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1 Tuesday, 23 April 2002
2 [Closed Session]
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12 JUDGE SCHOMBURG: D2B. D2B. [Open session]
13 And then, additionally, there was a Prosecution's application for
14 variation of protective measures. The decision of the Chamber reads as
15 follows:
16 Trial Chamber II of the International Tribunal for the Prosecution
17 of Persons Responsible for Serious Violations of International
18 Humanitarian Law Committed in the Territory of the Former Yugoslavia since
19 1991 --
20 THE INTERPRETER: The interpreters kindly ask you to slow down
21 when reading.
22 JUDGE SCHOMBURG: Sorry about this. I thought you had it before
23 you.
24 MR. KOUMJIAN: Are we in open session?
25 JUDGE SCHOMBURG: No. No, we are not in open session, and we
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Page 2077
1 should continue, as I mentioned before, because we are still discussing
2 issues of closed session.
3 I go on: Being seised of the oral application made by the Office
4 of the Prosecutor, the Prosecution, in the case of Prosecutor versus
5 Milomir Stakic, on 22nd April, 2002, in open session in which the
6 Prosecution requested, on behalf of the Prosecution in the case of
7 Prosecutor versus Brdjanin and Talic, to release the transcripts related
8 to protected Witness A ("Protected Materials") who testified in closed
9 session, to the Defence in the case of Prosecutor versus Brdjanin and
10 Talic ("Application") in order that Witness A's transcript be admitted in
11 that case pursuant to Rule 92 bis of the Rules of Procedure and Evidence
12 of the International Tribunal ("Rules"), noting that the Defence for
13 Milomir Stakic ("Defence") did not have any objection to this application,
14 noting that Witness A did not have any objections to this procedure,
15 considering that Rule 75(D) of the Rules states in part that:
16 "Once protective measures have been ordered in respect of a
17 victim or witness, a party seeking to vary or rescind such an order must:
18 (I) apply to the Chamber that granted such measures to vary or rescind
19 them or to authorise release of protected material for use in other
20 proceedings."
21 Noting that the Prosecution did not seek to have the protected
22 materials released to "another Chamber" but rather directly to the Defence
23 for the accused Radoslav Brdjanin and Momir Talic. Recalling the "Order
24 on Prosecution's Motion for Particular Protective Measures" ("Order")
25 issued by this Trial Chamber on 29 January 2002, in which the Trial
Page 2078
1 Chamber granted Witness A, who was among other witnesses listed in
2 paragraph 9 of the original Prosecution motion the following protective
3 measures:
4 1. The Trial Chamber shall assign pseudonyms.
5 2. The pseudonyms assigned by the Trial Chamber shall be used
6 throughout the course of the trial in the present matter as well as in
7 other proceedings before the International Tribunal if the testimony of
8 the witnesses bearing the pseudonyms is disclosed into those proceedings.
9 4. [sic] The witnesses identified in paragraph 9 of the motion
10 shall each testify in closed session without a pseudonym.
11 5. The Defence shall maintain a log of persons who for the
12 purpose of preparing and presenting this case receive from the Defence any
13 information regarding the witnesses identified in paragraph 7, 9 of the
14 motion, but such information shall in no circumstance include the names,
15 addresses, or whereabouts of identifying data of those witnesses.
16 6. In addition to and in connection with the measure indicated in
17 order 5 above, the Defence shall cause any person who receives the
18 information to sign a Non-disclosure Agreement the format of which is set
19 out in Appendix A of the said Motion and the Trial Chamber shall be
20 informed regularly of such agreements.
21 7. All hearings to consider the issue of protective measures for
22 the witnesses identified in paragraph 7, 9 of the Motion shall be in
23 closed session.
24 8. The names, addresses, whereabouts, or other identifying data
25 of the witnesses identified in paragraph 7, 9 of the motion shall remain
Page 2079
1 sealed from the date of issuance of this order and be expunged from
2 documents of the international if they are still there.
3 9. If a member of the Defence team withdraws from the case, all
4 materials he or she obtains through the disclosure process shall be
5 returned to the lead counsel.
6 10. The public and media shall not photograph, video-record, or
7 sketch the witnesses identified in paragraphs 7, 9 of the motion while
8 they are on the premises of the International Tribunal.
9 11. Any rule 92 bis statements of the witnesses identified in
10 paragraph 7 and 9 of the motion shall be kept confidential. The
11 Prosecution is authorised to release the testimony as well as the
12 identities of the witnesses identified in paragraph 7 and 9 of the motion
13 to other Trial Chambers in related cases pending before the International
14 Tribunal.
15 And 13. In the course of implementing order 12 above, the same
16 degree of protection as specified in this order or a lesser degree of
17 protection to which a witnesses expressly consents shall be sought by the
18 Prosecution from the relevant Trial Chambers in related cases.
19 This order does not, however, affect the exercise of powers by
20 those Trial Chambers to balance the rights of the accused with the
21 protection of victims and witnesses in the light of the prevailing
22 circumstances of the other case before them.
23 Considering that the Order in (12) explicitly authorises the
24 Prosecution to release the testimony as well as the identities of the
25 witnesses covered by the order, including Witness A,"to other Trial
Page 2080
1 Chambers in related cases before the International Tribunal", considering
2 that the Order specifically envisioned situations such as the present
3 Application, as reflected in (12) and (13), and that the relief sought in
4 the Application is already provided for in the Order, considering that it
5 is for the "other Trial Chamber" to use of the transcript in another case.
6 Hereby takes the opportunity to inform its instructions in the order with
7 respect to (11) to (13), as stated above, and particularly the Order that
8 the testimony may be released to other Trial Chambers. And reminds the
9 Prosecution of its obligations in seeking the same degree of protection
10 for this witness as stated in the Order, including closed session from the
11 Trial Chamber in which it seeks to offer the protected materials, or, in
12 the event that it seeks a lesser degree of protection, that the
13 Prosecution obtains the express consent of the witness.
14 This is the wording of the decision. Are there any other issues
15 to be discussed in closed session? Then we proceed in open session.
16
17 JUDGE SCHOMBURG: Any contributions from the parties?
18 MR. KOUMJIAN: No. Thank you, Your Honour.
19 JUDGE SCHOMBURG: From the Defence?
20 MR. LUKIC: No. Thank you, Your Honour.
21 JUDGE SCHOMBURG: Then we can take it that we proceed tomorrow in
22 the afternoon with Dr. Donia?
23 MR. LUKIC: We are ready to proceed tomorrow, Your Honour.
24 JUDGE SCHOMBURG: With Dr. Donia.
25 MR. LUKIC: Expert witness, Dr. Donia.
Page 2081
1 JUDGE SCHOMBURG: Your client wanted to make any comment?
2 MR. LUKIC: Will you ask him?
3 JUDGE SCHOMBURG: It's for you.
4 MR. LUKIC: Only we have one issue after we have finished with the
5 official work, to raise.
6 JUDGE SCHOMBURG: The next witness will appear when -- in order to
7 find out which time limit we have for tomorrow.
8 MR. KOUMJIAN: The witness would actually be available tomorrow
9 afternoon. I don't know that we're going to -- that the Defence will
10 finish with the cross-examination and whatever questions the Chamber has
11 for the witness, but he's available tomorrow or the next day.
12 MR. LUKIC: Your Honour, Mr. Ostojic will be cross-examining Mr.
13 Donia, so I really don't know how long will it take, because right now Mr.
14 Ostojic is flying from the US to Den Haag, so I didn't have time to
15 contact him and to ask how long would it take.
16 JUDGE SCHOMBURG: So, in principle, we all are prepared, if
17 possible, to start the hearing of next witness, which is number --?
18 MR. KOUMJIAN: Witness number 29.
19 JUDGE SCHOMBURG: 29.
20 MR. KOUMJIAN: Protective measures. Not closed session, but has
21 protective measures. And I'd also -- I know that it has -- he has facial,
22 or she, has facial distortion, so we'll need a little time with that
23 witness to set it up with the video people before they testify.
24 JUDGE SCHOMBURG: Thank you for this information. And then we
25 adjourn for today --
Page 2082
1 MR. LUKIC: Excuse me, Your Honour. If you have only one minute.
2 JUDGE SCHOMBURG: Yes.
3 MR. LUKIC: Maybe you don't know, but on the 3rd of May, it's a
4 Good Friday in Orthodox Christianity, and we ask only this Chamber -- you
5 don't have to rule today -- to consider to have a day off, because
6 probably we would be the only Chamber working on that day, because none of
7 the other chambers would work on that Friday.
8 JUDGE SCHOMBURG: I can already answer today. It's only one
9 Chamber for specific reasons not going on with the trial. In principle,
10 it is -- the Rule that we have only to obey those holidays which are
11 official United Nations holidays, and the 3rd of May is not such a
12 holiday. Therefore, it would be necessary to demonstrate that there are
13 special religious reasons from the side of your client, or yourself, to
14 depart from this Rule. Therefore, and to add, this was one of the reasons
15 that I prepared already the entire schedule until August 3, to know if
16 there would be such objections.
17 MR. LUKIC: At this time, I have to admit that I didn't know that
18 Good Friday is on the 3rd of May.
19 JUDGE SCHOMBURG: So please take it as it is. If there are no
20 really special and convincing reasons, we will proceed also the 3rd of
21 May.
22 MR. LUKIC: Thanks a lot.
23 JUDGE SCHOMBURG: We adjourn and resume tomorrow afternoon.
24 --- Whereupon the hearing adjourned at 1.10 p.m.,
25 to be reconvened on Wednesday, the 24th day of
Page 2083
1 April 2002, at 9.00 a.m.
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