Case No. IT-03-67-PT

IN TRIAL CHAMBER II

Before:
Judge Carmel Agius, Presiding
Judge Jean Claude Antonetti
Judge Kevin Parker

Registrar:
Mr. Hans Holthuis

Decision of:
27 May 2005

PROSECUTOR

v.

VOJISLAV SESELJ

___________________________________________

DECISION ON PROSECUTION’S MOTION FOR NON-DISCLOSURE OF NAMES AND OTHER IDENTIFYING INFORMATION

___________________________________________

The Office of the Prosecutor:

Ms. Hildegard Uertz-Retzlaff
Mr. Ulrich Mussemeyer
Mr. Daniel Saxon

The Accused:

Mr. Vojislav Seselj

Standby counsel:

Mr. Tjarda Eduard van der Spoel

 

TRIAL CHAMBER II ("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 ("Tribunal"):

RECALLING "Motion number 30", filed on 26 March 2004 by the Accused Vojislav Seselj ("Accused"), in which he made a number of requests to the Registry of the Tribunal ("Registry"), amongst which was the request that the Prosecution disclose to him the statements of all witnesses in all cases before the Tribunal who mentioned his name in any context during testimonies before the Prosecution or during testimonies before a Trial Chamber ("Third Request");1

RECALLING that the Registry informed the Accused that it had forwarded the Third Request to the Trial Chamber2;

RECALLING that during the Status Conference on 14 June 2004, the Trial Chamber ordered the Prosecution to disclose copies of all Prosecution witness statements that mention the Accused, and that prior to disclosing any witness statement in redacted form submit such statements to the Trial Chamber for review and approval;3

BEING SEISED OF the "Prosecution’s Motion for Non-Disclosure of Names and Other Identifying Information" ("Prosecution’s Motion"), filed confidentially and partly ex parte on 21 July 2004, wherein the Prosecution seeks to redact a number of witness statements, i.e.: as they appear in Confidential and Ex Parte Appendixes A, B and C to the Prosecution’s Motion;

RECALLING that redactions of witness statements of witnesses whom Prosecution intends to call in this case has been considered in the "Decision on the Prosecution’s Third Motion for Protective Measures for Witnesses During the Pre-Trial Phase";4

RECALLING that that the Prosecution does not control the access to transcripts of witness testimony in other case, which is a matter for the respective Chambers and it is for the Accused to request access to the material following the proper procedure;

NOTING that the Prosecution’s Motion relates to statements of witnesses whom the Prosecution does not intend to call in this case,5 and which can be divided into three different categories:

    1. witnesses who were previously granted protective measures by other Trial Chambers pursuant to Rule 75;6

    2. statements of three sensitive source witnesses;7

    3. witnesses who are victims of sexual assault or who mention the names of victims of sexual assault;8

CONSIDERING that, with respect to category (a), at this stage the Accused does not need to know the identity of protected witnesses in order to determine whether any particular piece of this evidence will assist in the preparation of his case. If, having considered the material, the Accused wishes to give further consideration to a particular piece of this evidence, either with a view to calling the witness in the trial or to interview the witness in order to obtain additional information, then at that stage, he will be in a position to justify the revelation of the identity of that protected witness;9

CONSIDERING that the Prosecution has established the existence of exceptional circumstances and that the protective measures sought are necessary to ensure the protection of these victims and witnesses, and that they remain consistent with the rights of the Accused;

TURNING NEXT to category (b) of the aforesaid witnesses;

NOTING the reasons expressed by the Prosecution in Confidential and Ex Parte Appendix B for the need to redact, pursuant to Rule 69, the identifying information contained in the witness statements of three "sensitive source" witnesses;

CONSIDERING that the Trial Chamber has reviewed the circumstances of each "sensitive source" witness and is satisfied that the concerns expressed for their personal safety and the safety of their relatives are legitimate and justified and;

FINDING that the Prosecution has sufficiently established the existence of exceptional circumstances and that the protective measures sought are necessary to ensure the protection of these victims and witnesses, and that they are consistent with the rights of the Accused;

TURNING NEXT to category (c) of the aforesaid witnesses;

NOTING the reasons expressed by the Prosecution in Confidential and Ex Parte Appendix C for the need to redact, pursuant to Rule 69, the identifying information contained in the witness statements of witnesses who are victims of sexual assault or who mention the names of victims of sexual assault;

NOTING the unique concerns of victims of sexual assault10;

NOTING the assurances put forth by the Prosecution that "the information about the sexual assaults committed against these victims is irrelevant to the charges alleged against the Accused", whereby this Trial Chamber understands that the Prosecution will not rely on the statements of these witnesses in order to prove its case against the Accused;

CONSIDERING that, in determining where the balance lies between the right of an accused to a fair and public trial and the protection of victims and witnesses, particular consideration has been given to the special concerns of victims of sexual assault;

FINDING that the Prosecution has established the existence of exceptional circumstances and that the protective measures sought are necessary to ensure the protection of these victims and witnesses, and that they remain consistent with the rights of the Accused;

FOR THE FOREGOING REASONS

PURSUANT TO Articles 20 and 21 of the Statute and Rules 66, 69 and 75 of the Rules;

HEREBY ALLOWS the Prosecution to redact the witness statements as they appear in Confidential and Ex Parte Appendix A, B and C to the Prosecution’s Motion.

 

Done in English and French, the English version being authoritative.

Dated this twenty-seventh day of May 2005
At The Hague
The Netherlands

____________________________
Judge Carmel Agius
Presiding

[Seal of the Tribunal]

1. Motion number 30, 26 March 2004 under (3).
2. Letter to the Accused from the Deputy Registrar, dated 9 June 2004 and filed on 11 June 2004. The Trial Chamber acknowledged that it was seised of it in its Scheduling Order filed on 30 March 2004.
3. Transcript of the Status Conference of 14 June 2004, T. 250. The Prosecution’s request for redactions, see T. 232.
4. Issued 27 May 2005.
5. See para. 13 of the Prosecution’s Motion, in which the Prosecution has stated that "these are not the statements of persons who are expected to testify on behalf of the Prosecution at trial"
6. See confidential and ex parte Appendix A to the Prosecution’s Motion.
7. See confidential and ex parte Appendix B to the Prosecution’s Motion.
8. See confidential and ex parte Appendix A to the Prosecution’s Motion.
9. See also Prosecutor v. Radoslav Brdjanin & Momir Talic, Case IT-99-36-PT, "Second decision on motions by Radoslav Brðanin and Momir Talic for access to confidential documents", 15 November 2000, paras. 9-10.
10. See inter alia Report of the Secretary-General Pursuant to Paragraph 2 of the Security Council Resolution 808 (1993) (U.N. DOC S/25704 of 3 May 1993), which states at para. 108 that protection for victims and witnesses should be provided, "especially in cases of rape or sexual assault. Such measures should include, but should not be limited to the conduct of in camera proceedings, and the protection of the victim's identity". Furthermore, in consideration of the unique concerns of victims of sexual assault, a special Rule for the admittance of evidence in cases of sexual assault was included in Rule 96 of the Rules; see also Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T, "Decision on Prosecutor’s motion requesting protective measures for witnesses "A" and "D" at trial", 11 June 1998; Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo, Case No. IT-96-21-T, "Decision on the motions by the Prosecution for protective measures for the Prosecution witnesses pseudonymed "B" through to "M"", 28 April 1997; Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo, Case No. IT-96-21-T, "Decision on the Prosecution's motion for the redaction of the public record", 5 June 1997, Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, "Decision on the Prosecutor’s motion requesting protective measures for victims and witnesses", 10 August 1995.