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:
21 November 2003

PROSECUTOR

v.

SLOBODAN MILOSEVIC

_______________________________________

DECISION ON PROSECUTION’S FOURTH OMNIBUS MOTION FOR LEAVE TO AMEND THE WITNESS LIST AND REQUEST FOR PROTECTIVE MEASURES

_______________________________________

Office of the Prosecutor:

Mr. Geoffrey Nice
Ms. Hildegaard Uertz-Retzlaff
Mr. Dermot Groome

The Accused:

Mr. Slobodan Milosevic

Amicus Curiae:

Mr. Steven Kay
Mr. Branislav Tapuskovic
Mr. Michaďl Wladimiroff

 

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 and partly ex parte “Prosecution’s Fourth Omnibus Motion for Leave to Amend the Witness List and Request for Protective Measures for Witnesses Named Herein” on 31 October 2003 (“Motion”),1 in which the Prosecution seeks the following relief:

(a) Leave to file the Motion in excess of the permissible page limitation;
(b) Leave to add 35 witnesses to its witness list on the basis that good cause is shown ;
(c)With respect to 12 of those 35 witnesses, whom the Prosecution states it is unable to indicate their ability or willingness to testify, the value of evidence they may give or protective measures to be requested, it is requested that the Chamber give provisional leave to add these witnesses subject to further relevant information being provided by the Prosecution when it is able;
(d) Notice of the deletion of 97 witnesses;
(e) Rule 69 non-disclosure protective measures for five sensitive source witnesses;
(f) Rule 75 protective measures for four witnesses: face and voice distortion for B- 224 and B-235, and face distortion for B-1803 and B-1804; and
(g) With respect to five witnesses who testified in previous proceedings (B-1254, B- 1717, B-1761, B-1799 and B-1805), continuation of the protective measure of closed session,

NOTING the “Amici Curiae Reply to Confidential and Partly Ex Parte Prosecution’s Fourth Motion for Leave to Amend the Witness List and Request for Protective Measures for Witnesses Named Therein Dated 31 October 2003”, filed on 6 November 2003 (“Reply ”), in which they submit that good cause for the addition of the witnesses has not been made out and submit:

No proposed timetable or order for the additional witnesses has been given and, in the remaining time for the Prosecution case, it cannot (as it has admitted) call all the witnesses in its current Rule 65 ter list, and so it is still not clear what are the identities of the witnesses to be called (the very purpose of the Chamber’s Order of 30 September);

(a) The Motion adds to the already considerable volume of material the Accused is trying to come to grips with;
(b) Lack of specification of witnesses may prevent the Accused from efficiently preparing for the cross-examination of witnesses and his Defence case;
(c) The addition of the witnesses may violate the Accused’s right to a fair trial;
(d) The Trial Chamber should order the Prosecution to name all the witnesses to be called in the remainder of its case within 48 hours; and
(e) The 10 day disclosure period sought for sensitive source witnesses is, at this stage of the trial, too short for the Accused to undertake preparations to challenge witnesses with such protection.

NOTING the subsequent submissions by the Prosecution on 11 and 12 November concerning its “final’ witness list and confidential “Witness Schedule to End of Prosecution Case”, produced on 12 November 2003, which sets out a schedule of the witnesses the Prosecution intends to call and the days on which it intends to do so,2

Additional Witnesses

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,3

CONSIDERING that the Trial Chamber has considered whether good cause has been shown in relation to the addition of each witness and decides as follows:

(a) For witnesses B-241, C-1249, B-236, B-1464, B-1800, B-187, B-237, B-242, B-1791 , B-1801, B-1802 and B-240, in whose cases the application is for provisional orders, the Trial Chamber declines to make such orders which are hypothetical and therefore inappropriate. Furthermore, the application to add witnesses B-1807, B-1806, B-1717 and C-071 is also hypothetical and is refused;
(b) In relation to witnesses B-224, B-235, B-1797, B-1254 and B-1799, the Prosecution is to provide, in seven days, specific information to explain why it is now appropriate to add them to the witness list;
(c) Witnesses C-038, B-239, B-238, B-1809, B-1731, B-1803, B-1804, B-1805 and B-1810 may be added to the witness list, since the Trial Chamber is satisfied that good cause has been shown in each case, namely that the witnesses have only recently agreed to testify or become available to give evidence, or the relevance of the evidence has only recently become apparent;
(d) The relevance of the evidence of B-1245, B-1811, B-1310 is not established and the application to add them to the witness list is denied;
(e) With respect to witness B-1761, the Prosecution has not shown good cause;
(f) With respect to witness B-1808, a witness to be called as an expert on genocide, the Trial Chamber will consider his expert report when produced and will thereafter determine whether that witness may be added to the witness list.

Protective Measures

NOTING that with respect to the protective measures sought, the Prosecution relies upon Rules 69, 75 and 79 of the Rules of Procedure and Evidence of the Tribunal (“Rules”),

NOTING the confidential and ex parte Annexes to the Motion setting out the nature of the testimony it is proposed the witnesses would give and the reasons for the applications for protective measures,

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,4 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 of delayed disclosure sought with respect to witness C-038, B-224,5 B-2356 and B-239, as identified in Confidential Annex A to the Motion, are appropriate, and that such orders are consistent with the rights of the Accused, excepting that given the limited time the Accused will have to prepare his cross-examination of witnesses before the end of the Prosecution case and the inability of the Prosecution to provide a final definitive list of witnesses it will call, the disclosure period shall be 30 days with respect to the amici curiae and 21 days with respect to the Accused and his legal associates. The reasons for the protective measures granted are the particular security risks attaching to the witness and the important nature of the testimony it is said the witness will give,

CONSIDERING FURTHER that, with respect to the application in respect of both witnesses that the Accused and his appointed associates 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 witnesses belong,7

CONSIDERING that, where protective measures have been granted in previous proceedings before the International Tribunal, a reasonable expectation exists – which is always subject to the particular circumstances of an application – that these measures will continue in subsequent proceedings in which the witness comes to testify,

CONSIDERING THEREFORE that, with respect to the witnesses identified as B -1254,8 B-1717 and B-1805, granted the protective measure of closed session in prior proceedings, these measures shall continue in these proceedings,9

CONSIDERING that the Trial Chamber is satisfied that trial-related protective measures sought (face and voice distortion for B-224 and B-235; face distortion for B-1803 and B-1804) are consistent with the rights of the Accused,10

PURSUANT TO Rules 54, 73 bis (C), 89 (C), 69, 75 and 79 of the Rules

HEREBY ORDERS AS FOLLOWS:

(1) The Prosecution application to file the Motion in excess of the permissible page limitation is granted;

(2) The deletion of the 97 witnesses identified in confidential Annex A to the Motion is noted;

(3) The application to add the following witnesses to the witness list is allowed:

C-038, B-239, B-238, B-1809, B-1731, B-1803, B-1804, B-1805 and B-1810

(4) The application to add the following witnesses to the witness list is rejected:

B-241, C-1249, B-236, B-1464, B-1800, B-187, B-237, B-242, B-1791, B-1801, B- 1802, B-240, B-1807, B-1806, B-1717, C-071, B-1245, B-1811, B-1310 and B-1761

(5) The application to add the following witnesses will be determined upon the Prosecution filing, within seven days, more information:

B-224, B-235, B-1797, B-1254 and B-1799

(6) The application to add witness B-1808 will be determined following production by the Prosecution of his expert report;

(7) Disclosure of the unredacted witness statements of witnesses C-038, B-224, B- 235 and B-239, 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 21 days, before the witness is expected to testify;

(8) The Accused and his appointed associates shall not disclose the witness statements of C-038, B-224, B-235 and B-239 and related exhibits to third parties except to the extent directly and specifically necessary for the preparation and presentation of the defence case (and, in the case of the amici curiae, the extent to which they are assisting the Trial Chamber); and

(9) The Accused, his appointed associates and amici curiae shall 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;

(10) Closed session, granted to witnesses B-1254, B-1799 and B-1805 in prior proceedings, shall continue; and

(11) Trial-related protective measures (face and voice distortion for B-224 and B- 235; face distortion for B-1803 and B-1804) are granted.

 

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

___________
Richard May
Presiding

Dated this twenty-first day of November 2003

At The Hague
The Netherlands

[Seal of the Tribunal]


1 - On 11 November 2003, the Prosecution filed a Corrigendum to the Motion, in which it corrected errors in references to certain witnesses. It is noted that there continues to be inconsistencies in the references to witnesses for whom certain protective measures are sought. This Decision makes reference to the corrected text and, to the extent possible, identifies the actual number of and witness reference for which the Prosecution seeks relief.
2 - It is noted that this list is itself subject to change depending on the progress of evidence, availability of witnesses and determination by the Trial Chamber of this Motion.
3 - “Decision on Prosecution Request for Agreement of Trial Chamber to Amend Schedule of Filings”, 18 April 2002, p.3.
4 - 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 for Rule 69 measures, as follows: 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.
5 - Decision on addition of this witness to the witness list will be subject to further information.
6 - Ibid.
7 - 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 2003.
8 - Decision on addition of this witness to the witness list will be subject to further information.
9 - Witnesses B-1761 and B-1799, for whom such measures were sought, would have been granted continued protection, however the application to add them to the witness list is refused.
10 - Applications were made for pseudonyms for witnesses B-241, C-1249, B-1464, B-1800, B-187, B-237, B-242, B-1791, B-1801, B-1802, B-240 and B-236. Addition of all these witnesses have been refused and so the application will not be dealt with.