Case No. IT-02-54-T

IN THE TRIAL CHAMBER

Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy

Registrar:
Mr. Hans Holthuis

Decision:
30 August 2005

PROSECUTOR

v.

SLOBODAN MILOSEVIC

EX PARTE

_______________________________________________________

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 ("Tribunal"), is seized of an ex parte with confidential annexes "Prosecutorís Application for Variation of Protective Measures", filed 24 August 2005 ("Motion"),-1- and herein renders its decision thereon.

In the Motion, the Prosecution has requested, pursuant to Rules 54 and 75 of the Rules of Procedure and Evidence of the Tribunal ("Rules") and Article 29 of the Statute of the Tribunal, that the Trial Chamber (a) vary protective measures for Prosecution witnesses Husein Cajic-2- and B-1021-3- who gave evidence in the above-referenced proceedings ("witnesses"); (b) authorise the Prosecution to release the names, contact information, and evidence of the witnesses to the Chief Prosecutor of the Prosecutorís Office of Bosnia and Herzegovina ("Bosnia Prosecutor"); and (c) order the Bosnia Prosecutor and the Government of Bosnia and Herzegovina ("Bosnia and Herzegovina") to comply, upon release of the requested materials and information, with the conditions as stated in the written undertaking attached to the Motion.

The Trial Chamber notes that a similar request made by the Prosecution was decided in the Chamberís "Decision on Prosecution Application for Variation of Protective Measures", issued 18 May 2005. The principles set out in that decision will be applied to the Motion of the Prosecution.

The Trial Chamber notes that the witnesses, after having been contacted by the Prosecution, consented to the disclosure of their identities and evidence to the Bosnia Prosecutor and requested that the Tribunal ensure that any confidential information in relation to them be kept confidential.

The Chamber notes that the Bosnia Prosecutor already has furnished the Prosecution with a written undertaking (attached to the Motion) to respect the Orders and Decisions of the Trial Chamber concerning this matter, and specifically guaranteeing the following:

  1. The information disclosed to this Office will be treated as confidential, and will be released to no one except members of the Special Department for War Crimes of the Bosnia Prosecutor and the court of Bosnia and Herzegovina as necessary for the purposes of proceedings involving the suspect currently in the custody of Bosnia and Herzegovina, and to that suspect and his counsel as specified in paragraph (b) below.

  2. The information disclosed will not be released to the suspect and/or his counsel unless this Office obtains assurances under threat of criminal sanction, as stipulated in Article 240 of the Criminal Code of Bosnia and Herzegovina, that the suspect and/or his counsel will strictly maintain the confidentiality of the information.

  3. The Bosnia Prosecutor will take all necessary legal and practical measures within its powers, as provided for in the Law on Protection of Witnesses Under Threat and Vulnerable Witnesses and the Criminal Procedure Code of Bosnia and Herzegovina, to ensure the safety and security of the witnesses.

The Trial Chamber notes that Bosnia and Herzegovina already has furnished the Prosecution with a written undertaking (attached to the Motion) to respect the Orders and Decisions of the Trial Chamber concerning this matter and to take all necessary measures within its authority, both legal and practical, to ensure the safety and security of the witnesses.

A Chamber of the International Tribunal that is seized of a proceeding has the inherent authority to modify orders made previously in the proceedings, including orders made pursuant to Rule 75(A). It is thus within the competence of a Chamber of the International Tribunal to vary protective measures in a proceeding of which it is seized 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.-4- 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.-5-

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.

Pursuant to Article 29 of the Statute and Rules 54 and 75 of the Rules, the Trial Chamber hereby GRANTS the Motion and thus: VARIES the protective measures concerning the witnesses; AUTHORISES the Prosecution to release the names, contact information, and evidence of the witnesses referenced herein to the Bosnia Prosecutor; and ORDERS the Bosnia Prosecutor and the Government of Bosnia and Herzegovina, upon release of the requested material to it, to comply with the conditions set forth in the written undertakings attached to the Motion.

 

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

_______________
Judge Robinson
Presiding

Dated this thirtieth day of August 2005
At The Hague
The Netherlands

[Seal of the Tribunal]


1. See also confidential and ex parte Supplement and Corrigendum to Prosecutorís Application for Variation of Protective Measures, filed 26 August 2005.
2. On 17 September 2002, the Trial Chamber ordered that this witness shall be referred to by pseudonym. Decision on Prosecution Schedule of Current Status of Protective Measures Needs of Witnesses (Bosnia), issued 17 September 2002. On 17 December 2003, the witnessí trial transcript and related exhibits were granted admission into evidence pursuant to Rules 92 bis (D), without the witness being required to appear for cross-examination. Decision on Prosecution Motion for Admission of Transcripts and Portions of a Statement Pursuant to Rules 92bis(D) and 89(F) for Witnesses B-1068, B-1021, 1266, 1354, and B-1695, issued 17 December 2005. On 25 February 2004, the Prosecution requested that the Trial Chamber confirm the exhibit number for the witnessí evidence (Prosecution Notification of the Completion of Its Case and Motion for the Admission of Evidence in Written Form, filed 25 February 2004) and grant protective measures to the witness (Confidential Prosecution Motion for Trial Related Protective Measures for 92 bis Witnesses Admitted Without Cross-Examination and Confidential and Ex Parte Annexe, filed 25 February 2004). On the same day, the Trial Chamber confirmed the exhibit numbers for the witnessí evidence (exhibit 655, tabs 1 (under seal), 2-5), thereby formally admitting the exhibits into evidence. Decision on Notification of the Completion of Prosecution Case and Motion for the Admission of Evidence in Written Form, issued 25 February 2004. On 11 March 2004, the Chamber denied the Prosecutionís motion for the protective measure of a pseudonym and other related protection. Order on Prosecution Motion for Trial Related Protective Measures for Rule 92 bis Witnesses Admitted Without Cross-Examination, issued 11 March 2004.
3. On 17 September 2002, the Trial Chamber ordered that this witness shall be referred to by pseudonym. Decision on Prosecution Schedule of Current Status of Protective Measures Needs of Witnesses (Bosnia), issued 17 September 2002. On 3 December 2003, the witness orally was granted the protective measure of closed session testimony, the witnessí trial transcript and related exhibits and portions of a statement orally were granted admission into evidence pursuant to Rules 92 bis (D) and 89(F), provided that the witness was made available for cross-examination (exhibits 610-611 (under seal)), and the witness testified before the Chamber in closed session. T. 30049-30052 (3 December 2003); Decision on Prosecution Motion for Admission of Transcripts and Portions of a Statement Pursuant to Rules 92bis(D) and 89(F) for Witnesses B-1068, B-1021, 1266, 1354, and B-1695, issued 17 December 2003 (confirming oral decisions).
4. See, e.g., United Nations Security Council Resolutions 1503/2003 and 1534/2004; cf. Rule 11bis(D)(iii) of the Rules.
5. See United Nations Security Council Resolutions 1503/2003 and 1534/2004.