IN THE TRIAL CHAMBER
Judge Adolphus G. Karibi-Whyte, Presiding
Judge Elizabeth Odio Benito
Judge Saad Saood Jan
Mrs. Dorothee de Sampayo Garrido-Nijgh
28 April 1997
ZDRAVKO MUCIC also known as "PAVO"
ESAD LANDZO also known as "ZENGA"
DECISION ON THE MOTIONS BY THE PROSECUTION FOR PROTECTIVE MEASURES FOR THE PROSECUTION WITNESSES PSEUDONYMED "B" THROUGH TO "M"
The Office of the Prosecutor
Mr. Eric Ostberg Mr. Guiliano Turone
Ms. Teresa McHenry Ms. Elles van Duschotten
Counsel for the Accused
Ms. Edina Residovic, Mr Ekrem Galiatovic, Mr. Eugene OSullivan, for Zejnil
Mr. Branislav Tapuskovic, Mr. Micheal Greaves for Zdravko Mucic
Mr. Salih Karabdic, Mr. Thomas Moran, for Hazim Delic
Mr. Mustafa Brackovic, Ms. Cynthia McMurrey, for Esad Landzo
I. INTRODUCTION AND PROCEDURAL BACKGROUND
On 10 March 1997, the trial commenced before 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 ("International Tribunal") of the four accused person, Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo, for crimes within the jurisdiction of the International Tribunal, namely, grave breaches of the Geneva Conventions of 1949 and violations of the laws or customs of war, which were allegedly committed in 1992 within the precincts of the Celebici camp, in Konjic Municipality of the Republic of Bosnia and Herzegovina.
Presented for determination by the Trial Chamber are six separate motions (jointly referred to as the "Motions") by the Office of the Prosecutor ("Prosecution") seeking protective measures for twelve witnesses in this case, designated by the pseudonyms "B", "C", "D", "E", "F", "G", "H", "I", "J", "K", "L" and "M".
The first motion, seeking protective measures for witness "B", was filed on 25 February 1997 (Official Record at Registry Page ("RP") D 2852 - D 2856). The second, third, and fourth motions, seeking protection for witnesses "C", "D" and "E" respectively were filed on 26 February 1997 ( RP D 2876 - D 2880, D 2881- D 2885, and D 2886 - D 2890 respectively). The fifth motion, seeking protection for witness F, was filed on 28 February 1997 (RP D 2892 - D 2896), while the sixth motion, seeking protection for witnesses "G" through to "M", was filed on 13 March 1997 (RP D 3013 - D 3017).
The Defence on behalf of three of the accused persons, Zejnil Delalic, Hazim Delic and Esad Landzo, filed a Joint Response of Defence to Prosecutions Motion for Protective Measures for Witnesses "B", "C", "D", "E", "F" on 10 March 1997 (RP D 2993 - D 2995). On 11 March 1997, the Defence on behalf of the accused, Zdravko Mucic filed a Response to the Prosecutions Motion for Protective Measures for Witnesses "B", "C", "D", "E" and "F".
On 14 March 1997, both the Prosecution and the Defence for the four accused persons argued their positions orally before the Trial Chamber in a closed session hearing. At the same hearing, the Trial Chamber heard Mr. William McGreeghan of the International Tribunals Victims and Witnesses Unit with respect to certain matters concerning witnesses "G" through to "M".
The Trial Chamber delivered an oral decision, granting the Motions in part and denying them in part, on 24 March 1997, reserving a 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.
A. Applicable Provisions
1. The Prosecution urges the Trial Chamber to grant the protective measures sought on the basis of the provisions of Rule 75 of the International Tribunals Rules of Procedure and Evidence ("Rules").
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 or witnesses, provided that the measures are consistent with the rights of the accused.
(B) A Chamber may hold an in camera proceeding to determine whether to order:
(i) measures to prevent disclosure to the public or the media of the identity or whereabouts of a victim or a witness, or of persons related to or associated with him by such means as:
(a) expunging names and identifying information from the Chambers public records;
(b) non-disclosure to the public of any records identifying the victim;
(c) giving testimony through image- or voice- altering devices or closed circuit television; and
(d) assignment of a pseudonym;
(ii) closed sessions, in accordance with Rule 79;
(iii) appropriate measure to facilitate the testimony of vulnerable victims and witnesses, such as one-way closed circuit television.
(C) A Chamber shall, whenever necessary, control the manner of questioning to avoid any harassment or intimidation.
2. Certain other provisions of the Statute of the International Tribunal ("Statute") and the Rules, some of which are hereinafter set out, are also of relevance to the determination of the issue before the Trial Chamber.
All proceedings before a Trial Chamber, other than deliberations of the Chamber, shall be held in public, unless otherwise provided.
(A) The Trial Chamber may order that the press and the public be excluded from all or part of the proceedings for reasons of:
(i) public order or morality;
(ii) safety, security or non-disclosure of the identity of a victim or witness as provided in Rule 75; or
(iii) the protection of the interests of justice.
(B) The Trial Chamber shall make public the reasons for its order.
Testimony of Witnesses
(A) Witnesses shall, in principle, be heard directly by the Chambers unless a Chamber has ordered that the witness be heard by means of a deposition as provided for in Rule 71.
. . . .
I. The Prosecution
3. The Prosecution seeks eleven separate measures for the protection of the twelve witnesses, "B" through to "M", in the following terms.
Prayer 1: the names, addresses, whereabouts and other identifying data concerning the pseudonymed witnesses shall not be disclosed to the public or to the media;
Prayer 2: all hearings to consider the issue of protective measures for the pseudonymed witnesses shall be held in closed session, however, edited recordings or transcripts of the session(s) shall, if possible, be released to the public and to the media after review by the Office of the Prosecutor in consultation with the Victims and Witnesses Unit to ensure that no information leading to the possible identification of the witnesses is disclosed;
Prayer 3: the names, addresses, whereabouts of, or other identifying information concerning the pseudonymed witnesses shall be sealed and not included in any of the public records of the International Tribunal;
Prayer 4: to the extent the names, addresses, whereabouts of, or other identifying information concerning the pseudonymed witnesses are contained in existing public documents of the International Tribunal, that information shall be expunged from those documents;
Prayer 5: documents of the International Tribunal identifying the pseudonymed witnesses shall not be disclosed to the public or to the media;
Prayer 6: the pseudonyms shall be used whenever the witnesses are referred to in International Tribunal proceedings and in discussions among the parties;
Prayer 7: the testimony of the pseudonymed witnesses shall be heard in closed session or, if a witness is willing to appear in open court, his/her testimony may be given using image and voice altering devices to the extent necessary to prevent his/her identity from becoming known to the public or the media;
Prayer 8: if the testimony of the pseudonymed witnesses is given in closed session, edited recordings and transcripts of the session(s) shall be released to the public and to the media after review by the Office of the Prosecutor in consultation with the Victims and Witnesses Unit to ensure that no information leading to the possible identification of the witnesses is disclosed;
Prayer 9: the accused, the Defence Counsel and their representatives who are acting pursuant to their instructions or request shall not disclose the names of the pseudonymed witnesses or other identifying data concerning these witnesses, to the public or to the media, except to the limited extent such disclosure to members of the public is necessary to investigate the witnesses adequately. Any such disclosure shall be made in such a way as to minimise the risk of the witnesses names being divulged to the public at large or to the media;
Prayer 10: the accused, the Defence Counsel and their representatives who are acting pursuant to their instructions or request, shall notify the Office of the Prosecutor of any requested contact with the pseudonymed witnesses or their relatives, and the Office of the Prosecutor shall make arrangements for such contacts as may be determined necessary; and
Prayer 11: the public and the media shall not photograph, video-record or sketch the pseudonymed witnesses while they are within the precincts of the International Tribunal.
4. Additionally, in respect of witness "B", the Prosecution seeks protective measures in the following terms.
[W]itness B shall testify from the remote witness room, and his testimony shall be broadcasted [sic] to the courtroom by one-way closed circuit television. The image of witness B shall appear on the screens of the Trial Chamber, of the Defence counsel and the Prosecution, but not on the screens of the accused. For the screens of the accused an image distortion shall be used
. . . .
RP D 2853 at para. 6.
5. The protective measures sought by the Prosecution may be categorised into three groups. The first set of measures, sought for all twelve witnesses are for confidentiality or protection from the public and the media. The second, sought only for witness "B", is a form of partial anonymity from the accused person. The third, also sought only for witness "B", is for protection against retraumatisation.
6. In the Motions and orally, the Prosecution offered reasons to justify the requests of each of the witnesses for confidentiality.
7. In the case of witness "B", who is alleged to have been a detainee in the Celebici camp, the reason given is that his family still lives in Konjic municipality. Witness "B" fears that his family will be vulnerable to acts of retaliation if his status as a witness in this case becomes public.
8. With regard to witness "C", the Prosecution alleges that, as a detainee in the Celebici camp, this witness was a victim of sexual assault. It submits that the witness will find it extremely difficult and embarrassing to testify about this in public, and also wishes to protect another person, also a victim of the sexual assault, from being exposed to the public.
9. For witness "D", the Prosecution states that, although the witness was not detained in Celebici, the witness has very specific knowledge about what happened in the camp. The witness has expressed a fear that if it becomes public that he will be a witness in this case, he would be in danger within the Bosnian community of refugees in which he currently resides in a host country.
10. The Prosecution states that witness "E", who is also alleged to have been detained in the Celebici camp, lives as a refugee in a host country where there have been acts of violence directed against persons of his ethnic group. The Prosecution contends that there will be safety risks for him in that community if his participation as a witness in this case becomes public.
11. On behalf of witness "F", the Prosecution submits that he lives in a community where persons of his ethnic group are in the minority. It contends that there are tensions between the different ethnic groups living in this community and that the safety of witness "F" will be called into question if it becomes public knowledge that he will be a witness.
12. The Prosecution further contends that witnesses "G" through to "M" were all detained for varying periods of time in the Celebici camp. They do not wish their status as witnesses in this case to become public because they live in a Bosnian refugee community in a host country composed of persons of different ethnic groups, and their testimony will leave them vulnerable to acts of retaliation. In addition, the Prosecution contends that a report that a person has been making enquiries about witnesses in this case in their host country has heightened their desires to be protected from possible acts of violence by this person. Mr. William McGreeghan of the Victims and Witnesses Unit stated that the Unit had received this report and that appropriate steps have been taken to have the matter investigated by the relevant authorities in the host country.
13. In sum, therefore, the twelve witnesses, with the exception of witness "B", whose special position will be considered in more detail below, do not seek any protection from the accused, and the Prosecution has disclosed the names of each of these witnesses to the Defence. The prayers for confidentiality are in relation to third parties, namely, the general public and the media. In principle, the Prosecution desires that the testimony of the witnesses should be heard in open session as much as possible, with the possibility of going briefly into private sessions if the testimony contains sensitive information. Furthermore, the Prosecution submits that witnesses "D", "E", "H" and "M", have no objection to their names being mentioned by other witnesses; they only wish to keep their roles as witnesses in this case from the public and the media.
ii. Partial Anonymity and Retraumatisation
14. The Prosecution submits that witness "B" seeks to avoid face to face confrontation with the accused persons while giving testimony for two reasons. First, witness "B" believes that if the accused persons see him in court, they will recognise him and this will bring "additional security risks" for his family (RP 2855 at para.4). Witness "B" believes that his family will not exposed to such risks in the absence of visual confrontation because his name, which has been disclosed to the accused persons, is insufficient to enable them to identify him. Secondly, the Prosecution submits that it has learnt, from a telephone conversation with witness "B", that the witness is very traumatised by his experiences in the Celebici camp. It declares that witness "B" is very nervous about testifying and has expressed a wish not to have to see the accused persons when he does so. It contends that seeing the accused persons, even after four years, will be too much for this witness. On these grounds, the Prosecution urges the Trial Chamber to permit witness "B" to testify from the remote witness room, out of the view of the accused.
15. On the whole, the Prosecution implores the Trial Chamber to acknowledge that risk appraisal is personal to each individual, so that the possibility of retraumatisation, the apprehension of danger and the fear of retaliation either from the public or the accused persons will vary from one person to another. It argues that the protective measures sought would respond to the individual needs of each witness while at the same time safeguarding the rights of the accused. It declares that the Trial Chamber would be striking a proper balance between the public interest in the protection of witnesses and the rights of the accused by granting the relief requested.
II. The Defence
16. In a joint written response, the Defence on behalf of the accused persons, Zejnil Delalic, Hazim Delic and Esad Landzo states that it finds no objective basis for the requests on the grounds of fear, danger or retaliation. However, "for the sake of judicial economy" the Defence maintains no objections to the Motions provided that there is "face to face testimony within the courtroom of the Tribunal" (RP 2994). The Defence contends that such a face to face confrontation between the accused and the witnesses against them is guaranteed by the provisions of Rule 90(A). Defence counsel for the accused Zdravko Mucic in his written response supports the response of the other accused persons.
17. In oral argument, the Defence on behalf of each of the accused persons argued its position separately.
18. The Defence for this accused contends that there are no objective grounds for requesting protection for as many as one-fifth of the witnesses of fact in this case. Specifically, in relation to witness "B", Defence counsel contended that there is no real argument or explanation as to why this witness seeks the forms of protection sought. For witness "C", counsel stated that she had "no comment". With respect to witnesses "G" through to "M", the Defence avers that the fact that a person is searching for witnesses in this case does not bring into jeopardy the safety of anyone. The Defence raises the possibility that the search for witnesses may be for the purposes of investigations connected with the case.
19. The Defence counsel for this accused contended that the Prosecution has not given sufficient reasons to justify the protection sought in each individual case. Counsel took particular exception to the protection sought for witness "D" whom he contended held a position within the Celebici camp and ought, therefore, to give evidence in open session.
20. On behalf of this accused, the Defence rejects the argument of the Prosecution that risk assessment is a personal matter. It declares that this is to turn the test for granting protective measures on its head. Arguing that the Prosecution has called no objective evidence in support of its requests, the Defence contends that it is for the Trial Chamber to determine on the basis of such objective evidence whether to exercise its discretion to grant protection. Emphasising the right of the accused to a public trial, the Defence also avers that there is a real risk that the trial will be perceived as unfair if one-fifth of the Prosecutions fact witnesses are heard in closed session.
21. The Defence for Esad Landzo agrees with the arguments put forward on behalf of the other accused persons. It contends, in relation to witness "B", that the Prosecution has not satisfied the threshold necessary to obtain the forms of protection sought. The Defence argues that unless there is medical evidence to prove that witness "B" is in such a serious emotional state that confronting the accused would result in retraumatisation, the Trial Chamber should not grant the requested measures. With regard to witnesses "G" through to "M", Defence Counsel expressed the opinion that the reasons for seeking protection are imaginary and fabricated by the witnesses in question.
22. The Motions before the Trial Chamber raise matters of fundamental and critical importance in the determination of cases under the jurisdiction of the International Tribunal. Particularly, they bring into special focus issues relating to the conflicts between the rights of the accused and the protection of witnesses during trial. Concisely stated, the following issues call for determination. First, there are issues of confidentiality or the non-disclosure of the names and other identifying information of the witnesses to the public and the media. Secondly, there is the issue of partial anonymity of a witness by providing protection from the public, the media and the accused. Thirdly and finally, there is the issue of preventing the retraumatisation of a witness by providing protection from the accused. The Trial Chamber will consider these issues seriatim. We shall, however, first deal with the statutory and case-law background.
I. Statutory Background
23. A number of the applicable provisions of the Statute and the Rules are set out above. The Statute is very careful, explicit and unequivocal in defining the rights of the accused, whilst at the same time providing for the protection of victims and witnesses.
24. Article 15 of the Statute vests the Judges of the International Tribunal with the power to formulate and adopt the Rules of Procedure and Evidence and to include therein, rules for the protection of victims and witnesses. Article 22 provides that the measures set out in such rules shall "include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victims identity". The rationale for this provision is as stated in paragraph 108 of the Report of The Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), (U.N.Doc. S/25704, 3 May 1993), ("Report").
In the light of the particular nature of the crimes committed in the former Yugoslavia, it will be necessary for the International Tribunal to ensure the protection of victims and witnesses. Necessary protection measures should therefore be provided in the rules of procedure and evidence for victims and witnesses, especially in cases of rape and sexual assault . . . .
25. The importance attached to the protection of victims and witnesses is exemplified by a specific mention in paragraph 99 of the Report where it is stated that the Trial Chambers shall also provide appropriate protection for victims and witnesses during proceedings. Article 20 which regulates the commencement and conduct of trial proceedings provides in paragraph 1 as follows.
The Trial Chambers 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.
The same Article in paragraph 4 provides that "hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with its rules of procedure and evidence."
26. Furthermore, the Secretary-General observed as follows in paragraph 106 of the Report.
It is axiomatic that the International Tribunal must fully respect internationally recognised standards regarding the rights of the accused at all stages of its proceedings. In the view of the Secretary-General, such internationally recognized standards are, in particular, contained in article 14 of the International Covenant on Civil and Political Rights
Article 21(4) prescribes the minimum guarantees of a fair trial. In Sub-paragraph (e), it states that the accused is entitled "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". Consistent with the powers vested in the Judges, Rules 69, 75, 79, 90 and 96 have been adopted for the protection of victims and witnesses.
27. In the determination of the Motions, we shall rely on the interpretation of the Statute and the Rules. The International Tribunal, through decisions of the Trial Chambers, is gradually creating its own precedents - a factor which was lacking at its inception. It is, therefore, helpful to consider, for purposes of interpretation, recent decisions of the Trial Chambers on the applicable provisions. Article 31 of the Vienna Convention on the Law of Treaties (U.N.Doc. A/CONF. 39/27) has been found to be useful and relevant in the interpretation of the Statute and the Rules. Similarly, decisions on the provisions of the International Covenant on Civil and Political Rights ("ICCPR") and the European Convention on Human Rights ("ECHR") have been found to be authoritative and applicable. This approach is consistent with the view of the Secretary-General that many of the provisions in the Statute are formulations based upon provisions found in existing international Instruments (See paragraph 17 of the Report).
28. The Trial Chamber shall interpret the relevant provisions in the light of the object and purpose of the International Tribunal. The object and purpose of Security Council Resolution 827, establishing the International Tribunal has been described as threefold, namely, to do justice, to deter further crimes, and to contribute to the restoration and maintenance of peace. (First Annual Report of the International Tribunal at para. 11, U.N.Doc A/49/150(1994)).
29. The Trial Chamber shall now consider the subject matter of the requests in the Motions in their order of gravity.
30. The prayers requesting confidentiality are seeking non-disclosure of identifying information to the public or the media. They also seek, by implication, a denial of the right of the accused to a public hearing, a right guaranteed under Article 21(2) of the Statute, and a requirement of Article 20(4) unless otherwise directed by the Trial Chamber. Rule 78 is based on Article 20(4) of the Statute. The circumstances under which the Trial Chamber will order the exclusion of the media and public from all or part of the proceedings are prescribed in Rule 79. Fear is a reason common to eleven of the twelve witnesses in respect of whom protection is sought from the public or media. Fear, that public knowledge of their testimony will result in danger to themselves and their families. For one of the witnesses, witness "C", the reason for the confidentiality request is not fear, but a desire for privacy, a wish not be publicly associated with the alleged sexual assaults upon his person and that of another.
31. In Prosecutor v Dusko Tadic, (Decision on the Prosecutors Motion Requesting Protective Measures for Witness R, IT-94-1-T, T.Ch. II, 31 July 1996 at para. 6), Trial Chamber II, (Judges McDonald, presiding, Stephen and Vohrah), construing the provisions of Rule 79(A)(ii) made the following statement.
In balancing the interests of the accused, the public and witness R, this Trial Chamber considers that the publics right to information and the accuseds right to a public hearing must yield in the present circumstances to confidentiality in the light of the affirmative obligation under the Statute and the Rules to afford protection to victims and witnesses. This Trial Chamber must take into account witness Rs fear of the serious consequences to members of his family if information about his identity is made known to the public or the media.
32. Article 21(2) of the Statute of the International Tribunal provides as one of the rights of the accused that, "[i]n the determination of charges against him, the accused is entitled to a fair, and public hearing, subject to Article 22 of the Statute." This provision, which is made subject to Article 22, anticipates the circumstances when the accused should not be entitled to the exercise of his right to a public hearing. Article 22 directs the Judges to make rules for the protection of the victims and witness enabling the conduct of in camera proceedings and the protection of the identity of the victim. The protection of the witness by in camera proceedings does not invariably detract from the right of the accused, nor from the duty of the Trial Chamber to give full respect to the rights of the accused (see Rule 75 (B)(i)).
33. It is important to note that the Trial Chamber cannot without good reason, deny the accused the right to a public hearing enshrined in Articles 20(4) and 21(2). Rule 75(A) enacted pursuant to Article 22 provides.
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.
Accordingly the measures formulated by virtue of Article 22 must be consistent with the rights of the accused. The Statute of the International Tribunal emphasises the public nature of a trial as an essential feature of the proceedings (Articles 20(4), 21(2)).
34. The principal advantage of permitting the public and the press access to a hearing is that their presence contributes to ensuring a fair trial. In Pretto & Ors v Italy, (Series A, No. 71 (1984) 6 EHRR 182) the ECHR stated that "[p]ublicity is seen as one guarantee of fairness of trial; it offers protection against arbitrary decisions and builds confidence by allowing the public to see justice administered". Thus, a public hearing is mainly for the benefit of the accused and not necessarily of the public. The following dictum of Chief Justice Warren in Estes v Texas, a case decided by the United States Supreme Court, supports this view.
There can be no blinking the fact that there is a strong societal interest in public trials. Openness in court proceedings may improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously. . . .
381 U.S. 532 at 583 (1965)
35. The two interests requiring attention in the trial which ought to be maintained, are the right of the accused to a public hearing, and the right of the witness to protection in the interests of justice. Accordingly, the Trial Chamber in considering the motion must balance these two interests. This is clearly provided by Rule 79 which enables the exclusion of the press and public from the proceedings for various reasons including safety by the non-disclosure of the identity of a victim or witness. Thus, in certain circumstances, the right to a public hearing may be qualified and curtailed to accommodate other interests.
36. Several of the Rules relate to maintaining a balance between the right of the accused to a public hearing and the protection of victims and witnesses. Rule 69 allows for non-disclosure at the pre-trial stage of the identity of a victim or witness who may be in danger until the witness is brought under the protection of the International Tribunal. This non-disclosure applies to the press, public and the accused. Under Rule 75 appropriate measures consistent with the rights of the accused may be taken to protect victims and witnesses. Rule 79 enables the exclusion of the press and public from the proceedings on the grounds of public order or morality, the safety or non-disclosure of the identity of a victim or witness or the protection of the interest of justice.
37. It is clear from the construction of the provisions of the relevant Articles of the Statute of the International Tribunal, namely Article 20(4), 21(2) and 22, and the enabling Rules, namely, Rules 69, 75 and 79, that the Statute which is the legal framework for the application of the Rules, provides that the protection of victims and witnesses, is an acceptable reason to limit the accuseds right to a public trial. Article 14(1) of the ICCPR and Article 6(1) of the ECHR state that everyone is entitled to a fair and public hearing. Nevertheless both Articles provide that the press and the public may be excluded in the interest of morals, public order or national security, where the interests of juveniles or the protection of the private life of the parties so require, or where publicity would prejudice the interest of justice.
38. The satisfaction of the public interest in this case is of crucial importance. This trial, apart from being the first multiple-defendant international criminal trial since the Nürnberg and Tokyo trials involving crucial issues relating to command responsibility, is also the second trial before the International Tribunal.
39. After considering all the rights and interests in issue, the Trial Chamber is not persuaded that the arguments presented by the Prosecution have shown that all the twelve witnesses indicated must be heard in closed sessions in order to guarantee their protection. The Trial Chamber notes the submissions of the Defence that granting the prayers of the Prosecution will result in too much evidence being heard in closed sessions. The Trial Chamber is aware of its statutory duty to protect witnesses and cannot lightly abdicate the same. It is encouraging that none of the parties has suggested the contrary. The Trial Chamber is of the opinion that a combination of protective measures, including closed sessions will satisfy the needs of the witnesses and constitute adequate protective measures in these proceedings.
(i) Witness "C"
40. Witness "C" is alleged to have been a victim of sexual assault. Testifying about the event can be a most difficult and humiliating experience for him. In this case the evidence is likely to concern another person who is not a witness. The Report at paragraph 108 makes specific mention of the need to protect victims and witnesses especially in cases of rape or sexual assault. The Trial Chamber has no hesitation whatsoever in granting to the Prosecution its request for a closed session hearing for the testimony of witness "C".
41. Public order or morality is one of the reasons for excluding the public or the media from all or part of the proceedings (Rule 79 (A)(i)). The identity of sexual assault victims has conveniently been considered not subject matter of public disclosure. A number of jurisdictions, both civil and common law, have adopted the position that the identity of an alleged victim of sexual assault should be kept from the public. In England and Wales, Section 4 of the Sexual Offences (Amendment) Act, 1976, provides that after a woman has complained of a rape offence, neither her name nor her address nor a still or moving picture of her shall be published during her lifetime if it is "likely to lead members of the public to identify her as an alleged victim of such an offence". Furthermore, the Canadian Criminal Code (1954) in Section 442(3) guarantees anonymity from the public upon application to the Court.
42. Civil law jurisdictions such as Switzerland, Denmark and Germany have similar legislation. Swiss law prohibits the publication of the identity of a victim if it is necessary to protect the interests of the prosecution or if the victim requests non-disclosure. The courtroom may be closed during the victims testimony (Bundesgesetz Über die Hilfe an Opfer von Strafteten, art. 5). In Denmark, a victim in an incest or rape case, may request a trial in camera and would be granted (Administration of Justice Act section 29). In Germany, publicity can be restricted or excluded, in order to protect the accused and witnesses. ((Gerichtsverfassungsgesetz sec. 170) - See Christine van den Wyngaert, Criminal Procedure Systems in the European Community (1993)).
43. Furthermore, in The Prosecutor v Dusko Tadic, (Decision on the Prosecutors Motion Requesting Protective Measures for Victims and Witnesses ("The Tadic Protection Decision"), Case No:. It-94-1-T, T.Ch. II, 10 August 1995 at para. 40), the majority of Trial Chamber II, Judges McDonald and Vohrah, cited several decided cases regarding sanctions on the press in the United States of America for disclosing the identities of sexual assault victims - Florida Star v BJF, 491 U.S. 524 (1989). There are also other cases such as Waller v Georgia, 467 U.S. 39, 46 (1984). For partial closure see Douglas v Wainwright, 739 F 2d. 531 (11th cir. 1984). For total closure see Press-Enterprise Co. v Superior Court, 464 U.S. 501 (1984).
44. In all these jurisdictions, evidence involving sexual assault afford sufficient reasons to justify confidentiality.
45. The Trial Chamber has come to the decision to permit witness "C" to give testimony in closed session. The Defence has not specifically raised any objections to the measure. Counsel for the accused, Zejnil Delalic, in response to the Prosecution during oral argument stated that "[i]n relation to witness number C, we have no comment".
(ii) Witnesses "D" through to "M"
46. In the circumstances of the International Tribunal, in addition to cases concerning sexual assault, sufficient consideration may be found to justify confidentiality, where there are demonstrable fear of reprisals, taking into account the community in which the witnesses and their families live. This view is facilitated by the statutory duty of the Trial Chamber to offer protection, in appropriate circumstances, and the inability of the International Tribunal to guarantee the safety of the victims or witnesses due to the lack of a viable witness protection programme.
47. In relation to all the other witnesses apart from witness "B", the Trial Chamber does not consider that the Prosecution has satisfied the requirements to permit the testimony of any of them to be heard in closed session. The Prosecutions argument that fear is subjective and that risk assessment is a personal matter is well founded. However, the Trial Chamber must be presented with some objective criteria upon which it can base its decision whether to grant or to refuse the requests for protection.
48. The Prosecution has failed to give any indication as to the nature or importance of the testimony of these witnesses. It would seem to us that, if the testimony of these witnesses were crucial, then the more vulnerable they would be to acts of retaliation. In respect of witnesses "G" through to "M" the Prosecution conceded during oral argument that investigation about the person allegedly searching for the Celebici witnesses, and whose activity stirred up the fear is still ongoing. The reports are as yet unsubstantiated.
49. In these circumstances, the Trial Chamber finds that the unsubstantiated fears of these witnesses may be abated by less severe protective measures than total confidentiality. We consider it sufficient, in the circumstances, that these witnesses should be shielded from visual recognition by the public and media. In accordance with the provisions of Rule 75B (i)(c) these witnesses may give their testimony in open session, through image altering devices.
III. Confidentiality / Partial anonymity
50. The Prosecution seeks non-disclosure to the public and the media of information identifying witness "B". The Prosecution also seeks protection from face to face confrontation with the accused on the ground that to permit the accused to see witness "B" will increase the danger to his safety. These protective measures stricto sensu amount to anonymity, as witness "B" has stated that the accused persons will only recognise him if they actually see him face to face. The name disclosed is not helpful for his identification.
51. The statements of witness "B" contain very strong allegations. The Prosecution has not sought to substantiate them but has merely presented them in the bare form as expressed by the witness.
52. More than the confidentiality, witness "B" seeks a protection making it impossible for the accused person to recognise him at the Trial. Admitting that accused persons cannot recognise him by his name alone, which is disclosed, the Prosecution seeks this protective measure. It is a fundamental principle in the administration of justice before the Trial Chambers to ensure that a trial is fair and expeditious and that the 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 (Article 20 of the Statute). Thus the balance between the rights of the accused and the protection of witnesses must be maintained.
53. The request on behalf of witness B, if granted, will undoubtedly diminish the exercise of some of the accuseds rights, the most important of which is the right to examine or have examined, the witnesses against him (see Article 21(4)(e)). If the Trial Chamber grants the Prosecutions requests, the accused persons will be denied not only the right to a public hearing, but also a confrontation with the witness, a crucial part of a criminal proceeding. The Trial Chamber cannot ignore such an obvious conflict between the rights of the accused and the protection of the witnesses in the trial. The balancing of different interests is inherent in the notion of a fair trial. A fair trial means not only fair treatment to the accused but also to the prosecution witnesses.
54. The general rule is that all the evidence, as much as is practicable, should be produced in the presence of the accused at the hearing with a view to confrontation with the accused. The underlying reasoning for the disclosure of the identity of witnesses has been stated in Kostovski v The Netherlands.
If the defence is unaware of the identity of the person it seeks to question, it may be deprived of the very particulars enabling it to demonstrate that he or she is prejudiced, hostile or unreliable. Testimony or other declarations inculpating an accused may well be designedly untruthful or simply erroneous and the defence will scarcely be able to bring this to light if it lacks the information permitting it to test the authors reliability or cast doubt on his credibility.
(1990) 12 EHRR 434.
55. Article 6 of the ECHR and Article 14 of the ICCPR which are nearly identical to Article 21(4)(e) of the Statute of the International Tribunal are relevant. The right of the accused to face his accusers cannot be compromised except in the public interest and to uphold public policy. In Unterpertinger v. Austria (1991) 13 EHRR, 175 the European Court of Human Rights held that non-confrontation of the accused with his accuser could constitute a violation of Article 6(1) of the ECHR. In Delaware v Fensterer, 474 U.S. 15, 22 (1985), the United States Supreme Court stated, with respect to the confrontation clause of the Sixth Amendment to the United States Constitution, as follows.
The confrontation clause is generally satisfied when the defence is given a full and fair opportunity to probe and expose [testimonial] infirmities such as forgetfulness, confusion, or evasion through cross-examination, thereby calling to the attention of the fact finder the reasons for giving scant weight to the witnesss testimony.
Ideally face to face confrontation is the core of the values epitomised in the accused confronting his accuser in each case. It is not a condition sine qua non of the right.
56. Three decisions of the Trial Chambers of the International Tribunal deserve consideration. First, there is the majority decision of Trial Chamber II, Judge Gabrielle McDonald presiding, in the Tadic Protection Decision, allowing anonymity notwithstanding the provisions of Article 21(4)(e) of the Statute. Secondly, there is the separate and dissenting opinion of Judge Stephen ("Judge Stephens Dissenting Opinion") on the same matter. Thirdly, there is the decision of Trial Chamber I in The Prosecutor v Tihomir Blaskic, (Decision on the Application of the Prosecutor Dated 17 October 1996 Requesting Protective Measures for Victims and Witnesses ("Blaskic Protective Measures Decision"), Case No.: IT-95-14-T, T.Ch. I 5 Nov. 1996). In that case, Trial Chamber I followed Judge Stephens Dissenting Opinion
57. The interpretation of the provisions of Article 21(4)(e) in conflict with Article 22 and the question of witness anonymity were in issue in each case. The majority in the Tadic Protection Decision outlined guidelines to be applied in considering the testimony of the anonymous witness. First, the Judges must be able to observe the demeanour of the witness. Secondly, the Judges must be aware of the identity of the witness in order to test his reliability. Thirdly, the witness must be allowed ample opportunity to question the witness on issues unrelated to his or her identity or current whereabouts, such as how the incriminating information was obtained, excluding information enabling tracing the name. Finally, the identity of the witness must be released when the reasons for requiring such security of the witness is over.
58. These guidelines did not appeal to Judge Stephen who held otherwise. After considering the provisions of Articles 20(1), 21(4) and 22 he came to the conclusion that "the Statute does not authorise anonymity of witnesses where this would in a real sense affect the rights of the accused specified in Article 21 and in particular the "minimum guarantee" in [paragraph] (4)" (See Judge Stephens Dissenting Opinion at RP 5025).
59. In the Blaskic Protective Measures Decision, Trial Chamber I quoted Judge Stephens Dissenting Opinion with approval. The Trial Chamber held as follows.
The philosophy which imbues the Statute and the Rules of the Tribunal appears clear: the victims and witnesses merit protection, even from the accused, during the preliminary proceedings and continuing until a reasonable time before the start of the trial itself; from that time forth, however, the right of the accused to an equitable trial must take precedence and require that the veil of anonymity be lifted in his favour, even if the veil must continue to obstruct the view of the public and the media.
RP 2147 at para. 24.
60. Trial Chamber I approved of the factors enumerated by the majority in the Tadic Protection Decision before anonymity could be granted. These are: (a) first and foremost, there must be real fear for the safety of the witness or his or her family; (b) secondly, the testimony of the witness must be important to the case of the Prosecutor; (c) the Trial Chamber must be satisfied that there is no prima facie evidence that the witness is untrustworthy; (d) the ineffectiveness or non-existence of a witness protection programme by the Tribunal; and (e) the protective measures taken should be necessary. However, Trial Chamber I required the Prosecution to show proof that the conditions were satisfied. This Trial Chamber agrees with the decision of Trial Chamber I in the Blaskic Protective Measures Decision and adopts the reasoning and decision therein.
61. The Prosecution has admitted that the accused will not know witness "B" merely by his name. Therefore, unless there is face to face confrontation, absent any protective measure, the Defence cannot possibly prepare adequately for cross-examination of the witness. The Defence will not in the circumstance possess adequate information, to place witness "B" in his proper setting (People v Pleasant, 244 NW2d 464 (1976)). Granting the Prosecutions applications will constitute a violation of the accuseds right under Article 21(4)(e), and will result in the anonymity of witness "B".
62. The Trial Chamber may conceive of a situation where the rights of the accused can be neutralised by protective measures. This is not such a case. It is admitted that the witness cannot be recognised by his name. It seems preposterous that the witness seeks protective measures against face to face confrontation with the accused which is the only factor which will enable the accused to offset his disadvantage. The Trial Chamber cannot concede the grant of the protective measure which is based on unsubstantiated allegations that the safety of the witness will thereby be jeopardised. The Prosecution has not satisfied the tests laid down by the majority in the Tadic Protection Decision for the grant of anonymity.
63. There is no indication by the Prosecution of the importance of the testimony of witness "B". There is nothing to show that the credibility of this witness has been investigated. There is no evidence before the Trial Chamber that the physical assaults allegedly suffered by witness "B" are traceable to any of the accused persons. In the circumstances therefore, the Trial Chamber declines to grant the request of the Prosecution that witness "B" should testify from the remote witness room. Witness "B" shall testify from the courtroom, where his demeanour can be observed by the Judges and Defence Counsel who will cross-examine him. In addition, the accused will be able to see witness "B" in the courtroom and may communicate freely with their Counsel during the course of his direct testimony and cross-examination.
64. The Prosecution requests that witness "B" neither see the accused persons nor should they see him when giving testimony. The reason for this request is that witness "B" will be retraumatised if he sees the accused persons.
65. There is inestimable advantage to the Trial Chamber in a criminal proceeding where the accused and his accusers meet face to face. The Trial Chamber is afforded the unique opportunity and advantage of observing the facial and bodily expressions of the witness. In the decision of Coy v. Iowa (487 U.S. 1012, 1016 (1988)), the United States Supreme Court opined that there is something deep in human nature that regards face to face, confrontation between accused and accuser as essential to a fair trial in a criminal prosecution. The crucial nature of face to face confrontation does not, however, necessarily constitute it into an indispensable ingredient of a fair trial. Where there is a conflict between the protection of a vulnerable witness and the requirement of a face to face confrontation, the latter must yield to the greater public interest in the protection of the witness. This is exemplified in the provisions of Rule 75(B)(iii) which enables the Trial Chamber to order "appropriate measures to facilitate the testimony of vulnerable victims and witnesses."
66. The vulnerability of witness "B" is based on the possibility of retraumatisation. The Trial Chamber has no evidence of this other than the ipse dixit of the Prosecution. Retraumatisation is essentially a medical, psychological condition which requires better proof than the evidence before us. The evidence before us does not support the claim that witness "B" is a vulnerable witness.
67. The Trial Chamber rejects the submission of the Defence that Rule 90(A) implies that a witness can only be heard from the courtroom. Direct evidence is evidence presented directly before the Trial Chamber either from the courtroom or, in appropriate circumstances as determined and directed by the Trial Chamber, from the remote witness room. The mandate of the Trial Chamber is to ensure a fair trial, and maintain a balance between the rights of the accused and the protection of the witness.
68. The Trial Chamber does not consider in this case, that the testimony of witness "B" ought to be taken in the remote witness room, the grounds for making the request have not been substantiated. Less restrictive measures which will not interfere with the rights of the accused should satisfy the condition of witness "B". A screen will be placed in the Court room to prevent witness "B" from seeing the accused and, therefore, negate the possibility of the witness being retraumatised, as he has claimed he would be.
For the foregoing reasons, this TRIAL CHAMBER, being seised of the Motions filed by the Prosecution
PURSUANT TO RULE 75,
HEREBY ORDERS AS FOLLOWS:
(1) The testimony of witness "C" shall be heard in closed session during which neither members of the public nor of the media shall be present. Edited recordings and transcripts of the closed session(s) during which the testimony of witness "C" is given shall be released to the public and to the media after review by the Office of the Prosecutor and the Victims and Witnesses Unit to ensure that no information leading to the possible identification of the witness "C" is disclosed.
(2) Witness "B" shall testify from the courtroom in open session(s) during which the Trial Chamber and Defence Counsel shall be able to observe his demeanour. A protective screen shall be placed between witness "B" and the accused persons to prevent the witness from seeing the accused. The accused persons shall be able to see witness "B" on the electronic monitors assigned to them in the courtroom. Image altering devices shall be employed to ensure that the visual image of witness "B" is protected from the public and the media. The protective screen placed between the accused persons and witness "B" shall not impede the conduct of cross-examination in any manner and special measures may be requested of the Trial Chamber in this regard.
(3) The testimony of witnesses "D", "E", "F", "G", "H", "I", "J", "K", "L" and "M" shall be given in open session(s) using image altering devices in order to conceal their visual images from the public and the media;
(4) Unless the Trial Chamber determines that any part of the testimonies of witnesses "B", "D", "E", "F", "G", "H", "I", "J", "K", "L" and "M" should be heard in private session(s), every part of their testimonies will heard in open session(s) in the manner hereinbefore prescribed.
(5) If, pursuant to a determination of the Trial Chamber, the testimony of any of witnesses "B", "D", "E", "F", "G", "H", "I", "J", "K", "L" or "M" is heard in private session(s), edited recordings and transcripts of the private session(s) shall be released to the public and the media after review by the Prosecution and the Victims and Witnesses Unit to ensure that no information leading to the possible identification of the witnesses is disclosed.
(6) Defence Counsel shall not cross examine any of the pseudonymed witnesses on any matters relating to their identities or by which their identities may become known to the public or the media;
(7) The pseudonyms by which these witnesses have been designated shall be used whenever the witnesses are referred to in the present proceedings and in discussions among the Parties.
(8) The names, addresses, whereabouts and other identifying data concerning the pseudonymed witness shall not be disclosed to the public or to the media.
(9) The names, addresses, whereabouts of, or other identifying information concerning the pseudonymed witnesses shall be sealed and not included in any of the public records of the International Tribunal.
(10) To the extent the names, addresses, whereabouts of, or other identifying information concerning the pseudonymed witnesses are contained in existing public documents of the International Tribunal, that information shall be expunged from those documents.
(11) Documents of the International Tribunal identifying the pseudonymed witnesses shall not be disclosed to the public or to the media.
(12) The above listed general measures shall apply to witnesses "D", "E", "H" and "M" only so far as the identifying information contained in any of the public documents or records of the International Tribunal reveals the fact that that they are witnesses in this case. The general measures shall not apply to any documents or records containing the identifying information of witnesses "D", "E", "H" and "M" which does not reveal, either directly or by implication, that they are witnesses in this case.
(13) Defence Counsel and their representatives who are acting pursuant to their instructions or requests shall not disclose the names of the pseudonymed witnesses or other identifying data concerning these witnesses, to the public or to the media, except to the limited extent such disclosure to members of the public is necessary to investigate the witnesses adequately. Any such disclosure shall be made in such a way as to minimise the risk of the witnesses names being divulged to the public at large or to the media.
(14) Edited recordings or transcripts of the closed session hearing on these Motions held on 14 March 1997 shall be released to the public and the media only after review by the Office of the Prosecutor and the Victims and Witnesses Unit to ensure that no information leading to the possible identification of the witnesses is disclosed.
(15) The public and the media shall not photograph, video-record or sketch the pseudonymed witnesses while they are within the precincts of the International Tribunal.
All other prayers requested of the TRIAL CHAMBER, but not hereinbefore specifically granted, are hereby DENIED.
Done in both English and in French, the English text being authoritative.
Adolphus Godwin Karibi-Whyte
Dated this twenty-eighth day of April 1997
At The Hague
[Seal of the Tribunal]