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: 13 June 1997
ZDRAVKO MUCIC, also known as "Pavo"
ESAD LANDZO, also known as "Zenga"
DECISION ON THE MOTION TO COMPEL
THE DISCLOSURE OF THE ADDRESSES
OF THE 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
Mr. Zeljko Olujic, Mr. Michael Greaves, for Zdravko Mucic
Mr. Salih Karabdic, Mr. Thomas Moran, for Hazim Delic
Mr. John Ackerman, Ms. Cynthia McMurrey, for Esad Landzo
Pending before 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") is a Motion to Compel the Disclosure of the Addresses of the Witnesses (the "Motion"), filed by the Office of the Prosecutor (the "Prosecution") on 13 May 1997 (Official Record at Registry Page ("RP") D3629-D3631). The Defence for the accused Esad Landzo filed a Response to Prosecutors Motion to Compel the Disclosure of the Addresses of Witnesses (the "Response") on 20 May 1997 (RP D3686-D3689).
The Trial Chamber heard oral arguments by both the Prosecution and the Defence for Esad Landzo (the "parties") on the Motion on 29 May 1997 and reserved its ruling to a later date.
THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and oral arguments of the parties,
HEREBY ISSUES ITS DECISION.
A. Applicable Provisions
1. The Motion is based on the provisions of Sub-rule 67(A)(ii) of the Rules of Procedure and Evidence of the International Tribunal (the "Rules"). Sub-rule 67(A) provides:
(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;
(ii) the defence shall notify the Prosecutor of its intent to offer:
(a) the defence of alibi; in which case the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi;
(b) any special defence, including that of diminished or lack of mental responsibility; in which case the notification shall specify the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the special defence.
2. In its Response, the Defence also refers to Sub-rule 66(C).
Disclosure by the Prosecutor
. . .
(B) The Prosecutor shall on request, subject to Sub-rule (C), permit the defence to inspect any books, documents, photographs and tangible objects in his custody or control, which are material to the preparation of the defence, or are intended for use by the Prosecutor as evidence at trial or were obtained from or belonged to the accused.
(C) Where information is in the possession of the Prosecutor, the disclosure of which may prejudice further or ongoing investigations, or for any other reasons may be contrary to the public interest or affect the security interests of any State, the Prosecutor may apply to the Trial Chamber sitting in camera to be relieved from the obligation to disclose pursuant to Sub-rule (B). When making such application the Prosecutor shall provide the Trial Chamber (but only the Trial Chamber) with the information that is sought to be kept confidential.
1. The Prosecution
3. The Prosecution requests that the Defence for the accused Esad Landzo be ordered to disclose the addresses of those witnesses whom they intend to call to testify on the defence of alibi and the special defence of diminished or lack of mental capacity. The Prosecution argues that Sub-rule 67(A)(ii)(a) and (b) require such disclosure and, further, that the Order to Provide Notice of Expert Witnesses, issued by the Trial Chamber on 25 January 1997 (RP D2671-D2673) (the "Order"), also requires that there be additional disclosure of the witnesses curriculum vitae and a statement on the area(s) about which they will testify.
4. The Prosecution asserts that the Defence has disclosed the names and addresses of some of their alibi and special defence witnesses. However, it also contends that on 7 March 1997 an additional list of thirteen witnesses was provided to it by the Defence, for whom no addresses were included. The Prosecution states that the reason it was given for the non-disclosure of these witnesses addresses was that the Defence was in the process of seeking certain protections for them. It challenges this as a reason for non-disclosure and also claims that it is not aware of any action of the Defence to request protective measures for any of these witnesses. Finally, the Prosecution identifies a letter of 1 April 1997, which it had sent to the Defence to ask for the witnesses addresses, and to which there was no response.
5. During oral argument on the Motion, the Prosecution sought to assure the Defence that they would take the utmost care to ensure that the addresses provided would remain confidential.
2. The Defence
6. The Defence points to the Trial Chambers previous decision on the matter of disclosure of Prosecution witness addresses to the Defence (Decision on the Defence Motion to Compel the Discovery of Identity and Location of Witnesses, 18 March 1997, RP D3122-D3130, "Identity Decision") and argues that, in light of the subsequent leakage of information concerning many of these witnesses identities, it has proved to be fortuitous that the addresses of the witnesses were not provided and, therefore, their leakage possibly also avoided. The Defence argues that the protection of witnesses to the greatest possible extent is in the interest of justice in the particular situation in which the International Tribunal operates. It specifies the dangers which remain in the former Yugoslavia and raises the possibility that those who live in the former Yugoslavia and choose to testify as witnesses before the International Tribunal may be at particular risk. The Defence contends that neither they nor the Prosecution can guarantee the confidentiality of witness information and thus they should not be compelled to hand over the addresses of witnesses who may be in jeopardy.
7. The Defence asserts that there is no reciprocity when the Prosecution is not required to disclose the addresses of its witnesses and the Defence are so required. It contends that the witnesses they intend to bring to testify as to alibi and, to a certain extent, the special defence of diminished or lack of mental capacity, are not expert witnesses, but witnesses of fact. The full disclosure of the Defences intended expert witnesses has been effected. The Defence states that it will inform each of their witnesses in this regard that the Prosecution wishes to speak with them and give them the choice of whether or not they wish their addresses to then be disclosed.
8. The Defence finally relies on Sub-rule 66(C), stating that this should be read to allow the Defence, as well as the Prosecution, to apply to the Trial Chamber for a waiver of the requirements of disclosure, should such disclosure be contrary to the public interest.
9. In addition, during oral argument on the Motion, the Defence stated that, should it be ordered to comply with the provisions of Sub-rule 67(A)(ii)(b), it would apply for protective measures for some of the witnesses because of the sensitive position where they are living.
10. The Trial Chambers Identity Decision is not based on Sub-rule 67(A)(ii). The finding in that Decision that there is no requirement of disclosure of Prosecution witness addresses to the Defence does not impact upon the present situation, which is specifically concerned with the defence of alibi and the special defence of diminished or lack of mental capacity. The argument put forward by the Defence is that there is no reciprocity when they are compelled to disclose the addresses of their witnesses and the Prosecution is not. The Trial Chamber does not find this persuasive, as the obligations of the Defence under Sub-rule 67(A)(ii) are quite separate from those of the Prosecution under Sub-rule 67(A)(i). As the Trial Chamber has previously emphasised in the Identity Decision, the Prosecution must provide the Defence with identifying information about all its witnesses, whereas the Defence is only obliged to provide information about those of its witnesses who will testify to alibi and to any special defence offered. In such a situation, the Defence is specifically directed by Sub-rule 67(A)(ii) to provide both names and addresses. In addition, the Trial Chamber has directed, in the Order, that both parties should provide in advance the curriculum vitae of each of their intended expert witnesses, as well as statements about the areas to which they will testify. This Order does not, however, regulate the present dispute, unless, of course, the alibi and special defence witnesses are also providing testimony as experts.
11. The provisions of Sub-rule 67(A)(ii) impose a clear and unambiguous obligation on the Defence to disclose the names and addresses of all witnesses which they intend to call to testify in relation to the defence of alibi and any special defence, such as diminished or lack of mental responsibility. Where the language of a Rule is unequivocal, it is not open to either of the parties to challenge their duties thereunder.
12. The Rules of the International Tribunal were drafted by the Judges with full consideration for the protection of victims and witnesses. This is reflected in a number of provisions, most importantly Rules 69 and 75. It is axiomatic that either of the parties to the proceedings may apply to the Trial Chamber for protective measures to be granted to particular witnesses who may be at risk and it is therefore open to the Defence to do this, rather than seek to avoid its obligations of disclosure on the grounds of a potential threat to witnesses.
13. As has been illustrated by the recent leakage of a Prosecution witness list to the media, it is impossible to absolutely guarantee that confidential information does not find its way into the public domain. However, this is the exceptional case and it cannot and must not be assumed that such a breach of security will occur again. Furthermore, the Prosecution has undertaken, as is its duty, to do its utmost to ensure that the addresses which it receives remain confidential.
14. Sub-rule 66(C) is also clear and unambiguous and solely relates to the disclosure of information by the Prosecution. Moreover, the subjects of the Sub-rule are tangible objects and not information concerning the identity of witnesses. The Defence cannot infer any right to apply to the Trial Chamber to be relieved of its obligation to disclose the names and addresses of witnesses who clearly fall within Sub-rule 67(A)(ii), from a provision which concerns a separate matter.
THE TRIAL CHAMBER,
CONSIDERING RULE 67,
FOR THE FOREGOING REASONS,
PURSUANT TO RULE 54,
HEREBY GRANTS THE PROSECUTION MOTION AND ORDERS that the Defence for Esad Landzo shall provide to the Prosecution within seven days, should they not already have done so, the names and addresses of all witnesses which they intend to call to testify to the defence of alibi and the special defence of diminished or lack of mental capacity
Done in English and French, the English text being authoritative,
Adolphus G. Karibi-Whyte
Dated this thirteenth day of June 1997
At the Hague
[Seal of the Tribunal]