Case No.: IT-02-59-PT

IN TRIAL CHAMBER II

Before: Judge Wolfgang Schomburg, Pre-Trial Judge

Registrar: Mr. Hans Holthuis

Decision of: 08 July 2002

PROSECUTOR
v.
DARKO MRDJA

____________________________________________________________

ORDER ON PROSECUTIONíS MOTION FOR PROTECTIVE MEASURES

____________________________________________________________

Counsel for the Prosecutor:

Ms. Joanna Korner
Mr. Nicholas Koumjian

Counsel for the Accused:

 

I, Wolfgang Schomburg, Judge of Trial Chamber II 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 Trial Chamber"),

HAVING BEEN APPOINTED Pre-Trial Judge in this case;

BEING SEIZED OF the "Prosecutionís Motion For Protective Measures", filed by the Office of the Prosecution on 17 June 2002 ("the Motion)";

NOTING that no response to the Motion has been filed by the Defence;

NOTING that in the Motion, the Prosecution requests various protective measures to ensure that witnesses and individuals named in witness statements and investigative reports are not endangered;

CONSIDERING that the Prosecution has formulated its Motion in general terms and has not put forward any detailed reasons in relation to specific and identified material, justifying why in relation to such material the protective measures sought should be granted;

CONSIDERING that the burden rests on the party seeking protective measures to justify in each case why the measures requested should be granted and that the burden does not rest upon the other party to justify disclosure;

CONSIDERING HOWEVER that the requests in the Motion concerning the non-disclosure of non-public information and/or material by the Defence may be granted at this stage of the proceedings;

CONSIDERING that it appears from the content of the Motion that the Prosecution has not yet redacted from the materials to be disclosed to the Defence, information concerning the identity of witnesses;

CONSIDERING that in view of this limited request, at this stage such an order may be granted;

CONSIDERING FURTHER, in particular in view of the observations made above concerning the generality of the requests contained in the Motion, that these findings are without prejudice to any future application which may be made by any party or person seeking such other or additional protective orders or measures or a variation of the terms of this Order, as may be viewed as appropriate concerning a particular witness or other evidence or seeking any changes in the terms of all or some of this Order;

PURSUANT TO Rules 53(A), 54, 66, 69 and 75 of the Rules;

HEREBY ORDERS as follow:

  1. For the purposes of this Order:
    1. the "Prosecution" means the Prosecutor of the Tribunal and her/his staff;
    2. the "Defence" means the Counsel for the Accused and his/her staff;
    3. the "public" means all persons, governments, organisations, entities, clients, associations and groups, other than the Judges of the Tribunal and the staff of the Registry (assigned to either Chambers or the Registry), and the Prosecutor and the Defence, as defined above. The "public" specifically includes, without limitation, family, friends and associates of the Accused; the Accused in other cases or proceedings before the Tribunal; Defence Counsel in other cases or proceedings before the Tribunal;
    4. the "media" means all video, audio and print media personnel, including journalist, authors, television and radio personnel, their agents and representatives.

  1. The Prosecution must comply with its obligation under Rule 66(A)(i) of the Rules to supply to the Accused copies of the supporting material which accompanied the Indictment when confirmation was sought as well as prior statements obtained, such materials to contain no redaction save for any information concerning the current whereabouts of witnesses the Prosecution proposes to call to give evidence in this case, for which leave is granted at this stage.
  2. The Prosecution is granted leave to redact from the statements of all witnesses whom it proposes to call to give evidence in this case any information concerning the current whereabouts of each witness.
  3. The Defence shall not disclose to the public and/or the media any confidential or non-public materials provided by the Prosecution.
  4. Save as is directly and specifically necessary for the preparation and presentation of this case, the Prosecution and the Defence shall not disclose to the public and/or the media:
    1. the names, identifying information or whereabouts of any witness or potential witness named in witness statements or investigative reports;
    2. any evidence (including documentary, physical or other evidence) or any written statement of a witness or potential witness, or the substance, in whole or in part, of any such non-public evidence, statement or prior testimony disclosed.

  1. If the Defence find it directly and specifically necessary to disclose such information for the preparation and presentation of this case, they shall inform each person among the public to whom non-public material or information (such as witness statements, prior testimony, or videos, or the contents thereof), is shown or disclosed, that such a person is not to copy, reproduce or publicise such statement or evidence, and is not to show or disclose it to any other person. If provided with the original or any copy or duplicate of such material, such person shall return it to the Defence when such material is no longer necessary for the preparation and presentation of the case.
  2. If a member of the Defence withdraws from the case, all material in his/her possession shall be returned to their lead defence Counsel.
  3. The Defence may only contact a witness or potential witness identified by the Prosecution, or a person whose written statement(s) or non-public or protected testimony has been disclosed by the Prosecution, on prior written notice of ten (10) days to the Prosecution.

 

Done in both English and French, the English text being authoritative.

Dated this eighth day of July 2002
At The Hague,
The Netherlands.

____________________
Judge Wolfgang Schomburg
Pre-Trial Judge

[Seal of the Tribunal]