Case No.: IT-03-68-PT

Before:
Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon

Registrar: Mr.
Hans Holthuis

Decision of:
28 July 2003

The Office of the Prosecutor

Mr. Ekkehard Withopf
Mr. Jayantha Jayasuriya

Counsel for the Accused

Ms. Vasvija Vidovic and Mr. John Jones

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 (“International Tribunal”),

BEING SEISED of a confidential “Prosecution’s Motion for Protective Measures and Non-Disclosure of Materials to the Public”, filed by the Office of the Prosecutor (“Prosecution”) on 14 May 2003 (“First Motion”), seeking orders for:

(1) the nondisclosure by Naser Oric (“accused”) and his counsel to the public of any nonpublic materials, including the names, identifying information, whereabouts, or statements of five witnesses for whom the Prosecution seeks protective measures (“protected witnesses”);¹

(2) the return of material by a member of the accused’s defence team in the event of his or her withdrawal from the case;² and

(3) the monitoring of Defence contacts with the protected witnesses,³

NOTING the confidential “Response to Prosecution Motion for Protective Measures”, filed by the Defence on 16 May 2003 (“First Response”), objecting to the relief sought and requesting that the Trial Chamber deny the First Motion and order the Prosecution to disclose the identities of the protected witnesses and all materials relating to the protected witnesses in unredacted form within thirty days of the initial appearance, as required by Rule 66(A)(i) of the Rules of Procedure and Evidence of the International Tribunal (“Rules”),⁴

NOTING the confidential “Prosecution’s Reply to the Defence ‘Response to Prosecution Motion for Protective Measures’”, filed on 21 May 2003 (“Reply”), reiterating the Prosecution’s request for relief contained in its First Motion and requesting that the Trial Chamber deny the accused’s request for disclosure of the identities of the protected witnesses, on the ground that the disclosure obligation under Rule 66(A)(i) of the Rules is limited to the materials as submitted to the confirming Judge and that the statements of these five witnesses were provided to the confirming Judge in redacted form,⁵

BEING SEISED also of a confidential “Motion for Delayed Disclosure of Identities, Whereabouts and Unredacted Statements of Sensitive Witnesses to the Defence” containing two ex parte Annexes, filed by the Prosecution on 27 May 2003 (“Second Motion ”), seeking orders for:

(1) the five protected witnesses to be referred to by pseudonyms throughout the proceedings;⁶

(2) delayed disclosure of unredacted statements and related annexes of the protected witnesses, such material to be disclosed to the accused not less than thirty days before the witness is expected to testify;⁷

(3) following disclosure, the unredacted documents and knowledge of their contents (including identities of the protected witnesses) to only be disclosed by the Defence to third parties to the extent that such disclosure is directly and specifically necessary for the preparation and presentation of his defence;⁸ and

(4) the Defence to first require the third party to whom the statement or information is to be disclosed to sign a nondisclosure agreement,⁹

NOTING the confidential “Response to Motion for Delayed Disclosure of Identities, Whereabouts and Unredacted Statements of Sensitive Witnesses to the Defence”, filed 6 June 2003 (“Second Response”), objecting to the relief sought and to the partial ex parte nature of the filing and requesting the Trial Chamber to take the following actions:¹⁰

(1) refuse to admit material submitted by the Prosecution on an ex parte basis and decide the Second Motion on an inter partes basis;

(2) ensure, in the event that the foregoing request is denied, that the rights of the accused are adequately protected in any ex parte proceeding, such as through the appointment of an independent counsel;

(3) deny the Prosecution’s request for delayed disclosure;

(4) calculate, in the event that the foregoing request is denied, any delayed disclosure backwards from the beginning of the trial, rather than from when the protected witnesses testify;

(5) deny, as arbitrary, the Prosecution’s request for a thirty-day delayed disclosed period;

(6) review and authorize any redaction of witness transcripts; and

(7) deny the Prosecution’s request that disclosure to third parties of information and documentation pertaining to the protected witnesses be subject to nondisclosure agreements as a prior condition,

NOTING that, whilst it is important to provide adequately for the protection of victims and witnesses, the requirement that the accused be afforded a fair trial dictates that the Trial Chamber only grant protective measures where it is properly shown in the circumstances of each witness that the protective measures sought meet the standards set out in the Statute of the International Tribunal (“Statute”) and the Rules, as expanded by the International Tribunal’s jurisprudence,¹¹

CONSIDERING that Article 20 of the Statute requires the Trial Chamber to ensure that proceedings are conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses,

CONSIDERING the rights of the accused under Article 21, paragraph 2, of the Statute to a fair and public hearing, subject to Article 22 of the Statute,

CONSIDERING that, save as otherwise provided in this Decision, the protection sought is necessary and appropriate to protect the five protected witnesses, while still remaining consistent with the rights of the accused,

CONSIDERING that the Trial Chamber is of the view, as stated in previous decisions,¹² that “[w]hilst it is extremely important to provide adequately for the protection of victims and witnesses, the requirement that the accused be given a fair trial dictates that Trial Chambers only grant protective measures where it is properly shown in the circumstances of each such witness that the protective measures sought meet the standards set out in the Statute and Rules of the Tribunal, and expanded in its jurisprudence” and that “the balance dictates clearly in favour of an accused’s right to the identity of witnesses which the Prosecution intends to rely upon”,

CONSIDERING that the Trial Chamber is satisfied that the Prosecution has established, pursuant to the criteria set out by this Trial Chamber in previous decisions,¹³ including “the likelihood that Prosecution witnesses will be interfered with or intimidated once their identity is made known to the accused and his counsel” and “the length of time before the trial at which the identity of the victims and witnesses must be disclosed to the accused (the time allowed for preparation must be time before trial commences rather than before the witness gives evidence)”, that delayed disclosure of identity is appropriate in respect of the five protected witnesses for whom this is sought,

CONSIDERING that the Trial Chamber will follow its own practice and that of other Chambers with respect to the time at which unredacted disclosure of the identities and statements of these witnesses should be made to the Defence and will fix a period of thirty days prior to the anticipated start of trial as an appropriate time within which the Prosecution must disclose the unredacted statements of witnesses granted protective measures under Rule 69(A) of the Rules,

CONSIDERING that this Trial Chamber has not generally required the Defence to obtain nondisclosure agreements from third parties on the basis that it is not generally useful or appropriate where protective orders are in place, but has done so with respect to certain witnesses on the basis of exceptional security risks attaching to such witnesses, which circumstances do not apply here,

CONSIDERING that the nondisclosure obligations contained in this Decision apply to all members of the Defence team such that it is the obligation of lead counsel to ensure compliance by all members of his or her team both during their participation and upon withdrawal from the case,

CONSIDERING also that it is the practice of the International Tribunal to accept ex parte filings of sensitive material that may otherwise jeopardise the safety and security of the very information that the filing party seeks to protect,

PURSUANT TO Articles 20, 21, paragraph 2, and 22 of the Statute and Rules 54, 69 and 75 of the Rules,

HEREBY GRANTS the Motions in part and ORDERS as follows:

(1) until further Order, the Prosecution may refer to the protected witnesses identified in Annex A to the Second Motion by the pseudonyms requested therein in all public proceedings before the International Tribunal;

(2) the Prosecution may continue to use pseudonyms when referring to the protected witnesses in public until such time as each witness is called to testify and the protection set out in this Decision shall apply to the protected witnesses until further Order;

(3) until further Order:

(i) the names and other identifying data of the protected witnesses, including their whereabouts, shall not be disclosed to the public;

(ii) the names, addresses, whereabouts of and identifying data concerning the protected witnesses shall be sealed and not included in any public records of the International Tribunal;

(iii) to the extent that the names, addresses, whereabouts or other identifying data concerning the protected witnesses are contained in existing public documents of the International Tribunal, that information shall be expunged from those documents ;

(iv) documents of the International Tribunal identifying the protected witnesses shall not be disclosed to the public or the media;

(4) the Prosecution shall disclose the full and unredacted statements of the five protected witnesses referred to in Annex A of the Second Motion to the Defence no later than thirty days before the anticipated start of trial in this matter, unless otherwise ordered by the Trial Chamber;

(5) the Defence shall not disclose to the public any confidential or other nonpublic material disclosed by the Prosecution pursuant to Rules 66(A)(i), 66(A)(ii), 66( B) and 68 of the Rules, including the names, identifying information or whereabouts of any protected witness, except to the limited extent that such disclosure to members of the public is directly and specifically necessary for the preparation and presentation of the accused’s case or the knowledge of the accused or his counsel or representatives;

(6) if Defence counsel, their representatives or agents acting pursuant to their instructions wish to contact any of the protected witnesses, the Defence shall notify the Prosecution so that the Prosecution may make the necessary arrangements for such contact, in the event that the protected witness is willing to be contacted by the Defence;

(7) the Prosecution shall be at liberty to apply for specific protective measures for individual witnesses when testifying, including the use of pseudonyms, voice - and image-distortion and closed sessions, prior to the date on which each witness is to testify;

(8) all hearings to consider the issue of protective measures for specific witnesses shall be held in closed session and only released to the public and to the media after review by the Prosecution, in consultation with the Victims and Witnesses Section;

(9) all material pertaining to the protected witnesses shall be returned to the Registry or destroyed following the close of this proceeding.

For the purpose of this decision, “the public” means and includes all persons, governments, organisations, entities, clients, associations and groups, other than the Judges of the International Tribunal, the staff of the Registry, the Prosecutor and her representatives, the accused in this case, the defence counsel, legal assistants and other members of the Defence team, their agents or representatives. “The public” also includes, without limitation, family, friends, and associates of the accused; accused in other cases or proceedings before the International Tribunal; defence counsel in other cases or proceedings before the International Tribunal and the media and journalists.

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

____________________
Richard May
Presiding

Dated this twenty-eighth day of July 2003
At The Hague
The Netherlands

[Seal of the Tribunal]