IN TRIAL CHAMBER II
Judge David Hunt, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Liu Daqun
Mrs Dorothee de Sampayo Garrido-Nijgh
30 November 2000
Radoslav BRDANIN & Momir TALIC
DECISION ON MOTION BY PROSECUTION FOR ORDER TO DEFENCE COUNSEL
The Office of the Prosecutor:
Ms Joanna Korner
Mr Nicholas Koumjian
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. In the Prosecutions Fourth Motion for Protective Measures for Victims and Witnesses,1 it sought leave not to disclose to the accused and their defence teams the identity of certain witnesses whose statements had formed part of the supporting material when the indictment was confirmed, which would otherwise have had to be disclosed to them pursuant to Rule 66(A)(i) of the Rules of Procedure and Evidence.
2. In his Response to that Motion,2 the accused Momir Talic (Talic) stated that the testimony of one such witness (code-named 7.15) was such that the Republika Srpska officials would certainly know who the witness was
[ ] if the Defence, as part of its investigations and pursuant to paragraph 4(b) of the aforesaid Decision of 3 July 2000, 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.
The decision of 3 July 2000 was the Trial Chambers Decision on Motion by Prosecution for Protective Measures ("Protective Measures Decision"). The reference to par 4(b) was obviously to par 65.4(b) of that decision.
3. The Trial Chamber had this to say in relation to that response:3
11. [ ] 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.4
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.
4. At a recent Status Conference, the prosecution stated that concern had been expressed to defence counsel that they may already have shown some of the redacted witness statements to officials of the Republika Srpska "purely for the purpose of identifying the witness who had made the statement, and that counsel for Talic (Maître Pitron) had said that he would have to investigate.5 The prosecution then sought an assurance from counsel that no such statements had been shown for that purpose.6 The Pre-Trial Judge, after expressing doubt that such an interrogation was appropriate, asked defence counsel:7
[ ] are you able to inform us, having had such investigations as youve been able to make, whether any such statement has been given to the or shown to an official of the Republika Srpska solely for the purpose of determining the identity of that witness?
Maître de Roux answered:8
For some time now we have been dealing with this problem of having access to the Prosecutions case file. From the very first day, we have been attempting to have access to the Prosecutions file. We have yet again heard just now the Prosecution refusing, of course, to give us the real charges which, in its opinion, might exist against General Talic.
You have rendered three decisions dealing with the issue of witnesses. Two of the decisions are now being appealed, and it seems to me that were trying to get into a trench war rather than trying to deal with someone who has been arrested, and the defence counsel of General Talic is now being attacked.
We read, Mr. President, your decision. It is very clear that we are bound by our own ethics and by the Rules of the Tribunal and that we will apply them. That is the answer that I can give to Ms Korner.
5. Later the same day, the prosecution wrote to Maître de Roux, formally asking him to give an "unambiguous" response to the question "whether Defence have shown (witness) statements to officials of the Republika Srpska for the purpose of identifying the maker of the statement".9 The response received was to the same effect as the statement made by Maître de Roux in court, together with a complaint that the prosecution was interfering with the conduct of the defence case.10 The prosecution has now sought an order from the Trial Chamber that defence counsel for the accused Momir Talic be ordered to respond to the question asked in unambiguous terms.11 It was submitted that the matter is in need of urgent resolution, given "the impact it may have on questions of witness protection".12
6. The question at the Status Conference did include the words "purely" or "solely" before "for the purpose of identifying the maker of the statement", depending upon the stage of the Status Conference when it was asked. It is unclear whether the omission of such a modifier from the letter to Maître de Roux was intentional. In the end, there is probably no difference because, whether or not that was the sole purpose of the inquiry, if it were at least a significant purpose, the disclosure of the identity would have been a deliberate one in the way discussed in the Fourth Protective Measures Decision. In these circumstances, if an order were made that defence counsel state whether they had shown witness statements to someone for that purpose, they would be obliged to make an admission of a fact which may (as discussed in the Fourth Protective Measures Decision) lead to a finding that they had been guilty of contempt of the Tribunal.
7. In the first of its many motions for protective measures in this case, the prosecution sought an order that the defence team for each accused maintain a log indicating the name, address and position of each person or entity receiving information as to the identity of any prosecution witness or the contents (or substance) of any prosecution witness statement, and the date of such disclosure.13 The procedure suggested was that, if a "perceived violation" of non-disclosure orders 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.14
8. When considering the order sought,15 the Trial Chamber observed that it appeared to be intended specifically to provide the basis for "appropriate" action against the defence teams whose duty it would have been to maintain the log, that the "appropriate" action could well include prosecution for contempt of the Tribunal, and that, if any member of the defence team is to be prosecuted for contempt, he or she would be entitled to the same presumption of innocence and right to silence which any other accused person has.16 The obligation to keep the log upon which such a prosecution is to be based would require that person to provide evidence against him or herself, contrary to Article 21 of the Tribunals Statute. The Trial Chamber refused to make the order sought.17
9. The Trial Chamber sees no difference in principle between the order refused in the Protective Measures Decision and the order sought in the present Motion. An order that counsel answer the question posed in the letter to Maître de Roux may well amount to compelling them to provide evidence against themselves. The application for an order that they answer that question is refused.
10. However, the Trial Chamber re-iterates what it said in its Fourth Protective Measures Decision, that showing witness statements to Republika Srpska officials may well lead to interference with the witnesses to prevent them giving evidence against the accused. As the Trial Chamber said, it would be a risky course of action for the defence team of Talic to take. The Trial Chamber will have very grave concerns in relation to the safety of the prosecutions witnesses if there is any real chance that the Talic defence team will show witness statements which identify the witness to Republika Srpska officials, even where this is "directly and specifically necessary for [Talics] preparation and presentation of [his] case". The statement made in the Talic Response, if left unexplained, could be argued to be at least some basis for an inference that there is such a chance that the statements will be shown to those officials.
11. Because the Trial Chamber cannot conveniently be constituted during the period between the end of this week and the commencement of the 2001 Term (because of absence of home leave of one of its members), this Motion has been disposed of before receiving any response to it from Talic.
Done in English and French, the English text being authoritative.
Dated this 30th day of November 2000,
At The Hague,
Judge David Hunt
[Seal of the Tribunal]