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:
27 June 2003

PROSECUTOR
v.
RADOSLAV BRDJANIN

________________________________

DECISION ON PROSECUTIONíS TWENTY-FIRST MOTION FOR PROTECTIVE MEASURES FOR VICTIMS AND WITNESSES

________________________________ The Office of the Prosecutor:

Ms. Joanna Korner

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 ("the Tribunal"):

BEING SEISED OF the "Prosecutionís Twenty-first Motion for Protective Measures for Victims and Witnesses" ("Motion"), filed confidentially by the Office of the Prosecutor ("Prosecution") on 18 June 2003 in which the Prosecution seeks protective measures for one witness, namely BT-95, who is to testify at trial and whose name is identified in the Motion;

NOTING that the protective measures sought are the assignment of a pseudonym and leave to testify in closed session;

NOTING that the Prosecution provides in the Motion as reasons for the request for protective measures, inter alia, that the witness, who is a Serb, lives with his or her family in Republika Srpska and the incriminating nature of the witnessí testimony, such that to disclose publicly the identity of the witness could threaten his or her safety;

NOTING the standing objections of Counsel for Radoslav Brdjanin ("Accused"), expressed during the hearings of 1 July 20021 and 22 November 2002,2 to testimony being heard in closed session;

NOTING that Counsel for the Accused does not object to the assignment of pseudonyms;

NOTING the "Addendum to Prosecutionís Eleventh Motion for Protective Measures for Victims and Witnesses" ("Addendum"), filed confidentially by the Prosecution on 12 September 2002 and related to the security assessment in the Municipalities covered by the Indictment;

NOTING that the Addendum does not outline the security risk of a Serb testifying against a Serb;

RECOGNISING the Trial Chamberís duty to analyse the protective measures sought and determine their compatibility with the rights of the Accused, and the Trial Chamberís duty to balance the right of the Accused to a public hearing against the need to accord appropriate protection to victims and witnesses;

CONSIDERING that the safety of a witness of Serbian nationality who testifies against members of his own ethnicity, might be considerably endangered by testifying in open court;

CONSIDERING that the Prosecution has demonstrated in the present case that it is necessary for the testimony of the witness concerned to be held in closed session as the substance of the testimony might reveal the identity of the witness and that the incriminating nature of the proposed testimony could jeopardise the witnessí safety and that of his or her family;

CONSIDERING that the protective measures requested strike an appropriate balance between the rights of the Accused and the protection of victims and witnesses;

RECALLING that the relevant orders contained in paragraph 65 of the "Decision on Motion by Prosecution for Protective Measures", issued by the Trial Chamber on 3 July 2000, are not limited by date and continue in force throughout the proceedings or until further order;

FOR THE FOREGOING REASONS

PURSUANT TO Articles 20, 21 and 22 of the Statute of the Tribunal and to Rules 75 and 79 of the Rules of Procedure and Evidence;

HEREBY ORDERS THAT:

  1. The witness identified in the Motion as BT 95 shall be referred to by this pseudonym at all times in the course of his or her testimony or whenever referred to in the course of the proceedings whether during the hearing or in documents, including the transcript of the proceedings;
  2. The testimony of BT 95 shall be held in closed session;
  3. All hearings to consider the issue of protective measures of BT 95 shall be held in closed session, and edited records and transcripts of the said session(s) shall be released to the public after review by the Prosecution in consultation with the Victims and Witnesses Section;
  4. The name, address, whereabouts of and identifying information of BT 95 shall be sealed and not included in any of the public records of the Tribunal;
  5. To the extent the name, address, whereabouts of, or other identifying data concerning BT 95 is contained in existing public documents of the Tribunal, that information shall be expunged from those documents;
  6. The public and the media shall not photograph, video-record, sketch or in any other manner record or reproduce images of BT 95 while he or she is in the precincts of the Tribunal;
  7. The testimony of BT 95 shall be sealed and shall not be released to the public or media in any form.
  8. <

 

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

Dated this twenty-seventh day of June 2003,
At The Hague
The Netherlands

____________________________
Carmel Agius
Presiding Judge

[Seal of the Tribunal]


1. Trial Transcript ("T"), 7692.
2. T 12003.