for those fears.23
(3) 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, and, once the defence commences (quite properly) to investigate the background of the witness whose identity has been disclosed to them, there is a risk that those to whom the defence have spoken may reveal to others the identity of that witness, with the consequential risk that the witness will be interfered with.24
(4) Article 20.1 of the Tribunals Statute makes the rights of the accused the first consideration, and the need to protect victims and witnesses the secondary consideration, an interpretation correctly accepted by the prosecution.25 A balancing exercise is required in each case.26
14. Concerning witness 7.72, the prosecution says:
This witness was recently spoken to by an OTP investigator. This witness currently resides in a country outside the former Yugoslavia. The witness stated that he has concerns for his safety and security and that of his family. The witness stated that since December 1999 he has received three anonymous telephone calls from a male asking " how much do you need to give up your testimony ". The witness did not recognise the caller, nor does he know who is responsible for these telephone calls. The witness has provided the ICTY with specific details about murders he witnessed (eg names and description of perpetrators and victims).
Talic has argued that, as the identity of the witness is already known to individuals other that the defence to be a witness, the defence must be entitled to know that identity as well. Moreover, he argues, as the witness is to testify in relation to specific events, it is "extremely important" for the defence to check on his reliability as a witness.27
15. The first argument does not logically lead to the conclusion that the further disclosure of the witnesss identity to the defence may not put him further in danger or at risk. The second argument appears to place the witness in the wrong category. In the first of the Protective Measures Decisions, and in accordance with submissions then made by Talic, the Trial Chamber accepted that the disclosure of the identity of those witnesses who do not directly implicate the accused does little to assist the defence in its preparation for the trial in a case such as the present; the witnesses whose identity is of much greater importance to the accused in the preparation of the defence are those who do directly implicate the accused as having superior authority or as aiding and abetting.28 There is nothing to suggest that witness 7.72 is in the second category. Indeed there is every indication that he falls within the first category. But none of this disposes of the application in favour of the prosecution, as the onus lies upon the party seeking protective measures pursuant to Rule 69 to justify the redactions, not upon the other party to justify disclosure.
16. There are a number of problems with the application so far as non-disclosure to the defence is concerned, whatever merit it may have had as an application for non-disclosure to the public. The statement alleged to have been made, "[ ] how much do you need to give up your testimony [ ]", suggests more the prelude to the offer of a bribe than a threat, although clearly a threat might be foreseeable if the bribe were refused. There is no suggestion that the OTP has sought to verify the circumstances in which the statement was made, or to elucidate the meaning attributed to it by the witness. There is nothing other than what was said in the telephone call to show that the witness may have believed on reasonable grounds that the caller was associated with the defence. An objectively founded fear of danger or risk from any source, in addition to exceptional circumstances, will usually be sufficient for the grant of protective measures involving non-disclosure of the witnesss identity to the public but, in order to justify non-disclosure of that identity to the accused and the defence team, it is vital for the prosecution to establish, in addition to exceptional circumstances, that such a disclosure may put the witness further in danger or at risk.
17. There is nothing to suggest that a disclosure of the identity of the witness to the accused and the defence teams may put the witness further in danger or at risk or which is of such an exceptional nature as to warrant the interference with the accuseds rights. The prosecution has not suggested, for example, that the evidence of witness 7.72 will directly implicate the accused, or that the family of the witness lives in an area in which any investigation on behalf of the accused would necessarily have to take place. The clear implication is that the witness himself has been relocated in another country with a new identity.
18. The prosecution has failed to establish that an investigation by the defence teams into the evidence of this witness may put the witness further in danger or at risk, and this particular application is refused. A further application may be made for protective measures in relation to the disclosure of the identity of this witness to the public at the appropriate stage.
19. Concerning witness 7.73, the prosecution says:
This witness was recently spoken to by an OTP investigator. The witness currently resides in a village in a municipality within the Federation. This witness is a widowed mother of a young child. She stated that, by the end of the year, she wishes to return to her former house, which is situated in a municipality within the Republika Srpska. She would reside with her young child. The witness has provided the ICTY with specific details about incidents she witnessed (eg names and description of perpetrators and victims).
Talic has argued that the mere fact that the witness intends to settle in Republika Srpska is insufficient reason for the non-disclosure of her identity. He also repeats his argument that the fact that the witness is to testify in relation to specific events is a valid reason for disclosure, so that the defence may check on her reliability as a witness.29 The second argument again appears to place the witness in the wrong category.
20. As to the first argument, in the absence of any more direct evidence, the particular risk faced by a person testifying against a person of another ethnic group will depend on the particular municipality in which that witness is living (or to which he or she is returning) and the ethnicities of the witness and the accused.30 It may be assumed that witness 7.73 is a Bosnian Muslim (although this should have been expressly stated by the prosecution). The accused in this case are Bosnian Serbs. Those facts do not automatically mean that she will be in danger or at risk from retaliation if she returns to live in Republika Srpska. The UNHCR reports and the other reports provided by the prosecution31 would tend to suggest that there remains a considerable risk to Bosnian Muslims returning to live in Republika Srpska, although the problem does not exist uniformly throughout the entity. The prosecution has not identified for the Trial Chamber, even on an ex parte basis, just where the witness intends to live, so that it gains less assistance from these reports than it should.
21. It may also be assumed that, whatever risk does exist for this witness, it would be increased if it were known that the witness was to give evidence against Bosnian Serbs, and perhaps the more so because of the identity of these two accused. That would clearly entitle the witness to protective measures against the disclosure of her identity to the public. But, again, nothing has been demonstrated which suggests that the disclosure at this stage of her identity to the accused and their defence teams may put her in danger or at risk, or which is of such an exceptional nature as to warrant the interference with the rights of the accused which the non-disclosure produces. Again, the prosecution has not suggested, for example, that the evidence of witness 7.73 will directly implicate the accused, or that she will be living in an area in which any investigation on behalf of the accused would necessarily have to take place. This is not a matter which should be left for conjecture by the Trial Chamber.
22. The balancing operation which must be carried out in each case requires this particular application for protective measures for witness 7.73 to be refused, but a fresh application may be made if desired at the appropriate stage in relation to the disclosure of her identity to the public.
23. For the foregoing reasons, the following orders are made:
1. The prosecution is granted leave to redact from the statements of all witnesses whom it proposes to call to give evidence in this case any information concerning the current whereabouts of each witness.
2. In relation to the witnesses for whom protective measures have been sought on an ex parte basis, the prosecution is directed to file, on a confidential basis only and without revealing the identity of the witnesses, its justification for non-disclosure of their identity to the accused in such a way that the accused are given sufficient information to enable them to determine whether to oppose the relief sought.
3. The application for protective measures in relation to witnesses 7.72 and 7.73, by which their identity will not be disclosed to the accused or their defence teams at this stage, is refused.
Done in English and French, the English text being authoritative.
Dated this 8th day of November 2000,
At The Hague,
Judge David Hunt
[Seal of the Tribunal]