"Decision on Motion by Prosecution for Protective Measures"

3 July 2000
Trial Chamber II (Judges Hunt [Presiding], Mumba and Pocar)

(1) Exceptional circumstances must go beyond what has been, since before the Tribunal was established, the rule - or the prevailing (or normal) circumstances - in the former Yugoslavia;

(2) The reference to "proceedings" in Article 20(1) of the Statute includes every phase of the litigation which affects the determination of the matter in issue;

(3) Absent specific evidence of the risk that particular prosecution witnesses would be interfered with or intimidated once their identity is made known to the accused and his counsel though not to the public, the likelihood that the interference will eventuate is not sufficiently great as to justify the extraordinary measures provided by Rule 69(A) of the Rules of Procedure and Evidence;

(4) In respect of the length of the time before the trial at which the prosecution must disclose the identity of the victims and witnesses to the accused, a distinction must be drawn, where it is not suggested that the accused personally committed the acts in question, between the witnesses called to prove the basic facts for which the accused is said to be responsible (either as a superior or by way of aiding and abetting) and who do not themselves directly implicate the accused, and those who directly implicate the accused as having superior authority or as aiding and abetting;

(5) Article 20(4) of the Statute and Rule 79 of the Rules of Procedure indicate an intention that everything to do with proceedings before the Tribunal should be done in public unless good cause is shown to the contrary.

Procedural Background

    On 10 January 2000, the prosecution filed on a confidential basis a motion, in which it sought, inter alia, a non-disclosure order permitting it to make limited redactions to witness statements or prior testimony so as to remove all information concerning the identity and whereabouts of vulnerable victims or witnesses and allowing the accused to learn of the identity of such persons only within a reasonable period before the commencement of the trial (a period of thirty days being suggested as a reasonable one).

The Trial Chamber stated a number of considerations which were relevant to the application of Rule 69(A). It accepted "that, once the defence commences (quite properly) to investigate the background of the witnesses whose identity has been disclosed to them, there is a risk that those to whom the defence has spoken may reveal to others the identity of those witnesses, with the consequential risk that the witnesses will be interfered with." The Trial Chamber also accepted "that the greater the length of time between the disclosure of the identity of a witness and the time when the witness is to give evidence, the greater the potential for interference with that witness". However, Rule 69(A) "applies only to ‘the non-disclosure of the identity of a victim or witness who may be in danger or at risk’. Any fears expressed by potential witnesses themselves that they may be in danger or at risk are not in themselves sufficient to establish any real likelihood that they may be in danger or at risk. Something more than that must be demonstrated to warrant an interference with the rights of the accused which these redactions represent." The Trial Chamber did not accept "that, absent specific evidence of such a risk relating to particular witnesses, the likelihood that the interference will eventuate [was] sufficiently great as to justify the extraordinary measures which the prosecution [sought] in this case in relation to every witness."

The Trial Chamber then stated that "a clear distinction must be drawn between measures to protect individual victims and witnesses in the particular trial and measures which simply make it easier for the prosecution to present its other cases against other persons." It accepted that, "whilst the Tribunal must make it clear to prospective victims and witnesses in other cases that it will exercise its powers to protect them from, inter alia, interference or intimidation where it is possible to do so, the rights of the accused in the case in which the order is sought remain the first consideration." It commented that it was not "easy to see how those rights could properly be reduced to any significant extent because of a fear that the prosecution may have difficulties in finding witnesses who are willing to testify in other cases. [...] The question here is whether the extent to which it is necessary to deny the rights of the accused in order to assist the prosecution to have indeterminate victims and witnesses testify on its behalf in future cases tilts the balance too far. The right to a fair trial holds so prominent a place in a democratic society that it cannot be sacrificed to expediency."

The Trial Chamber however accepted "that, where the likelihood that a particular victim or witness may be in danger or at risk has in fact been established, it would be reasonable [...] to order non-disclosure of the identity of that victim or witness until such time that there is still left, in the words of Rule 69(C)4, ‘adequate time for preparation of the defence’ before the trial." The Trial Chamber accepted as valid a distinction, in the case where it is not suggested that "the accused personally did the acts in question, [between] the witnesses who are to prove the basic facts for which the accused is said to be responsible (either as a superior or by way of aiding and abetting) [and who] do not themselves directly implicate the accused, [and] those who directly implicate the accused as having superior authority or as aiding and abetting." Knowledge of the identity of the former "would do little to assist the defence in its preparation for the trial. The witnesses whose identity is of much greater importance to the accused in the preparation of the defence are those" in the second category. The problem "is that it is in relation to the witnesses who fall into the second category that the prosecution has the greater concerns and whom it seeks to keep anonymous until the last moment."

The Trial Chamber did not believe that it was "possible to lay down in advance any particular time for disclosure which would be applicable to all cases. Everything will depend upon the number of witnesses to be investigated, and the circumstances under which that investigation will have to take place. Some accused may have better resources of their own than others, depending upon their position prior to their arrest. That period can only be determined after the protective measures are in place." The Trial Chamber accepted "that the pre-trial investigation process in which any defence team is involved is a difficult one, and that (unless very few witnesses have been made the subject of protection orders) a period somewhat longer than the thirty days before the trial suggested by the prosecution is likely to be necessary in most cases if the accused is to be properly ready for trial."

• Return of documents

The prosecution also sought an order which "would oblige counsel for the accused to return all statements of witnesses to the Registry ‘at the conclusion of the proceedings’. [...] The prosecution would not have access to the documents when they [were] returned." However, the Trial Chamber accepted "that the ‘work product’ of counsel (being the notations inevitably made by counsel on those documents during the preparation and the course of the trial) [becomes] the property of the accused, that it is of a confidential nature [...] and that the accused should not ordinarily be required to divulge it." The Trial Chamber did not accept "that the likely risk of either deliberate or unintentional disclosure after the conclusion of the case was of such significance as to justify the unwieldy and possibly unfair consequences of an order that the documents be returned in every case." The Trial Chamber did accept "that such orders may be warranted in a particular case. [...] Such orders are better considered at the end of the trial, when the risk involved may more easily be identified. The risk had not been identified in the present case at this stage."

• Maintaining a log

The prosecution also sought an order which "would oblige counsel for the accused to maintain a log indicating the names, addresses and position of each person or entity receiving any of the non-public information in the materials provided by the prosecution [...], so that ‘appropriate’ action" could be taken by the Trial Chamber against any member of the defence team in the event of any violation of the non-disclosure orders. "The ‘appropriate’ action could well include prosecution for contempt of the Tribunal." The Trial Chamber held that, "if any member of the defence team is to be prosecuted for contempt, he or she is entitled to the same presumption of innocence and right to silence which any other accused person has. The obligation to keep the log upon which such a prosecution is to be based would require that accused person to provide evidence against him or herself, contrary to Article 21 of the Tribunal’s Statute5. Such a procedure could be justified only where the situation were so grave that substantial damage was being caused by improper disclosures. The Trial Chamber was not satisfied that such a situation exists here."

• Confidential filings

The prosecution sought to justify the confidential basis upon which the motion was filed by saying that, if the references to witnesses having their lives threatened and being harassed or otherwise suffering if they give evidence or co-operate with the Tribunal "could be read by anyone, including those who are potential witnesses and those who have an interest in preventing such witnesses from giving evidence, it could well lead to those witnesses refusing to co-operate, and to the possibility of interference with witnesses being planted in the minds of those who have a vested interest in ensuring that evidence which implicates these two accused is not given."

The Trial Chamber held that "[t]here was no justification for filing the motion on a confidential basis", and it ordered that its confidentiality be lifted: "the issue is the likelihood that prosecution witnesses may be interfered with or intimidated, and that any fears expressed (or held) by potential witnesses themselves that they may be approached are not in themselves sufficient to establish the likelihood that they may be interfered with or intimidated." The Trial Chamber regarded "the suggestion that those already minded to prevent evidence being given against these two accused would, by reading a publicly filed document such as this motion, be incited to interfere with or intimidate witnesses as merely fanciful. The reality is that there have already been serious allegations made publicly that witnesses in other cases have been interfered with."

As a matter of general policy, Article 20(4) of the Statute6 and Rule 797 "indicate an intention that everything to do with proceedings before the Tribunal should be done in public unless good cause is shown to the contrary. [...] [T]here is a public interest in the workings of courts generally (including this Tribunal) - not just in the hearings, but in everything to do with their working - which should only be excluded if good cause is shown to the contrary. The attitude displayed by the prosecution in the present case appeared to be part of an unfortunately increasing trend in proceedings before the Tribunal for matters to be dealt with behind closed doors. When the prosecution seeks to have anything dealt with confidentially, the accused does not usually object because it is in his interest that the less that is made public concerning his case the better. This trend is a dangerous one for the public perception of the Tribunal, and it should be stopped."

• Finally, the Trial Chamber discussed whether a party has the right to file a document upon a confidential basis "simply by labelling it ‘Confidential’". The Trial Chamber held that Article 12 of the Directive for the Registry-Judicial Department-Court Management and Support Services8 ("Directive") requires "the Registry staff to make a determination" as to whether the document is "in fact confidential", so that the party did not have that right.

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1. "In exceptional circumstances, the Prosecutor may apply to a 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."
2. "Subject to the provisions of Rules 53 and 69, the Prosecutor shall make available to the defence in a language which the accused understands 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".
3. Article 20(1) of the Statute provides that: "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."
4. "Subject to Rule 75, the identity of the victim or witness shall be disclosed in sufficient time prior to the trial to allow adequate time for preparation of the defence."
5. Article 21(4)(g) of the Statute provides that: "In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality [...] not to be compelled to testify against himself or to confess guilt."
6. "The hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with its rules of procedure and evidence."
7. "(A) The Trial Chamber may order that the press and the public be excluded from all or part of the proceedings for reasons of:

(i) public order or morality;
(ii) safety, security or non-disclosure of the identity of a victim or witness as provided in Rule 75; or
(iii) the protection of the interests of justice.

(B) The Trial Chamber shall make public the reasons for its order."
8. Article 12.1 of the Directive provides that: "Documents which are confidential in whole or in part, or which include words or phrases which should not be disclosed to the public, are filed and classified in accordance with the procedure described in article 11 herein. These documents remain a part of the relevant case file, but they are placed in a distinct folder which is not accessible to the public."

"Decision on Motion by Radoslav Brdjanin for Provisional Release"

18 September 2000
Judges Hunt (Presiding), Mumba and Liu

Procedural Background

On 28 April 2000, Counsel for the accused Radoslav Brdjanin filed a motion for provisional release pending his trial.

An oral hearing took place on 20 July 2000.

The Decision

The Trial Chamber refused the application.

The Reasoning

(a) Recent amendment

The amendment to Rule 65(B)1, by the deletion of the requirement that the applicant establish "exceptional circumstance", has not made provisional release the norm and detention the exception. "The particular circumstances of each case must be considered in the light of the provisions of Rule 65 as it now stands." Once the detained person has established that he will appear and will not pose such a danger", no onus passes to the Prosecution to establish exceptional circumstances which require the application to be refused. The Trial Chamber held that the "wording of the Rule squarely places the onus at all times on the applicant to establish his entitlement to provisional release."2

(b) Appearance for trial

"The absence of any power in the Tribunal to execute its own arrest warrant upon an applicant in the former Yugoslavia in the event that he does not appear for trial, and the Tribunal’s need to rely upon local authorities within that territory or upon international bodies to effect arrests on its behalf, place a substantial burden upon any applicant for provisional release to satisfy the Trial Chamber that he will indeed appear for trial if released. That is not a re-introduction of the previous requirement that the applicant establish exceptional circumstances to justify the grant of provisional release. It is simply an acceptance of the reality of the situation in which both the Tribunal and applicants for provisional release find themselves."

A guarantee of the Government of Republika Srpska is not sufficient to establish that an indicted person who was a high-level Government official at the relevant time will appear for trial "in the light of the total failure so far of the Republika Srpska to abide by its basic obligations to comply with orders of the Tribunal for the arrest" of persons indicted by it. "[A] high level Government official [...] inevitably has very valuable information which he could disclose to the Tribunal, if minded to co-operate with the prosecution for mitigation purposes. That would be a substantial disincentive for Republika Srpska to enforce its guarantee to arrest, for the first time, an indicted person within its Territory."

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1. "Release may be ordered by a Trial Chamber only after hearing the host country and only if it is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person."
2. See the Decision on Motion for Provisional Release of Miroslav Kvocka rendered by Trial Chamber I on 2 February 2000 in the case The Prosecutor v. Miroslav Kvocka et al. ("Omarska and Keraterm Camps"), Case No. IT-98-30-PT. In that Decision, the Trial Chamber held that the effect of the amendment is not to establish release as the norm and detention as the exception and also that a determination as to whether release is to be granted must be made in light of the particular circumstances of each case and only if the Trial Chamber is satisfied that the accused "will appear for trial and, if released, will not pose a danger to any victim, witness or other person".
See also The Prosecutor v. Simic et al., Case No. IT-95-9-AR65, Trial Chamber III, Decisions on Simo Zaric’s and Miroslav Tadic’s applications for provisional release, 4 April 2000 (summarised and analysed in Judicial Supplement No. 14), footnotes 2 and 3 for a comparison between unamended and amended Rule 65(B).
3. Article 5(3) of the European Convention provides that: "Everyone arrested or detained in accordance with the provisions of paragraph (1)(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial."