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:
5 March 2002

PROSECUTOR

v.

SLOBODAN MILOSEVIC

_________________________________________________

DECISION ON PROSECUTION REQUEST FOR FURTHER TIME TO CONTACT WITNESSES

_________________________________________________

The Office of the Prosecutor

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

The Accused

Slobodan Milosevic

Amici Curiae

Mr. Steven Kay, QC
Mr. Branislav Tapuskovic
Prof. Mischa 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 "Prosecution Request for Further Time to Contact Witnesses", filed by the Office of the Prosecutor ("Prosecution") on 1 March 2002 ("the Request"),

NOTING the "Decision on Prosecution Motion for Provisional Protective Measures" issued on 19 February 2002 ("the Decision"), in which the Trial Chamber ordered, inter alia, 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."

NOTING that although the Prosecution asserts in its Request that it seeks only variation of the deadline for witnesses it has been unable to contact, in fact it seeks relief with regard to a number of issues dealt with by the Trial Chamber in its Decision, as follows:

  1. to be given an extension from 5 March until 5 April 2002 to contact witnesses identified in confidential ex parte Schedule B of the Decision, whom it has been unable to contact by 5 March 2002;
  2. to be allowed to add an extra 12 witnesses to the confidential ex parte Schedule A of the Decision on the basis that they have been granted protective measures in other proceedings before the International Tribunal since the Prosecution made its initial request for provisional protective measures; and
  3. to be allowed to delay the unredacted disclosure to the accused of witnesses identified in confidential ex parte Schedule C of the Decision, being witnesses who the Prosecution had asserted in its initial application did not seek protective measures but who it is said may now wish to do so as a result of certain circumstances asserted, until the Prosecution has had an opportunity to contact these witnesses and, at any rate before 5 April 2002,

NOTING, therefore, that the Prosecution now seeks to extend beyond its initial request the list of witnesses for whom it wishes time to contact and make applications for protective measures,

NOTING that the Prosecution intends to file, by 5 March 2002, applications for protective measures for all of the witnesses for whom it seeks protective measures and whom it has been able to contact up to that date,

NOTING Appendix A to the Request, being an affidavit by an investigator with the Prosecution concerning the search for witnesses who have moved and the process by which they may be located through government authorities which can take at least three weeks,

NOTING that the Prosecution has provided a list of six witnesses identified in confidential ex parte Schedule B of the Decision, the statements for whom it has in fact already disclosed in unredacted form in the supporting material for the Croatia Indictment (despite having made an application for provisional protective measures for them in its initial Motion),

NOTING that the Prosecution has provided a list of 10 witnesses identified in confidential ex parte Schedule C of the Decision, the statements for whom it has disclosed in unredacted form in the supporting material for either the Croatia or Bosnia Indictments (these being witnesses for whom it had made no application for provisional protective measures),

CONSIDERING the principles outlined by the Trial Chamber in the Decision, and recalling particularly its finding that:

[E]xceptional circumstances must be established with respect to every witness the Prosecution seeks to protect through redaction of identifying information, and…this [is to] be done at the time service of the supporting material is required. "Rule 69 (A) does not provide [a] blanket protection". 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. 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.

CONSIDERING the Trial Chamber’s view, expressed in its Decision, that this duty referred to above arose in the instant case on 7 January 2002 and that it was 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,

CONSIDERING HOWEVER, that it is appropriate, in the light of the difficulties experienced contacting the witnesses, to allow a reasonable extension of time for the contacting of witnesses to ascertain whether protective measures, if any, are necessary,

PURSUANT TO RULES 69 AND 73 of the Rules of Procedure and Evidence of the International Tribunal

HEREBY ORDERS AS FOLLOWS:

  1. The Prosecution is granted an extension until 5 April 2002 in which to contact witnesses identified in confidential ex parte Schedule B of the Decision, after which their statements are to be disclosed to the accused in unredacted form in accordance with the Decision;
  2. The additional witnesses who have been granted protective measures in other proceedings since the initial request of the Prosecution for provisional protective measures shall have those protective measures continued to the same extent as witnesses identified in confidential ex parte Schedule A of the Decision;
  3. The Prosecution is granted an extension until 5 April 2002 in which to contact the witnesses in confidential ex parte Schedule C of the Decision, being witnesses whom the Prosecution had not requested provisional protective measures for in its initial request, after which their statements are to be disclosed to the accused in unredacted form in accordance with the Decision;
  4. There will be no further extensions given with respect to the Trial Chamber’s orders.

 

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

__________________
Richard May
Presiding

Dated this fifth day of March 2002
At The Hague
The Netherlands

[Seal of the Tribunal]