Case No. IT-95-11-T

IN TRIAL CHAMBER I

Before:
Judge Bakone Justice Moloto, Presiding
Judge Janet Nosworthy
Judge Frank Höpfel

Registrar:
Mr. Hans Holthuis

Decision of:
17 March 2006

PROSECUTOR

v.

MILAN MARTIC

___________________________________________________

DECISION ON PROSECUTION’S MOTION FOR VARIATION OF PROTECTIVE MEASURES

___________________________________________________

The Office of the Prosecutor:

Mr. Alex Whiting
Ms. Anna Richterova
Mr. Colin Black
Ms. Nisha Valabhji

Counsel for the Accused:

Mr. Predrag Milovancevic
Mr. Nikola Perovic

TRIAL CHAMBER I ("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 ("Tribunal");

BEING SEISED of the "Prosecution’s Motion for Variation of Protective Measures" filed confidentially on 13 March 2006 ("Prosecution’s Motion"), in which the Prosecution requests the Trial Chamber to allow Witness-022 to provide his testimony in closed session;

NOTING that the Trial Chamber granted this witness the protective measures of a pseudonym and image distortion on 18 December 2003;1

NOTING the Defence Response, filed confidentially on 16 March 2006, in which the Defence does not object to granting the Prosecution’s Motion;

NOTING that pursuant to Rule 75(A) of the Rules of Procedure and Evidence ("Rules") "A […] Chamber may […] order appropriate measures for the privacy and protection of […] witnesses, provided the measures are consistent with the rights of the accused", and that pursuant to Rule 79 of the Rules "The Trial Chamber may order that the press and the public be excluded from all or part of the proceedings for reasons of […] safety, security or non-disclosure of the identity of a […] witness as provided in Rule 75";

NOTING that in relation to the request for the attribution of protective measures, the party seeking such measures must demonstrate the existence of an objectively grounded risk to the security or welfare of the witness or the witness's family, should it become publicly known that the witness gave evidence2 and that with regard to closed session, the more extreme the protection sought, the more onerous the obligation upon the applicant to establish the risk asserted;3

CONSIDERING that the determination of protective measures requires the Trial Chamber to consider competing interests, namely, on the one hand, the rights of the Accused, including his entitlement under the Statute to a fair and public trial, and that pursuant to Article 20(4) of the Statute the hearings shall be public unless the Trial Chamber decides to close the proccedings in accordance with the Rules, and, on the other hand, the rights of victims and witnesses to protection and privacy;

CONSIDERING that the witness has testified in previous proceedings and that subsequently he experienced considerable adverse reactions from people in his place of residence, which raises concerns for his security and welfare;

CONSIDERING that the Prosecution has shown an objectively grounded risk to the security or welfare of the witness;

FINDING that the requested protective measure of testifying in closed session is appropriate and necessary for the protection of the witness and that it is consistent with the rights of the Accused;

CONSIDERING that the protective measure of testimony in closed session negates the need for image distortion;

FOR THE FOREGOING REASONS

PURSUANT TO Article 20, 21 and 22 of the Statute, and Rules 75 and 79 of the Rules of Procedure and Evidence,

GRANTS the motion,

VARIES the protective measures granted in the decision of 18 December 2003 by removing the protective measure of image distortion; and

REQUESTS the Registrar to ensure that the necessary preparations are made to facilitate the testimony in closed session of Witness MM-022.

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

__________________
Judge Bakone Justice Moloto
Presiding

Dated this seventeenth day of March 2006
At The Hague
The Netherlands

[Seal of the Tribunal]

1. Prosecutor v. Milan Martic, Case No. IT-95-11-PT, Order on Prosecution’s motion for non-disclosure of materials provided pursuant to Rules 66(A)(ii) and 68 and for protective measures for witnesses during the pre-trial phase, 18 Dec 2003.
2. See e.g., Prosecutor v. Pavle Strugar, Miodrag Jokic and others, Case No. IT-01-42 "Order on Prosecution’s motions for protective measures", 16 January 2002, p. 5, and more recently, Prosecutor v. Fatmir Limaj, Haradin Bala, Isak Musliu, Case No. IT-03-66, "Decision on the Prosecutor’s Motion for Protective Measures Regarding Disclosure", confidential, 30 September 2003, p. 5.
3. Prosecutor v Mile Mrskic et al, Case No. IT-95-13/1-T, Decision on Prosecution’s Additional Motion for Protective Measures of Sensitive Witness, 25 October 2005, citing Prosecutor v Slobodan Milosevic, Decision on Prosecution’s Motion for Trial Related Protective Measures (Bosnia), 30 July 2002, para. 5.