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 FIFTH 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. This Fifth Motion by the prosecution for protective measures seeks relief in relation to those persons for whom protective measures were sought in its Second Motion but in relation to whom the Trial Chamber has not already dealt with in some substantive way in its Second Protective Measures Decision, its Third Protective Measures Decision or its Fourth Protective Measures Decision.
2. The relief sought by the prosecution in its Fifth Motion is as follows:
(a) Leave to redact from the statement of witness 7.1 any information concerning the witnesss current whereabouts.
(b) Leave to withhold from the accused the identity of witness 7.24, whom the prosecution does not intend to call at trial.
3. In its Third Protective Measures Decision, the Trial Chamber has already granted leave to redact any information relating to the current whereabouts of all the prosecutions witnesses whom it intends to call at trial, leaving to a later date the resolution of the issue (if it arises) of when, if at all, those current whereabouts must be disclosed. Witness 7.1 was initially the subject of an application for protective measures as one of the persons whose statements were part of the supporting material accompanying the indictment when confirmation was sought, and he or she has now also been identified by the prosecution as a witness whom it intends to call at trial.
4. The accused Momir Talic (Talic) suggests that Rule 69(A) ("Protection of Victims and Witnesses") does not assist the prosecution, because it is directed only to victims and witnesses and witness 7.1 is neither. This is clearly wrong in the light of the stated intention of the prosecution that he or she will be giving evidence at trial. Notwithstanding the issue raised, however, Talic does not object to the relief sought. The accused Radoslav Brdanin ("Brdanin") has not filed any response to this application. The first relief sought will be granted.
5. The second relief sought is leave to withhold completely from the accused and their defence teams the identity of a person whose statement was part of the supporting material which accompanied the indictment when confirmation was sought, on the basis that the prosecution does not intend to call this witness at the trial. The application is opposed by Talic. It has not been suggested that this person would be entitled to protective measures as a victim, and the prosecution has made no attempt to rely upon any other basis for the protective measures sought.
6. Such an application was discussed in the Second Protective Measures Decision, when the Trial Chamber said that it was not satisfied that the relief sought was justified, and the application there was refused. An identical application was also refused in the Fourth Protective Measures Decision. It was not sought to draw any distinction, nor could one be drawn, between those two applications and the present one. For the reasons expressed in the Second Protective Measures Decision, this application, too, must be refused. The identity of this person 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.
7. For the foregoing reasons, the following orders are made:
1. In relation to the statement of witness 7.1, and until further order, the prosecution is not obliged to disclose to the accused or their defence teams those parts which reveal the witnesss present whereabouts.
2. Leave to withhold from the accused the identity of witness 7.24 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]