IN THE TRIAL CHAMBER

Before:
Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon

Registrar:
Mr. Hans Holthuis

Order of:
19 February 2002

PROSECUTOR

v.

SLOBODAN MILOSEVIC

PARTLY CONFIDENTIAL AND EX PARTE

_________________________________________________

DECISION ON PROSECUTION MOTION FOR PROVISIONAL PROTECTIVE MEASURES PURSUANT TO RULE 69

_________________________________________________

The Office of the Prosecutor

Ms. Carla Del Ponte
Ms. Hildegard Uertz-Retzlaff
Mr. Geoffrey Nice
Mr. Dermot Groome

The Accused

Slobodan Milosevic

Amici Curiae

Mr. Steven Kay, QC
Mr. Branislav Tapuskovic
Prof. Mischa Wladimiroff

I. BACKGROUND

1. The Office of the Prosecutor (“Prosecution”) filed a confidential and ex parte motion entitled “Prosecution Motion for Provisional Protective Measures Pursuant to Rule 69” on 4 January 2002 (“First Motion”). The Motion concerning Indictment IT-01-51 (“Bosnia Indictment”) sought orders that (a) the Prosecution be permitted to redact identifying information from statements and documents disclosed pursuant to Rule 66 (A)(i), and (b) the accused be prohibited from making public any of the material received from the Prosecution pursuant to the same Rule. The measures sought were said to be necessary to safeguard the safety and privacy of the victims and witnesses and the integrity of the evidence and these proceedings.

2. On 17 January 2002, the Trial Chamber issued an “Order for Further Submissions” (“Provisional Order”), in which it ordered the Prosecution to address the following issues:

(a) the impact of non-disclosure of the redacted information at this stage of the proceedings upon the right of the accused to a fair and public trial pursuant to Articles 20 and 21 of the Statute;

(b) the number of witnesses for whom such protection is sought;

(c) the time at which it is proposed that disclosure of the identity of the witnesses would be made to the accused; and

(d) the nature of the protective measures granted by other Trial Chambers, in particular , whether any such measures were granted in relation to disclosure pursuant to Rule 66 (A)(i).

3. On 23 January 2002, the Prosecution filed the “Prosecution Motion for Provisional Protective Measures Pursuant to Rule 69: Prosecution Response to Order for Further Submissions” (“Second Motion”), in which it responded to the questions posed by the Trial Chamber in its Provisional Order and reasserted the orders sought in the First Motion.

4. On 31 January 2002, the Prosecution filed a “Corrigendum to Prosecution Motion for Provisional Protective Measures Pursuant to Rule 69: Prosecution Response to Order for Further Submissions” (“First Corrigendum”), dealing with the interpretation of a threat allegedly made by an SPS party member on Belgrade television to people considering testifying for the Prosecution in these proceedings.

5. On 6 February 2002, the Prosecution filed a “Second Corrigendum to Prosecution Motion for Provisional Protective Measures Pursuant to Rule 69” (“Second Corrigendum”), dealing with a misquotation by the Prosecution of a Decision in another Trial Chamber .1

II. THE LAW

6. The Prosecution relies upon Articles 20, 21 and 22 of the Statute of the Tribunal (“Statute”) and Rules 53, 54, 69, 73 and 75 of the Rules of the Tribunal (“Rules ”). The relevant provisions of the Statute which the Trial Chamber must consider in dealing with this Motion are Article 20 dealing with the commencement and conduct of proceedings2; Article 21.2 dealing with the rights of the accused3, and Article 22 dealing with the protection of victims and witnesses4.

7. Furthermore, Rules 66 (A)(i)5, 53 ( A)6 and 69 (A)7 of the Rules are relevant to the determination of this matter by the Trial Chamber . Rules 69 (C) and 75 are not relevant to the determination of this particular application , although they will be relevant to a consideration of future motions for protective measures for particular witnesses in these proceedings. The disclosure requirements under Rule 66 (A)(i) are expressly subject to Rules 53 and 69 of the Rules. Rule 53 (A) provides that in “exceptional circumstances” and where the interests of justice require, non-disclosure to the public may be ordered with respect to any documents or information. Rule 69 (A) provides that non-disclosure of the identity of a victim or witness who may be in danger or at risk may in “exceptional circumstances” be ordered until such person is brought under the protection of the Tribunal. Important aspects of the interpretation of these provisions are discussed below.

III. DISCUSSION OF THE PROSECUTION’S APPLICATION

8. The Prosecution seeks the following orders:

(a) that the Prosecution be permitted to redact identifying information from statements and documents disclosed pursuant to Rule 66 (A)(i); and

(b) that the accused be prohibited from making public any of the material received from the Prosecution pursuant to the same Rule.

The first order sought concerns a consideration of the proper construction of Rule 69 (A) and the Trial Chamber will deal with this matter first.

(A) Redaction of witness statements

9. The Trial Chamber, in its Provisional Order, required the Prosecution to address four matters to assist in determining the application made. We will now deal with each of these four matters.

(i) The impact of non-disclosure of the redacted information at this stage of the proceedings upon the right of the accused to a fair and public trial pursuant to Articles 20 and 21 of the Statute.

10. The Prosecution submits that delayed disclosure of the identities of Prosecution witnesses in need of protection does not adversely effect the rights of the accused to a fair and public trial. The accused would still have access to all of the events and facts provided by the witnesses and would be in a position to prepare his defence . It is also submitted that he will have the identifying information of the witnesses in ample time to investigate their backgrounds enabling him to prepare for cross -examination.

(ii) The number of witnesses for whom such protection is sought

11. The Prosecution attaches an appendix to its Second Motion setting out a list of all witnesses whose statements were tendered in support of the Bosnia Indictment . It is stated that the Prosecution is seeking to redact identifying information from 203 of the 252 statements.8

12. The Trial Chamber notes that this amounts to some four-fifths of the witnesses identified in the supporting material. Of the 203 witnesses for whom redactions have been made , 51 of these are witnesses already granted protective measures in other proceedings before the Tribunal.

(iii) The time at which it is proposed that disclosure of the identity of the witnesses would be made to the accused

13. The Prosecution proposes that the provisional protective measures sought should remain in effect until it has had the opportunity to interview each witness and investigate their need for protective measures and to file a motion for protective measures based upon that need. The Prosecution does indicate that in the case of some witnesses, it will be seeking that his or her identity not be disclosed to the accused until as few as ten days prior to the witness’ testimony.

(iv) The nature of the protective measures granted by other Trial Chambers, in particular, whether any such measures were granted in relation to disclosure pursuant to Rule 66 (A)(i)

14. The Prosecution refers to the practice in a number of other cases before the Tribunal . It refers to a confidential Decision in the Nikolic case, in which the Trial Chamber permitted the Prosecution to fulfil its obligation under Rule 66 ( A)(i) by providing redacted statements of some witnesses.9 The Trial Chamber would note with respect to this Decision that the witnesses for whom such practice was accepted by that Chamber were sexual assault victims. Furthermore , the order of the Trial Chamber was that the Prosecutor would be “granted leave not to disclose to the accused the identities of the…witnesses until a time determined by this Trial Chamber closer to the commencement of trial”. Whether the Trial Chamber was indicating that it would make its decision closer to the commencement of trial or that disclosure would be required closer to the commencement of trial is not clear. However, the same Trial Chamber in the Brdanin Decision stated that the time in which unredacted disclosure is to be made “must be a time before the trial commences rather than before the witness gives evidence”.10

15. The Prosecution also makes reference to a decision made in these proceedings concerning the Kosovo indictment.11 The Prosecution asserts that this decision affirms the appropriateness of the redaction of materials discoverable under Rule 66 (A)(i) of the Rules. However, the Kosovo Decision concerned exclusively non-disclosure by the accused to the public of material, not the non-disclosure of material by the Prosecution to the accused. The Decision, and indeed the initial Prosecution Motion in that matter, also recognised that an order of non-disclosure to the public was limited and that the accused could disclose the material to members of the public to the direct and specific extent necessary for the preparation and presentation of the accused’s case. The Decision is, whilst relevant to the Prosecution’s application under Rule 53 (A), not relevant to this aspect of the Trial Chamber’s consideration.

16. In fact, the only highly relevant decision referred to by the Prosecution was the Brdanin Decision. In that Decision, the Trial Chamber dealt, inter alia, with an application by the Prosecution for a blanket redaction of identifying information for all witnesses whose statements formed part of the supporting material. The Prosecution relies heavily upon this Decision in asserting that:

(a) once the Prosecution has demonstrated to the Trial Chamber that exceptional circumstances exist to justify the delayed disclosure of the identity of particular victims or witnesses, then its obligations under Rule 66 (A)(i) will have been discharged by providing statements of those victims or witnesses with identifying information redacted;12

(b) in assessing the balance between the rights of the accused and the risks faced by witnesses, the Trial Chamber must examine the likelihood that Prosecution witnesses will be interfered with once their identity is known to the accused and his counsel , but not to the public;13

(c) the Trial Chamber in that Decision accepted the Prosecution assertion that the greater the length of time between the disclosure of a witness’s identity and the time when he or she is called to give evidence at trial, the greater the potential that the witness will be interfered with;14 and

(d) the relief sought by the Prosecution in this case is consistent with an order made in the Brdanin Decision to the effect that the obligation upon the Prosecution to disclose all witness statements under Rule 66 (A)(i) does not have to be met so long as it files protective measures with respect to particular statements or particular victims and witnesses motions within a “reasonable period”.15

17. In fact, the Trial Chamber notes that with respect to each of these assertions, the Brdanin Decision has somewhat more to say. The Trial Chamber in that Decision held that what is required under Rule 69 (A) is a showing of “exceptional circumstances ” with respect to each witness for whom the Prosecution seeks non-disclosure of identifying information, and that this be done at the time that service of the supporting material is required.16 Crucially, that Trial Chamber noted quite correctly that “Rule 69 (A) does not provide SaC blanket protection”.17

18. Concerns regarding interference with witnesses was also expressly dealt with by the Trial Chamber in the Brdanin Decision. Unfortunately, the Prosecution in the Second Motion has misrepresented the conclusions made by that Chamber. Whilst the assertions contained in paragraphs 16 (b) and (c) above are strictly speaking correct , in fact the Trial Chamber went on to state clearly that it did not accept that , absent specific evidence of the risk that persons to whom the Defence speaks in the course of its investigations may reveal the identity of particular witnesses , the likelihood that interference will eventuate is not sufficiently great to justify the extraordinary measures sought by the Prosecution under Rule 69 (A).18 Furthermore, that Chamber did not accept the proposition that the prevailing circumstances in the former Yugoslavia in general, and Bosnia and Herzegovina in particular, would justify blanket redactions of the sort requested by the Prosecution.19 That view is shared by this Trial Chamber.

19. Finally, something must be said with respect to the assertion in its Second Motion that relief sought by the Prosecution in this case is consistent with an order made in the Brdanin Decision. The Trial Chamber notes that the Prosecution misquoted an order made in that Decision to an effect that rather profoundly misrepresents the position stated by that Trial Chamber. The Prosecution asserted in the Second Motion that the obligation upon the Prosecution in the Brdanin Decision to disclose all witness statements under Rule 66 (A)(i) did not have to be met so long as it files protective measures with respect to particular statements or particular victims and witnesses motions within a “reasonable period”. In fact, what the Trial Chamber ordered was that the Prosecution was to disclose to the defence within 21 days all the witness statements pursuant to Rule 66 (A)(i) in unredacted form, unless within that time (i.e. within 21 days) it filed a motion for protective measures with respect to particular statements or other material or particular victims and witnesses.20 The Prosecution subsequently filed its Second Corrigendum, in which it apologised for the error. The Trial Chamber accepts the assurances from the Prosecution that the misquotation was unintentional and was not intended to mislead the Trial Chamber .

20. The Prosecution also argues that there are several factors particular to this case justifying the ordering of the protective measures sought. First, the accused has repeatedly stated that he does not recognise the authority of the Tribunal. The Prosecution refers to an allegation that an SPS party member made threatening remarks about persons considering testifying for the Prosecution in these proceedings. The Prosecution therefore argues that until such time as the accused does recognise the Tribunal and agrees to be bound by its orders, the Prosecution should not be compelled to provide information that could be used to intimidate or harm witnesses . Secondly, it is argued that many of the witnesses whose statements were tendered in support of the indictment have already been granted protective measures in other proceedings before the Tribunal. Finally, it is argued that it would be impracticable at this stage of the case for the Prosecution to re-interview all of the witnesses whose statements must be disclosed pursuant to Rule 66 (A)(i) by the time required under that Rule in order to determine what, if any, protective they request and the basis for such a request. These matters will be dealt with below.

(B) Request that the accused be ordered not to make public any material disclosed pursuant to Rule 66 (A)(i)

21. The Prosecution has requested also that the accused be prohibited from making public any of the material received from the Prosecution pursuant to Rule 66 (A)(i). Although the Prosecution does not offer any real argumentation in support of its request, it is noted by the Trial Chamber that such orders are routinely made, subject to the limitation that the accused may disclose the material to members of the public to the direct and specific extent necessary for the preparation and presentation of his case. This Trial Chamber made such an order in the Kosovo Decision.

III. DECISION

22. It should first be noted that, whilst the Prosecution has framed its request in terms of seeking permission to redact identifying information from the 203 of 252 witness statements contained in its supporting material, it has in fact already redacted those statements. Therefore, correctly stated the application is one for permission to be relieved of its obligation to provide the witness statements to the accused in unredacted form.

23. The Prosecution asserts that the duty to provide for the protection and privacy of the witnesses is an affirmative one.21 The measures which are appropriate should be determined after balancing the right of the accused to a fair and public trial and the protection of victims and witnesses .22 These propositions are uncontroversial . What is clear from the Statute and Rules of the Tribunal is that the rights of the accused are given primary consideration, with the need to protect victims and witnesses being an important but secondary one. Article 20.1 of the Statute states that Trial Chambers shall ensure that trials are conducted “with full respect for the rights of the accused and due regard for the protection of victims and witnesses.23 The case law of the Tribunal bears out this proposition.24 It is noted, however, that whilst the rights of the accused are elevated above the protection of victims and witnesses, the latter are still given greater protective status than in national systems of criminal law. The reasoning for this may, in part, be explained by the complexities of the Tribunal’s jurisdiction, the particular dangers that attach to those who give evidence in proceedings before the Tribunal and lack of a comprehensive witness protection programme at the Tribunal’s disposal . The provisions of the Tribunal’s Statute and Rules, as well as its jurisprudence , show that the Tribunal takes seriously the striking of an appropriate balance between the sometimes competing interests of the accused and victims and witnesses . It should not be forgotten that the Rules of the Tribunal are created and interpreted in light of its Statute and the Trial Chamber will consider the specific provisions in this light.

24. What the Trial Chamber must specifically address is whether the Prosecution has satisfied the requirements of Rule 69. Paragraph (A) of that Rules requires the Prosecution to make a showing of “exceptional circumstances” before it will be permitted to redact identifying information from witness statements. The Trial Chamber believes that such a showing can only be made on an individual basis. As the Trial Chamber in the Brdanin Decision explained, exceptional circumstances must be established with respect to every witness the Prosecution seeks to protect through redaction of identifying information, and that this be done at the time service of the supporting material is required.25 “Rule 69 (A) does not provide [a] blanket protection”.26 It must be right that the Prosecution, to be allowed to redact information it is required to disclose within a strict time frame under the Rules, be required to make a showing of exceptional circumstances with respect to each witness for whom - or each document for which – it seeks redaction.27 It is, after all, something only to be granted in “exceptional circumstances”, and the reason for this is that it goes to the heart of an accused’s right to a fair trial by enabling him to investigate the case against him.28 The Prosecution cannot therefore simply redact the identifying information and say that it will apply for particular protective measures for some of these witnesses within an unspecified period of time. Its obligation is to disclose the statements in unredacted form at the stage of its duty to disclose under Rule 66 (A)(i). That duty arose in this case on 7 January 2002. It is at that time that the Prosecution, if it wished to redact identifying information of witnesses from the material, should have shown exceptional circumstances with respect to each such witness.

25. In contemplating the making of such applications for particular witnesses, the Trial Chamber reminds the Prosecution of the jurisprudence dealing with conditions for the granting of witness anonymity. In early considered decisions in the Tadic29 and Blaskic30 cases, the Trial Chambers set out five conditions that would have to be met for witness anonymity to be granted:

(a) first and foremost, there must be real fear for the safety of the witness or his or her family;

(b) secondly, the testimony of the particular witness must be important to the Prosecution case;

(c) thirdly, the Trial Chamber must be satisfied that there is no prima facie evidence that the witness is untrustworthy;

(d) fourthly, the ineffectiveness or non-existence of a witness protection programme is a matter that will have considerable bearing on any decision to grant anonymity ; and

(e) fifthly, any measures taken should be strictly necessary.

26. Furthermore, Trial Chamber II in the Brdanin Decision recently set out three criteria which would need to be considered in respect of applications made under Rule 69 (A) for specific protective measures for witnesses. They are:

(a) the likelihood that Prosecution witnesses will be interfered with or intimidated once their identity is made known to the accused and his counsel, but not the public ;

(b) the extent to which the power to make protective orders can be used not only to protect individual victims or witnesses in the particular trial, and measures which simply make it easier for the Prosecution to bring cases against other persons in the future; and

(c) the length of time before the trial at which the identity of the victims and witnesses must be disclosed to the accused. (The Prosecution accepted in the Brdanin case that, although the shorter the time between disclosure and testifying the less the opportunity will be for interference with that witness, the time allowed for preparation must be time before trial commences rather than before the witness gives evidence. What time frame is reasonable will depend on the category of the witness .)

27. In respect of the third criterion raised in the Brdanin Decision, the Trial Chamber also notes a decision in the Tadic case concerning the period for disclosure pursuant to Rule 69 (C), in which it held that whilst there was a basis for non- disclosure of identifying information concerning a particular witness, exceptional circumstances under Rule 69 (A) having been made out, the name of the witness was to be “released not less than thirty (30) days before the firm trial date ”.31

28. The Trial Chamber notes with regret that the granting of such protective measures , which started out as an exceptional practice, has become almost the norm in proceedings before the Tribunal. Nonetheless, this practice has followed individual applications for protective measures, not for blanket orders suppressing the identity of witnesses from the accused. Whilst it is extremely important to provide adequately for the protection of victims and witnesses, the requirement that the accused be given a fair trial dictates that Trial Chambers only grant protective measures where it is properly shown in the circumstances of each such witness that the protective measures sought meet the standards set out in the Statute and Rules of the Tribunal , and expanded in its jurisprudence. The Prosecution is under an obligation at this early stage of the proceedings to justify redaction of a witness’s identifying information from statements disclosed pursuant to Rule 66 (A)(i) with respect to each such witness .

29. One of the arguments the Prosecution brings to justify its Motion is that the accused has stated that he does not recognise the Tribunal’s authority and that in one incident a member of the accused’s Socialist Party of Serbia (“SPS”) made a threat on Belgrade television with respect to anyone planning to testify for the Prosecution against the accused.32 It is noted that this threat was not made by the accused and that there is no suggestion the accused prompted this threat. The Prosecution has indicated that it is investigating the threat and if further applications are brought with respect to this or other such matters then the Trial Chamber will consider them. Nonetheless, the Trial Chamber considers that this matter cannot be taken as a factor which would weigh so heavily as to persuade it to grant a blanket protection order of the nature being requested by the Prosecution . As to the accused’s attitude towards the Tribunal, this is a matter the Trial Chamber is cognisant of and which it will take into consideration in determining individual motions for protective measures and, in particular, where the accused’s attitude is likely to bear in a substantive way upon the particular witness.

30. The Trial Chamber therefore rejects the request of the Prosecution to simply redact all identifying information from the 203 witnesses identified in its Appendix A. What is required of the Prosecution is that it brings motions for protective measures for individual witnesses on the basis of the criteria set out above. It should in fact have done so prior to the time it was required to make disclosure to the accused under Rule 66 (A)(i). For these reasons, the Prosecution is required to comply with its obligation under Rule 66 (A)(i) to supply to the accused statements and documents in unredacted form within 14 days of the filing of this Decision. If, however, within that time, the Prosecution files a motion for protective measures for particular witnesses, it need not provide copies of those statements or documents relevant to that witness in unredacted form until such time as the Trial Chamber has disposed of such motion, and subject to the terms of any order made on that motion.

31. The Trial Chamber, however, accepts that where witnesses have already been granted protective measures in other proceedings before the Tribunal, those protections should continue and the Trial Chamber will have to consider appropriate orders with respect to those witnesses when entertaining other such future motions from the Prosecution.

32. Finally, on the second order sought by the Prosecution for limited non-disclosure by the accused to the public of material received from the Prosecution pursuant to Rule 66 (A)(i), the Trial Chamber notes that this was its practice in the Kosovo Decision and that it has been the practice of other Trial Chambers of the Tribunal . The considerations which attach to such an application are that, whilst an application under Rule 69 (A) goes to the heart of an accused’s ability to prepare his defence , applications under Rule 53 (A) do not materially impede the preparation of an accused’s defence so long as he is expressly allowed to make public such material for this strict purpose. Furthermore, applications under Rule 53 (A) go directly to concerns regarding the safety of victims and witnesses in proceedings before the Tribunal. It has been noted above that the correct balance must be achieved between the interests of the accused and the protection of victims and witnesses . The Trial Chamber is of the view that whilst the balance dictates clearly in favour of an accused’s right to the identity of witnesses which the Prosecution intends to rely upon (subject to protective measures granted), it dictates against making public supporting material where such disclosure might lead to witness identification and therefore endanger such victims or witnesses. The reason for this distinction is primarily because the former goes to the ability of the accused to prepare his defence, whilst the latter does not. The Trial Chamber will make the order sought subject to limitations set out below in the disposition.

DISPOSITION

33. For the foregoing reasons, the Trial Chamber ORDERS as follows:

(1) Those witnesses granted protective measures in other cases before the Tribunal shall continue to be protected in accordance with those measures. The names of these witnesses are set out in the confidential and ex parte Schedule A attached to this Decision;

(2) With respect to the remaining 167 of the 202 witnesses for whom protective measures are sought, the Prosecution shall by 5 March 2002, being 14 days from date of this Order, supply to the accused copies of all statements or documents in unredacted form, provided that, in the event that the Prosecution files a motion within that period for protective measures in relation to particular witness statements or documents , it need not supply unredacted copies of those statements or documents identified in that motion until such time as the Trial Chamber has disposed of the motion, and subject to any orders made upon that motion. The names of these witnesses are set out in the confidential and ex parte Schedule B attached to this Decision . The names of the remaining witnesses for whom no provisional protective measures are sought are set out in Schedule C attached to this Decision;

(3) The accused shall not disclose to the public:

(a) the supporting material disclosed to the accused pursuant to Rule 66 (A)(i) of the Rules, except to the limited extent that such disclosure to members of the public is directly and specifically necessary for the preparation and presentation of the accused’s case;

(b) the knowledge of the accused or his counsel or representatives with regard to the identities and whereabouts of the witnesses mentioned in the supporting material ; or

(c) any evidence or any written statement of a witness or potential witness, or the substance, in whole or part, of any such non-public evidence, statement or prior testimony disclosed to the accused pursuant to Rule 66 (A)(i) of the Rules.

For the purposes of this Order, “the public” means all persons, governments, organisations , entities, clients, associations and groups, other than the judges of the Tribunal and the staff of the Registry (assigned to either Chambers or the Registry), and the Prosecutor, and the accused. “The public” specifically includes, without limitation , family, friends and associates of the accused, accused in other cases or proceedings before the Tribunal and defence counsel in other cases or proceedings before the Tribunal.

Schedules are attached to this Decision.

 

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

__________________

Richard May

Presiding

Dated this nineteenth day of February 2002

At The Hague

The Netherlands

[Seal of the Tribunal]


1 - The Prosecution in this filing take the opportunity to make further arguments with respect to the number of witnesses concerned in this case compared with the Brdanin case. Whilst this is not an appropriate manner in which to seek to assert further arguments not contained in the initial filings, the Chamber has considered what the Prosecution had to say.
2 - “1. The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses[…]”
3 - “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.”
4 - “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.”
5 - “(A) Subject to the provisions of Rules 53 and 69, the Prosecutor shall make available to the defence in a language which the accused understands (i) within thirty days of the initial appearance of the accused, copies of the supporting material which accompanied the indictment when confirmation was sought as well as all prior statements obtained by the Prosecutor from the accused…”
6 - “(A) In exceptional circumstances, a Judge or a Trial Chamber may, in the interests of justice, order the non-disclosure to the public of any documents or information until further order.”
7 - “(A) In exceptional circumstances, the Prosecutor may apply to a Judge or Trial Chamber to order the non-disclosure of the identity of a victim or witness who may be in danger or at risk until such person is brought under the protection of the Tribunal.”
8 - The Prosecution notes it is not seeking redaction of any information from any of the documents. Appendix A in the Second Motion is an amended version of the same appendix in the First Motion and is the document upon which the Prosecution relies. Second Motion, paras. 8-9.
9 - Prosecutor v. Nikolic, “Confidential Decision on Second Motion by Prosecution for Protective Measures”, Case No. IT-94-2-PT, 29 November 2000.
10 - Brdanin Decision, para. 33.
11 - Prosecutor v. Milosevic, “Decision on Prosecution’s Motion for Order of Non-Disclosure”, Case No. IT-99-37-PT, 19 July 2001 (“Kosovo Decision”).
12 - First Motion, para. 5.
13 - First Motion, para. 6.
14 - First Motion, para. 6.
15 - Second Motion, para. 15. There is an error in this interpretation and a misquotation of the Brdanin Decision in the Second Motion and the Prosecution have subsequently filed a “Second Corrigendum to Prosecution Motion for Provisional Protective Measures Pursuant to Rule 69”, 6 February 2002 (“Second Corrigendum”). This matter is dealt with below.
16 - Brdanin Decision, para. 10.
17 - Ibid, para. 19.
18 - Brdanin Decision, para. 28.
19 - Ibid., paras. 8 and 11.
20 - Brdanin Decision, para. 65.2.
21 - First Motion, para. 4, referring to Prosecutor v. Tadic, “Decision on Motion by Prosecution for Protective Measures for Witness R”, Case IT-94-1-T, 31 July 1996, p.4.
22 - Ibid.
23 - Emphasis added.
24 - See, for example, Prosecutor v. Tadic, “Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses”, Case No. IT-94-1-T, 10 August 1995 (“Tadic Decision”), para. 215; Prosecutor v. Brdanin and Talic, “Decision on Motion by Prosecution for Protective Measures”, Case No. IT-99-36-PT (“Brdanin Decision”), 3 July 2000, para. 20.
25 - Brdanin Decision, para. 10.
26 - Ibid, para. 19.
27 - Ibid., paras. 11, and 28. In the Brdanin Decision, the Prosecution sought an order that it was permissible for it to redact identifying information with respect to every witness in its Rule 66 (A)(i) material. This case, in which the Prosecution seeks such an order with respect to 203 of 252 witnesses, is analogous in this respect. The Chamber in Brdanin did not accept the proposition that the prevailing circumstances in the former Yugoslavia would justify blanket redactions of the sort requested by the Prosecution. That is also the view of this Trial Chamber.
28 - Article 21.4(b) of the Statute requires as a minimum guarantee that the accused is “to have adequate time and facilities for the preparation of his defence…”
29 - Tadic Decision.
30 - Prosecutor v. Blaskic, “Decision on the Application of the Prosecutor dated 17 October 1996 Requesting Protective Measures for Victims and Witnesses”, Case No. IT-95-14, 5 November 1996.
31 - Prosecutor v. Tadic, “Decision on the Prosecutor’s Motion Requesting Protective Measures for Witness L”, Case No. IT-94-1-T, 14 November 1995, para. 21. Emphasis added.
32 - Second Motion, para. 17. In a “Corrigendum to Prosecution Motion for Provisional Protective Measures Pursuant to Rule 69: Prosecution Response to Order for Further Submissions”, 31 January 2002, the Prosecution correct the meaning of the use of a threatening word. The reference to Brankovic was to a person who was ostracised for his traitor-like conduct, not “executed” as was asserted in the Second Motion.