Case No. IT-99-36-T

IN TRIAL CHAMBER II

Before:
Judge Carmel Agius, Presiding
Judge Ivana Janu
Judge Chikako Taya

Registrar:
Mr. Hans Holthuis

Decision of:
12 June 2003

PROSECUTOR
v.
RADOSLAV BRDJANIN

__________________________________

DECISION ON PROSECUTION’S MOTIONS FOR ADMISSION OF STATEMENTS PURSUANT TO RULE 92BIS BOSANSKI PETROVAC AND TESLIC

__________________________________

The Office of the Prosecutor:

Ms. Joanna Korner
Mr. Andrew Cayley

Counsel for the Accused:

Mr. John Ackerman
Mr. David Cunningham

 

TRIAL CHAMBER II (“Trial Chamber”) of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“Tribunal”):

BEING SEISED OF the following motions from the Office of the Prosecution (“Prosecution”) (collectively referred to as the “Motions”), each of which request the Trial Chamber to admit into evidence, pursuant to Rule 92bis of the Rules of Procedure and Evidence (“Rules”), written statements of one or more witnesses in relation to certain municipalities, with one motion additionally asking for protective measures in relation to certain witnesses:

  1. “Prosecution’s Motion for Admission of a Statement Pursuant to Rule 92bis – Bosanski Petrovac Municipality” and “Confidential Annex A” (“Bosanski Petrovac Motion I”), filed on 14 March 2003, requesting the admission of the written statement of witness 7.151;
  2. “Prosecution’s Motion for Admission of Statements Pursuant to Rule 92bis Teslic Municipality”, “Confidential Annex A” and “Confidential Annex B” (“Teslic Motion I”), filed on 8 April 2003, requesting the admission of the written statements or relevant attachments of witnesses 7.121, 7.82, 7.148, 7.149 and 7.141 and further requesting that the statements of witnesses 7.121, 7.148 and 7.141 should not be made public until all identifying information has been redacted and that, in the event that these three witnesses are ordered to appear for cross-examination, witness 7.121 should be granted a pseudonym, image and voice distortion and witnesses 7. 148 and 7.141 should each be granted a pseudonym and testify under closed session ;
  3. “Prosecution’s Motion for Admission of Additional Statement Pursuant to Rule 92bis –Teslic Municipality” and “Confidential Annex A” (“Teslic Motion II”), filed on 28 April 2003, requesting the admission of the written statement of witness 7.83;
  4. “Prosecution’s Motion for Admission of Second Additional Statement Pursuant to Rule 92bis – Teslic Municipality” and “Confidential Annex A” (“Teslic Motion III ”), filed on 8 May 2003, requesting the admission of the written statement of witness 7.115;1
  5. “Prosecution’s Motion for Admission of an Additional Statement Pursuant to Rule 92bis – Bosanski Petrovac Municipality” and “Confidential Annex A” (“Bosanski Petrovac Motion II”), filed on 12 May 2003, requesting the admission of the written statement of witness 7.60;

NOTING the following responses from the defence of Radoslav Brdjanin (“Defence ”) (collectively referred to as the “Responses”):

  1. “Response to Prosecutor’s Rule 92bis Motion – Bosanski Petrovac”, filed on 19 May 2003, in which the Defence does not object to Rule 92bis treatment of witnesses 7.151 and 7.60;
  2. “Response to Prosecutor’s Rule 92bis Motions – Teslic”, filed on 26 May 2003, in which the Defence does not object to Rule 92bis treatment of witnesses 7. 121, 7.82, 7.83, 7.148,2 7.149, 7.115 and 7.141, despite the assertion that the latter four statements are “neither cumulative nor do they qualify as statements concerning the impact of crimes upon victims”;

NOTING that by agreeing to Rule 92bis treatment of testimonies and statements of witnesses, the Defence does not concede the accuracy of any statements or assertions made by any witness;

CONSIDERING that the Trial Chamber has a duty to ensure that the requirements for the admission into evidence of witnesses’ statements and relevant attachments pursuant to Rule 92bis are met, and that the application of this Rule in the instant case does not prejudice the rights of the accused envisaged in Article 21 of the Statute of the Tribunal (“Statute”);

CONSIDERING that the Trial Chamber is satisfied that the written statements which the Prosecution requests to admit into evidence go to proof of matters other than the acts and conduct of Radoslav Brdjanin (“Accused”) as charged in the Indictment ;

FINDING therefore that the requirements of Rule 92bis are met and that it is in the interests of justice to admit the statements of witnesses 7.151 , 7.121, 7.82, 7.148, 7.149, 7.141, 7.83, 7.115 and 7.60 into evidence;

CONSIDERING that the Prosecution justifies its request for pseudonyms for witnesses 7.121, 7.148 and 7.141 on the following bases:

  1. 7.121 – witness fears that he could be risking his children’s lives if his testimony were to be made public;
  2. 7.148 and 7.141 – witnesses are concerned about protecting their privacy given the sensitive information they intend to provide in their testimony;

NOTING the “Addendum to Prosecution’s Eleventh Motion for Protective Measures for Victims and Witnesses (Filed on 26 June 2002)”, filed confidentially and under seal by the Prosecution on 12 September 2002 and related to the present security assessment in the municipalities covered by the Indictment, including the municipality of Teslic, in which it is stated that Teslic remains a sensitive place in a difficult area and that there is higher risk for a Bosniak or a Croat testifying against a Serb;

NOTING that in the Responses the Defence does not raise any objections to the protective measures requested for witnesses 7.121, 7.148 and 7.141;

NOTING the standing objections of the Defence expressed during the hearings of 1 July 20023 and 22 November 2002 4 to testimonies being heard in closed session;

CONSIDERING that the Prosecution bases the request for protective measures on an objective foundation including safety concerns for the witness and the witness’ family members;

CONSIDERING the Trial Chamber’s duty to analyse the protective measures sought and determine their compatibility with the rights of the accused, and its duty to balance the right of the accused to a public hearing against the need to grant victims and witnesses appropriate protection;

CONSIDERING that protective measures for witnesses 7.121, 7.148 and 7.141 in the form of a pseudonym are appropriate to safeguard the interests of these witnesses even if they do not appear for cross-examination;

FOR THE FOREGOING REASONS

PURSUANT TO Articles 20, 21 and 22 of the Statute and to Rules 75, 79 and 92bis of the Rules;

HEREBY ORDERS THAT:

  1. The written statements of witnesses 7.151, 7.121, 7.82, 7.148, 7.149, 7.141, 7.83 , 7.115 and 7.60 are admitted into evidence under Rule 92bis;
  2. The witnesses identified in the Motions as 7.121, 7.148 and 7.141 shall be referred to by the pseudonyms BT65, BT67 and BT68 respectively whenever referred to in the course of the proceedings whether during the hearing or in documents;
  3. The names, addresses, whereabouts of and identifying information for witnesses BT65, BT67 and BT68 shall be sealed and not included in any of the public records of the Tribunal;
  4. To the extent the names, address, whereabouts of, or other identifying data concerning witnesses BT65, BT67 and BT68 are contained in existing public documents of the Tribunal, that information shall be expunged from those documents;

 

Done in French and English, the English version being authoritative.

Dated this 12th day of June 2003.
At The Hague
The Netherlands

____________
Carmel Agius
Presiding Judge

[Seal of the Tribunal]


1 - Witness 7.115 was granted protective measures (pseudonym – BT63 and closed session) on 10 October 2002 (see, Decision on Prosecution’s Eleventh Motion for Protective Measures for Victims and Witnesses).
2 - This witness is mistakenly referred to in the Motion as witness 7.48. This typographical error was highlighted in public session at T 16517.
3 - T 7692
4 - T 12003