Case No. IT-03-67-PT
IN TRIAL CHAMBER II
Judge Wolfgang Schomburg, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Carmel A. Agius
Mr. Hans Holthuis
13 March 2003
DECISION ON PROSECUTIONíS MOTION FOR ORDER OF NON-DISCLOSURE
The Office of the Prosecutor:
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 ("the International Tribunal");
BEING SEISED OF the Prosecutionís Motion for Order of Non-Disclosure of Supporting Materials ("Motion") filed confidentially on 10 March 2003;
NOTING that the Accusedís right to be heard on the Motion has to be balanced against his right to make an informed plea in due time on the basis of the supporting material and that the Trial Chamber is therefore rendering its Decision as a matter of urgency;
NOTING that the initial appearance of the Accused took place on 26 February 2003;
NOTING the obligation of the Prosecution under Rule 66(A)(i) of the Rules of Procedure and Evidence (the "Rules") to provide the Accused, in a language he understands, with copies of the supporting material which accompanied the indictment when confirmation was sought within thirty days of the initial appearance;
NOTING Rule 53(A) which provides: "In exceptional circumstances, a Judge or a Trial Chamber may, in the interests of justice, order the non-disclosure to the public of any documents or information until further order";
NOTING Rule 69(A) which provides: "In exceptional circumstances, the Prosecutor may apply to a Judge or Trial Chamber to order the non-disclosure of the identity of a victim or witness who may be in danger or at risk until such person is brought under the protection of the Tribunal";
NOTING that the Motion seeks an order for non-disclosure to the public of all the supporting materials disclosed to the Accused;
CONSIDERING the exceptional circumstances relating to the protection of victims and witnesses listed in the Motion as factors justifying non-disclosure to the public of the supporting materials;
CONSIDERING that such justifications may only apply to the statements from, or materials related to, those victims and witnesses that have not been used before in other proceedings of this Tribunal or have been subject to protective measures;
CONSIDERING THEREFORE that an order for non-disclosure is not justified insofar as it relates to witness statements and other materials that are already in the public domain;
NOTING that the Motion requests that the Accused be ordered to keep a record of all disclosure of protected information including to whom disclosed, when and for what purpose;
CONSIDERING the absence of any legal basis for this coercive measure;
HEREBY DENIES the request that the Accused be ordered to keep such a record; and
PURSUANT TO Rules 53(A), 54 and 69(A) of the Rules;
HEREBY ORDERS as follows:
1. For the purposes of non-disclosure pursuant to Rules 53(A) and 69(A) of the Rules, the Trial Chamber defines:
(a) "Prosecution" as the Prosecutor of the Tribunal and her staff;
(b) "Accused" as Vojislav Seselj;
(b) "Defence" as the Accused Vojislav Seselj only, unless or until legal advisers or defence counsel are appointed or assigned in accordance with the proper procedures described in the Rules;
(c) The "public" as all persons, governments, organisations, entities, clients, associations, and groups other than the Judges of the Tribunal, the staff of the Registry (assigned to either Chambers or the Registry), and the Prosecutor and Defence defined above. The "public" specifically includes, without limitation, family, friends and associates of the Accused; accused persons in other cases or proceedings before the Tribunal; defence counsel in other cases or proceedings before the Tribunal; and the media and journalists.
(d) The "media" as all video, audio and print media personnel, including journalists, authors, television and radio personnel, their agents and representatives.
2. Upon disclosing the supporting material to the Accused, the Prosecution shall identify clearly which parts of this material are already in the public domain and which parts include statements from victims and witnesses that have not been used before in other proceedings of this Tribunal or have been subject to protective measures and are therefore not in the public domain;
3. Unless directly and specifically necessary for the preparation and presentation of this case, the Accused shall not disclose to the public any supporting material disclosed to the Accused pursuant to Rule 66(A)(i) that has been identified by the Prosecution as not being in the public domain, including:
(a) The identities and whereabouts of witnesses to the extent that these are known to the Accused;
(b) 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 non-public evidence, statement or prior testimony disclosed to the Accused pursuant to Rule 66(A)(i).
4. If the Accused finds it directly and specifically necessary for the preparation and presentation of his case to disclose protected information to a member of the public, he shall inform each person among the public to whom non-public material or information is shown or disclosed, that that member of the public shall not copy, reproduce or publicise such material or information, in whole or in part, or show or disclose it to any other person. If provided with the original or any copy or duplicate of such material, such member of the public shall return it to the Accused when the material is no longer necessary for the preparation and presentation of the Accusedís case.
5. In the event that the Accused appoints or has assigned legal advisers or defence counsel, the term "Defence" shall include such persons and any immediate legal assistance and staff to be specifically identified in a list filed with the Trial Chamber. Any additions or deletions to the initial list shall be notified to the Trial Chamber within seven days of such additions or deletions. If a person named on this list withdraws from the case, any confidential or non-public material in his or her possession shall be returned to the lead Defence counsel or the Accused and, upon the conclusion of the case or upon lead Defence counsel ceasing to represent the Accused, the Defence shall return to the Registry of the Tribunal all disclosed material and copies thereof which are not included in the public record.
6. Nothing herein shall preclude any party or person from seeking such other or additional protective measures or a variation of the terms of this Decision as may be viewed appropriate concerning a particular witness or other evidence.1
7. For all future decisions for protective measures, the Trial Chamber reserves its right to reverse or vary its decision proprio motu or upon a reasoned request by one of the parties, due to new facts or a change in circumstances for the affected witness or witnesses, after having heard the parties.
STATES that any breach of this Order will be dealt with in accordance with Rule 77 ("Contempt of the Tribunal").
Done in English and French, the English version being authoritative.
Dated this thirteenth day of March 2003
At The Hague
Judge Wolfgang Schomburg
[Seal of the Tribunal]