Tribunal Criminal Tribunal for the Former Yugoslavia

Page 10274

1 Thursday, 10 March 2005

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.21 p.m.

5 JUDGE ORIE: Madam Registrar, would you please call the case.

6 THE REGISTRAR: Case number IT-00-39-T, the Prosecutor versus

7 Momcilo Krajisnik.

8 JUDGE ORIE: Before we turn into closed session again to further

9 hear the testimony of the present witness, I'd like to deliver one

10 decision and to read one request.

11 The decision is an order concerning the release of closed-session

12 testimony and exhibits under seal with respect to Milan Babic. This is an

13 order on the release of closed-session testimony and related exhibits

14 under seal with respect to the testimony of Milan Babic.

15 On 1 June 2004, the Prosecution seized the Chamber of a motion

16 requesting closed-session testimony for Milan Babic pursuant to Rules 75

17 and 79 of the Rules of Procedure and Evidence. The Prosecution stressed

18 that once the Victims and Witnesses Section would complete the

19 investigation, and I quote, "the Prosecution may request the Trial Chamber

20 to release the closed-session testimony of Milan Babic to the public

21 subject to any redaction which might be appropriate."

22 Rules 75(A) and (B) of the Rules state, inter alia, that a Chamber

23 may order appropriate measures for the privacy and protection of

24 witnesses, but that the measures must be consistent with the rights of the

25 accused. Rule 79 of the Rules provides that the Chamber may order that

Page 10275

1 the press and the public be excluded from all or part of the proceedings

2 for reasons of safety, security, or non-disclosure of the identity of a

3 victim or witness, as provided for in Rule 75, and that it shall make

4 public the reasons for its order. Rule 79 does not specify when the

5 Chamber should make the reasons public.

6 The Defence did not oppose the request as such. The Defence,

7 however, stated that it was not in a position fully to form an opinion on

8 the issue, since the reasons for protection were set for in the ex parte

9 annex.

10 The Chamber granted the motion on 2 June 2004. It found that the

11 information contained in the annex set forth in sufficient details the

12 reasons behind the witness's fear. It ruled that the safety concerns

13 expressed by Babic were legitimate and that granting the protective

14 measures requested would not infringe on the right of the accused to a

15 fair and public trial.

16 The Chamber then heard the testimony of Milan Babic in closed

17 session from the 2nd to the 8th of June.

18 On June 11, 2004, the Chamber received further information from

19 the Victims and Witnesses Section. The Chamber informed the parties of

20 these results on the 16th of June, 2004. Transcript pages 3743 up till

21 3744.

22 Then on the 4th of October, 2004 - and I again state the

23 transcript pages, 6648 up to 6653 - the Chamber discussed with the parties

24 an updated version of the report from the Victims and Witnesses Section.

25 During the discussion, the Defence requested that the confidentiality be

Page 10276

1 lifted. The basis of this request was that the grounds for protective

2 measures set forth in the report of the Victims and Witnesses Section were

3 insufficient. Another ground was that the public was made aware by other

4 sources, including previous announcements by the Chamber, that Babic had

5 indeed testified before the Tribunal between the 2nd and the 7th of June,

6 2004. The Prosecution suggested that the matter was not whether to lift

7 the confidentiality but when to do so.

8 The Chamber considered the submissions of the parties, as well as

9 the reports of the Victims and Witnesses Section. Taking into account

10 Rules 54, 75 and 79, the Chamber announced to the parties on the 7th of

11 December, 2004 - transcript pages 9341 up till 342 - that it was willing

12 to accommodate the request of the Defence to lift the confidentiality.

13 However, it also allowed the parties, as well as Mr. Babic himself, an

14 opportunity to file further submissions by January 31, 2005, on specific

15 and objective elements showing that the real likelihood of danger or risk

16 still existed.

17 On the 24th of January, 2005, the Chamber has received a report

18 from the Victims and Witnesses Section stating that it had nothing new to

19 report on the issue.

20 Having considered the facts that no further submissions on the

21 topic were made, the Chamber orders that the evidence given by Milan Babic

22 shall be made public. The Chamber understood the original request of the

23 Defence, as summarised by counsel at transcript page 6651, to be that the

24 evidence given by Milan Babic should be made public and not all the

25 discussions on the reasons for confidentiality. This was expressed by the

Page 10277

1 Chamber already on the 7th of December, 2004, at transcript page 9341.

2 The issue was, in other words, the lifting of confidentiality only of

3 Mr. Babic's closed-session testimony.

4 The Chamber also deems that, at present, full disclosure to the

5 public of the reasons behind the first application by the Prosecution for

6 protective measures for this witness is not in the interests of justice.

7 Accordingly, the Chamber orders the confidentiality over the

8 following transcripts to be lifted: Transcript page 3305, line 21, up to

9 page 3355; transcript page 3435 to 3442, line 14; transcript page 3442,

10 line 21, to 3524, line 9; transcript page 3525, line 22, to page 3616; as

11 well as the following transcript dealing with the decision, which is

12 transcript page 9341 to 9342.

13 That is the decision.

14 Then, as I said, I also have to address a request. The request is

15 the request for supplementary information on the motion for protective

16 measures for 92 bis witnesses.

17 This is a request for further information in relation to the

18 Prosecution's motion for protective measures for Rule 92 bis witnesses

19 filed on the 31st of January, 2005. The Chamber's decision on this matter

20 is still pending.

21 In its motion, the Prosecution requested an order that the

22 identities and identifying information of 22 Rule 92 bis witnesses not be

23 disclosed to the public. These consist of two types of witnesses:

24 witnesses whose evidence has already been admitted by the Chamber and

25 witnesses whose evidence has been put forth for admission and is still

Page 10278

1 under consideration.

2 The confidential annex to the Prosecution's motion briefly sets

3 out the reasons for which protective measures are sought in respect of

4 each of the 22 witnesses. In its response filed on the 24th of February,

5 2005, the Defence opposed the motion in its entirety.

6 The jurisprudence of this Tribunal provides that proceedings must

7 be public unless good cause is shown to the contrary. The burden rests on

8 the party seeking protective measures to justify why the requested

9 measures should be granted in respect of each individual witness. A

10 general expression of fear by the witness is not sufficient. In each

11 case, it must be shown that the witness or his or her family would face a

12 real risk to their safety or welfare if it became publicly known that he

13 or she has testified before the Tribunal, or, more generally, has given

14 evidence to the Tribunal. In other words, the Chamber must be satisfied,

15 in view of the specific reasons provided, that the fear expressed by the

16 witness has an objective foundation and does not simply represent the

17 personal preference of the witness to give his or her evidence anonymously

18 and, as in the present circumstances, under seal.

19 In paragraph 10 of its response to the motion, the Defence raised

20 the point that the Prosecution has provided the Chamber with little

21 information about the situation affecting many of the 22 witnesses in

22 question beyond the general fear expressed by those witnesses.

23 In order to ensure that a proper balance between the public nature

24 of the trial and the obligation to protect vulnerable witnesses is

25 achieved, the Chamber, as set out in a decision delivered in court on the

Page 10279

1 20th of September, 2004 - transcript page 5613 - may make further

2 inquiries in relation to a motion for protective measures. In the present

3 case, as in all cases, the Trial Chamber wishes to make a proper

4 determination on whether there exists an objective basis for the fears

5 expressed by each witness and hence on whether the protective measures

6 sought are justified.

7 In light of the arguments raised by the Defence, the Trial Chamber

8 therefore invites the Prosecution to provide by Monday, the 21st of March,

9 2005, any further information on, or clarification of, the objective basis

10 for the fears expressed by any witness, but particularly in respect of

11 Witness 051, Witness 128, Witness 281, Witness 428, Witness 133, Witness

12 558, Witness 168, Witness 114, Witness 248, Witness 612, Witness 012. I

13 observe in respect of this witness that in this case, the witness cites

14 actual threats, but there is no information on the nature of the threats.

15 Witness 175, Witness 178, and Witness 180.

16 Looking at the transcript, I think I read them slowly enough to

17 find all the numbers correctly written down in the transcript.

18 This was the one decision and one request. We'll now turn into

19 closed session for the continuation of the examination of Witness 646.

20 I see Madam Usher has left the courtroom already. May I take it

21 that the public gallery is empty? No, it is not.

22 Mr. Tieger, you're just preparing for the continuation of the

23 examination, or is there anything else you would like to raise?

24 MR. TIEGER: You were absolutely right, Your Honour. I was simply

25 preparing. However, as long as I'm up, I can take this opportunity to

Page 10280

1 note that the map we used yesterday and that I indicated had previously

2 been tendered into evidence is P211.

3 JUDGE ORIE: Yes. It's now on the record.

4 [Closed session]

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11 Pages 10281-10353 redacted. Closed session.















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5 --- Whereupon the hearing adjourned at 7.00 p.m.,

6 to be reconvened on Friday, the 11th day of

7 March, 2005, at 2.15 p.m.