IN THE TRIAL CHAMBER
Before: Judge Adolphus G. Karibi-Whyte, Presiding
Judge Elizabeth Odio Benito
Judge Saad Saood Jan
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 25 September 1997
ZDRAVKO MUCIC also known as "PAVO"
ESAD LANDZO also known as "ZENGA"
DECISION ON CONFIDENTIAL MOTION FOR
PROTECTIVE MEASURES FOR DEFENCE WITNESSES
Counsel for the Accused Zdravko Mucic :
Mr. Zeljko Olujic and Mr. Michael Greaves
On 1 August 1997 a Motion for Protective Measures for Defence Witnesses (Official Record at Registry Page Number ("RP") D4114-D4116) ("the Motion") was filed by the Defence for the accused Zdravko Mucic ("the Defence"), for consideration by 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"). Attached to the Motion was a Confidential Declaration Concerning Witness A (RP D4117-D4119) ("the Declaration") which provided further details of the circumstances surrounding the request for protective measures.
The Motion was filed confidentially and the oral arguments of the Defence were heard ex parte and in closed session on 6 August 1997. The Trial Chamber thereafter granted the Motion and reserved its written decision for a later date.
THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and oral arguments of the Defence,
HEREBY ISSUES ITS WRITTEN DECISION.
A. Applicable Provisions
1. Article 22 of the Statute of the International Tribunal ("the Statute") provides the basis for the power of the Trial Chamber to grant protective measures to witnesses for both the Prosecution and the Defence. This Article is further expanded and given practical effect by Rules 69, 75 and 79 of the Rules of Procedure and Evidence ("the Rules"). This Trial Chamber has had previous occasion to enter into a full discussion of these provisions and this need not be reproduced here (see The Prosecutor v. Zejnil Delalic et al, Decision on the Motions by the Prosecution for Protective Measures for the Prosecution Witnesses Pseudonymed "B" Through to "M", IT-96-21-T, T.Ch. II, (RP D3457-D3483) 17 April 1997). Of relevance to this Motion also is Article 21, paragraph 4 of the Statute, which reads in relevant part:
[i]n 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:
. . .
(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 Defence seeks protection for a witness whom it intends to call and who it regards as extremely important for its case. The Defence contends, however, that the witness fears persecution by the authorities in Belgrade or Republika Srpska, and that he was in fact threatened by persons who purported to be members of the Security Police of the Republika Srpska. The witness is married and has children and his fear for himself and his family has led the Defence into discussions with the Victims and Witnesses Unit of the International Tribunal in order to attempt to relocate him and his family from their present place of residence in the Republika Srpska to a place of safety. Once this relocation has been carried out, the Defence intends to interview the witness and further discuss the necessity and extent of his protective measures before the International Tribunal.
3. The Defence therefore seeks, at the present time, protective measures for this witness in the following terms.
1) That the witness be referred to only as Witness Mucic/A, in all proceedings before the International Tribunal and in discussions between the parties, until further order.
2) That the name, address, whereabouts of and any other data concerning Witness Mucic/A shall not be disclosed to the public or to the media and that this information shall be sealed and not included in the public records of the International Tribunal, until further order.
3) That all hearings held to consider the issue of protective measures for Witness Mucic/A shall be held ex parte, until further order.
4) That any document of the International Tribunal identifying Witness Mucic/A shall not be disclosed to the public, the media or any other party, until further order.
5) That the testimony of Witness Mucic/A shall be heard in closed session, in so far as it is necessary to prevent his identity from becoming known to the public or the media; however, edited recordings and transcripts of the session(s) shall, if possible, be released to the public and media after review by the Defence, in consultation with the Victims and Witnesses Unit and with the approval of the International Tribunal.
4. The Defence further argues that, as it is not under an obligation to disclose the identities of the witnesses it intends to call to the Prosecution or any other party to the case, it should not be required to give the name, address, present whereabouts of, or any other identifying information concerning this witness to any other party, although these will be supplied to the Trial Chamber. It is also for this reason that it requests that the hearing on protective measures be held ex parte.
5. The measures sought in the Motion fall clearly within the scope of the power of the Trial Chamber to grant protective measures to victims and witnesses. In the present proceedings, the Trial Chamber has exercised this power on several occasions for the protection of witnesses for the Prosecution and it is incumbent upon it to give equal consideration to similar requests from the Defence. The determination to be made, therefore, rests on whether the circumstances laid out by the Defence in the Declaration and during its oral submissions justify the level of protection sought. Two issues which are ancillary to the request made may, however, serve to cloud the determination of the Motion and it is, therefore, necessary to address these briefly.
6. First, the request for protective measures, as has been stated above, falls within the ambit of the Trial Chamber. However, the issue of relocation of the witness and the negotiations with the Victims and Witnesses Unit are not matters to be here decided. The protective measures provisions of the Statute and the Rules are concerned with the privacy and safety of the witness surrounding his testimony and the testimony of others in proceedings before Trial Chambers. The issue of relocation is a matter for the Victims and Witnesses Unit, established pursuant to Rule 34, acting under the authority of the Registrar. However, it may be beneficial in certain circumstances for the Trial Chamber to be informed of such arrangements.
7. Secondly, the Trial Chamber considered carefully the application by the Defence that the hearing of the Motion be held ex parte. The Chamber recognises the desire of the Defence not to reveal the identity of its witnesses to the Prosecution prior to the presentation of its case and that it was this concern that prompted the ex parte application. On the other hand, the bringing of a motion for the granting of protective measures usually requires a response from the opposite party in a case and the Trial Chamber would normally hear oral argument from all parties. In this particular case, the Prosecution was rendered unable to respond to the Defence Motion.
8. The particular form of protection requested by the Defence is not unfamiliar to the Trial Chamber and similar measures have been granted in the course of this trial. (see The Prosecutor v. Zejnil Delalic et al, Decision on the Motion by the Prosecution for Protective Measures for the Witness Designated by the Pseudonym "N", 28 April 1997 (RP D3448-D3456) ("Witness "N" Decision"), Order on the Motion by the Prosecution for Protective Measures for the Witness Designated by the Pseudonym "O", 3 June 1997 (RP D3817-D3820), Order on the Motion by the Prosecution for Protective Measures for the Witness Designated by the Pseudonym "P", 18 July 1997 (RP D4028-D4031) IT-96-21-T, T.Ch. II). This is, however, the first time that such a request filed by the Defence has been considered by the Trial Chamber and it is important to bear in mind that it does not at this stage have any obligation similar to that of the Prosecution by virtue of Sub-rule 67(A)(i), to disclose the identities of its witnesses. The witness must therefore be regarded as in the nature of a potential witness. When the time comes for the Defence to notify the Prosecution of all the witnesses it intends to call this potential witness then becomes an actual witness.
9. It is premature for the Trial Chamber to give a final ruling on the protection to be afforded a witness who may not in fact be called upon to appear at trial. The measures granted by the Chamber are, therefore, in the nature of interim measures for a potential witness and the matter will be reconsidered when the Prosecution has been informed of his identity and that he will definitely testify. At that stage, the Prosecution may object to the granting of protective measures and the Trial Chamber will hear arguments from both parties. It should be noted that in the Motion itself, the Defence concedes that, once the relocation arrangements have been made for Witness Mucic/A and his family, it may be that he no longer desires the protective measures sought of the Trial Chamber and they can then be reconsidered. In these circumstances, the Trial Chamber deemed it appropriate to extend to the Defence the right to be heard ex parte, on 6 August 1997.
10. As the Trial Chamber has previously ruled (see the Witness "N" Decision), the fear of a witness is a sufficient ground on which to base a decision in favour of the granting of protective measures. The Defence has submitted reasons why Witness Mucic/A should suffer from such fear and the Trial Chamber accepts that these may constitute a real and genuine cause. Although the Prosecution has not yet been heard and the witness remains only a potential witness at this stage, the Trial Chamber considers it consonant with the spirit of Article 22 of the Statute to grant to the Defence those minimal measures of protection for its witness which are appropriate at the present time and considering that the Motion was heard ex parte.
For the foregoing reasons, THE TRIAL CHAMBER, being seised of a Motion filed by the Defence, and
PURSUANT TO ARTICLE 22 OF THE STATUTE
HEREBY GRANTS the Motion and ORDERS AS FOLLOWS:
1) The witness shall be referred to by the pseudonym "Witness Mucic/A", in all proceedings before the International Tribunal and in discussions between the parties, until further order;
2) The name, address, whereabouts of and any other data concerning "Witness Mucic/A" shall not be disclosed to the public or to the media and this information shall be sealed and not included in the public records of the International Tribunal, until further order;
3) Any document of the International Tribunal identifying "Witness Mucic/A" shall not be disclosed to the public, the media or any other party, until further order;
4) All other prayers requested of the Trial Chamber but not hereinbefore specifically granted, are hereby denied.
Done in both English and French, the English text being authoritative.
Adolphus Godwin Karibi-Whyte
Dated this twenty-fifth day of September 1997
At the Hague
[Seal of the Tribunal]