Before:
Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon
Registrar:
Mr. Hans Holthuis
Order of:
1 April 2003
DECISION ON PROSECUTION MOTION FOR PROTECTIVE MEASURES
(CONCERNING A HUMANITARIAN ORGANISATION)
PUBLIC VERSION OF A CONFIDENTIAL DECISION FILED 13 MARCH 2003
The Office of the Prosecutor
Ms. Carla Del Ponte
Mr. Geoffrey Nice
Mr. Dermot Groome
The Accused
Slobodan Milosevic
Amici Curiae
Mr. Steven Kay, QC
Mr. Branislav Tapuskovic
Mr. Timothy L.H. McCormack
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"),
BEING SEISED OF a confidential "Prosecution’s Motion for Protective Measures ", dated 10 June 2002 ("Motion"),1 in which the Prosecution seeks ten protective measures for three proposed witnesses who are former employees of a humanitarian organisation,2 such measures constituting a precondition for the humanitarian organisation’s consent to allow the testimony pursuant to Rule 70 (B) of the Rules,3 including the requirement for the testimony to be given in closed session and with pseudonyms,4
NOTING the confidential "Observations by the Amici Curiae on the Prosecution’s Motion for Protective Measures", dated 27 June 2002 ("Amici Observations"),5 in which it is submitted that the information provided does not establish any basis to determine that there are risks to the witnesses concerned (the relevant requirement under the Tribunal’s jurisprudence for protection); the protection of other unspecified persons is not a proper ground for the measures sought, and in particular the measures sought are a blanket protection for all witnesses and non-witnesses connected with the humanitarian organisation, which is at the disproportionate expense of the accused’s rights under Article 21 of the Statute,6
NOTING the various confidential procedural filings and the Scheduling Orders issued by the Trial Chamber in respect of this matter,7
NOTING the submissions of the Prosecution, accused, amici curiae and representatives of the humanitarian organisation made at the oral hearing of this matter on 25 February 2003,8
CONSIDERING that, whilst the application is made in part pursuant to Rule 70, following the Rule 70 Appeals Decision, this provision is only noteworthy in respect of the Motion insofar as it is stated that the protective measures sought are necessary to obtain the consent of the humanitarian organisation, as an information provider, for the witness to testify in this trial,9
NOTING the relevant provisions of the Statute of the International Tribunal ("Statute"), as follows:
Article 21{tc "Article 21"}
Rights of the accused{tc "Rights of the accused"}…
2. In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute.
…
Article 22{tc "Article 22"}
Protection of victims and witnesses{tc "Protection of victims and witnesses"}The International Tribunal shall provide in its rules of procedure and evidence for the protection of victims and witnesses. Such protection measures shall include , but shall not be limited to, the conduct of in camera proceedings and the protection of the victim’s identity.
NOTING the relevant provisions of the Rules of Procedure and Evidence of the International Tribunal ("Rules"), as follows:
Rule 75
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 Section, order appropriate measures for the privacy and protection of victims and 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 a victim or witness by such means as:
(a) expunging names and identifying information from the Tribunal’s public records;
(b) non-disclosure to the public of any records identifying the victim;
(c) giving of 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 measures to facilitate the testimony of vulnerable victims and witnesses, such as one-way closed circuit television.
…
Rule 79
Closed Sessions(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.
CONSIDERING that this Trial Chamber has exercised great care in granting closed session testimony due to its regards for the rights of the accused to a fair and public hearing, explicitly stated in Article 21 of the Statute, and accordingly has granted closed session testimony only in very limited circumstances, including where extraordinary risks attach to the witness’s own safety or that of his or her family,10
CONSIDERING that the Prosecution makes this application in order for the humanitarian organisation to grant the witness permission (as a Rule 70 information provider) to testify in this trial11 and that this application is neither made because the witness himself objects to testifying in open session nor because there are personal security concerns for the witness,12
CONSIDERING that there is no suggestion by the Prosecution or the humanitarian organisation that what is sought is any form of privilege belonging to the humanitarian organisation against compulsion to testify, rather the application is made because of security concerns for the current and future personnel of the humanitarian organisation that arise if its mandate is perceived to be compromised, such perception of compromise stemming from public disclosure that a former staff member of the humanitarian organisation testified in this trial regarding information obtained during his employment with that organisation,13
CONSIDERING that whilst Rule 75 contemplates the extension of protection to "persons related to or associated with a victim or witness", such an association and such a risk contemplated must be sufficiently proximate to the witness to warrant protective measures, particularly the extraordinary protective measure of closed session testimony,
CONSIDERING that whilst the Chamber acknowledges the work of the humanitarian organisation and protection of its current and future personnel are important interests which warrant consideration, and accepts that personnel of the humanitarian organisation have been the target of attacks and intimidation both in Bosnia and elsewhere,14 in respect of this witness, the interests sought to be protected are too remote and do not outweigh the accused’s right to a fair and public hearing,15
CONSIDERING that given the position of the Prosecution and the humanitarian organisation that nothing less than a closed session testimony would protect the interests of the organisation,16 the Trial Chamber need not proceed to discuss the granting of other protective measures ,
PURSUANT TO Rules 54, 75 and 79 of the Rules
HEREBY DENIES THE MOTION
Done in English and French, the English text being authoritative.
__________________
Richard May
Presiding
Dated this first day of April 2003
At The Hague
The Netherlands
[Seal of the Tribunal]