Trial Chambers

The Prosecutor v. Radoslav Brdjanin and Momir Talic - Case No. IT-99-36-PT

"Decision on Second Motion by Prosecution for Protective Measures"

27 October 2000
Trial Chamber II (Judges Hunt [Presiding], Mumba and Liu)

Rule 53, 66(A), 69 of the Rules of Procedure and Evidence - Protective measures.

(1) Potential witnesses must demonstrate some objective foundation for the fears they may be in danger or at risk, as well as exceptional circumstances;
(2) The fact that the Prosecution does not intend to call the five persons whose statements were part of the supporting material which accompanied the indictment when confirmation was sought as witnesses does not in itself justify the non-disclosure of their identity as required by Rule 66(A)(i).

Procedural Background

Reasoning and Decision

In seeking protective measures by which the identity of various witnesses would be disclosed to the accused only at a time closer to the trial, all of the material upon which the Prosecution relied was filed ex parte. The accused objected to the use of ex parte communications in relation to the relief sought2.

The Trial Chamber accepted as "correct" the statement in the Decision on (1) Application by Stevan Todorovic to Re-Open the Decision of 27 July 1999, (2) Motion by ICRC to Re-Open Scheduling Order of 18 November 1999, and (3) Conditions for Access to Material rendered by Trial Chamber III composed of Judges Robinson (Presiding), Hunt and Bennouna on 28 February 2000 in the case The Prosecutor v. Simic et al. that:

"As a matter of practice, and in accordance with common sense, applications by either party for protective orders are determined on an ex parte basis where the persons to be protected would otherwise be identified."3

The Trial Chamber pointed out, however, that that "statement must be understood in the light of the general principle stated in that case", that ex parte proceedings are justified only where the disclosure to the other party or parties in the proceedings of the information conveyed by the application, or of the fact of the application itself, would be likely to prejudice unfairly either the party making the application or some person or persons involved in or related to that application. The "party seeking relief on an ex parte basis must identify with some care why the disclosure of the detail of the application to the other party to proceedings would cause such unfair prejudice".4 The arguments advanced to justify the protective measures sought should, as far as possible, be set out in such a way that the basis for the application is disclosed to the other party to the proceedings without revealing the identity of the particular witness for whom the protection is sought.

The Prosecution was directed to file on a confidential basis only and without revealing the identity of the witnesses its justification for non-disclosure to the accused in such a way that they are given sufficient information to enable them to determine whether to oppose the relief sought.

"It must be demonstrated in relation to the particular witness for whom protective measures are sought" denying disclosure of his identity to the accused until a time closer to the trial "that there is sufficient possibility that he or she may be threatened or interfered with as to warrant the conclusion that, despite the obligations imposed upon the accused and their defence teams" prohibiting disclosure of that identity to the public ("save as is directly and specifically necessary for the preparation and presentation of this case") or to the media under any circumstances, "there should be no disclosure even to them at this stage."

The material upon which the Prosecution relied indicated only that the witness had concerns for her safety and that of her family. The Trial Chamber referred to its statement in the Prosecution Protective Measures Decision:

"Something more than that must be demonstrated to warrant an interference with the rights of the accused which these redactions represent."5

It added that what "is required is that there be some objective foundation for those fears, as well as exceptional circumstances."

The Trial Chamber considered "a number of reports by international and non-governmental organisations which discuss the changing position within the Federation of Bosnia and Herzegovina and its specific municipalities", and concluded "that the particular risk faced by a person testifying against a person of another ethnic group will depend on the particular municipality to which that witness is returning and the ethnicities of the witness and the accused." However, the Prosecution had "not revealed anything of the circumstances in the town to which witness 7.10 intends to return, or of the circumstances in the municipality in which that town is situated. The identity of the town itself was not revealed to the Trial Chamber (even on an ex parte basis). The assessments of various municipalities provided in the reports filed by the prosecution were therefore of no assistance to the Trial Chamber in relation to this witness. It may well be that, when those circumstances are revealed, witness 7.10 will be entitled to protective measures to prevent her identification being disclosed to the public, but nothing has been demonstrated which suggests that the disclosure at this stage of her identity to the accused and their defence teams may put her in danger or at risk, or which is of such an exceptional nature as to warrant the interference with the rights of the accused which the non-disclosure produces."

The application was refused, but the Trial Chamber noted that "a fresh application might be made if desired in relation to the disclosure of her identity to the public." (emphasis added)

The Prosecution sought leave "to withhold completely from the accused and their defence teams the identity of five persons whose statements were part of the supporting material which accompanied the indictment when confirmation was sought, on the basis that it does not intend to call those witnesses at the trial."

"Rule 66(A)(i)6 requires the disclosure to the accused of the material which was before the confirming judge (which necessarily includes all of that material), subject only to Rules 537 and 698." When Rule 66(A)(i) is contrasted with Rule 66(A)(ii), the "implicit exclusion from the obligation imposed by Rule 66(A)(ii) of statements from witnesses whom the prosecution does not intend to call is not made applicable to the obligation imposed by Rule 66(A)(i). The fact that the prosecution does not intend to call these five persons as witnesses does not by itself justify the non-disclosure of their identity as required by Rule 66(A)(i). It was therefore necessary for the prosecution to justify the relief which it seeks under either Rule 53 or Rule 69." The Prosecution, however, had made no attempt to rely on any of those provisions to justify the order sought.

The Trial Chamber nevertheless considered whether "the fact that the prosecution will not be calling the five persons at the trial because they are not willing to give evidence against these accused justifies non-disclosure of their identity to the accused in the interests of justice." The Trial Chamber noted that, contrary to the impression it had conveyed to the confirming Judge, the Prosecution had not been authorised by the persons whose statements were produced to use them in this trial. Trial Chamber II stated however that, once the Prosecution had declared that it did not intend to call those witnesses and that it had not received the authority to use their statements, the suggested justification for any continuing fear of retaliation had disappeared. The Trial Chamber concluded that it was not in the interests of justice to permit non-disclosure. It "is not a question of whether the accused can show that they would be prejudiced by the denial of their rights to have the identity of those persons disclosed.9 The question is whether the prosecution has established that the interests of justice require that denial of those rights of the accused."

Latest Development

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1. The Prosecutor v. Radoslav Brdjanin and Momir Talic ("Krajina"), Case No. IT-99-36-PT, Trial Chamber II, Decision on Motion by Prosecution for Protective Measures, 3 July 2000 (summarised in Judicial Supplement No. 18).
2. Trial Chamber II defined an ex parte application as being "one made by one party without notice to the other parties."
3. The Prosecutor v. Simic et al. ("Bosanski Samac"), Case IT-95-9-PT, Decision on (1) Application by Stevan Todorovic to Re-Open the Decision of 27 July 1999, (2) Motion by ICRC to Re-Open Scheduling Order of 18 November 1999, and (3) Conditions for Access to Material, 28 February 2000 (summarised in Judicial Supplement No. 12), para. 40.
4. Ibidem, paras. 41 to 43.
5. Prosecution Protective Measures Decision, para. 26.
6. Rule 66(A) of the Rules of Procedure and Evidence provides that: "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; and
(ii) within the time-limit prescribed by the Trial Chamber or by the pre-trial Judge appointed pursuant to Rule 65 ter, copies of the statements of all witnesses whom the Prosecutor intends to call to testify at trial, and copies of all affidavits and formal statements referred to in Rule 94 ter; copies of the statements of additional prosecution witnesses shall be made available to the defence when a decision is made to call those witnesses."

7. "(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.
(B) When confirming an indictment the Judge may, in consultation with the Prosecutor, order that there be no public disclosure of the indictment until it is served on the accused, or, in the case of joint accused, on all the accused.
(C) A Judge or Trial Chamber may, in consultation with the Prosecutor, also order that there be no disclosure of an indictment, or part thereof, or of all or any part of any particular document or information, if satisfied that the making of such an order is required to give effect to a provision of the Rules, to protect confidential information obtained by the Prosecutor, or is otherwise in the interests of justice.
(D) Notwithstanding Sub-rules (A), (B) and (C), the Prosecutor may disclose an indictment or part thereof to the authorities of a State or an appropriate authority or international body where the Prosecutor deems it necessary to prevent an opportunity for securing the possible arrest of an accused from being lost."
8. "(A) 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.
(B) In the determination of protective measures for victims and witnesses, the Trial Chamber may consult the Victims and Witnesses Section.
(C) 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."
9. Counsel for the accused had the statements of the persons in question, and the Prosecution had conceded that they were entitled pursuant to Rule 68 ("Disclosure of Exculpatory Evidence") to know the identity of any of those persons whose statements may contain exculpatory material.
10. "Decisions on such motions are without interlocutory appeal save with the leave of a bench of three Judges of the Appeals Chamber which may grant such leave

(i) if the decision impugned would cause such prejudice to the case of the party seeking leave as could not be cured by the final disposal of the trial including post-judgement appeal; or
(ii) if the issue in the proposed appeal is of general importance to proceedings before the Tribunal or in international law generally."