Case No: IT-00-39-T

IN THE TRIAL CHAMBER

Before:
Judge Alphons Orie
Judge Joaquín Martín Canivell
Judge Claude Hanoteau

Registrar:
Mr Hans Holthuis

Order of:
18 May 2005

PROSECUTOR

v.

MOMCILO KRAJISNIK

EX PARTE

_______________________________________________

ORDER ON THE PROSECUTION’S APPLICATION FOR VARIATION OF PROTECTIVE MEASURES

_______________________________________________

Office of the Prosecutor:

Ms. Carla Del Ponte

Trial Chamber I (the "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") is seized of the "Prosecution’s Application for Variation of Protective Measures" (the "Motion") filed confidentially and ex parte on 22 April 2005.

Procedural History

1. On 11 and 22 February 2005, the Chief Prosecutor of the Prosecutor’s Office of Bosnia and Herzegovina (the "Bosnian Prosecutor") filed motions with the Registrar of the Tribunal to request the Registry’s assistance in obtaining the names, contact information, testimony and other evidence concerning certain witnesses for use in an investigation conducted by the Bosnian Prosecutor concerning a suspect currently in custody of the Government of Bosnia and Herzegovina (the "suspect"). On 31 March 2005, the Registrar sought the advice of the President of the Tribunal regarding the request. On 6 April 2005, pursuant to Rule 75 of the Rules of Procedure and Evidence ("Rules"), the President rendered his opinion that "it is only one of the parties, defined in Rule 2 as the [ Prosecution] and Defence, who can make an application to a Chamber for variation of measures imposed".¹ On 13 April 2005, the Bosnian Prosecutor sought the assistance of the Office of the Prosecutor of the Tribunal ("OTP") in obtaining the confidential information.

2. On 22 April 2005, the OTP filed its Motion requesting, pursuant to Rule 75 of the Rules, that the Chamber:

1. request the Victims and Witness Section ("VWS") to consult with and ascertain whether the protected witnesses consent to have their identities, current whereabouts, and transcripts/statements disclosed to the Bosnian Prosecutor;

2. request VWS to report to the Chamber as soon as it has completed its consultations; and

3. order that the Bosnian Prosecutor provide an undertaking that the witnesses’ identities and confidential material will be treated as confidential, and that only members of the Special Department for War Crimes of the Bosnian Prosecutor would be permitted access to the material, and that the materials would not be disclosed to any other persons or parties, and that the Bosnian Prosecutor will take all necessary measures, both legal and practical, in order to ensure the safety and security of the witnesses.

3. On 25 April 2005, the Chamber issued instructions to the VWS to: (1) contact the witnesses mentioned in the Annex to the Motion in order to ask them whether they consent to have their identities, current whereabouts, and transcripts/statements disclosed to the Bosnian Prosecutor, in connection with the ongoing investigation referred to in Annex A of the Motion; and (2) report back to the Chamber once it completed its consultations. After being contacted by the VWS, the three witnesses that are the subject of the Motion (namely witness 48,² witness 34³ and witness 19⁴) consented to their names, addresses, and evidence being released to the Bosnian Prosecutor.

Discussion

4. The Chamber notes that the OTP has filed similar application with other Chambers of the Tribunal.⁵

5. The Prosecution has made the relief requested in the Motion contingent upon the consent of the witnesses, and the Chamber instructed the VWS to explain the context and the terms of the Motion and enquire whether the witnesses consented to the disclosure of the requested information.

6. A Chamber of the Tribunal that is seized of a proceeding has the inherent authority to modify orders made previously in the proceedings, including orders made pursuant to Rule 75(A) of the Rules. It is thus within the competence of a Chamber of the Tribunal to vary protective measures in a proceeding of which it is seized upon the request of the party that requested them, provided that the party has demonstrated a legitimate purpose. In the present case, the Chamber finds that the purpose for variation as described in the Motion is legitimate. The fact that there is good cause to vary the protective measures ordered at trial is also underscored by Security Council Resolutions stating that national institutions prosecuting violations of international humanitarian law in the former Yugoslavia are to be assisted in their work.⁶

7. The Chamber notes that, in the event that the Bosnian Prosecutor eventually brings charges stemming from its current investigations, it may be necessary to disclose the confidential information to the accused in that case.

8. Finally, the OTP states that the Motion was made confidentially in order not to prejudice the ongoing investigations of the Bosnian Prosecutor. While Annexes A and B contain confidential information, the Motion itself contains no sensitive information and should be made public. Moreover, the President’s Decision discussed the substance of this matter and was filed publicly. Thus, there is no reason why the motion was filed confidentially or should be kept under seal.

9. Pursuant to Rules 54 and 75 of the Rules, the Chamber hereby

REQUESTS the Registry of the Tribunal to alter the status of the Motion (but not the Annexes thereto) from confidential to public;

GRANTS the Motion;

VARIES the protective measures concerning the witnesses;

ORDERS as follows:

1. The OTP may release the names, contact information, and evidence of the witnesses referenced herein to the Bosnian Prosecutor, provided that the Bosnian Prosecutor has submitted a written undertaking, addressed to the Trial Chamber and the OTP, agreeing to respect the orders of this Chamber concerning this matter, and specifically accepting the following:

   1. The information disclosed will be treated as confidential, and will be released to no one except members of the Special Department for War Crimes and the courts of Bosnia and Herzegovina as necessary for the purposes of proceedings involving the suspect, and to that suspect and his counsel as specified in paragraph (b) below;

   2. The information disclosed will not be released to the suspect and/or his counsel unless the Bosnian Prosecutor obtains assurances under threat of criminal sanction that the suspect and counsel will also maintain the confidentiality of the information; and

   3. The Bosnia and Herzegovina Government will take all necessary measures, both legal and practical, in order to ensure the safety and security of the witnesses; and

2. The Government of Bosnia and Herzegovina shall comply, upon release of the requested material to it, with the above-stated conditions.

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

______________________
Alphons Orie
Presiding Judge

Dated this 18th day of May 2005.
At The Hague
The Netherlands.

[Seal of the Tribunal]