Case No.: IT-02-54-T
IN THE TRIAL CHAMBER

Before:
Judge Richard May, Presiding

Judge Patrick Robinson
Judge O-Gon Kwon

Registrar:
Mr. Hans Holthuis

Order of:
8 July 2003

PROSECUTOR
v.
SLOBODAN MILOSEVIC
_________________________________________________

DECISION ON PROSECUTION’S THIRD OMNIBUS MOTION FOR LEAVE TO AMEND THE WITNESS LIST AND REQUEST PROTECTIVE MEASURES FOR SENSITIVE SOURCE WITNESSES

_________________________________________________

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 partly confidential and ex parte “Prosecution’s Third Omnibus Motion for Leave to Amend the Witness List and Request Protective Measures for Sensitive Source Witnesses”, filed by the Office of the Prosecutor (“Prosecution”) on 23 June 2003 (“Motion”),

NOTING the partly confidential and ex parte “Supplemental Filing To The Prosecution’s Third Omnibus Motion For Leave To Amend The Witness List And Request Protective Measures For Sensitive Source Witnesses”, filed by the Prosecution on 25 June 2003 (“Supplement”),

NOTING that the Motion and Supplement together seek:

(a) to add 7 witnesses to its witness list for the Croatia and Bosnia part of the trial and remove 64 witnesses from that witness list;

(b) for B-174, B-114 and B-215 (collectively, “Three Witnesses”), who are said to have exceptionally serious security concerns, protective measures of delayed disclosure to the amici curiae, Accused and the appointed lawyers for the Accused,1

(c) following such delayed disclosure, the documents and knowledge of their contents (including the identity of these witnesses) be only disclosed to third parties to the extent that such disclosure is directly and specifically necessary and that the third parties to whom it is disclosed initially sign a non-disclosure agreement,2

NOTING the “Amici Curiae Observations On Prosecution’s Third Omnibus Motion For Leave To Amend the Witness List And Request Protective Measures For Sensitive Source Witnesses Filed On 23 June 2003”, filed by 27 June 2003 (“Observations”),

NOTING that the Observations provide factors the Trial Chamber can consider in its determination of whether to allow an amendment to the witness list, to order delayed disclosure, and to require non-disclosure agreements,3

CONSIDERING the Trial Chamber’s ruling subsequent to the filing of the Prosecution’s pre-trial material for the Croatia and Bosnia part of these proceedings that it would only allow the admission of additional material by the Prosecution on good cause being shown,4

CONSIDERING that the Trial Chamber accepts that the 7 additional witnesses the Prosecution seeks to add to the witness list satisfies its requirement that good cause be shown, in that the witnesses have only been interviewed within the last few months and that the witnesses only recently agreed to testify,

CONSIDERING the fact that 64 other witnesses will be removed from the witness list,

NOTING that with respect to the protective measures sought for the Three Witnesses the Prosecution seeks to add to the witness list, the Prosecution relies upon Rules 69, 75 and 79 of the Rules of Procedure and Evidence of the International Tribunal (“Rules”),

NOTING the confidential and ex parte Annexes to the Motion and the Supplement setting out the nature of the testimony the Three Witnesses would give and the reasons for the application for the protective measures of delayed disclosure and the additional measures sought,

CONSIDERING that the Trial Chamber set out in detail, in its Decision of 13 March 2003 and in previous decisions, the preconditions to be satisfied before the particular measures sought will be granted,5 and will apply those preconditions to the relief sought in this application,

CONSIDERING that the Trial Chamber has applied the relevant criteria and has determined that the protective measures sought for the Three Witnesses are appropriate , and that such orders are consistent with the rights of the Accused. The reasons for this are the particular security risks attaching to the Three Witnesses and the important nature of the testimony it is said the Three Witnesses will give,

CONSIDERING FURTHER that, with respect to the application in respect of the Three Witnesses that the Accused and the appointed lawyers not disclose the material to third parties except to the extent directly and specifically necessary for the preparation and presentation of the defence case (and the amici curiae do so to the extent necessary to assist the Trial Chamber), and that they obtain non -disclosure agreements before doing so, the Chamber will grant this request, on the basis that it applies to a special and limited category to which these Three Witnesses belong,6

PURSUANT TO RULES 54, 69, 75 and 89(C) of the Rules,

HEREBY GRANTS THE MOTION and ORDERS as follows:

(1) The 7 witnesses identified in confidential Annex A to the Motion may be added to the witness list;

(2) The 64 witnesses identified in confidential Annex A to the Motion may be deleted from the witness list;

(3) As to the protective measures of delayed disclosure and third party agreements sought in respect of the Three Witnesses identified in confidential Annex A to the Motion

(a) disclosure of unredacted witness statements and related exhibits shall be made to the amici curiae not less than 30 days, and to the Accused and his appointed associates not less than 10 days, before the witness is expected to testify;

(b) the Accused and his appointed associates shall not disclose the witness statements and related exhibits to third parties except to the extent directly and specifically necessary for the preparation and presentation of the defence case (or, in the case of the amici curiae, the extent to which they are assisting the Trial Chamber ); and

(c) the Accused, his appointed associates and amici curiae shall initially obtain non-disclosure agreements from third parties (as provided by the Prosecution) as a precondition for release of the witness statements and related exhibits to them.

 

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

_______________
Richard May
Presiding

Dated this eighth day of July 2003
At The Hague
The Netherlands

[Seal of the Tribunal]


1 - Motion para. 2. Specifically, the Prosecution requests that the disclosure of the un-redacted statements and related exhibits occur not less than 30 days to the amici curiae and not less than 10 days before the witness is expected to testify to the Accused and the appointed lawyers.
2 - Motion para. 3. However before disclosure to third parties, the amici curiae must first satisfy the Trial Chamber that it is necessary to do so in order to discharge their role in assisting the Trial Chamber.
3 - Observations paras 6, 10 and 12-14.
4 - “Decision on Prosecution Request for Agreement of Trial Chamber to Amend Schedule of Filings”, 18 April 2002, p. 3.
5 - See “Decision on Prosecution’s Further Motion to Amend Witness List and for Protective Measures for Sensitive Source Witnesses”, 13 March 2003. See also Decisions referred to by the Chamber in that Decision as follows: for Rule 69 measures, Prosecutor v. Milosevic, “Decision on Prosecution Motion for Provisional Protective Measures” issued on 19 February 2002 (“First Decision”); “Decision on Prosecution Motion for Protective Measures for Victims and Witnesses” issued on 19 March 2002 (“Second Decision”), and “Second Decision on Protective Measures for Sensitive Witnesses”, 6 June 2003. For Rule 75 measures, “Decision on Prosecution Motion for Trial Related Protective Measures for Witnesses (Bosnia)”, 30 July 2002. For Rule 79, Prosecutor v. Milosevic, “Confidential Decision on Prosecution Motion for Protective Measures for Sensitive Source Witnesses Testifying During the Croatia Phase of the Trial”, 17 September 2002, para. 15.
6 - This reflects the consistent position of the Chamber on these matters. See, in this case, “Decision on Prosecution’s Further Motion to Amend Witness List and for Protective Measures for Sensitive Source Witnesses”, 13 March 2003, and “First Decision on Protective Measures for Sensitive Source Witnesses”, 3 May 2002
.