IN TRIAL CHAMBER II
Before: Judge David Hunt, Pre-Trial Judge
Registrar: Mr Hans Holthuis
Decision of: 2 May 2001
Radoslav BRÐANIN & Momir TALIC
DECISION ON FURTHER MOTION BY PROSECUTION
FOR PROTECTIVE MEASURES
The Office of the Prosecutor:
Ms Joanna Korner
Mr Nicolas Koumjian
Mr Andrew Cayley
Ms Anna Richterova
Ms Ann Sutherland
Counsel for Accused:
Mr John Ackerman for Radoslav Brdanin
1 The background
1. Application was made to this Trial Chamber by the two accused, Radoslav Brdanin (Brdanin) and Momir Talic (Talic), for access to documents and transcripts from other proceedings before the Tribunal which relate or related to the same geographical region and to the same period as the events alleged in the indictment against them in the present proceedings. The basis of the application was that access to that material, including confidential material, would place the accused on the same footing as the prosecution and may have significant value in their preparation for trial. Such confidential material could be made available to the accused only after the orders granting the protective measures in place in those other proceedings are varied by the Trial Chambers which granted them.1
2. Two of the proceedings in which such access was sought were Prosecutor v Tadic2 and Prosecutor v Kovacevic,3 which had been before Trial Chamber II at a time when it was differently constituted. In those circumstances, the protective measures granted in those two cases could be varied only by the President of the Tribunal.4 The application was accordingly transferred to the President for him to consider what variation should be made to the protective measures granted in those cases to enable Brdanin and Talic and their counsel to have access to the confidential material in them. The President ordered the Registrar (i) to release to Brdanin and Talic the confidential hearing transcripts and exhibits relating to these two cases, and (ii) to grant the same protective measures mutatis mutandis which were applied to the confidential hearing transcripts and exhibits in those cases.5
3. The prosecution filed an application for the President to reconsider that decision.6 Objection was taken by the prosecution to the absence of any indication by the President as to whether the confidential transcripts and exhibits should be released in a redacted form in order to maintain the confidentiality of the witnesses or whether the identity of witnesses in those cases should be disclosed to Brdanin and Talic and their counsel.7 It was asserted by the prosecution that the confidential trial transcripts in the Tadic and Kovacevic cases did not form part of the supporting material accompanying the amended indictment in the present case when its confirmation was sought,8 but that, even when such confidential transcripts from one case do form part of the supporting material in another case, it is the "standing policy" of the prosecution not to disclose the identity of the witnesses to the accused or counsel in that other case.9 The prosecution sought from the President a modification of his decision so that the material from the Tadic and Kovacevic cases supplied to Brdanin and Talic and their counsel would be redacted to prevent them from learning the identity of any of the protected witnesses.10 The prosecution sought to justify such a restriction upon the basis that the accused had not made "a showing that the information requested would help their case [ ] with respect to the identity of the confidential witnesses".11
4. The Motion for Reconsideration was opposed by Talic upon the ground, inter alia, that he and his counsel would receive the material from the two cases in question under the obligation that they respect the same protective measures as the parties in those two cases.12 Brdanin did not file a response. The President considered that the prosecution had not provided any new ground justifying a reconsideration of his First Order, subject to two clarifications:13
[The First Order] provides that the protection of the witnesses must be assured and that as a result the same protective measures as those granted for the exhibits and confidential hearing transcripts relating to the cases The Prosecutor v Tadic and the Prosecutor v Kovacevic must mutatis mutandis be guaranteed; [ ] however, [ ] this does not mean that all the transcripts and exhibits must be disclosed in a redacted form, since Defence Counsel must respect all protective measures taken previously; [and] [ ] there is cause to state also that the Prosecutor may request Trial Chamber II, the recipient of the witness testimony transcripts and the exhibits, to order additional protective measures such as the assignment of different pseudonyms and the prohibition against stating that a witness has already been heard by the Tribunal [ ].
2 The present application
5. The prosecution then sought from this Trial Chamber, purportedly in accordance with the quoted statement by the President in his Second Order, further protective measures whereby:
(1) confidential exhibits 57, 58 and 59 in the Kovacevic case would not be disclosed to the accused and their counsel in the present case until there has been a resolution of the "confusion" between the Presidents First and Second Orders and an order concerning protective measures in the Kovacevic case made by Judge May and Judge Mumba proprio motu,14 shortly after the Presidents Second Order,15 and
(2) the confidential trial transcripts of prosecution and defence witnesses in the Tadic case, and confidential prosecution and defence exhibits in the Tadic case which would disclose the identity of witnesses who testified on a confidential basis, would not be disclosed to the accused and their counsel in the present case "until an appropriate showing has been made that the identity of a witness is material to the defence".16
6. As to the first relief sought, the alleged "confusion" between the Presidents Orders and the order made by Judge May and Judge Mumba in the Kovacevic case raises an issue as to whether two judges of a Trial Chamber which granted protective measures may (after the retirement of the third judge of that Trial Chamber) vary or rescind those measures,17 or whether only the President may do so. A further issue raised is whether it was necessary for the President to consult with either Judge May or Judge Mumba (as members of the original Trial Chamber) before making his Second Order.18 These issues involve a consideration of Article 12 of the Tribunals Statute ("Composition of the Chambers") and Rule 75D ("Measures for the Protection of Victims and Witnesses"). It is not appropriate for this Trial Chamber to resolve these issues concerning the Kovacevic case.19 The issues will formally be referred to the President, Judge May and Judge Mumba with a request for them to resolve it between themselves.
7. As to the second relief sought, the prosecution has argued that the Presidents Second Order appears on its face to provide this Trial Chamber with "the authority to make such orders as it thinks fit in respect of the confidential material",20 and thus to grant protective measures preventing the disclosure of the identity of the witnesses to the accused and their counsel in the present case. The Motion is opposed by Brdanin upon the grounds, inter alia, that the principles of equality and equal access to evidence and witnesses require defence counsel to have the same knowledge regarding the identity of witnesses as the prosecution and as defence counsel in other cases, and that the prosecution has not demonstrated any justification for withholding this information from the defence in this case.21 Talic did not file any response.
8. It is, however, unnecessary to consider the submissions put forward by Brdanin.22 Rule 75(D) permits only the Trial Chamber which granted protective measures to vary or rescind those measures, except where the original Trial Chamber is no longer constituted by the same judges, when only the President may authorise the variation or release sought. Either the original Trial Chamber or the President may, of course, delegate that power to the Trial Chamber dealing with the case in which access to the confidential material is sought. Trial Chamber I delegated its power to this Trial Chamber in relation to the confidential material sought from Prosecutor v Kvocka, when this Trial Chamber made an order somewhat along the lines now sought by the prosecution in the present Motion. But the Presidents delegation to this Trial Chamber in relation to the confidential materials sought from the Tadic case is very much more limited in extent.
10. The relevant passage from the Presidents Second Order has already been quoted. The general nature of the protective measures which the President has authorised this Trial Chamber to make in relation to the Tadic and Kovacevic cases is directed to preventing disclosure of the identity of the witnesses to the public. The President has already rejected protective measures which prevent the disclosure of that identity to the accused and their counsel in the present case. This Trial Chambers authority from the President should not be interpreted as permitting it to make the very protective measures which he has already rejected. The argument by the prosecution that this Trial Chamber now has an unlimited authority in respect of the confidential material in the Tadic case is manifestly incorrect.
11. This Trial Chamber accordingly has no power to grant the relief sought by the prosecution in relation to the Tadic case.
12. For the foregoing reasons:
(1) The relief sought by the prosecution in its Motion in relation to Prosecutor v Tadic is refused.
(2) The President, Judge May and Judge Mumba are requested to resolve between themselves the further protective measures which should be granted in relation to Prosecutor v Kovacevic.
Done in English and French, the English text being authoritative.
Dated this 2nd day of May 2001,
At The Hague,
Judge David Hunt
[Seal of the Tribunal]