Case No. IT-02-54-T
IN THE TRIAL CHAMBER
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy
Mr. Hans Holthuis
18 May 2005
DECISION ON PROSECUTION APPLICATION FOR VARIATION OF PROTECTIVE MEASURES
Office of the Prosecutor:
Ms. Carla Del Ponte
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"), is seised of a confidential and ex parte "Prosecutorís Application for Variation of Protective Measures", filed 22 April 2005 ("Motion"), and herein renders its decision thereon.
On 11 and 22 February 2005, the Chief Prosecutor of the Prosecutorís Office of Bosnia and Herzegovina ("Bosnia Prosecutor") requested the Registryís assistance in obtaining confidential information regarding trials before the International Tribunal for use in an investigation being conducted by the Bosnia Prosecutor. On 31 March 2005, the Registry sought the advice of the President regarding the request. On 6 April 2005, the President rendered his opinion that pursuant to Rule 75 of the Rules of Procedure and Evidence ("Rules"), "it is only one of the parties, defined in Rule 2 as the Prosecution and Defence, who can make an application to a Chamber for variation of measures imposed."1 On 13 April 2005, the Bosnia Prosecutor sought the assistance of the Office of the Prosecutor of the International Tribunal ("Prosecution") in obtaining the confidential information.
On 22 April 2005, the Prosecution filed the Motion, requesting, pursuant to Rule 75 of the Rules, the following:
On 25 April 2005, the Trial Chamber issued instructions to VWS to: (1) contact the witnesses mentioned in the Annex to the Motion in order to ask them whether they consent to have their identities, current whereabouts, and transcripts/statements disclosed to the Bosnia Prosecutor, in connection with the ongoing investigation referred to in Annex A of the Motion; and (2) report back to the Trial Chamber once it completed its consultations. After being contacted by VWS, the two witnesses that are the subject of the Motion before this Chamber, namely Prosecution Witnesses Esad Velic2 and B-10683 ("witnesses"), consented to their names, addresses, and evidence being released to the Bosnia Prosecutor.
The Trial Chamber notes that the Prosecution has filed similar applications with other Chambers of the International Tribunal.4
The Prosecution made the relief requested in the Motion contingent upon the consent of the witnesses, and the Trial Chamber instructed VWS to explain the context and the terms of the Motion to the witnesses and to enquire whether they consented to the disclosure of the requested information. After being contacted by VWS, the witnesses consented to their names, addresses, and evidence being released to the Bosnia Prosecutor.
A Chamber of the International Tribunal that is seised of a proceeding has the inherent authority to modify orders made previously in the proceedings, including orders made pursuant to Rule 75(A) of the Rules. It is thus within the competence of a Chamber of the International Tribunal to vary protective measures in a proceeding of which it is seised upon the request of the party that requested them, provided that the party has demonstrated a legitimate purpose for the variation. In the present case, the Trial Chamber finds that the purpose for variation described in the Motion is legitimate because the Prosecution has a duty to assist the Bosnia Prosecutor, where appropriate.5 The fact that there is good cause to vary the protective measures ordered at trial is underscored by United Nations Security Council Resolutions stating that national institutions prosecuting violations of international humanitarian law in the former Yugoslavia are to be assisted in their work; these Resolutions also specifically mention the War Crimes Chamber.6
It is also within the competence of a Chamber of the International Tribunal to order a State to comply with an order intended to protect the safety of victims and witnesses. States, under Article 29 of the Statute of the International Tribunal, "shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including, but not limited to" a variety of situations as enumerated therein (emphasis added).
The Trial Chamber notes that, in the event that the Bosnia Prosecutor eventually brings charges stemming from its current investigations, it may become necessary to disclose the confidential information to the accused in that case.
Finally, the Prosecution states that the Motion was made confidentially in order not to prejudice the ongoing investigation of the Bosnia Prosecutor. While Annexes A and B contain confidential information, the Motion itself contains no sensitive information and should be made public. Moreover, the Presidentís Decision discussed the substance of this matter and was filed publicly. There is thus no reason for the Motion to be confidential.
Pursuant to Article 29 of the Statute of the International Tribunal and Rules 54 and 75 of the Rules, the Trial Chamber hereby REQUESTS the Registry of the International Tribunal to alter the status of the Motion (but not the Annexes thereto) from confidential to public; GRANTS the Motion; VARIES the protective measures concerning the witnesses; and ORDERS as follows:
Done in both English and French, the English text being authoritative.
Dated this eighteenth day of May 2005
At The Hague
[Seal of the Tribunal]