Case No. IT-03-66-T
IN TRIAL CHAMBER II
Judge Kevin Parker, Presiding
Judge Krister Thelin
Judge Christine Van Den Wyngaert
Mr. Hans Holthuis
17 February 2005
DECISION ON PROSECUTIONíS MOTION TO AMEND WITNESS LIST AND FOR PROTECTIVE MEASURES
The Office of the Prosecutor:
Mr. Alex Whiting
Mr. Julian Nicholls
Mr. Colin Black
Counsel for the Accused:
Mr. Michael Mansfield, QC, and Mr. Karim
A. Khan for Fatmir Limaj
Mr. Gregor Guy-Smith and Mr. Richard Harvey for Haradin Bala
Mr. Michael Topolski, QC, and Mr. Steven Powles for Isak Musliu
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 is seized of a motion from the Prosecution seeking to add one witness and remove three others from its witness list, in addition to seeking protective measures for the proposed additional witness.1 The Defence did not file a response, but indicated that they have no objection to the relief requested by the Prosecution.
That part of the Prosecutionís application which seeks to amend the witness list is governed by Rule 73 bis (E) of the Rules of Procedure and Evidence ("Rules"), which permits the Prosecution, after the commencement of the trial, "to file a motion to vary the number of witnesses that are to be called." The Trial Chamber may grant the request "if satisfied that this is in the interests of justice."
In the exercise of its discretion in this regard, the Chamber must be guided by the preliminary requirements for admissibility of evidence, that is, whether the proposed evidence is likely to be relevant and of probative value under Rule 89 (C) of the Rules. Further, in assessing where the interests of justice lie, the Chamber will consider whether the probative value of the evidence would be substantially outweighed by the need to ensure a fair trial under Rule 89 (D) of the Rules. Of particular relevance in this instance is whether the interests of the Defence may be adequately protected.
Based on its review of the materials provided by the Prosecution in support of its motion, the Chamber is of the view that the evidence of the proposed witness is likely to be relevant and probative, and that no prejudice will arise as a result of the late addition of this witness to the Prosecutionís witness list.
The Prosecutionís request for protective measures for the proposed witness is governed by Rules 69 and 75 of the Rules. The Chamber is satisfied that there are sound reasons for granting such measures, and further finds them to be consistent with the rights of the accused in this case.
Based on the foregoing, the Chamber:
GRANTS the Prosecutionís request to amend its witness list by adding the individual listed in the confidential annex to this decision, and removing three others, as specified in the motion;
GRANTS the Prosecutionís request for protective measures and ORDERS as follows:
The individual listed in the confidential annex to this decision shall be granted a pseudonym and image distortion, and in addition the following protective measures shall apply:
(1) The addresses or whereabouts of the witness shall be sealed and not included in any public records of the International Tribunal, nor revealed during their testimony before the Trial Chamber;
(2) To the extent that the addresses or whereabouts of the witness are contained in existing public records of the International Tribunal, that information shall be expunged from those documents;
(3) All hearings to consider the issue of protective measures for this witness shall be held in closed session and only be released to the public and to the media after review by the Prosecution, in consultation with the Victim Witness Section;
(4) The public and the media may not photograph, video-record or sketch the witness on the premises of the International Tribunal; and
For the purposes of this decision, the term "public" means and includes all persons, governments, organisations, entities, associations and groups other than the Judges of the International Tribunal and the staff of the Registry, the Prosecutor and the Accused in this case, the Defence Counsel, legal assistants and other members of the Defence team, their agents or representatives. The term "public" specifically includes, without limitation, family members, friends and associates of the Accused, the Accused in other cases or proceedings before the International Tribunal, the media and journalists.
Done in English and French, the English version being authoritative.
Judge Kevin Parker
Dated this seventeenth day of February 2005
At The Hague
[Seal of the Tribunal]