Case No.: IT-05-87-T
Date: 9 November 2006
IN THE TRIAL CHAMBER
Judge Iain Bonomy, Presiding
Judge Ali Nawaz Chowhan
Judge Tsvetana Kamenova
Judge Janet Nosworthy, Reserve Judge
Registrar: Mr. Hans Holthuis
Decision of: 9 November 2006
DECISION ON PROSECUTION MOTION FOR RECONSIDERATION OF
DECISION ON PROSECUTION MOTION FOR ADDITIONAL TRIAL-RELATED PROTECTIVE MEASURE
FOR WITNESS K56
Office of the Prosecutor
Mr. Thomas Hannis
Mr. Chester Stamp
Counsel for the Accused
Mr. Eugene O’Sullivan and Mr. Slobodan Zečević for Mr. Milan Milutinović
Mr. Toma Fila and Mr. Vladimir Petrović for Mr. Nikola Šainović
Mr. Tomislav Višnjić and Mr. Norman Sepenuk for Mr. Dragoljub Ojdanić
Mr. John Ackerman and Mr. Aleksandar Aleksić for Mr. Nebojša Pavković
Mr. Mihajlo Bakrač and Mr. Đuro Čepić for Mr. Vladimir Lazarević
Mr. Branko Lukić and Mr. Dragan Ivetić for Mr. Sreten Lukić
THIS TRIAL CHAMBER of the International Tribunal for the Prosecution
of Persons Responsible for Serious Violations of International Humanitarian
Law Committed in the Territory of the former Yugoslavia since 1991 ("Tribunal")
is seised of a confidential "Prosecution’s Motion for Reconsideration of Decision
on Prosecution Motion for Additional Trial-Related Protective Measures for Witness
K56 with Confidential and Ex Parte Annex A," filed 7 November 2006 ("Motion"),
and hereby renders its decision thereon.
- In the Motion, the Prosecution requests the Chamber to reconsider its decision to deny an additional trial-related protective measure to witness K56. Despite the fact that the Chamber denied the motion expressly without prejudice to the Prosecution making a further application in relation to the matter, the Prosecution nevertheless has moved for reconsideration, rather than making a further application, as instructed by the Chamber.
- Moreover, the Prosecution has used the wrong standard for reconsideration. The Chamber has previously, in this very case, enunciated the legal standard for reconsideration as such: "a Chamber has inherent discretionary power to reconsider a previous interlocutory decision in exceptional cases ‘if a clear error of reasoning has been demonstrated or if it is necessary to do so to prevent injustice.’" However, this Motion raises neither ground. The Chamber has previously, in this very case, dealt with an improper motion for reconsideration by the Prosecution, and now must do so again.
- The Prosecution, in the Motion, requests the Chamber to reconsider its decision "in light of new evidence presented herein" and presumes to remind the Chamber that it (the Chamber) has "an affirmative duty to provide for the protection and privacy of witnesses." After the Chamber’s denial of the initial motion in respect of this witness, the Prosecution obtained more information on the witness’ security situation, which it has included in the Motion. But this does not lead to the conclusion that the Chamber erred in its initial decision or caused any injustice that would warrant a reconsideration of its decision. The Chamber made its decision upon the initial motion based upon the information presented to it, and even went so far as to expressly leave open the possibility for a further application by denying the motion without prejudice. The Chamber is well aware of its duty to provide for the privacy and protection of victims and witnesses, as set forth in Rule 75(A) of the Rules of Procedure and Evidence and takes this opportunity to remind the Prosecution of its duty to ensure that the Chamber is assisted in this task by the presentation of complete and accurate information in support of applications for protective measures.
- The Chamber also notes that the Motion included a confidential and ex parte annex. The Chamber has on previous occasions ordered a change in the status of material supporting an application for protective measures from ex parte to inter partes where there was no basis upon which the material should remain ex parte in fairness to the Defence. Material should be presented on an ex parte basis only where there is justification for that course and where that basis is set out in the motion. The Prosecution must justify filing documents in a confidential and/or ex parte manner, if it deems it necessary and appropriate to do so. In this instance, no basis for the ex parte status of the annex has been given.
- Pursuant to Rules 54, 75, and 79, the Chamber hereby (a) DISMISSES the Motion without prejudice to the Prosecution making a further application and (b) ORDERS that, in any such reapplication, the Prosecution shall file its motion on the public record, unless there is good cause to file it (or any part thereof) in a confidential and/or ex parte manner, with accompanying explanations therefor.
Done in English and French, the English text being authoritative.
Judge Iain Bonomy Presiding
Dated this ninth day of November 2006
At The Hague
[Seal of the Tribunal]