Case No. IT-03-68-T

IN TRIAL CHAMBER II

Before:
Judge Carmel Agius, Presiding
Judge Hans Henrik Brydensholt
Judge Albin Eser

Registrar:
Mr. Hans Holthuis

Decision of:
28 September 2005

PROSECUTOR

v.

NASER ORIC

________________________________________________________

DECISION ON URGENT DEFENCE REQUEST FOR CERTIFICATION FOR APPEAL OF THE TRIAL CHAMBER’S CONFIDENTIAL DECISION ON SECOND DEFENCE MOTION FOR PROTECTIVE MEASURES FOR WITNESS D002

________________________________________________________

The Office of the Prosecutor:

Mr. Jan Wubben
Ms. Patricia Sellers
Mr. Gramsci Di Fazio
Ms. JoAnne Richardson

Counsel for the Accused:

Ms. Vasvija Vidovic
Mr. John Jones

TRIAL CHAMBER II ("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"):

BEING SEIZED OF the "Urgent Request for Certification of the Trial Chamber’s Confidential Decision on Second Defence Motion for Protective Measures for Witness D002" ("Request for Certification"), filed on 22 September 2005 by counsel for Naser Oric ("Defence" and "Accused");

NOTING the confidential "Decision on Defence Motion for Protective Measures for Witnesses" ("First Decision") of 13 July 2005, in which the Trial Chamber granted the protective measure of facial distortion to a potential witness identified as D002, but denied the remainder of the Defence application, which had also requested voice distortion, pseudonym, and delayed disclosure of the identity of D002 to the Prosecution;¹

NOTING the confidential "Decision on Second Defence Motion for Protective Measures for Witness D002" ("Second Decision") of 19 September 2005, in which the Trial Chamber denied a renewed application made by the Defence requesting protective measures beyond those already ordered for potential witness D002;

NOTING that in its Request for Certification, the Defence submits that the Trial Chamber erred in law by failing to provide, both in the First Decision and the Second Decision, adequate reasoning in support the denial of protective measures requested for potential witness D002,² and second, that the Trial Chamber erred "by apparently giving no consideration whatsoever to the impact on the Accused’s right to a fair trial of losing an important witness due to the witness’ fears for his life"³;

NOTING the "Prosecutor’s Response to the Urgent Request for Certification of the Trial Chamber’s Confidential Decision on Second Defence Motion for Protective Measures for Witness D002" ("Response"), filed confidentially by the Office of the Prosecutor on 26 September 2005, in which it is suggested to deny the Request for Certification, as the Defence submissions do not meet the legal standard required for certification for appeal;⁴

NOTING Rule 73 (B) of the Tribunal’s Rules of Procedure and Evidence ("Rules") which sets out two cumulative criteria to be satisfied before the Trial Chamber may exercise its discretion to certify a decision for interlocutory appeal:

1. the decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial; and

2. for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings;

RECALLING that the Defence submission leading to the Second Decision did not contain any new evidence that had not already been considered by the Trial Chamber prior to rendering the First Decision;⁵

RECALLING FURTHER that the Defence submission leading to the Second Decision referred to the possibility that it would lose the evidence of D002 if the measures requested were not granted, a concern which the Trial Chamber considered should not be alleviated by making use of protective measures;⁶

CONSIDERING that the Defence did not seek certification for appeal of the First Decision, and in both its subsequent application and this Request for Certification, the Defence has not adduced any new evidence or put forth a change in the circumstances of the potential witness D002;

RECALLING that for any protective measures to be granted, the applicant must show that, should it become publicly known that he testified, there is a real risk to his security or that of his family, thus, the Trial Chamber must be satisfied that the fear expressed has an objective foundation;⁷

FINDING that the impugned decision does not involve an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, especially since the proposed witness has already been granted facial distortion as a protective measure after due consideration being given by the Trial Chamber to the concerns and rights of the Accused, and the relevant interests of justice;

NOTING that while the Trial Chamber need not go further and review the second prong of the cumulative criteria provided for in Rule 73(B) of the Rules, the Trial Chamber nevertheless notes that the Request for Certification does not involve an issue for which an immediate resolution by the Appeals Chamber may materially advance the proceedings;

CONSIDERING that the Defence is free, at any time, to request an augmentation of protective measures for potential witness D002, but based on new evidence and/or a variation of circumstances which the Trial Chamber would adequately address;

FOR THE FOREGOING REASONS

PURSUANT TO Articles 20 and 21(2) of the Statute of the Tribunal and to Rule 73(B) of the Rules

HEREBY DENIES the Request for Certification.

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

Dated this twenty-eighth day of September 2005,
At The Hague,
The Netherlands.

________________________
Carmel Agius
Presiding Judge

[Seal of the Tribunal]