Case No. IT-95-13/1-T

Before:
Judge Kevin Parker, Presiding
Judge Christine Van Den Wyngaert
Judge Krister Thelin

Registrar:
Mr. Hans Holthuis

Decision of:
25 October 2005

The Office of the Prosecutor:

Mr Marks Moore

Counsel for the Accused:

Mr Miroslav Vasic for Mile Mrksic
Mr Borivoje Borovic and Ms Mira Tapuskovic for Miroslav Radic
Mr Novak Lukic and Mr Momcilo Bulatovic for Veselin Sljivancanin

I. INTRODUCTION
1. This Trial Chamber (“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 seized of a confidential and ex parte in part “Prosecution’s Additional Motion for Protective Measures of Sensitive Witnesses”, filed on 15 September 2005 (“Motion ”). The Prosecution requests that all fifteen witnesses mentioned in its Motion be referred to by a pseudonym in the course of the trial. For six of the witnesses, the Prosecution seeks leave to have the testimony given in closed session. For four of the witnesses, the Prosecution further requests the delayed disclosure of (a) their identity, and (b) their un-redacted statements. For the remaining witnesses, the Prosecution seeks leave to have their testimony given with image and/or voice distortion. The Defence for Mile Mrksic, Miroslav Radic and Veselin Sljivancanin (“Defence”) filed a response on 29 September 2005, objecting to most of the protective measures sought by the Prosecutor (“Joint Defence Response”).¹
   II. LAW

2. The Motion is governed by Articles 20, 21 and 22 of the Statute of the Tribunal (“Statute”) and Rules 53, 54, 66, 69, 75 and 79 of the Rules of Procedure and Evidence of the Tribunal (“Rules”).

3. Article 20(1) of the Statute provides that proceedings are conducted “with full respect for the rights of the accused and due regard for the protection of victims and witnesses”, and Article 20(4) of the Statute provides that “the hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with its rules of procedure and evidence”. Article 21(2) of the Statute provides that “the accused shall be entitled to a fair and public hearing, subject to Article 22”. Article 22 of the Statute states that protective measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim’s identity. The Rules of the Tribunal echo these provisions. In particular, Rule 75 states that a Chamber may order appropriate measures for the privacy and protection of victims and witnesses, provided that the measures are consistent with the rights of the accused, and Rule 79 provides that a Chamber may order that the press and the public be excluded from all or part of the proceedings for reasons of inter alia “(ii) safety, security or non-disclosure of the identity of a victim or witness as provided in Rule 75.”

4. The Chamber will also consider the Rules on disclosure directly related to the Motion. Rule 53(A) provides that in exceptional circumstances, a Trial Chamber may, in the interests of justice, order the non-disclosure to the public of any documents or information until further order. Rule 66(A)(ii) provides that the Prosecution shall disclose to the defence within the time-limit prescribed by the Trial Chamber “copies of the statements of all witnesses whom the Prosecutor intends to call to testify at trial, and copies of all written statements take in accordance with Rule 92bis”. Rule 69(A) states that 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, and Rule 69(C) provides that “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”.

5. The Chamber recalls that the burden rests on the party seeking protective measures to justify in each case why the measures requested should be granted.² Not only must the testimony of the witness be important to the Prosecution’s case but the applicant must show that, should it become publicly known that the witness has testified, there is a real risk to his or her security or that of his or her family, rather than a mere general expression of fear by the witness.³ The Chamber must therefore be satisfied, in view of the specific reasons provided, that the fear expressed has an objective foundation.

6. With regards to closed session, the more extreme the protection sought, the more onerous will be the obligation upon the applicant to establish the risk asserted.⁴ It is so because the determination of protective measures requires the Chamber to consider competing interests, namely on the one hand, the right of the Accused to a fair and public trial and, on the other hand, the rights of victims to protection and privacy. The Chamber will therefore examine closely the circumstances upon which a party relies to justify closed session under Rule 79 of the Rules. In particular, the Chamber will be concerned to ensure that there is shown to be a real risk to the witness or his or her family from the prospect of the witness’ public testimony, and that such risk is sufficiently founded. Moreover, it will need to be shown that less restrictive measures cannot adequately deal with the witness’ legitimate concerns or that there exists some other exceptional circumstance.⁵
   III. DISCUSSION

7. The Trial Chamber previously seized of this case in its pre-trial stage issued a decision dated 9 March 2005 granting protective measures for some of the prospective witnesses who are presently the subject of the Motion.⁶ Pursuant to that decision, two of the prospective witnesses in the instant case, namely P001 and P002, were granted pseudonyms pending their testimony. With the exception of these two witnesses, and for the purpose of this decision only, the Chamber will refer to the other witnesses who are the subject of the Motion, with their Prosecution 65ter list numbering (e.g. witness #12) and not with the pseudonyms proposed in the Motion.

   A. Protective Measures granted by other Chambers (Rule 75(F)(i)):

8. The Prosecution requests that the Chamber grants to witness #51, witness #25 and witness #33 the same protective measures in respect of this trial as have been granted to them in other proceedings before the Tribunal, as the reasons and circumstances underlying these protective measures remain unchanged and as the actual circumstances of these witnesses compound the necessity to continue the protective measures.⁷ For two other witnesses, i.e. witness P002 and witness # 74, the Prosecution seeks leave to have the protective measures granted in other proceedings, augmented. The Defence object to the measures sought for witness P002, witnesses #74 and #33, but do not object to the protective measures sought for witnesses #51 and #25.⁸

9. With respect to witness #51, the Prosecution requests that the witness’ testimony be given under pseudonym (pseudonym “P028”) and with image and voice distortion. As for witness #25, the Prosecution requests that the witness’ testimony be given under pseudonym (pseudonym “P030”) and with image distortion. For witness #33, the Prosecution requests that the witness’ testimony be given under pseudonym (pseudonym “P027”) and with image and voice distortion. The Chamber takes note that witnesses  #51, #25 and #33 have testified in other proceedings before the Tribunal with the same protective measures as requested by the Prosecution in the Motion.

10. Rule 75(F)(i) of the Rules provides that once protective measures have been ordered in respect of a victim or witness in any proceedings before the Tribunal, the measures shall continue to have effect mutatis mutandis in any other proceedings before the Tribunal unless they are rescinded, varied or augmented. The Chamber sees no reason to vary the protective measures granted in other proceedings to the three witnesses concerned. Further, the Prosecution has shown that security concerns underlying the protective measures requested are still present, calling for the use of protective measures at trial for these witnesses.

11. With respect to witness #74, the Prosecution requests that the witness’s testimony be given under pseudonym (pseudonym “P026”) and in closed session. The Prosecution also requests that it be allowed to delay the disclosure of the witness’ identity and his unredacted statements until thirty days prior to the date on which the witness is to testify.⁹ The Chamber takes note that witness #74 testified in other proceedings before this Tribunal with a pseudonym, image and voice distortion. The witness, however, did not testify under closed session. The Defence objects to the Prosecution’s request to augment protective measures as it would affect the right of the accused to a fair and public trial and requests that the Prosecution provide it with the redacted version of the witness’ statement with no further delays.¹⁰

12. With regard to the request for witness #74’s testimony to be given in closed session, the Chamber considers that, in view of the highly sensitive nature of the anticipated testimony and the current whereabouts of the witness, there is a real risk to the security of the witness and the family of the witness should the testimony be given publicly before this Tribunal. Further, it is the view of the Chamber that no less restrictive measure can adequately deal with the witness’ legitimate concerns since the content of the testimony would lead to the witness’ identification.

13. The Chamber notes that the reasons submitted by the Prosecution for requesting the non-disclosure to the Defence of witness #74’s identity until thirty days before the witness is called to testify relate to security and privacy concerns of the witness. The Chamber finds that this measure, requested by the Prosecution, is appropriate and necessary to safeguard the privacy and protection of witness #74, and further finds it to be consistent with the rights of the accused in this case. The Chamber is, therefore, satisfied that the Prosecution has shown exceptional circumstances justifying an order for non-disclosure as is required by Rule 69(A ) of the Rules. The disclosure of the identity of witness #74 will therefore be delayed until thirty days prior to the date on which the witness is to testify.

14. The Chamber notes that it appears from the submissions that the Defence has not yet received the statements of witness #74, even in a redacted form. The Chamber is of the view that, unless otherwise ordered, at this stage the Defence should have all prosecution witness statements available with a view to preparing its defence. Any concern which the Prosecution might have in relation to the protection of witness #74 can be accommodated by the redaction of identifying information in the statement. The Chamber has already ordered this to be the case until thirty days prior to witness #74 giving evidence. The Prosecution does not put forward any further justification warranting the non-disclosure of the material itself. The Chamber therefore orders the Prosecution to disclose witness #74’s un-redacted written statement no later than thirty days prior to the date on which the witness is to testify, and to disclose it in a redacted form forthwith.

15. With respect to witness P002, the Chamber notes that this witness was granted a pseudonym pending testimony on 9 March 2005 by order of the Trial Chamber previously seized of the instant case.¹¹ The Prosecution now requests that this witness be referred to by pseudonym “P002” in the course of the trial, and that the witness’s testimony be given in closed session.¹² The Chamber recalls that in other proceedings before the Tribunal, witness P002 initially testified in open session with no protective measures even though some protective measures had been ordered before his testimony. Later during his testimony, due to circumstances concerning the witness’ personal and family’s security, the evidence was cautioned in closed session. Some months after the completion of his evidence, at his request, order for protective measures was lifted. Hence, despite what is alleged in the party’s submissions,¹³ strictly speaking, the witness is not protected in other proceedings before the Tribunal and therefore Rule 75(F)(i) of the Rules cannot be applied. The protective measures requested for this witness will, therefore, be considered outside the scope of this Rule. The Defence objects to the granting of protective measures to this witness on the basis that the witness testified without protective measures in domestic proceedings in Belgrade.¹⁴ The Chamber considers that in view of the highly sensitive nature of the anticipated testimony, there is a real risk to the security of the witness and the family of the witness should the testimony be given publicly before this Tribunal. Further, it is the view of the Chamber that no less restrictive measure can adequately deal with the witness’ legitimate concerns since the content of the testimony would lead to the witness’ identification. Witness P002 will therefore testify in closed session.

    B. Other Protective Measures sought:

16. The Prosecution requests that the Chamber grant protective measures to ten other witnesses. With respect to witness P001, the Chamber notes that this witness was granted a pseudonym pending testimony on 9 March 2005 by order of the Trial Chamber previously seized of the instant case.¹⁵ The Prosecution now requests that this witness be referred to by pseudonym “P001 ” in the course of the trial, and that the witness’ testimony be given with image and voice distortion.¹⁶ The Defence objects to these protective measures without providing any further explanation.¹⁷ For witness #44, witness #27, witness #45 and witness #85, the Prosecution requests that their testimony be given under pseudonym (pseudonyms “P021”, “P029”, “P031” and “P032” respectively) and with image and voice distortion. ¹⁸ The Defence does not object to these protective measures. The Chamber notes that these witnesses have personally expressed serious and grave concerns for their own safety and that of their family, based particularly upon their personal experience. Upon evaluation of the factual circumstances relied on by the Prosecution in support of the protective measures at trial for these witnesses,¹⁹ the Chamber is persuaded that there is an objective basis demonstrating a real likelihood that the witnesses concerned may be in danger.

17. With respect to witness #66, the Prosecution requests that the witness’s testimony be given under pseudonym (pseudonym “P022”) and in closed session.²⁰ The Defence objects to the granting of protective measures to this witness in the ground that the public is already aware of the witness’ identity and the protective measures sought are therefore no longer necessary.²¹ The Chamber considers that in view of the highly sensitive nature of the anticipated testimony, there is a real risk to the security of the witness and the family of the witness should the testimony be given publicly before this Tribunal.

18. With respect to witness #68, the Prosecution requests that the witness’s testimony be given under pseudonym (pseudonym “P014”) and with image and voice distortion.²² The Chamber notes that the Trial Chamber previously seized of this case, in its decision dated 9 March 2005, denied the requested protective measures for this witness pending the submission of further material by the Prosecution of the demonstration that there was a real risk to the security of witness #68 or of the witness’s family.²³ In the Motion, the Prosecution has adduced new material in support of its request.²⁴ Upon evaluation of these new factual circumstances, the Chamber is persuaded that there is an objective basis demonstrating a real likelihood of danger or risk for the witness and the family of the witness.

19. With respect to witness #65, witness #80 and witness #81, the Prosecution requests that their testimony be given under pseudonym (pseudonym “P023”, “P024”, “P025” respectively) and in closed session. The Prosecution also requests that it be allowed to delay the disclosure of the three witness’ identity and their unredacted statements until thirty days prior to the date on which the witnesses are to testify.²⁵ The Defence objects to the Prosecution request as the delayed disclosure of the identities of the three witnesses and the non-disclosure of their unredacted statements would be detrimental to the preparation of the Defence case. The Defence further request that the Prosecution provides the redacted version of the witness’s statement with no further delays.²⁶

20. With regard to closed session, the Chamber considers that, in view of the highly sensitive nature of the anticipated testimonies, there is a real risk to the security of the witnesses concerned and the family of these witnesses should their testimony be given publicly before this Tribunal.

21. The Chamber notes that the reasons submitted by the Prosecution for requesting the non-disclosure to the Defence of the identity of witnesses #65, #80 and #81 relate to the security and privacy concerns of the witnesses. The Chamber finds that this measure, requested by the Prosecution, is appropriate and necessary to safeguard the privacy and protection of the three witnesses concerned and further finds it to be consistent with the rights of the accused in this case. The disclosure of the identity of witness #65, witness #80 and witness #81 to the Defence will therefore be delayed until thirty days prior to the date on which the witness is to testify.

22. The Chamber notes that, it appears from the submissions that the Defence has not yet received the statements of witness #65, witness #80 and witness #81, even in a redacted form. As stated earlier, unless otherwise ordered, at this stage the Defence should have all witness statements with a view to preparing the defence. Any concern which the Prosecution might have in relation to the protection, these witnesses can be accommodated by the redaction of identifying information in the statement, until it is disclosed in an unredacted form thirty days prior to the respective witness giving evidence. The Prosecution does not put forward any further justification warranting the non-disclosure of the material itself. The Chamber therefore orders the Prosecution to disclose the un-redacted written statements of witness #65, witness #80 and witness #81 no later than thirty days prior to the dates respectively on which each witness is to testify, and to disclose it in a redacted form forthwith.
    IV. DISPOSITION

    Based on the foregoing, pursuant to Articles 20, 21 and 22 of the Statute and Rules 54, 66, 69, 75 and 79 of the Rules, the Chamber GRANTS THE MOTION IN PART and ORDERS as follows:

    1) All fifteen witnesses subject of the Motion shall be given new pseudonyms, different, if any, from those granted to these witnesses in other proceedings before the Tribunal. The new pseudonym for each witness is listed in Confidential Annex I and Ex Parte Annex II attached to this decision. These pseudonyms shall be used whenever referring to the witnesses in question in this trial and related proceedings before the Tribunal and in discussions among parties to the trial.

    2) Witness #51, witness #33, witness #54, witness #44, witness #27, witness #45, witness  #85 and witness #68 shall testify with the protective measures of pseudonym, image and voice distortion; witness #25 shall testify with the protective measures of pseudonym and image distortion and witness #12, witness #66, witness #65, witness  #80, witness #81, and witness #74 shall testify with a pseudonym in closed session.

    3) The disclosure of the identity of witnesses of witness #65, witness #80, witness  #81, and witness #74 will be delayed until 30 days before each of the witnesses is called to testify.

    4) The Prosecution shall forthwith disclose to the Defence, in a redacted form, the statements of witness #65, witness #80, witness #81, and witness #74. The Prosecution will redact only the names, addresses, whereabouts of, and identifying information concerning each of the witnesses identified.

    5) The Prosecution shall disclose the full and un-redacted statements of witness #65, witness #80, witness #81, and witness #74 no later than thirty days respectively before each witness is called to testify.

    6) The name, address, whereabouts of, and identifying information concerning each of the witnesses identified in Confidential Annex I and Ex Parte Annex II of this decision shall not be disclosed to the public and shall not be included in any public records of the Tribunal.

    7) To the extent that the name, address, whereabouts of, or other identifying data of the witnesses identified in Confidential Annex I and Ex Parte Annex II is contained in existing public records of the Tribunal, that information shall be expunged from those documents.

    8) All hearings to consider the issue of protective measures for the witnesses identified in Confidential Annex I and Ex Parte Annex II shall be held in closed session and edited records and transcripts of the session(s) shall be released to the public and to the media after review by the Prosecution, in consultation with the Victims and Witnesses Section.

    9) The public and the media may not photograph, video-record or sketch or in any manner record or reproduce images of the witnesses identified in Confidential Annex I and Ex Parte Annex II while, they are in the precincts of the Tribunal.

    For the purposes of this decision:

    “The Defence” means and includes the Accused, his Defence Counsel and all those approved by the Registry to assist with the Defence of the Accused.

    “The public” means and includes all persons, governments, organisations, entities, clients, associations, groups and media, other than judges and staff of the Tribunal Chambers and Registry, the Prosecution, the Defence, and persons to whom it is necessary for the Defence to disclose the material for the preparation and presentation of the Defence case. “The public” specifically includes, without limitation, family, friends and associates of the Accused, the media, the accused in other cases or proceedings before the Tribunal and/or national courts, and defence counsel in other cases or proceedings before the Tribunal and/or national courts.

    “The media”, as mentioned above, means and includes all video, audio, electronic and print media personnel, including journalists, reporters, authors, television and radio personnel, as well as their agents and representatives.

23. Nothing herein shall preclude any party or person from seeking such other or additional protective measure or measures as may be appropriate concerning a specific witness or potential witness, or other evidence.

Done in English and French, the English version being authoritative.

Dated this twenty-fifth day of October 2005
At The Hague
The Netherlands

_________________
Kevin Parker
Presiding Judge

[Seal of the Tribunal]