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

"Decision on Motion to set aside Confidential Subpoena to give Evidence"

7 June 2002
Trial Chamber II (Judges Agius [Presiding], Janu and Taya)

Procedural Background

· During the pre-trial conference, on 21 January 2002, the Office of the Prosecutor sought to introduce into evidence a newspaper article by Jonathan Randal which appeared on 11 February 1993 in the Washington Post and which contains statements attributed to the Accused Radoslav Brdjanin.

· On 28 January 2002, the Prosecution made an oral request to the Trial Chamber to issue a subpoena requiring him to give evidence. Randal had refused to testify due to his position as a journalist though he had given a statement to the Prosecution.

· The Trial Chamber, on 29 January 2002, pursuant to Rule 54 of the Rules of Procedure and Evidence,1 issued a Confidential Subpoena directing Randal to appear before the Trial Chamber to give evidence.

· On 8 May 2002, Randal filed a written submission to set aside the confidential subpoena.

The Decision

The Trial Chamber dismissed the Motion.

The Reasoning

The Trial Chamber emphasised the "vital role" played by journalists reporting on conflict areas and their "utility in effectively serving to bring to justice those responsible for the crimes the journalists report upon". It added, however, that the journalist reports "would lose much of their weight and relevance" if the alleged privileges of journalists were "framed in a way so as to render" their utility for the purposes of this Tribunal "totally dependant on the wish or sole discretion of the journalist concerned, and therefore potentially useless".

The Trial Chamber did not find that "the objectivity and independence of journalists can be hampered or endangered" by their being called to testify, "especially in those cases when they have already published their findings".

The Trial Chamber stated that "[n]o journalist can expect or claim that once she or he decided to publish no one has a right to question their report or question them on it". It pointed out the distinction between freedom of expression and freedom of the media. Indeed, freedom of expression is in itself a manifestation of individual liberty and is not the exclusive right of the journalist while freedom of the media is a prerogative of this industry, even if it was only "marginally involved" in the present. It also declared that the assertion which indicated "this subpoena and others like it in similar circumstances would restrict the freedom of expression of journalists or the freedom of the media" was "utterly unfounded".

It held that it was aware of the importance that "journalists should not be subpoenaed unnecessarily" and also that summoning and examining them should "be conducted and regulated in a way which will not unduly hamper, obstruct or frustrate of the vital role of news gathering".

The Trial Chamber considered that there was absolutely no indication that, if forced to testify Randal could be "exposed to physical harm or any other kind of harm or risk". It concluded that once the decision to publish Brdjanin's alleged declarations was taken and implemented by him, Randal had no right to claim that he could not be questioned on what he had published with the justification that, as a journalist, he had a privilege which goes "well beyond what has been acknowledged in Goodwin v. UK"2 and which, in any case, finds no application in the present circumstances.

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1. "At the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial."
2. (1996) 22 EHRR 123.