IN THE TRIAL CHAMBER
Before: Judge Gabrielle Kirk McDonald, Presiding
Judge Ninian Stephen
Judge Lal C. Vohrah
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 5 December 1996
DECISION ON PROSECUTION MOTION
TO WITHDRAW PROTECTIVE MEASURES FOR WITNESS L
The Office of the Prosecutor:
Mr. Grant Niemann Mr. Alan Tieger
Ms. Brenda Hollis Mr. Michael Keegan
Counsel for the Accused:
Mr. Michail Wladimiroff Mr. Steven Kay
Mr. Alphons Orie Ms. Sylvia de Bertodano
On 14 November 1995 this Trial Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law committed in the former Yugoslavia since 1991 ("International Tribunal") issued its Decision on the Prosecutors Motion Requesting Protective Measures for Witness L. Prosecutor v. Tadic, No. IT-94-1-T, T. Ch. II, 14 Nov. 1995 ("Witness L Protective Measures Decision"). Pending before the Trial Chamber is the motion to withdraw the protective measures for witness L ("Motion") provided for in the Witness L Protective Measures Decision.
The request was made orally by the Office of the Prosecutor ("Prosecution") on 25 October 1996 and was not opposed by the Defence. Official Trial Transcript, Prosecutor v. Tadic, at p. 5865 - 6 ("OTT"). The Trial Chamber issued its oral decision granting the Motion that day, reserving the written decision on the Motion to a later date. Id.
THE TRIAL CHAMBER, HAVING CONSIDERED the oral arguments of the parties,
HEREBY ISSUES ITS DECISION.
A. Factual Background and Pleadings
1. The factual background of this case has been set out in a number of Decisions issued by the Trial Chamber, including the Witness L Protective Measures Decision, and does not need to be repeated here. The specific measures sought in respect of witness L are also set out in the Witness L Protective Measures Decision at paragraphs 2 - 10.
2. In the Witness L Protective Measures Decision it was noted that witness L had been employed as a guard at Trnepolje camp "in which capacity he committed serious crimes for which he has been convicted by a court in Bosnia and Herzegovina in a trial of which neither the proceedings nor the decision have been made public because he was tried as a minor". Id. at para. 2. The Trial Chamber also noted that, in its view,
a person does not cease to qualify for the protective measures available to a witness under the Rules [of Procedure and Evidence] just because he has a criminal record. Witness Ls criminal record may affect his credibility as a witness but this is a matter to be determined at the trial itself . . . .
Id. at para. 10.
3. On 22 October 1996 the Prosecution informed the Trial Chamber in closed session that, as a result of certain evidence put forward by the Defence, investigations had been commenced with respect to witness L. The Prosecution advised the Trial Chamber that the outcome of those investigations could impact significantly upon the approach of the Prosecution to count 1 of the indictment against Dusko Tadic. OTT at p. 5462-63. On 25 October 1006 the Prosecution concluded those investigations and reported to the Trial Chamber, again in closed session, and made an application for rescission of the Witness L Protective Measures Decision. That application was not opposed by the Defence and the request was granted orally. OTT at p. 5865-66. As a
consequence of that application and of the information disclosed, the Prosecution then renewed its application in open session. OTT at p. 5867.
4. The Prosecution called one of its investigators, Mr. Reid, to give evidence of a meeting that had been arranged that day between witness L and two other witnesses, Janko Opacic and Pero Opacic. After that meeting, witness L confirmed to Mr. Reid that Janko Opacic is his father and Pero Opacic his brother. Mr. Reid testified that witness L had admitted to him that he had lied about the death of his father while under oath. Witness L asserted that he had done this at the behest of the Bosnian government authorities who had allegedly "trained" him to give evidence against the accused, Dusko Tadic. Mr. Reid also confirmed that the Prosecution had first become aware of the possible testimony of witness L in connection with the events said to have taken place at the Trnepolje camp through the police investigation department of the Bosnian Government. Consequently, the Prosecution advised the Trial Chamber that it could no longer support witness L as a witness of truth and invited the Trial Chamber to disregard his evidence entirely.
B. Reasons for Decision
5. The Witness L Protective Measures Decision is one of a series of decisions issued by this Trial Chamber for the protection of witnesses, commencing in August 1995 with the Decision on the Prosecutors Motion for Protective Measures for Victims and Witnesses. Prosecutor v. Tadic. No. IT-94-1-T, T. Ch. II, 10 Aug. 1995. The procedural safeguards set down in that first Decision also indicate that if a less restrictive measure can satisfy the requested protection, that lesser measure should be applied. Id. at p. 28. In a subsequent Decision, the Trial Chamber has also stated that "if at any time, [protective] measures are no longer required, they shall cease to apply". Prosecutor v. Tadic. No. IT-94-1-T, Decision on the Prosecutors Motion Requesting Protective Measures for Witness P, T.Ch. II, 15 May 1996 at p. 5.
6. It is agreed between the parties that the protective measures in respect of witness L are no longer justified. Thus, considering the Trial Chambers preference to limit protective measures to those that are truly necessary, and the fact that the Motion is unopposed, the Trial Chamber grants the Motion.
C. Release of audio-visual record and transcript
7. The audio-visual record together with the transcript of the testimony given by witness L may now be released in full, subject to any redactions that may be required to give effect to protective measures already granted in respect of other witnesses and to protect ongoing investigations or other confidential material, including the court decision referred to in paragraph 2 supra.
For the foregoing reasons, THE TRIAL CHAMBER, being seized of the Motion to withdraw protective measures for witness L filed by the Prosecution, and
PURSUANT TO RULE 75,
HEREBY GRANTS the Motion; and
ORDERS the withdrawal of the protective measures granted in respect of witness L in the Decision on the Prosecutors Motion Requesting Protective Measures for Witness L.
Done in both English and French, the English version being authoritative.
Gabrielle Kirk McDonald
Dated this fifth day of December 1996
At The Hague
[Seal of the Tribunal]