IN THE TRIAL CHAMBER
Before: Judge Adolphus Karibi-Whyte, Presiding
Judge Elizabeth Odio Benito
Judge Saad Saood Jan
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 18 March 1997
ZDRAVKO MUCIC, also known as "Pavo"
ESAD LANDZO, also known as "Zenga"
DECISION ON THE DEFENCE MOTION TO COMPEL THE
DISCOVERY OF IDENTITY AND LOCATION OF WITNESSES
The Office of the Prosecutor:
Mr. Eric Ostberg Mr. Giuliano Turone
Ms. Teresa McHenry Ms. Elles van Dusschoten
Counsel for the Accused:
Ms. Edina Residovic, Mr. Ekrem Galijatovic, Mr. Eugene OSullivan, for Zejnil Delalic
Mr. Branislav Tapuskovic, Ms. Mira Tapuskovic, for Zdravko Mucic
Mr. Salih Karabdic, Mr. Thomas Moran, for Hazim Delic
Mr. Mustafa Brackovic, Ms. Cynthia McMurrey, for Esad Landzo
On 19 February 1997, a Defence Motion to Compel the Discovery of Identity and Location of Witnesses ("the Motion") was filed by the Defence for the accused Esad Landzo (Official Record at Registry Page ("RP") D2761-D2768) for consideration by this Trial Chamber of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. ("International Tribunal"). The Office of the Prosecutor ("the Prosecution") filed a Response to the Defence Motion ("the Response") on 20 February 1997. (RP D2770-D2768)
having considered the written submissions of the Defence and the Prosecution ("the parties"), and after hearing the parties in oral argument on 10 March 1997, the Trial Chamber delivered an oral decision on 11 March 1997 and reserved the written decision for a later date,
THE TRIAL CHAMBER HEREBY ISSUES ITS WRITTEN DECISION.
A. Applicable Provisions
1. The following provisions of the Statute of the International Tribunal are relevant to the issue before the Trial Chamber:
Commencement and conduct of trial proceedings
1. The Trial Chamber shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.
. . . .
Rights of the accused
. . .
4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:
. . .
(b) to have adequate time and facilities for the preparation of his defence and to communicate with the counsel of his own choosing;
. . .
(e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
. . . .
2. The following Rules of Procedure and Evidence ("the Rules") are also relevant to the issue:
(A) As early as reasonably practicable and in any event prior to the commencement of the trial:
(i) the Prosecutor shall notify the defence of the names of the witnesses that he intends to call in proof of the guilt of the accused and in rebuttal of any defence plea of which the Prosecutor has received notice in accordance with Sub-rule (ii) below;
. . . .
Protection of Victims and Witnesses
. . .
(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.
Measures for the Protection of Victims and Witnesses
(A) A Judge or a Chamber may, proprio motu or at the request of either party, or of the victim or witness concerned, or of the Victims and Witnesses Unit, order appropriate measures for the privacy and protection of victims and witnesses, provided that the measures are consistent with the rights of the accused.
. . . .
1. The Defence
3. The Defence requests that the Trial Chamber compel the Prosecution to disclose the names and locations of the witnesses it intends to call at trial, for the purpose of conducting pre-trial interviews with those witnesses. It contends that this information has been withheld contrary to the Statute of the Tribunal and its Rules. The Defence asserts that it must have the opportunity to approach the Prosecutions witnesses outside of the Tribunal and "without the restrictive gaze of the prosecution." (the Motion at RP 2759).
4. The Defence notes that the Prosecution has not filed for protective measures for its witnesses. It asserts that without such a request for protective measures and the granting of these by the Trial Chamber, the Prosecution has no right to withhold the addresses of the witnesses, thereby preventing the Defence from having access to them and interviewing them prior to trial.
5. The Defence contends that, after discussion with the Prosecution pursuant to the Trial Chambers Order Disposing of Motions Filed by the Defence of 27 January 1997 (RP D2678-D2676), the two parties were unable to resolve the matter between themselves. The Defence therefore requests that the Prosecution be ordered to disclose the names and addresses of the witnesses which it intends to call at trial, the location of the witness, the count to which each witness will testify and the estimated length of their testimony.
6. Whilst speaking to the Motion before the Chamber, Defence Counsel further emphasised that the Defence is prejudiced by the fact that it is unable, without further information, to investigate the circumstances surrounding the witnesses, such as their reputation.
2. The Prosecution
7. The Prosecution maintains that the Defence was provided with the names of its witnesses several months prior to the present time.
8. It asserts that it is under no obligation to provide the addresses of the witnesses, under the Statute, the Rules or any Order of the Trial Chamber. It further asserts that the Rules envision that such addresses will not be provided. The Prosecution submits that, under Sub-rule 67(A)(ii), it is only the Defence which is under a duty to provide the names and addresses of the witnesses it intends to call to any special defence tendered. Therefore, it argues, the Rules do not contemplate, in the absence of similar specific mention of addresses as is contained in Sub-rule 67(A)(ii), that the Prosecution should provide the addresses of its witnesses.
9. During the oral argument on the Motion, the Prosecution took the position that the use of the word "identity" in Sub-rule 69(C) does not import the current addresses of the witnesses. The Prosecution was of the view that other information, such as birth date or place of origin of the witnesses could be considered part of their identity as required by that Rule.
10. The Prosecution submits that a witness is under no obligation to grant a pre-trial interview to the Defence, although he or she may choose to do so. To disclose the addresses of the witnesses to the Defence would, in the opinion of the Prosecution, violate assurances it has already made to the witnesses, create possible risks for the well-being of the witnesses and jeopardise the witnesses right to privacy as well as their willingness to co-operate with the Tribunal.
11. The Prosecution nevertheless reports that, in an effort to accommodate the request of the Defence, it has contacted each of its witnesses in order to determine whether they would be willing to have their addresses given to the Defence or grant the Defence a pre-trial interview. However, the witnesses all expressed their unwillingness that such action should be taken.
12. Finally, the Prosecution declares that the absence of a request for protective measures for its witnesses does not imply that the addresses of those witness should be disclosed to the Defence.
13. In any criminal trial the testimony and examination of witnesses constitutes a crucial element of the case for both the Prosecution and the Defence. It cannot be over-emphasised that the final verdict on the guilt of the accused person or persons depends in large part upon this testimony and examination. Recognising the critical nature of witness testimony to the accused person, Article 21(4)(e) provides for witness examination as one of the minimum guarantees necessary for a fair trial.
14. The Judges of the International Tribunal, in drawing up the Rules to govern its operation, sought to ensure that the right of the accused to a fair trial always be respected. It is of fundamental importance to the fairness of a trial that the parties know the extent of and limitations to their rights and obligations pertaining to the disclosure of the identities of witnesses appearing before the Tribunal.
15. While the protection of victims and witnesses is the subject of several of the Rules, the provisions of Article 20(1) of the Statute strike the appropriate balance by stating that "full respect" must be given to the rights of the accused and "due regard" for the protection of victims and witnesses.
16. The arguments of the Prosecution fall into two categories. Firstly, that the Rules do not require disclosure of the addresses of witnesses and, secondly, that such disclosure would endanger the witnesses.
17. It is clear from Sub-rule 69(C) that the Defence has a right to know the identity of the witnesses which are to be called by the Prosecution in the presentation of its case. The use of the term "identity" has a significance which goes beyond the mere provision of the names of these witnesses. A name by itself is not sufficient to identify the person by whose testimony the charges against the accused are sought to be proven. To identify the witnesses, therefore, it is necessary for the Defence to know further particulars about them, this in turn to satisfy the right of the accused to an adequate preparation of his defence.
18. The provisions of Rule 75 are such that the privacy and protection of the witnesses may be taken into account by the Trial Chamber and weighed against the rights of the accused. Whilst the Prosecution may, under Rule 39(ii), take special measures to provide for the safety of potential witnesses, these measures relate to the investigative stage of a case. It is not for the Prosecution to provide assurances to witnesses once it has decided that these witnesses will be called to give testimony before the Tribunal. The granting of any necessary protective measures is solely a matter for determination by the Trial Chamber.
19. Furthermore, there is no opportunity for the Defence to examine the witnesses for the Prosecution in any real sense without a proper appreciation of those witnesses. The basic right of the accused to examine witnesses, read in conjunction with the right to have adequate time for the preparation of his defence, therefore envisages more than a blind confrontation in the courtroom. A proper in-court examination depends upon a prior out of court investigation. Sub-rule 69(C) reflects this by referring to a "sufficient time prior to the trial".
20. The term "identity" does not necessarily include the present addresses of the witnesses. The Trial Chamber rejects the submission of the Defence that it has a right to these addresses for the purposes of conducting pre-trial interviews as unsupported by any Rule or provision of the Statute. Substantial identifying information would appear to be the sex of each witness, his or her date of birth, the names of his or her parents, his or her place of origin and the town or village where he or she resided at the time relevant to the charges. Such information provides the Defence with adequate notice of who exactly it is that the Prosecution deems essential to the proof of its case against the accused so that the Defence can adequately conduct its own investigations.
THE TRIAL CHAMBER,
FOR THE FOREGOING REASONS,
HAVING CONSIDERED THE SUBMISSIONS OF THE PARTIES,
PURSUANT TO RULE 54,
HEREBY ORDERS that the Prosecution shall immediately provide to the Defence for each accused, should they not already have done so, the name, sex, date of birth, place of origin, names of parents and place of residence at the time relevant to the charges to which the witness will testify, of each of the witnesses it intends to call at trial,
HEREBY DENIES the Defence request that the current addresses of the witnesses referred to above be made available to the Defence.
Done in English and French, the English text being authoritative,
Adolphus G. Karibi-Whyte
Dated this eighteenth day of March 1997
At the Hague
[Seal of the Tribunal]