IN THE TRIAL CHAMBER
Before: Judge Antonio Cassese, Presiding
Judge Richard May
Judge Florence Ndepele Mwachande Mumba
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 21 May 1998
Zoran KUPRESKIC, Mirjan KUPRESKIC, Vlatko KUPRESKIC,
Drago JOSIPOVIC, Dragan PAPIC, Vladimir SANTIC, also known as "VLADO"
DECISION ON THE PROSECUTION MOTION TO DELAY DISCLOSURE OF WITNESS STATEMENTS
The Office of the Prosecutor:
Mr. Franck Terrier
Mr. Albert Moskowitz
Counsel for the Accused:
Mr. Ranko Radovic, for Zoran Kupreskic
Ms. Jadranka Glumac, for Mirjan Kupreskic
Mr. Borislav Krajina, for Vlatko Kupreskic
Mr. Luko Susak, for Drago Josipovic
Mr. Petar Puliselic, for Dragan Papic
Mr. Petar Pavkovic, for Vladimir Santic
1. Pending before this Trial Chamber of the International Criminal Tribunal for the former Yugoslavia ("the International Tribunal") is a confidential Motion To Delay Disclosure Of Witness Statements and Identities ("the Motion"), concerning the alleged intimidation of Prosecution witnesses, filed by the Office of the Prosecutor ("Prosecution") on 6 April 1998, as well as the Reply filed by Defence counsel for Zoran Kupreskic on 24 April 1998, the Answer of Defence counsel for Defendants Vladimir Santic, Drago Josipovic and Dragan Papic filed on 4 May 1998, and the Response filed by Defence counsel for Vlatko Kupreskic on 6 May 1998.
The Trial Chamber heard oral argument on 15 May 1998 at which time the Trial Chamber refused the Motion in an oral decision, reserving its written decision to a later date.
THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and oral arguments of the parties,
HEREBY ISSUES ITS WRITTEN DECISION.
2. In its Motion, the Prosecution requests the permission of this Trial Chamber to delay the disclosure of certain witness statements and identities and seeks the guidance of the Trial Chamber as to an appropriate period for disclosure. At the hearing the Prosecution confirmed that it sought to delay disclosure of some 28 out of approximately 40 potential witness statements until eight days prior to their appearance before the International Tribunal. The Prosecution argues that there have been allegations of intimidation of its witnesses, and that by reducing the time for disclosure before commencement of trial, the scope for such abuses would be narrowed.
3. Defence counsel for all the accused oppose the Motion, inter alia, on the ground that it would not allow them adequate time to prepare for trial.
4. Article 20, paragraph 1, of the Statute of the International Tribunal, provides for the Trial Chamber to "ensure that a trial is fair and expeditious . . . with full respect for the rights of the accused and due regard for the protection of victims and witnesses." The accused has a fundamental right to a fair and expeditious trial.
5. Furthermore, Article 21, paragraph 4(b), of the Statute of the International Tribunal provides that the accused shall "have adequate time and facilities for the preparation of his defence . . . ". Rule 69 of the Rules of Procedure and Evidence of the International Tribunal ("Rules"), which deals with Protection of Victims and Witnesses, also states in paragraph (C):
Subject to Rule 75, the identity of the victim or witness shall be disclosed in sufficient time prior to the trial to allow adequate time for preparation of the defence.
Rule 66 (A) (ii) provides that copies of the statements of all witnesses whom the Prosecutor intends to call to testify at trial shall be made available to the defence no later than sixty days before the date set for trial.
6. If the course of action proposed in the Motion were granted, and approximately 28 out of around 40 statements by witnesses were not disclosed until eight days prior to their appearance before the International Tribunal, it would not be possible for the Defence adequately to prepare its case for trial. Consequently an adjournment of the trial would be justified, which would not only have the same potentially detrimental effect on matters of witness protection that the Motion is seeking to prevent, but would also further delay the trial of the accused, thus depriving the accused of their right to an expeditious trial.
7. While safeguarding the rights of the accused to a fair and expeditious trial, the Trial Chamber remains alive to the fundamental need to ensure the adequate protection of witnesses. The Trial Chamber is deeply concerned about the allegations of interference with Prosecution witnesses. It has a duty to protect all witnesses, whether called by the Prosecution or the Defence, in the interest of justice.
8. Protection of witnesses is provided for in Article 22 of the Statute, and Rules 69 and 75. Rule 75 (A) provides: "A Judge or a Chamber may . . . order appropriate measures for the privacy and protection of victims and witnesses, provided that the measures are consistent with the rights of the accused." This Rule gives the Trial Chamber wide discretion to order measures appropriate to the individual circumstances of the matter before it. Pursuant to these provisions, the Trial Chamber determines that in this case, upon disclosure, contact between Prosecution witnesses and the accused, their Defence counsel, or others acting on behalf of the accused, including family members, should be monitored.
9. In order to protect potential witnesses prior to the disclosure of their identity and their statements, the Trial Chamber has the power under Article 29 of the Statute to direct a formal request for assistance to Bosnia and Herzegovina, to provide such assistance as it is able when requested by the Prosecution for the protection of witnesses. Accordingly, in this case such a request will be issued. The Trial Chamber also encourages Bosnia and Herzegovina, through its local authorities, to take such action as it deems appropriate to investigate and prosecute all complaints or incidents of interference with or intimidation of potential witnesses alleged to have occurred within its jurisdiction. Similar requests for assistance in matters of witness protection can made to S-FOR and the International Police Task Force. Again, in this case such requests will be issued.
10. In addition, protection is afforded to witnesses by virtue of the powers of the International Tribunal under Rule 77, which states that any person who interferes with or intimidates a witness commits a contempt of the Tribunal, within the explicit power of contempt under Rule 77 (A) (ii), as well as under the inherent power of contempt under Rule 77 (F), and is liable either to a fine not exceeding Dfl. 20,000, or imprisonment not exceeding six months.
11. The date for trial in this case is set for 17 August 1998. The Trial Chamber is concerned that issues of witness protection should not delay the disclosure of witness statements. Further Prosecution motions for protective measures in respect of any potential witnesses prior to trial should therefore be filed as soon as possible.
For the foregoing reasons
PURSUANT TO Article 20, paragraph 1, Article 21, paragraph 4 (b), and Article 22 of the Statute, and Rule 69 (C) and Rule 75
THE TRIAL CHAMBER REFUSES the Prosecution Motion To Delay Disclosure Of Witness Statements and Identities, and orders as follows:
1. If the Prosecution intends to apply for further protective measures before the start of trial in respect of any of the witnesses now known to it, such a Motion shall be filed by 29 May 1998. Any response by the Defence shall be filed by 5 June 1998.
2. Upon disclosure of the Prosecution witness statements, Prosecution witnesses shall not be contacted by the accused, their Defence counsel, or others acting on behalf of the accused, including family members, except through the Prosecution.
3. The Prosecution and Defence shall each maintain a log of requests for contact, and any disagreements on access to Prosecution witnesses shall be referred to the Trial Chamber.
4. In case of violation of this Order in the form of interference with or intimidation of a witness who is giving, has given, or is about to give evidence before a Trial Chamber, pursuant to Rule 77 (B) the Trial Chamber may exercise its powers to call on such persons that they may be found in contempt. If such persons are subsequently found to be in contempt, the Trial Chamber may impose a fine or a term of imprisonment. The Trial Chamber may also decide to use its inherent power to institute contempt proceedings against any persons who knowingly and wilfully interfere with its administration of justice.
Done in English and French, the English text being authoritative.
Dated this twenty-first day of May 1998
At The Hague
[Seal of the Tribunal]