Case No.: IT-04-81-PT


Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy

Mr. Hans Holthuis

Decision of:
27 May 2005







The Office of the Prosecutor

Mr. Dermot Groome
Mr. Chester Stamp
Mr. Karim Agha

Counsel for Momčilo Perišić

Mr. James Castle


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 ("the International Tribunal"),

BEING SEISED of a "Prosecution Motion for Protective Measures for Witnesses" filed by the Office of the Prosecutor ("Prosecution") on 24 March 2005 ("Motion"), in which the Prosecution requests:

  1. the extension of protective measures ordered in Prosecutor v. Jovica Stanisic and Franko Simatovic1 with respect to two witnesses, identified as B-235 and C-058 ("Prior Protected Witnesses Application"), and
  2. with respect to one witness, identified as SS-220, for whom protective measures are sought for the first time ("First Instance Witness Application")

    1. that the Prosecution be relieved of its obligation under Rule 66(a)(i) to disclose the full prior statement of the witness and related exhibits and be permitted to provide a version which is redacted to protect the witness identity,
    2. that the witness be assigned a pseudonym corresponding to the Prosecution witness number already assigned to the witness,
    3. that full disclosure of the witness identity, statement and related exhibits be delayed until 30 days prior to the expected date of his testimony,
    4. that any third party provided with confidential information in preparation of the defence be required to sign a non-disclosure agreement, and

  1. the extension of the time limit for service of Rule 66 (A)(i) material that is the subject of the Motion until after the decision of the Trial Chamber on the Motion.

NOTING that the Defence of Momčilo Perišić (“the Accused") has not filed any response to the Motion,

NOTING that the Prosecution submits that delayed disclosure to the Accused and non-disclosure to the public is justified for these witnesses because (1) of the extreme nature of the danger and risk they face, should it become known that they will testify in these proceedings, (2) the witnesses will testify in relation to matters bearing directly on the criminal responsibility of the Accused, matters that relate to high level operations of government agencies, or perpetrator groups identified in the indictment, and (3) in those instances where disclosure to a third party is necessary for the preparation of the defence, the Prosecution submits that a non-disclosure agreement balances the need of the defence to adequately prepare their case with the need to protect witnesses,

CONSIDERING that Article 20 (1) of the Statute of the International Tribunal ("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, and that Article 21(2) of the Statute entitled the accused to a fair and public hearing, subject to Article 22 of the Statute, which requires the Tribunal to adopt measures for the protection of victims and witnesses,

NOTING that, with respect to Prior Protected Witnesses Application, Rule 75 (F) of the Rules of Procedure and Evidence ("Rules") provides:

(F) Once protective measures have been ordered in respect of a victim or witness in any proceedings before the Tribunal (the "first proceedings"), such protective measures:

(i) shall continue to have effect mutatis mutandis in any other proceedings before the Tribunal (the "second proceedings") unless and until they are rescinded, varied or augmented in accordance with the procedure set out in this Rule; but

(ii) shall not prevent the Prosecutor from discharging any disclosure obligation under the Rules in the second proceedings, provided that the Prosecutor notifies the Defence to whom the disclosure is being made of the nature of the protective measures ordered in the first proceedings.

NOTING that, in Stanišić, the Trial Chamber ordered (1) that the two witnesses be identified by pseudonyms, (2) that their statements and related exhibits be disclosed to the Defence in redacted form, (3) that, unless otherwise ordered by the Trial Chamber, their identities and unredacted statements and related exhibits be disclosed no later than 30 days prior to the anticipated start of the trial, and (4) that the material relating to these witnesses not be disclosed by the Defence to third parties, except to the extent necessary for the preparation and presentation of the Defence case, in which case non-disclosure agreements be obtained prior to releasing the material to them,2

CONSIDERING therefore that, since pursuant to Rule 75(F)(i), the protective measures ordered in that case shall continue to have effect in this case mutatis mutandis, the Prosecution’s request that identical protective measures be ordered in this case with respect to these witnesses is superfluous,

CONSIDERING further that, pursuant to Rule 75(F)(ii), the appropriate action for the Prosecution to take would have been to disclose the statements of these two witnesses to the Accused, with the statement identified by pseudonym and redacted to remove identifying information, and simultaneously inform the Accused of the existence of the protective measures ordered in respect of those witnesses,3

CONSIDERING that delayed disclosure of the identity of a witness to the Defence is governed by Rule 69 (A) and (C) which provides:

(A) In exceptional circumstances, the Prosecutor may apply to a Judge or 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.


(C) 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.

NOTING that, in Stanišić, this Trial Chamber cited with approval the three criteria set out in the Brđanin Decision that must be considered when delayed disclosure is requested under Rule 69(A):

    1. the likelihood that Prosecution witness will be interfered with or intimidated once their identity is made known to the accused and his counsel, but not to the public,

    2. the distinction which must be drawn between measures to protect individual victims and witnesses in the particular trial, which are permissible under the Rules, and measures which simply make it easier for the Prosecution to bring cases against other persons in the future, which are not, and

    3. the length of time before the trial at which the identity of the victims and witnesses must be disclosed to the accused,4

CONSIDERING that the requirement that the accused be granted a fair trial dictates that the Trial Chamber should only grant protective measure where it is properly shown, in the circumstances of each individual witness, that the protective measures sought meet the requirements of the Rules, as elaborated in the jurisprudence of the Tribunal,5

CONSIDERING that the Trial Chamber is satisfied, on the basis of the information contained in the Motion and its Annexes, that the Prosecution has established that exceptional circumstances exist to merit the protective measures requested with respect to the First Instance Witness Application,

CONSIDERING that, consistent with the general practice of this Trial Chamber, the Prosecution will be required to disclose to the Defence the identity and full statement of this witness 30 days prior to the anticipated start of the trial,

PURSUANT TO Rules 54, 66, 69, 75, and 127 of the Rules,


    1. the Prosecution First Instance Witness Application is granted;

    2. the witness shall be identified by pseudonym and referred to as SS-220;

    3. the time for disclosing Rule 66(A)(i) material concerning the First Instance Witness is extended, the Prosecution shall disclose the statement and related exhibits of the witness in redacted form within seven days;

    4. the Prosecution shall disclose the full and unredacted statement and related exhibits of the witness no later than 30 days prior to the anticipated start of the trial in this matter, unless otherwise ordered by the Trial Chamber; and

    5. the Defence shall not disclose the material relating to this witness to third parties except to the extent directly and specifically necessary for the preparation and presentation of the defence case, and shall obtain non-disclosure agreements from any third party as a precondition for release of the material to them.

  2. BY A MAJORITY, Judge Kwon dissenting:6

(a) The Prosecution Prior Protected Witnesses Application is dismissed.


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

Patrick Robinson

Dated this twenty-seventh day of May 2005
At The Hague
The Netherlands

[Seal of the Tribunal]

1. Prosecutor v. Stanisic and Simatovic, "Decision on Confidential Prosecution Motions for Protective Measures", Case No. IT-03-69-PT, 26 October 2004 ("Stanisic and Simatovic Decision").
2. Ibid.
3. Prosecutor v. Lazarevic & Lukic, "Decision on Prosecution’s Motion for Protective Measures and Request for Joint Decision on Protective Measures", Case No. IT-03-70-PT, 19 May 2005 ("Lazarevic & Lukic Decision"), p. 3.
4. Stanisic and Simatovic Decision, supra note 1, p. 4, citing Prosecutor v. Brdjanin & Talic, "Decision on Motion by Prosecution for Protective Measures", Case No. IT-99-36-PT, 3 July 2000, paras 26-38.
5. Prosecutor v. Mrksic et al., "Decision on Confidential Prosecution Motions for Protective Measures and Nondisclosure and Confidential Annex A", Case No. IT-95-13/1-PT, 9 March 2005, p. 3.
6. See "Dissenting Opinion of Judge O-Gon Kwon", appended to Lazarevic & Lukic Decision, supra note 3, p. 7.