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
DECISION ON FOURTH 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
1 The application
1. Rule 66(A)(i) of the Tribunals Rules of Procedure and Evidence ("Rules") requires the prosecution to make available to the accused copies of the supporting material which accompanied the indictment when confirmation was sought. The prosecution disclosed that material, but redacted all the statements in that material so as to remove the name and anything else which would identify the persons who made those statements. The Trial Chamber ordered the prosecution to supply unredacted copies of those statements, subject to the proviso that, if the prosecution sought protective measures in relation to any particular person who had made a statement, it need not supply the unredacted copy of that statement until the application for protective measures had been disposed of by the Trial Chamber.1
2. In accordance with that proviso, the prosecution filed a number of further motions seeking protective measures. This present decision is concerned only with the Fourth Motion,2 in which the prosecution seeks the following relief:3
(a) Leave until 10 October 2000 to either file the appropriate motion or disclose the proffer of testimony unredacted in respect of the witness numbered 7.1.
(b) Leave until 21 October 2000 to re-establish contact with the witness to ascertain security concerns, if any, and to either file the appropriate motion or disclose the statement unredacted in respect of witness numbered 7.24.
(c) Leave for disclosure of the identity of the witness to be delayed until a period closer to trial in respect of the witness numbered 7.15.
(d) Leave to withhold from the Accused the identity of the witnesses numbered 7.19, 7.28 and 7.47, whom the Prosecution does not intend to call at trial.
Each of the witnesses referred to had given statements which accompanied the indictment when confirmation was sought, and therefore had to be disclosed pursuant to Rule 66(A)(i). The relief sought in pars (a) and (b) has since been replaced by the relief sought in a yet further motion,4 in which a decision is being given at the same time as this decision. The applications in pars (c) and (d) are made pursuant to Rule 69 ("Protection of Victims and Witnesses"), which permits the prosecution, in exceptional circumstances, to apply for the non-disclosure of the identity of a victim or witness "who may be in danger or at risk".
3. The applications are not concerned with the protective measures usually sought, which preclude the disclosure of information to the public but permit its disclosure to the accused. The measures sought would preclude the disclosure, either at this stage or completely, of the identity of the persons who made the statements which accompanied the indictment when confirmation was sought. The principles which are applicable to applications for such relief have already been fully discussed and stated in previous decisions in the present case.5 It is unnecessary to re-state all of them here.
2 Delayed disclosure of identity
4. The application for leave to delay disclosure of the identity of witness 7.15 until a time closer to the trial is based upon the following material:
This witness was recently spoken to by members of the OTP. This witness currently resides in a country outside the former Yugoslavia, however, the witness [scil witnesss] mother and siblings live in a municipality within the Republika Srpska. The witness stated that the [witnesss] mother is afraid of retaliations against her children from "those who are indicted and those who support the indicted".
The witness stated that the "extreme forces" were very concentrated in the Republika Srpska municipality where the [witnesss] mother and siblings currently reside. The witness held a position of authority. The witness stated that the witness had to deal personally with "the Serbs who came into power in the early 1990s, who were still in the same positions today".
The prosecution also relies upon a report of the United Nations High Commissioner for Refugees ("UNHCR") dealing with the situation in the various municipalities of both entities within Bosnia and Herzegovina, dated August 2000, and a letter from another United Nations official which has not been made public but which was attached on a confidential basis to the Second Motion.6
5. The accused Radoslav Brdanin ("Brdanin"), in his response, accepts that witness 7.15 is entitled to protective measures whichprevent disclosure of his or her identity to the public,7 but he objects to such measures which prevent the disclosure of such identity to him and his defence team.8 He asserts that further disclosure to the public as a result of disclosure to the accused and their defence teams would occur only if the defence team "determine to violate court orders regarding disclosure", and he goes on to re-iterate the arguments concerning the unlikelihood of such a course of action by the defence, and concerning the need for detailed investigations before the trial, which had been put in connection with the application which led to the Protective Measures Decision.9 He concludes:10
In the light of the foregoing, it seems that the rights of the defence mandate full disclosure at an early date so as to permit proper investigation. Such concerns should clearly override the speculative and presumptive allegations that defence counsel and their staff cannot be trusted to abide by the Trial Chambers protective orders.
6. The accused Momir Talic (Talic), in his response, asserts that the fact that the mother of witness 7.15 has fears for the safety of her family is insufficient, and that the testimony of the witness is such that the Republika Srpska officials
[ ] would certainly know who the witness is if the Defence, as part of its investigations and pursuant to paragraph 4(b) of the [Protective Measures Decision], presented the testimony to them. However, the defence does not know the witness [scil witnesss] identity and the stubborn refusal of the Prosecutor to disclose it to Defence Counsel will force the Defence to resort to the option given it by the above mentioned Decision.11
Talic also asserts that, after the Protective Measures Decision, there is no provision in the Rules of Procedure and Evidence which "provides for the possibility that the [witnesss] identity not be disclosed to the Defence".12
7. Before turning to consider the merits of the present application, it is necessary to say something concerning certain of the submissions made by the two accused, if only for the purpose of putting them to one side.
8. The first of these submissions is that made by Brdanin, that further disclosure to the public of the identity of witnesses provided to the accused and their defence teams would occur only if the defence teams deliberately violated protective measures ordered by the Trial Chamber. It is true that, in its First Motion,13 the prosecution attempted to make out the existence of "a history of violations in virtually every case that has been brought before this Tribunal", with the involvement of defence counsel in some of those violations.14 That attempt, described by the Trial Chamber as "a piece of hyperbole", did not succeed.15 That allegation has not been repeated since. The prosecutions claim for the non-disclosure to the accused and their defence teams in the present motion is that
[...] the longer the identity of a witness is known by people who are working in Republika Srpska, the greater the risk for disclosure, inadvertent or otherwise, to those elements that would see value in preventing a witness from testifying or would seek retaliation on a witness who has agreed to testify.16
9. The basis for that claim in the present case will be referred to shortly, but it is important at this stage to emphasise that the existence of a risk of further disclosure of a witnesss identity following a quite proper investigation by the defence into the background of that witness has already been accepted by the Trial Chamber, in that there is a risk that those to whom the defence has spoken may reveal to others the identity of that witness, with the consequential risk that the witness will be interfered with.17 It is open to the prosecution to lead direct evidence of the extent of that risk in the particular case for example, that such investigations by the defence in the particular case would necessarily have to take place in the area where the witness is living or (in cases such as the present) where the witnesss family is living.18 In the absence of such direct evidence, the particular risk faced by a person testifying against a person of another ethnic group may be assessed, to at least a general extent, by reference to the particular municipality in which that witness is living and the ethnicities of the witness and the accused.19
10. It is that risk to the particular witness which is the real issue in cases where the prosecution seeks to avoid the disclosure of a witnesss identity to the accused and the defence team, not whether defence teams in general cannot be trusted to comply with the protective measures ordered by the Trial Chamber. The Trial Chamber would be assisted by defence counsel in these cases more with arguments directed to any specific evidence produced by the prosecution of a risk to the particular witness than with repetition of the justifiable complaint concerning the attack upon the integrity of defence counsel generally which was unsuccessfully made by the prosecution in the First Motion.
11. The second of the submissions about which something should be said at this stage is that made by Talic, that the stubborn refusal of the prosecution to disclose the identity of witness 7.15 to him and his defence team will force them to resort to the option said to have been given to them by "par 4(b)" of the Protective Measures Decision of presenting the statement of that witness to Republika Srpska officials, who would certainly recognise who witness 7.15 is. (The reference to par 4(b) is obviously to par 65.4(b) of the Protective Measures Decision.) The Trial Chamber proceeds upon the assumption that, although that statement may be interpreted as a threat to present the redacted statement to the Republika Srpska officials in order to ascertain the identity of the witness, such an interpretation was not intended. But, whatever the intention may be in showing these statements to Republika Srpska officials, it would be a risky course of action for the defence team of Talic to take.
12. Paragraph 65.4 of the Protective Measures Decision permits the accused and their defence teams to disclose to the public either the identity of a witness or the contents of that witnesss statement only so far as such a disclosure is "directly and specifically necessary for the preparation and presentation of this case". But, if the defence presents a redacted copy of a witnesss statement to a Republika Srpska official who is known by the defence team to be able to identify that witness from the content of that statement, that action would constitute a deliberate disclosure to that official not only of the contents of the witnesss statement, but also of the identity of a witness known by the defence team to be a witness for whom protective measures have been sought. The disclosure of the identity of the witness would be deliberate, even though the defence team itself does not know the identity of that witness. Unless such an action is clearly "directly and specifically necessary for [Talics] preparation and presentation of this case", it may well amount to knowingly and wilfully interfering with the Tribunals administration of justice, and thus a contempt of the Tribunal.20
13. Moreover, if presenting statements of the witnesses to officials of Republika Srpska really is regarded by the defence team of Talic as directly and specifically necessary for the preparation and presentation of this case, such a course of action could be argued by the prosecution to be one which almost certainly would lead to interference with the witnesses to prevent them giving evidence against these accused. If such an argument is put, and if it is accepted, only a very short period prior to trial will have to be allowed for the accused to know the identity of these witnesses, in order to reduce as far as possible the opportunity for such interference to occur.
14. The last of the submissions about which something should be said at this stage is that made by Talic that, after the Protective Measures Decision, there is no provision in the Rules of Procedure and Evidence which "provides for the possibility that the [witnesss] identity not be disclosed to the Defence". That submission was made in the context of the reference in Rule 69(A) to an order for non-disclosure of a witnesss identity being made "until such person is brought under the protection of the Tribunal". This rather curious wording was discussed in the Protective Measures Decision,21 and the existing interpretation of the Rule that the power to make non-disclosure orders continues throughout the proceedings was followed there. It is followed again here.
15. Having put those matters to one side, the merits of the present application by the prosecution in relation to witness 7.15 may now be considered. The stated basis for the application quoted in par 4, supra would certainly be sufficient to order protective measures preventing the disclosure of the witnesss identity to the public. But, as the Trial Chamber has pointed out before, what would usually be sufficient for that purpose is not usually sufficient to show that the witness may also be in danger or at risk if that witnesss identity is disclosed only to the accused and the defence team upon whom strict obligations are imposed in relation to further disclosure by them.22 Attention must be paid by the prosecution in applications such as these to the extent to which the witness is put at risk by quite proper investigations by the defence teams, and to showing that that risk is of such an exceptional nature as to warrant the interference with the rights of the accused which non-disclosure to them produces.
16. In this case, there are a number of assertions made which are unaccompanied by any verification by the prosecution. It has been made very clear by the Trial Chamber that the fears of the potential witness are not in themselves sufficient, and that some objective foundation must be shown for them.23 The prosecution has not identified to the Trial Chamber, even on an ex parte basis, where the witnesss mother and siblings live within Republika Srpska, so that, once again, the Trial Chamber gains less assistance than it should from the reports which have been produced as to the risks in the different municipalities in that entity. The risks to a Bosnian Muslim who gives evidence against a Bosnian Serb, or to the witnesss family, are not uniform throughout Republika Srpska.24 It is not even stated that witness 7.15 is a Bosnian Muslim, a very relevant fact which should have been, but was not, revealed to the Trial Chamber. It should not have been left to conjecture. The witness has not been asked by the prosecution to define what is meant by "extreme forces" in the relevant municipality, and the meaning of that phrase also should not have been left to conjecture. Without the statement now made by Talic quoted in par 6, supra,25 there was no clear indication that an investigation into this witness required direct contact with the officials in the area where the witnesss mother and siblings reside.
17. The Trial Chamber is concerned that, in a case where very strict protective measures may be vital, this pattern of inattention to detail by the prosecution may have caused the Trial Chamber to have insufficient information to make a proper determination of the appropriate protective measures to be granted. The Trial Chamber is sufficiently concerned about the absence of detail in this particular case that it proposes to take the exceptional step of directing the prosecution to file further information concerning this witness. The information is to be of the type which has described as necessary in this and in the previous decisions in this case in relation to protective measures, giving the accused the opportunity to respond to that further information. If any information is to be given on an ex parte basis, the prosecution is reminded that it must nevertheless give as much of that information as it can on an inter partes (but confidential) basis, so that the accused and their defence teams are given sufficient information to enable them to determine whether to oppose the relief sought.26
3 Persons not being called
18. The relief sought in par (d) is leave to withhold completely from the accused and their defence teams the identity of three persons whose statements were part of the supporting material which accompanied the indictment when confirmation was sought, on the basis that the prosecution does not intend to call those witnesses at the trial. It has not been suggested that these three persons would be entitled to protective measures as victims, and the prosecution has made no attempt to rely upon any other basis for the protective measures sought.
19. Such an application was discussed in the Second Protective Measures Decision,27 when the Trial Chamber said that it was not satisfied that the relief sought was justified and the application there was refused.28 It was not sought to draw any distinction, nor could one be drawn, between the two applications. For the reasons expressed in that decision, this application, too, must be refused. The identity of the three persons will, however, be revealed on a confidential basis, so that the obligations imposed upon the accused and their defence teams by the Protective Measures Decision will apply to that material.29
20. For the foregoing reasons, the following orders are made:
1. The prosecution is directed to file on or before 13 December 2000 further information concerning its request for protective measures for witness 7.15.
2. Each of the accused may respond to any further information, and to the application as a whole, on or before 10 January 2001.
3. The application for leave not to disclose to the accused or their defence teams at this stage the identity of witnesses 7.19, 7.28 and 7.47 is refused.
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]
1. Decision on Motion by Prosecution for Protective
Measures, 3 July 2000 ("Protective Measures Decision"), par 65.2.
2. Prosecutions Fourth Motion for Protective Measures for Victims and Witnesses, 21 Sept 2000 ("Fourth Motion").
3. Ibid, par 10.
4. Prosecutions Fifth Motion for Protective Measures for Victims and Witnesses, 10 Oct 2000, pars 3 and 4.
5. Protective Measures Decision; Decision on Second Motion by Prosecution for Protective Measures, 27 Oct 2000 ("Second Protective Measures Decision"); Decision on Third Motion by Prosecution for Protective Measures, 8 Nov 2000 ("Third Protective Measures Decision").
6. Prosecutions Second Motion for Protective Measures for Victims and Witnesses, 31 July 2000 ("Second Motion").
7. Response to Prosecutors Fourth Confidential Motion for Protective Measures, 22 Sept 2000 ("Brdanin Response"), par 1.
8. Ibid, par 2.
9. Ibid, pars 2-8. These arguments are sufficiently referred to at pars 24-28 of the Protective Measures Decision.
10. Brdanin Response, par 9.
11. Response to the Prosecution Motion For Protective Measures Dated 21 September 2000, 10 Oct 2000 (Talic Response), par 4.
12. Ibid, par 4.
13. Motion for Protective Measures, 10 Jan 2000 ("First Motion").
14. Ibid, at pars 9-10; Further and Better Particulars of "Motion for Protective Measures", 8 Feb 2000, pars 8-10.
15. Protective Measures Decision, pars 24-27.
16. Fourth Motion, par 4.
17. Protective Measures Decision, pars 24, 28; Second Protective Measures Decision, par 18; Third Protective Measures Decision, par 13(3).
18. cf Third Protective Measures Decision, pars 9, 17, 21.
19. Second Protective Measures Decision, par 21; Third Protective Measures Decision, par 20.
20. Prosecutor v Tadic, Case IT-94-1-A-R77, Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 Jan 2000, par 26.
21. Paragraph 22.
22. Second Protective Measures Decision, par 18.
23. Protective Measures Decision, par 26; Second Protective Measures Decision, par 19; Third Protective Measures Decision, par 13(2).
24. Third Protective Measures Decision, par 20.
25. This statement is discussed in pars 11-13, supra.
26. Third Protective Measures Decision, pars 6-11.
27. Paragraphs 26-32.
28. Ibid, par 32.
29. Paragraphs 65(3) and 65(4).