IN TRIAL CHAMBER II
Judge David Hunt, Presiding Judge
Judge Florence Ndepele Mwachande Mumba
Judge Liu Daqun
Mrs Dorothee de Sampayo Garrido-Nijgh
15 November 2000
Radoslav BRÐANIN & Momir TALIC
SECOND DECISION ON MOTIONS BY
RADOSLAV BRÐANIN AND MOMIR TALIC
FOR ACCESS TO CONFIDENTIAL DOCUMENTS
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 background to the application
1. Application was made by the accused Momir Talic (Talic) and, later, by the accused Radoslav Brdanin ("Brdanin") for access to documents and transcripts from four other proceedings before the Tribunal two concluded and the other two in the process of being heard which relate to the same geographical region and the same period as the events alleged in the indictment against them.1 The four proceedings were: Prosecutor v Tadic,2 tried by Trial Chamber II; Prosecutor v Kovacevic,3 which was before Trial Chamber II before the accused died; Prosecutor v Kvocka,4 currently being tried by Trial Chamber I; and Prosecutor v Sikirica,5 currently pending before Trial Chamber III.
2. The basis of the application by Brdanin and Talic was that access to that material, which was already available to the prosecution, would place them on the same basis as the prosecution and may have significant value in their preparation for trial.6 The application was limited to confidential material that is, material not available to the public, either because it was evidence heard in a closed or private session or because it had been filed on a confidential basis. Before access could be granted to such material, variations would be necessary to whatever orders had been made in those four cases which rendered that material confidential. These would generally be protective measures in favour of witnesses or victims made pursuant to Rules 53, 69 or 75 of the Rules of Procedure and Evidence ("Rules").
3. The application was opposed by the prosecution, which argued, inter alia, (i) that it was a fishing expedition to discover whether there was any case at all which the accused could make, and (ii) that it was beyond the competence of this Trial Chamber to grant the relief sought.7 The prosecution made no submissions as to the conditions under which access should be permitted in the event that it were to be granted.
4. The first argument was rejected, it being held that there was a good chance that the transcripts and exhibits relating to other cases within the Tribunal arising out of events alleged to have occurred in the same area and at the same time as those with which the present case is concerned would materially assist the accused in preparation for trial.8 The second argument, however, was upheld in that, in accordance with Rule 75(D),9 this Trial Chamber has no power to vary or rescind protective measures granted in proceedings heard or being heard by another Trial Chamber or, where the proceedings had been before this Trial Chamber, it is no longer constituted by the judges who granted the protective measures.10 The Registrar was therefore invited to transfer the application to Trial Chambers I and III to deal with the proceedings heard or being heard by them, and to the President to deal with the proceedings which had been heard by this Trial Chamber (differently constituted).11
5. Trial Chamber III considered the application so far as it concerned Prosecutor v Sikirica, and it denied relief upon the bases that the only matters the subject of confidentiality were hearings held in closed session relating solely to matters personal to the accused, such as conditions of detention, and that such material would not be of significant value to the accused in preparation of this case.12
6. Next, the President considered the application so far as it concerned Prosecutor v Tadic and Prosecutor v Kovacevic, and he ordered the Registrar (i) to release to Talic and Brdanin the confidential hearing transcripts and exhibits relating to those two cases, and (ii) to grant the same protective measures mutatis mutandis which were applied to the confidential hearing transcripts and exhibits in those cases.13 The prosecution has since filed an application for the President to re-consider his decision, on the ground, inter alia, that it had not been given the opportunity to be heard before it was given, no doubt to make the submissions which it had failed to make when the application for access was previously before this Trial Chamber.14 The application for re-consideration is still pending before the President, but the decision which he gave does not call for any action to be taken by this Trial Chamber. The two cases considered by the President are therefore not the subject of this present decision.
7. Finally, Trial Chamber I considered the application so far as it concerned Prosecutor v Kvocka. It also stated that the material could be of significant value to the accused, and it ordered
[ ] the transcripts, exhibits and confidential materials in the Kvocka case, to date, be disclosed to Trial Chamber II for any purposes that it will deem appropriate in accordance with its jurisprudence in practice, which might allow for disclosure to the Defence in the Talic and Brdanin case, subject to its taking measures guaranteeing the witnesses in consultation with the Victims and Witnesses Section and, where appropriate, documentary or other evidence, mutatis mutandis, the same degree of protection as they enjoyed previously, and if necessary additional measures such as the adoption of different pseudonyms in the two cases and the prohibition of any mention, should such be the case, of the fact a witness might have already testified before the Tribunal [ ].15
The present decision relates to the issue thus delegated to this Trial Chamber under what conditions access to the confidential material in the Kvocka case should be granted to Brdanin and Talic.
2 The conditions of access
8. The prosecution seeks only the redaction of those parts of this material which will reveal the identity of any prosecution witnesses prior to its disclosure to Brdanin and Talic. It submits that the disclosure of unredacted transcripts of closed or private session hearings would disclose to them the identity of the witness who had received protective measures in the Kvocka trial "without [Brdanin and Talic] having given any indication of why they require the identity of a witness who may never be called to give evidence in the [present] trial" and without the witnesss knowledge or agreement.16 The prosecution undertakes, should Brdanin and Talic wish to contact any witness, "to convey that request to the said witness".17 In response, Talic contends that the previous finding, that access to this material would materially assist the accused in preparation for trial,18 is sufficient to obtain the material in unredacted form.19 Brdanin contends that there is an important difference between public disclosure and the kind of private disclosure requested here.20
9. What must be emphasised is that this is not an application by the accused for access to the statements of witnesses who will be giving evidence against them in this trial. The material to which they seek access is evidence given in other cases, and there is no suggestion that it will be given on behalf of the prosecution in this case. The prosecutions obligations of disclosure under Rule 66(A), in relation to which a considerable amount has recently been written in this case,21 do not apply to this material. Nor is this application related to any exculpatory material which may be included in the evidence given on a confidential basis in other cases to which access is sought. The obligation of disclosure on the prosecution under Rule 68 ("Disclosure of Exculpatory Evidence") applies to any exculpatory material which may be included within that evidence,22 and nothing which follows in this decision is intended to apply to such exculpatory material.
10. The situation with which this decision is concerned is very different to the situation under either Rule 66(A) or Rule 68. Brdanin and Talic have sought access to this material because, as already stated, the other cases deal with the same geographical region and the same period as the events alleged against them in the indictment in this case. At this stage, they do not need to know the identity of the witnesses who gave this evidence in order to determine whether any particular piece of this evidence will in fact assist them in their preparation for this case. If, having considered the material, Brdanin and Talic wish to give further consideration to a particular piece of this evidence, either with a view to calling the witness in the trial themselves or to interview the witness in order to obtain additional information, then at that stage, and only at that stage, they will be in a position to justify the revelation to them of the identity of that protected witness.
11. In this very different situation, the onus is the reverse of that involved in the disclosure by the prosecution of the materials referred to in Rule 66(A) and Rule 68. In relation to the identity of witnesses who are to give evidence against the accused or of persons whose statements accompanied the indictment when confirmation was sought, which the prosecution is required to disclose pursuant to Rules 66(A), or of witnesses who gave evidence in other cases which the prosecution is required to disclose pursuant to Rule 68, the burden lies upon the prosecution to justify non-disclosure, not upon the accused to justify disclosure.23 In relation to the identity of protected witnesses in other proceedings to whose evidence Rule 68 does not apply, the burden lies upon the party seeking disclosure to justify that disclosure, not upon the parties to those other proceedings to justify non-disclosure. The purpose of the protective measures granted in favour of those witnesses in the other proceedings would be destroyed if the benefit of those protective measures could be lost merely because there is a good chance that their evidence would materially assist an accused person in other proceedings.
12. When it can be demonstrated
(1) that access to such a witness may materially assist that accused person in some identified way in the conduct of his defence (such as suggested in par 10, supra), and
(2) that such assistance is not otherwise reasonably available to him,
consideration may be given to
(a) whether access to the witness, direct or indirect, should be granted, and
(b) the nature of any variation to the protective measures in favour of those protected witnesses which is required.
That can be demonstrated only after the accused person seeking disclosure has looked at the evidence in a redacted form.
13. Moreover, it would be a complete waste of the Tribunals resources for the Trial Chamber to seek the assistance of the Victims and Witnesses Section pursuant to Rule 69(B) by contacting every witness who gave evidence in this case in order to advise the Trial Chamber what protective measures would be appropriate in relation to the disclosure of their identity to Brdanin and Talic if that disclosure is to be granted. However, once the list of witnesses has been narrowed to those for whose identity Brdanin and Talic are able to demonstrate a real need, it would be appropriate for the Trial Chamber to consult the Victims and Witnesses Section, which in turn would contact those witnesses. (That list of witnesses may be nominated by Brdanin and Talic to the Trial Chamber on an ex parte basis, so that the prosecution is not informed prematurely of the case they may be seeking to make.) Then, and only then, can the Trial Chamber properly decide (on the basis of the information provided by the Victims and Witnesses Section) whether, and under what circumstances, the identity of those witnesses may be revealed to the accused. Nothing in the Access Decision has already determined that issue in favour of the accused.
14. Accordingly, and for the foregoing reasons, Brdanin and Talic are granted:
(1) access to the material produced by Trial Chamber I, after the redaction by the Registry of those parts of it which will reveal the identity of any witness who gave evidence for either party on a confidential basis; and
(2) leave to make an application at the appropriate time justifying the revelation to them of the identity of any particular witness.
Done in English and French, the English text being authoritative.
Dated this 15th day of November 2000,
At The Hague,
Judge David Hunt
[Seal of the Tribunal]