IN THE TRIAL CHAMBER
Before: Judge Gabrielle Kirk McDonald, Presiding
Judge Elizabeth Odio Benito
Judge Saad Saood Jan
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 26 September 1997
DECISION ON PROSECUTORS MOTION TO MODIFY
ORDER RELATING TO VIDEOTAPE OF THE ARREST OF
THE ACCUSED AND MOTION FOR NON-DISCLOSURE
OF THE CONTENTS OF THE VIDEOTAPE
The Office of the Prosecutor
Mr. Grant Niemann
Mr. Clint Williamson
Counsel for the Accused
Mr. Toma Fila and Ms. Jelena Lopicic for Slavko Dokmanovic
I. INTRODUCTION AND PROCEDURAL BACKGROUND
1. In order to facilitate the resolution of a Preliminary Motion filed on 7 July 1997 (Official Record at Registry Page ("RP") RP D113-D116) (the "Legality of Arrest Motion"), at a status conference held on 24 July 1997, this 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 ("International Tribunal") orally directed the Office of the Prosecutor (the "Prosecution") to file with the Registry by 1 August 1997, a videotape in its possession which depicts the arrest of the accused, Slavko Dokmanovic, along with the audiotapes made at that time and the transcripts of said audiotapes. Failing to file the videotape as directed, on 1 August 1997 the Prosecution instead filed a confidential Motion, entitled "Prosecutors Motion to Modify Trial Chambers Order Relating to Videotape of the Arrest of the Accused and Motion for Non-disclosure of the Contents of the Videotape" (RP D258-D384) (the "Motion") which requested that it not be obliged to furnish a copy of the videotape to the Defence nor to allow the Defence or the public to view its contents. In the alternative, the Prosecution requested that, should the Motion be denied, the Defence only be permitted to view the videotape in controlled conditions and the public not be allowed to view it at all.
2. The Defence filed a "Defence Motion that Trial Chambers Order be Unchanged" on 14 August 1997 (RP D411-D477) which addressed a number of issues and included a response to the Motion (the "Response").
3. On 27 August 1997 the Trial Chamber issued an "Order Concerning Prosecutors Confidential Motion to Modify Trial Chambers Order Regarding the Videotape of the Arrest of the Accused" (RP D514-D516) which directed the Prosecution to file the videotape of the arrest with the Registry, under seal, for the sole purpose of its ex parte viewing by the Trial Chamber.
4. The Defence filed a "Defence Preliminary Motion - Response to the Prosecutors Motion" on 28 August 1997 (RP D750-D846) which reiterated the arguments previously set out in the Response. On 29 August 1997 a "Prosecutors Response to the Defence Motion that the Trial Chambers Order be Unchanged" was filed (RP D848-D853), in the manner of a reply to the original Response (the "Reply").
5. The Judges viewed the videotape on Thursday 4 September 1997 in chambers, in the presence of both the Prosecution and the Defence, the Prosecution having that day confirmed in writing to the Trial Chamber that it did not in fact object to the Defence being present and seeing the contents of the videotape in a controlled environment. The following day, oral arguments on the Motion were presented at a closed session hearing and the Trial Chamber issued its ruling, granting the Prosecution Motion and reserving its written decision for a later date.
THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and oral arguments of the parties,
HEREBY ISSUES ITS WRITTEN DECISION.
1. The Prosecution
6. The Prosecution agreed at the status conference of 24 July 1997 that it would file the videotape of the arrest of the accused along with the audiotapes which were made at the same time and the transcripts of the said audiotapes. It did not indicate that it had any objection to this filing at the direction of the Trial Chamber and did indeed have the videotape present in the courtroom. However, on the date for the filing of all of these items, the Prosecution instead filed the Motion explaining why it had not fulfilled its obligation in relation to the videotape and requesting that it not be ordered to do so.
7. The Prosecution argues in the Motion that there is no dispute as to how the arrest of the accused took place and the events portrayed in the videotape do not pertain to critical arguments being raised by the Defence. The Prosecution further contends that disclosure of the videotape would impede ongoing investigations or allow suspects or accused persons to avoid apprehension. In its view, if the operational techniques recorded on the videotape were revealed this might jeopardise effective law enforcement. In addition to the facilitation of the arrest of other indictees, the Prosecution submits that the videotape should not be disclosed in order to ensure the safety of the officers shown therein. Many of the UNTAES personnel involved in the operation remain within the region and would be put at risk if their identities were made known. It is the view of the Prosecution that UNTAES and other entities might be hesitant to assist the International Tribunal further in the apprehension of suspects or accused persons if they did not receive this protection against disclosure.
8. The Prosecution requests that, should the Defence be permitted by the Trial Chamber to view the videotape, it should not be provided with a copy but merely allowed access to it within the precincts of the International Tribunal.
9. In the Reply the Prosecution reiterates its reasoning for opposing the disclosure of the videotape. It reemphasises the limited utility of the videotape and its position that it serves merely to corroborate those facts which it and the Defence agree upon and provides no information additional to that contained in the audiotapes and transcript.
10. Having not opposed the viewing by the Defence of the videotape in chambers, the Prosecution subsequently limited its request to one for non-disclosure of its content to the public and media and for an order that a copy of the tape need not be provided to the Defence. During its oral submissions on 5 September 1997 it reiterated its objections to the public release of the videotape on the grounds that it would tend to identify the military units involved in the arrest process and it would reveal the techniques and methods utilised in the execution of arrests. The Prosecution indicated which portions of the tape it had particular concerns about and explained its fears about the potential consequences of the public release of the videotape on the fragile peace which has been established in the area of Eastern Slavonia and on the safety of UNTAES personnel.
2. The Defence
11. In its Response, the Defence submits that there is nothing confidential contained in the videotape and it should thus be shown to the accused, the Defence and the public. In its submission, by asking that the videotape not be disclosed, the Prosecution seeks to hide the deception utilised to arrest the accused. The Defence argues that there is no threat of danger to personnel involved in the arrest process from the accused or anyone else and the videotape is of great importance to its case. The Defence requests disclosure by the Prosecution of all evidence, documents, tangible objects, and statements of the accused prior to appointment of counsel in its possession in order that it might properly prepare for the defence case. In its view, the videotape assists the Defence in its evaluation and preparation for pre-trial hearings as well as the trial itself. These submissions were restated in the second Response of the Defence.
12. The Defence also registers its objection to any ex parte viewing of the videotape and emphasises that it is the basic right of the accused to have knowledge of all matters concerning his case. The Defence suggests that a method of redaction of the videotape could perhaps be utilised to mask the faces of the personnel involved in order to address the fears of the Prosecution. It is to be noted, however, that the Trial Chamber was subsequently advised by the Registry that, due to lack of the necessary technical equipment, it was not possible to redact the videotape as suggested by the Defence.
13. Having had the opportunity itself to view the contents of the videotape, the Defence maintained its position that the public and media should also be able to see what it portrays. During the hearing on 5 September 1997 the Defence stated that it did not wish to have a copy of the videotape, or for copies to be available to the public, but merely that it should be shown in the public gallery of the International Tribunal in order that the public and media might see the truth of how the accused was tricked and arrested.
B. Applicable Provisions
14. Article 21 of the Statute of the International Tribunal (the "Statute") guarantees the rights of accused persons. Of relevance to the present Motion is paragraph 2 of that Article, which states: "In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute." The following provisions of the Rules of Procedure and Evidence of the International Tribunal (the "Rules") are also relevant in the determination of the present issue:
Disclosure by the Prosecutor
(A) . . .
(B) The Prosecutor shall on request, subject to Sub-rule (C), permit the defence to inspect any books, documents, photographs and tangible objects in his custody or control, which are material to the preparation of the defence, or are intended for use by the Prosecutor as evidence at trial or were obtained from or belonged to the accused.
(C) Where information is in the possession of the Prosecutor, the disclosure of which may prejudice further or ongoing investigations, or for any other reasons may be contrary to the public interest or affect the security interests of any State, the Prosecutor may apply to the Trial Chamber sitting in camera to be relieved from the obligation to disclose pursuant to Sub-rule (B). When making such application the Prosecutor shall provide the Trial Chamber (but only the Trial Chamber) with the information that is sought to be kept confidential.
All proceedings before a Trial Chamber, other than deliberations of the Chamber, shall be held in public, unless otherwise provided.
(A) The Trial Chamber may order that the press and the public be excluded from all or part of the proceedings for reasons of:
(i) public order or morality;
(ii) safety, security or non-disclosure of the identity of a victim or witness as provided in Rule 75; or
(iii) the protection of the interests of justice.
(B) The Trial Chamber shall make public the reasons for its order.
Power of Chambers to Order
Production of Additional Evidence
A Trial Chamber may order either party to produce additional evidence. It may proprio motu summon witnesses and order their attendance.
15. At the status conference of 24 July 1997 the Trial Chamber proprio motu directed the Prosecution to file the videotape in order to facilitate the determination of the Legality of Arrest Motion. The videotape can therefore be regarded, at least initially, as additional evidence within the meaning of Rule 98 of the Rules, rather than the object of a request pursuant to Sub-rule 66(B). It was only subsequently, after the Prosecution had filed its Motion, that the Defence, in its Response, sought disclosure in the following terms: "StChe Defence requests that the Prosecutor disclosure (sic) of all the evidence, documents, tangible objects, statements of the accused made before getting his defence Counsel, because this is all very important for us to prepare the defence." (Response at paragraph 10.) It clearly placed the videotape in this category. The Prosecution, although without explicitly so stating, appears to equate the videotape with objects falling within Sub-rule 66(B) and therefore seemingly made its request for non-disclosure as provided for in Sub-rule 66(C). Such interpretation appears justified by the language used by the Defence in the Response, which mirrors the language of Sub-rule 66(B).
16. However, the Prosecution then withdrew its objection to disclosure of the contents of the videotape to the Defence, in controlled circumstances, prior to the ruling on the matter by the Trial Chamber. Thus, the Trial Chamber is not called upon to consider the Motion in terms of Sub-rules 66(B) and (C). The issue which finally crystallised for determination was whether the public and media should be entitled to view the contents of the videotape. In these circumstances, the right of the accused to a fair and public hearing, as enunciated in Article 21, paragraph 2, of the Statute and Rule 78 of the Rules, must be borne in mind, along with the provisions of Rule 79 of the Rules.
17. The Prosecution presented arguments that disclosure of the videotape to the public and media would, first, endanger future operations by revealing methods and techniques utilised in the execution of arrests, and secondly, jeopardise the safety of personnel involved in the arrest and who remain in the region to perform their professional duties. In addition, the Prosecution alluded to the tense political situation which prevails and the potentially explosive nature of the sentiments aroused by the arrest of "suspected war criminals". Without referring to such in its Motion or Reply, the Prosecution agreed during questioning from the Trial Chamber that its request should be considered in light of Sub-rule 79(A). In its submission, it would be in the interests of justice and the safety and security of persons involved (who, in its view, should be considered as analogous to witnesses) that the videotape be watched in closed session and not form part of the public record.
18. The Defence has submitted that the personnel involved in the arrest process should not fear retaliatory action, without providing further reasons why this is so. Given that the region has only recently emerged from a brutal armed conflict and is an area still deemed to require administration by an international authority in order for the peace-building process to remain on track, it is reasonable for that international authority to have some concerns for the safety of its personnel. It is indeed the contention of the Defence that the arrest of the accused met with some outcry on the part of the Serb population of the area and the Prosecutions position that there may be those who wish to harm personnel involved in the arrest does not, therefore, seem entirely unwarranted.
19. Of equal importance is the contention of the Prosecution that techniques which were utilised in the arrest of the accused can be learned from the videotape. This concern strikes at the heart of the exercise of the mandate of the International Tribunal. Without pronouncing upon the legality of the arrest carried out by UNTAES forces and the Prosecution in this case, which is the subject of the Legality of Arrest Motion, still pending before the Trial Chamber, it is to be noted that this was the first time that an international body and the Prosecution had executed an arrest warrant issued by the International Tribunal. Given the failure of some States to fulfil their obligations to execute arrests themselves, the techniques and methods utilised by such forces are of immense interest to those who seek to evade capture.
20. The Defence has failed to demonstrate to the Trial Chamber why it is necessary to its case for the public and media to have the opportunity to view the videotape of the arrest. The publics alleged political reaction to this event should not be material, for the Trial Chamber bases its findings on the applicable law and not on political concerns. Furthermore, Defence counsel were able and will continue to be able to view the video, as an item of evidence filed under seal.
21. The portions of the audiotapes and the transcripts thereof which reflect the arrest of the accused have been filed as public exhibits for the purposes of the hearing of 8 September 1997. These provide the information necessary to the Trial Chamber for the resolution of the Legality of Arrest Motion. Furthermore, these also satisfy the requirements of a public trial and the transparency of the judicial process and thus the videotape serves no additional function in this regard.
For the foregoing reasons, the Trial Chamber,
Considering Rules 78 and 79 and
Pursuant to Rule 54,
HEREBY GRANTS the Motion that the videotape of the arrest of the accused not be disclosed to the public or the media, nor a copy be provided to the Defence;
DIRECTS the Registrar to retain the said videotape filed under seal;
FURTHER DIRECTS the Registrar to facilitate the viewing of the videotape by the Defence, within the precincts of the International Tribunal, upon request, such request being made at least two days in advance of the desired time of viewing.
Done in English and French, the English text being authoritative.
Gabrielle Kirk McDonald
Dated this twenty-sixth day of September 1997
At The Hague
[Seal of the Tribunal]