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:
10 October 2002

PROSECUTOR
v.
RADOSLAV BRDANIN

_____________________________________

DECISION ON PROSECUTIONíS ELEVENTH MOTION FOR PROTECTIVE MEASURES FOR VICTIMS AND WITNESSES

_____________________________________

The Office of the Prosecutor:

Ms. Joanna Korner
Mr. Andrew Cayley

Counsel for the Accused:

Mr. John Ackerman
Mr. Milan Trbojevic
 

 

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 "Prosecutionís Eleventh Motion for Protective Measures for Victims and Witnesses" ("Motion"), filed confidentially and under seal by the Office of the Prosecutor ("Prosecution") on 26 June 2002, in which the Prosecution seeks protective measures for 58 witnesses who will present evidence orally or pursuant to Rule 92bis of the Rules of Procedure and Evidence ("Rules"), and whose names are identified in the Motion;

CONSIDERING the "Decision on the Admission of Rule 92bis Statements" ("Rule 92bis Decision") issued confidentially on 1 May 2002 and publicly on 23 May 2002 in which the Trial Chamber established the procedure to be followed by the Parties for the admission of Rule 92bis statements;

CONSIDERING that the Prosecution has not filed a formal application pursuant to Rule 92bis seeking the admissibility of Rule 92bis statements and that the Defence has not expressed its observations on the matter;

NOTING that the Motion was filed when the Accused Radoslav Brdjanin ("Brdjanin") was jointly charged along with General Momir Talic ("Talic"), and that Talic had filed a Response to the Prosecutorís 11th Motion for Protective Measures for Victims and Witnesses" ("Response") confidentially on 2 July 2002 objecting to some of the requests of the Prosecution;

NOTING that by the Decision on Prosecutionís Oral Request for the Separation of Trials of 20 September 2002 the Trial Chamber ordered the trial of Talic be severed from Brdjaninís, and therefore, for the purpose of this Decision the objections of Talic will not be considered and decided. Only those objections raised by Accused Brdjanin will therefore form the subject matter of this Decision;

NOTING that the Prosecution is presenting its case on a municipality by municipality basis, and that, of the witnesses that it seeks protective measures for, twenty-nine are scheduled to give evidence orally before the Trial Chamber for the municipalities of Prijedor, Bosanski Novi, Prnjavor, Sipovo, Bosanska Krupa, Bosanska Gradiska, Bosanska Dubica, Teslic and Kotor Varos;

CONSIDERING that for Klujic municipality a Confidential Decision on Prosecutionís Eleventh Motion for Protective Measures for Victims and Witnesses has been filed on 18 July 2002;

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 present security assessment in the Municipalities covered by the Indictment;

NOTING the "Further Addendum to Prosecutionís Eleventh Motion for Protective Measures for Victims and Witnesses" filed confidentially by the Prosecution on 26 September 2002 and related to the correction in the spelling of the name of a witness referred to in the Motion;

NOTING that the protective measures sought for the witnesses identified in the Motion as BT27, BT28, BT29, BT30, BT31, BT34, BT55, BT56, BT59, BT70 and BT73 are the assignment of a pseudonym and facial distortion;

NOTING that the protective measures sought for the witness identified in the Motion as BT32, BT1, BT51, BT61, BT62 and BT71 are the assignment of a pseudonym, facial and voice distortion;

NOTING that the protective measures sought for the witness identified in the Motion as BT33 are the assignment of a pseudonym, facial distortion and that the testimony be held in closed session;

NOTING that the protective measures sought for the witnesses identified in the Motion as BT35 are the assignment of a pseudonym, facial and voice distortion, as a minimum and that the testimony be held in closed session by way of abundant caution;

NOTING that the protective measures sought for the witnesses identified in the Motion as BT36, BT48, BT49, BT54, BT58, BT60, BT63, BT69, BT72, BT74 are the assignment of a pseudonym and that the testimonies be held in closed session;

NOTING that the Prosecution provides in the Motion as reasons for the request for protective measures the fact that the witnesses either live in the aforesaid municipalities, or are required to travel to and from that area, or have relatives who live in that area, or have property there, or plan to return to their respective municipalities in future, or are victims of sexual assault, or hold public positions in the government, and that to disclose publicly the identities of the witnesses could cause a security threat to them and/or their families;

NOTING the opposition of Counsel for Brdjanin expressed during the hearing of 1 July 2002, to testimonies being held in closed session;1

NOTING that Brdjanin does not object to the assignment of pseudonyms, facial or voice distortion;

CONSIDERING 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, insofar as witnesses BT63 and BT74 are victims of sexual assaults, and witness BT33 is a rape victim, who also testified in closed session in another case before the International Tribunal, the Prosecution has amply demonstrated that it is necessary that these witnessesí testimonies be held in closed session;

CONSIDERING that, in the case of BT35, BT36, BT48, BT49, BT54, BT58, BT60, BT69 and BT72, the Trial Chamber is convinced that the fears expressed by the witnesses as to their personal safety and the safety of their relatives are legitimate and justified;

CONSIDERING that after an analysis of the protective measures and determining their compatibility with the rights of the Accused, the Trial Chamber is of the view that an appropriate balance has been struck between the factors mentioned above;

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 orders;

FOR THE FOREGOING REASONS

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

THE TRIAL CHAMBER HEREBY ORDERS THAT:

  1. A decision on the protective measures for witnesses whose statements the Prosecution seeks to tender pursuant to Rule 92bis, will be made vide a separate order after the Prosecution have complied with all the procedural guidelines set out in the Rule 92bis Decision regarding the admissibility of the Rule 92bis statements;
  2. The witnesses identified in the Motion as BT27, BT28, BT29, BT30, BT31, BT32, BT33, BT34, BT35, BT1, BT36, BT48, BT49, BT51, BT54, BT55, BT56, BT58, BT59, BT60, BT61, BT62, BT63, BT69, BT70, BT71, BT72, BT73 and BT74 shall be referred to by these pseudonyms at all times in the course of their testimony or whenever referred to in the course of the proceedings whether during the hearing or in documents, including the transcript of the proceedings;
  3. The witnesses identified in the Motion as BT27, BT28, BT29, BT30, BT31, BT32, BT33, BT34, BT35, BT1, BT51, BT55, BT56, BT59, BT61, BT62, BT70, BT71, BT73 shall testify with the use of screening devices, and out of the view of the public and the device of facial distortion shall be used in relation to the audio-visual recording and transmission of the testimony of these witnesses;
  4. The device of voice distortion shall be used in relation to the audio-visual recording and transmission of the testimony of witnesses identified in the Motion as BT1, BT32, BT35, BT51, BT61, BT62 and BT71;
  5. The testimony of the witnesses identified in the Motion as BT33, BT35, BT36, BT48, BT49, BT54, BT58, BT60, BT63, BT69, BT72 and BT74 shall be held in closed session;
  6. All hearings to consider the issue of protective measures of the witnesses identified in the Motion as BT33, BT35, BT36, BT48, BT49, BT54, BT58, BT60, BT63, BT69, BT72 and BT74 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;
  7. The name, address, whereabouts of and identifying information for BT33, BT35, BT36, BT48, BT49, BT54, BT58, BT60, BT63, BT69, BT72 and BT74 shall be sealed and not included in any of the public records of the Tribunal;
  8. To the extent the name, address, whereabouts of, or other identifying data concerning the witnesses BT33, BT35, BT36, BT48, BT49, BT54, BT58, BT60, BT63, BT69, BT72 and BT74 is contained in existing public documents of the Tribunal, that information shall be expunged from those documents;
  9. The public and the media shall not photograph, video-record, sketch or in any other manner record or reproduce images of the witnesses identified above while they are in the precincts of the Tribunal;
  10. Subject to the provisions of Rule 75, transcripts of the evidence given orally before the Trial Chamber by BT27, BT28, BT29, BT30, BT31, BT32, BT33, BT34, BT35, BT1, BT36, BT48, BT49, BT51, BT54, BT55, BT56, BT58, BT59, BT60, BT61, BT62, BT63, BT69, BT70, BT71, BT72, BT73 and BT74 shall be made available for use in other proceedings before the Tribunal.

 

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

Dated this tenth day of October 2002.
At The Hague
The Netherlands

____________________________
Carmel Agius
Presiding Judge

[Seal of the Tribunal]


1 - T. 7692.