The Prosecutor v. Slobodan Milosevic - Case No. IT-02-54-T

“Decision on Prosecution Motion for Protective Measures (Concerning a Humanitarian Organisation), Public Version of a Confidential Decision Filed on 13 March 2003”

1 April 2003
Trial Chamber III (Judges May [Presiding], Robinson and Kwon)

Procedural Background

· On 10 June 2002, the Prosecution filed a confidential motion¹ to seek protective measures for three proposed witnesses who are former employees of a humanitarian organisation² as a precondition for the organisation’s consent to allow their testimony pursuant to Rule 70(B).³ It requested that the testimony be given in closed session and with pseudonyms.

· On 27 June 2002, the Amici Curiae submitted that the information provided by the Prosecution did not establish any basis to determine that there were risks to the witness concerned.⁴ They observed that the measures sought were not specific enough regarding the persons they seek to protect and, in this sense, amounted to a blanket protection for all witnesses and non-witnesses connected with the humanitarian organisation.

· At the 25 February 2003, oral hearing on this matter, the Prosecution, the Amici Curiae and representatives of the humanitarian organisation made their submissions.

The Decision

The Trial Chamber denied the Motion.⁵

The Reasoning

The applicable law

The Trial Chamber considered that the fact that the Prosecution’s Motion was presented under Rule 70 was “only noteworthy […] insofar as it is stated that the protective measures are necessary to obtain the consent of the humanitarian organisation, as an information provider, for the witness to testify in this trial”. It considered the relevant provisions to be Articles 21 and 22 of the Statute, and Rule 75 of the Rules of Procedure and Evidence. Article 21 of the Statute provides that the accused shall be entitled to a “fair and public hearing”, subject to Article 22 of the Statute which ensures the protection of victims and witnesses. Such balancing test is enshrined in Rule 75(A) of the Rules of Procedure and Evidence which provides that the granting of measures of protection for witnesses must be “consistent with the rights of the accused”. Such protective measures may include, as requested by the Prosecution, closed sessions pursuant to Rule 79.

Closed sessions and the right of the Accused to a fair and public hearing

The Trial Chamber recalled the “great care” it has exercised in granting closed session testimony, due to its respect for the rights of the accused pursuant to Article 21 of the Statute, and accordingly to the “very limited circumstances” under which it has had recourse to such a protective measure, including “where extraordinary risks attach to the witness’s own safety or that of his or her family”.⁶

The protection sought in the Motion

In support of its application, the Prosecution relied on the Blaskic decision⁷, whereby Trial Chamber I had granted protection for two witnesses who would have been “seriously threatened should their identity be disclosed to the public and the media”. The Trial Chamber found that the present application was “distinguishable from that underpinning the decision in the Blaskic case” because in the Blaskic decision it is stated “there was a real threat attaching to the witnesses for whom protection was in fact sought”. It considered that the Prosecution’s Motion was not submitted because the witness himself objected to testifying in open session nor because there were personal security concerns for the witness but in order to obtain the consent of the humanitarian organisation for the testimony of the witness. According to the Trial Chamber, the Motion was put forward because of “security concerns” for the current and future personnel of the humanitarian organisation that arise if its mandate is perceived to be compromised.⁸

The approach of the Trial Chamber

The Trial Chamber acknowledged that “the work of the humanitarian organisation and protection of its current and future personnel are important interests which warrant consideration” and agreed that personnel of the humanitarian organisation have been the target of attacks and intimidations both in Bosnia and elsewhere, but did not rule that such elements amounted to interests that may be protected in the present case under Rule 70.⁹ It considered rather that extension of protection can be provided under Rule 75 for “persons related to or associated with a victim or witness”.¹⁰ Nevertheless it held that such association and risk contemplated must be “sufficiently proximate to the witness to warrant protective measures, particularly the extraordinary protective measure of closed session testimony” and in the present case, in respect of the witness, found that the interests sought to be protected were “too remote ” and “did not outweigh the Accused’s right to a fair and public hearing”.¹¹

The Trial Chamber refused to grant the requested closed session and, considering the position of the Prosecution and the humanitarian organisation that nothing less than a closed session testimony would protect the interests of the organisation, did not then discuss the granting of other protective measures.

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1. Prosecution’s Motion for Protective Measures (the “Motion”), 10 June 2002.
2. At the oral hearing on this matter the Prosecution stated that it intended to call only one of those three witnesses. Transcript of 25 February 2003, T. 16769-16770.
3. Rule 70 (Matters not Subject to Disclosure) (B) If the Prosecutor is in possession of information which has been provided to the Prosecutor on a confidential basis and which has been used solely for the purpose of generating new evidence, that initial information and its origin shall not be disclosed by the Prosecutor without the consent of the person or entity providing the initial information and shall in any event not be given in evidence without prior disclosure to the accused.
4. Observations by Amici Curiae on the Prosecution’s Motion for Protective Measures, 27 June 2002.
5. On 20 March 2003 the Prosecution requested the Trial Chamber to reconsider the present Decision or alternatively to grant it certification to appeal under Rule 73(B). On 4 April 2003 the Trial Chamber considered that there was no legitimate basis for a reconsideration of its Decision and considered that the Prosecution had failed to satisfy the cumulative requirements for certification pursuant to Rule 73(B) that (1) the issue would significantly affect the fair and expeditious conduct of the proceedings or outcome of the trial, and (2) an immediate resolution of the issue may, in the opinion of the Trial Chamber, materially advance the proceedings. It denied the Motion.
6. The Trial Chamber referred inter alia to its “Confidential Decision on Prosecution Motion for Protective Measures for Sensitive Source Witness Testifying During the Croatia Phase of the Trial”, 17 September 2002, para. 15; and, in respect of K21, a ruling in which it reconsidered an order granting closed session for the testimony of a witness on the basis that the grounds for the protection were too remote, both with respect to threats made and to the fears expressed by that witness for family members.
7. Blaskic, IT-95-14-T, Decision of Trial Chamber I on the Prosecutor’s Motion for Video Deposition and Protective Measures, 13 November 1997.
8. The Trial Chamber relied on the letter from the humanitarian organisation attached to the Motion, on clarifications of its representatives, and on submissions of the Prosecution.
9. On the interpretation and application of Rule 70, see Milosevic, IT-02-54-AR108 bis & AR73.3, Public Version of the Confidential Decision on Interpretation and Application of Rule 70, 23 October 2002, Judicial Supplement No. 37.
10. Rule 75 (Measures for the Protection of Victims and Witnesses) (A) A Judge or a Chamber may, proprio motu or at the request of either party, or of the victim or witness concerned, or of the Victims and Witnesses Section, order appropriate measures for the privacy and protection of victims and witnesses, provided that the measures are consistent with the rights of the accused.(B) A Chamber may hold an in camera proceeding to determine whether to order: (i) measures to prevent disclosure to the public or the media of the identity or whereabouts of a victim or a witness, or of persons related to or associated with a victim or witness by such means as: (a) expunging names and identifying information from the Tribunal's public records;(b) non-disclosure to the public of any records identifying the victim;(c) giving of testimony through image- or voice- altering devices or closed circuit television; and(d) assignment of a pseudonym; (ii) closed sessions, in accordance with Rule 79; (iii) appropriate measures to facilitate the testimony of vulnerable victims and witnesses, such as one-way closed circuit television.
11. In this respect the Trial Chamber noted the submission made by one of the Amici Curiae with regard to the protection of the witness: “It's not personal to him, and those associated or related are so remote from the issue, they're not sufficiently proximate to the issue to have put their safety in any way at risk and require protective measures. In our submission, 75(B) is dealing with a more proximate kind of situation with each witness or victim, persons related or associated with them, in a tangible form. To say that someone in [the humanitarian organisation] in Namibia or Togo or elsewhere would hereby be threatened as a result of this witness giving evidence publicly, in our submission that is too remote from him to require the injunction of this Court. It's not specific to the case and these proceedings” (T. 16793).