PUBLIC VERSION OF THE CONFIDENTIAL DECISION
ON THE INTERPRETATION AND APPLICATION OF
Office of the Prosecutor: Amici Curiae:
Ms Carla Del Ponte Mr Steven Kay
Mr Branislav Tapuskovic
Mr Slobodan Milosevic
This is the public and redacted version of the Appeals Chamber’s
confidential “Decision on the Interpretation and Application of Rule 70” issued
today, Wednesday 23 October 2002.
- This appeal concerns the confidential “Decision on the Prosecution’s Motion
to Grant Specific Protection pursuant to Rule 70” issued by Trial Chamber
III on 25 July 2002 (“Impugned Decision”) Salso available in a public versionC
in which it held that Rule 70 of the Rules of Procedure and Evidence of the
Tribunal (“Rules ”), which protects the sources of certain information given
on a confidential basis , did not apply to the evidence of a witness sought
to be presented under the terms of that Rule by the Prosecution. The proposed
witness is an official of the [
] Government (“Witness”).
A. Procedural History
- On 8 August 2002, the Government of [
] filed a request for review by
the Appeals Chamber of the Impugned Decision pursuant to Rule 108bis of
the Rules (“Request for Review”).( footnote 1 )
On 19 August 2002, the Prosecution filed a response to the Request for Review.(
footnote 2 )
- On 4 September 2002, the Prosecution filed an interlocutory appeal against
the Impugned Decision under Rule 73 of the Rules (“Interlocutory Appeal”),(
footnote 3 ) having received certification from the Trial Chamber
that interlocutory appeal was appropriate on the question of the nature of
Rule 70 evidence, its origin and the manner in which the Trial Chamber was
to apply it.( footnote 4 ) The arguments advanced
by the Prosecution in the Interlocutory Appeal are similar to those contained
in its response to the Request for Review. On 6 September 2002 , the Appeals
Chamber issued an Order joining the Interlocutory Appeal and the Request for
Review in view of the fact that both referred to the Impugned Decision and
addressed the same issues (“Order for Joinder”).(
footnote 5 ) The Order for Joinder further suspended execution of
the Impugned Decision, pursuant to Rule 108bis(C), and provided for
the filing of further submissions in the matter. The accused was ordered to
file one submission, which was intended to comprise his response to the Interlocutory
Appeal and his comments on the Request for Review pursuant to Rule 108bis(B).
The same was required from the amici curiae. The Prosecution was then
ordered to file a submission in reply to these.
- No filing was received from the accused. The amici curiae and the
Prosecution filed their further submissions,( footnote
6 ) and on 18 September 2002 the [...] Government filed a “Reply of
[...] to Observations by the Amici Curiae”, in which as a preliminary point
it requested leave to make the submission set out in its Reply. Rule 108bis
makes no provision for reply from a State requesting review of a decision
of a Trial Chamber; however, the Appeals Chamber notes that no objection to
this filing has been received from the parties , and accepts it for consideration.
- All of these documents have been filed before the Appeals Chamber on a
B. Admissibility of the Request for Review
- Although the Request for Review has been joined for consideration with
the Interlocutory Appeal, it still falls to the Appeals Chamber to consider
whether the Request for Review is admissible. Rule 108bis(A) provides
that a State directly affected by an interlocutory decision of a Trial Chamber
may, within fifteen days from the date of the decision, file a request for
review of the decision by the Appeals Chamber if that decision concerns issues
of general importance relating to the powers of the Tribunal.
- The Request for Review was timely filed. With regard to whether [
locus standi, the Request for Review states that:
[...] is directly affected most obviously by the stripping away of the
Rule 70 protections to which it is entitled in relation to the official
at issue. [
] is also directly affected because the reach of the Decision
extends not only to this particular official , but to all other interviewees/potential
witnesses that have been provided by [...] pursuant to Rule 70, and indeed
to all documents and other information previously provided by it under that
Rule.( footnote 7 )
The Prosecution supports this assertion, and the amici curiae do
not address it. The Appeals Chamber considers that [...] is directly affected
by the Impugned Decision for the reasons put forward in the Request for
- With regard to the eligibility of the Impugned Decision for review under
Rule 108bis, [
] argues that it presents two issues of general importance
relating to the powers of the Tribunal. The first is that of “fundamental
procedural fairness , that an information-provider must be given notice and
an opportunity to be heard before it is deprived of the protections afforded
its information under the Tribunal’s Rules”, as [
] was not heard by the
Trial Chamber. The second it characterises as the very foundation for cooperation
with the Tribunal relied on by governments and other information-providers,
which is the “predictable protections to States and others providing potentially
sensitive information” provided by Rule 70 as [
] understands it. [
submits that the Trial Chamber’s retroactive stripping of Rule 70 protections
from information already provided has destroyed this foundation , by removing
the very predictability on which information providers rely. The Prosecution
“does not dispute” that the second of these is of general importance relating
to the powers of the Tribunal. The amici make no comment.
- The Appeals Chamber notes that Rule 70 is indeed the basis of cooperation
with the Prosecution for governments and other bodies who possess confidential
and sensitive information which could assist its investigations. The Impugned
Decision relates to the extent to which the Chambers of the Tribunal may intervene
in this relationship . As such, the Impugned Decision concerns an issue of
general importance relating to the powers of the Tribunal. The Appeals Chamber
further considers that the question of procedural fairness raised by [
is such an issue.
C. The Impugned Decision
- In its submission before the Trial Chamber, the Prosecution asked for the
Witness to be heard in accordance with paragraphs (C) and (D) of Rule 70.
It further requested that that two representatives of the [
be in court during the testimony of the Witness, to deal with matters of national
security that might arise.
- The Trial Chamber held that, in order for paragraphs (C) and (D) of Rule
70 to apply, the evidence of the Witness must satisfy certain criteria set
down in paragraph (B) of the Rule. The Impugned Decision found that the criteria
as the Chamber saw them were not satisfied, and that Rule 70 did not therefore
apply to the evidence of the Witness. However, recognising the right of States
to protect their national security interests, the Chamber ordered protective
measures designed to match those sought by the Prosecutor on behalf of [
]. Specifically, the Prosecutor was ordered to tailor its examination-in-chief
to exclude confidential information ; cross-examination was not to be permitted
beyond the subject matter of evidence -in-chief; questions as to credibility
were permitted only if answers were not liable to reveal confidential information;
and the two Government representatives were permitted to be present.
D.The questions raised on review and appeal
- In its Request for Review, [
] claims that the Trial Chamber made three
errors . First, it took the Impugned Decision without first hearing [
second, it decided that Rule 70 did not apply to the Witness without proper
inquiry; and, third, it applied an erroneous legal test in determining whether
or not Rule 70 applied.
- S ... C does not argue that the specific measures ordered by the Trial
Chamber in the Impugned Decision fail to match the protection offered by Rule
70 in this instance, but rather makes the more general complaint, outlined
above, that the decision has destroyed the basis of its cooperation with the
Prosecution and rendered Rule 70 “a dead letter”.(
footnote 8 )
- The Prosecution frames its grounds of appeal slightly differently. First,
it alleges that the Trial Chamber erred in concluding that it had the authority
to review whether or not the evidence of the Witness fell within Rule 70.
Second, it alleges that the Trial Chamber erred in fact in concluding on its
own test that Rule 70 did not apply.
- The Prosecution submits that the protective measures ordered by the Impugned
Decision fall short of the safeguards contained in Rule 70(C) and (D), in
that they do not include protection against the power of the Trial Chamber
to order additional evidence or to compel witnesses to attend trial, as is
provided by paragraph (C) of the Rule.
- In accordance with the Order for Joinder, the Appeals Chamber will discuss
these issues together.
The interpretation of Rule 70
- Rule 70 provides as follows:
E. Matters not Subject to Disclosure
(A) Notwithstanding the provisions of Rules 66 and 67, reports, memoranda,
or other internal documents prepared by a party, its assistants or representatives
in connection with the investigation or preparation of the case, are not
subject to disclosure or notification under those Rules.
(B) If the Prosecutor is in possession of information which has been provided
to the Prosecutor on a confidential basis and which has been used solely
for the purpose of generating new evidence, that initial information and
its origin shall not be disclosed by the Prosecutor without the consent
of the person or entity providing the initial information and shall in any
event not be given in evidence without prior disclosure to the accused.
(C) If, after obtaining the consent of the person or entity providing
information under this Rule, the Prosecutor elects to present as evidence
any testimony, document or other material so provided, the Trial Chamber,
notwithstanding Rule 98, may not order either party to produce additional
evidence received from the person or entity providing the initial information,
nor may the Trial Chamber for the purpose of obtaining such additional evidence
itself summon that person or a representative of that entity as a witness
or order their attendance. A Trial Chamber may not use its power to order
the attendance of witnesses or to require production of documents in order
to compel the production of such additional evidence.
(D) If the Prosecutor calls a witness to introduce in evidence any information
provided under this Rule, the Trial Chamber may not compel that witness
to answer any question relating to the information or its origin, if the
witness declines to answer on grounds of confidentiality.
(E) The right of the accused to challenge the evidence presented by the
Prosecution shall remain unaffected subject only to the limitations contained
in paragraphs (C) and (D).
(F) The Trial Chamber may order upon an application by the accused or
defence counsel that, in the interests of justice, the provisions of this
Rule shall apply mutatis mutandis to specific information in the
possession of the accused.
(G) Nothing in paragraph (C) or (D) above shall affect a Trial Chamber’s
power under Rule 89 (D) to exclude evidence if its probative value is substantially
outweighed by the need to ensure a fair trial.
- Before turning to analyse the terms of Rule 70 in detail, the Appeals Chamber
considers it important to state the Rule’s purpose, for it is that purpose
which must guide the resolution of any ambiguities in the Rule’s wording or
structure. The whole of Rule 70 is concerned with confidential material generally:
(i) Paragraph (A), which was adopted in February 1994 and originally stood
alone in the Rule, is concerned with internal documents and may be disregarded
for the purposes of this appeal.
(ii) Paragraph (B) was inserted in October 1994, and it prevents the disclosure
of information provided to the Prosecutor on a confidential basis where
that information has been used solely for the purposes of generating
new evidence, without the consent of the provider. It was designed to encourage
States and others (such as humanitarian organisations operating in the relevant
territory) to assist the Prosecution (or, under paragraph (F) of the Rule,
the Defence). The provider must consent before this information may be disclosed
any further – by being presented in evidence or otherwise. If the information
is to be disclosed in evidence, it must be disclosed to the accused in accordance
with Rule 66, as paragraph (B) provides .( footnote
(iii) The remaining paragraphs, other than the present paragraph (F),
were inserted in October 1995. Paragraph (F) deals with information provided
to the Defence, and it was added in July 1997. Some inconsequential further
amendments were made in November 1997 and April 2001.
- The purpose of Rule 70(B) to (G) is to encourage States, organisations,
and individuals to share sensitive information with the Tribunal. The Rule
creates an incentive for such cooperation by permitting the sharing of information
on a confidential basis and by guaranteeing information providers that the
confidentiality of the information they offer and of the information’s sources
will be protected.( footnote 10 ) As Trial
Chamber I explained several years ago, “the exceptions to disclosure in Sub-rules
70(B) to (E) were introduced into the rules to permit the use, as and when
appropriate, of certain information which, in the absence of explicit provisions
, would either not have been provided to the Prosecutor or have been unusable
on account of its confidential nature or its origin.”(
footnote 11 ) As another Trial Chamber has observed, without such
guarantees of confidentiality , it is “almost impossible to envisage this
Tribunal, of which the Prosecution is an integral organ, being able to fulfil
its functions.”( footnote 12 )
- The phrases “information under this Rule” and “testimony, document or other
material so provided” in paragraph (C),( footnote
13 ) and “information provided under this Rule” in paragraph (D),(
footnote 14 ) are intended to relate back to the “information which
has been provided” referred to in paragraph (B).(
footnote 15 ) The first issue which the Trial Chamber had to decide,
and which now arises in this appeal, is whether the information to which Paragraphs
(C) and (D) refer is that which has been “provided to the Prosecutor on a
confidential basis” (the first option) or that which has been “provided to
the Prosecutor on a confidential basis and which has been used solely for
the purpose of generating new evidence” (the second option). The Impugned
Decision clearly intended to interpret Rule 70 in accordance with the second
option . Paragraphs (C) and (D) deal with the situation where the provider
has already given its consent to the information being disclosed further,
by being presented in evidence in one form or another. By definition, the
information is by this stage no longer being “used solely for the purpose
of generating new evidence”. It becomes a matter of necessary textual interpretation,
therefore, that the information referred to in paragraphs (C) and (D) must
be that which was provided to the Prosecutor on a confidential basis (the
first option), and not that which was so provided and which has been
used solely for the purpose of generating new evidence (the second option).
In the opinion of the Appeals Chamber, the Trial Chamber erred in adopting
the second option rather than the first.
- The Trial Chamber also misinterpreted the terms of paragraph (B) when it
rejected the application of Rule 70 to the information in question, on the
basis that it was not satisfied that the information
[...] was provided to allow the Prosecutor to pursue lines of inquiry or
solely for the purpose of generating new evidence.(
footnote 16 )
Such an interpretation impermissibly introduced a requirement into Rule
70 that the sole purpose of providing the information was to generate
new evidence , whereas paragraph (B) speaks only of the material having
been used solely for that purpose. No doubt the purpose of providing
information on a confidential basis will in many cases include a purpose
(sole or otherwise) that new evidence will thereby be generated, but the
limitations imposed by Rule 70(B) are not based upon the existence
of such state of mind on the part of the provider.
- In addition, the Trial Chamber explained that the testimony in question
did not fall within Rule 70 for the following reasons:
Rather than information, it was the provision of a witness who the Prosecution
could have found in any case, and who is corroborating evidence about [
] which the Prosecution already had.
Thus, the Trial Chamber suggested that three characteristics of the testimony
at issue, either individually or in combination, prevented it from being
information provided under Rule 70 and thus subject to the Rule’s protections.
It was testimony , that is “provision of a witness”, “[r]ather than information.”(
footnote 17 ) The witness was one the Prosecution “could have found
in any case.”( footnote 18 ) And the testimony
corroborated other evidence “the Prosecution already had.”(
footnote 19 ) The Appeals Chamber considers that none of these characteristics
is relevant to determining whether information qualifies under Rule 70.
- The fact that information is provided in the form of testimony does not
exclude it from being “information” or “initial information” provided under
the Rule. Indeed , paragraph (C) of the Rule expressly refers to the “testimony,
document, or other material so provided.” (emphasis added). The Trial
Chamber appears to have adopted an overly narrow interpretation of the term
“information.”( footnote 20 ) When a person
possessing important knowledge is made available to the Prosecutor on a confidential
basis, not only the informant’s identity and the general subject of his knowledge
constitute the “information” shielded by Rule 70, but also the substance of
the information shared by the person – often, as in this case, presented in
summary form in a witness statement.
- The Trial Chamber’s second and third bases for excluding the testimony
at issue from the scope of Rule 70 constitute hypothetical factual conclusions:
that the Prosecutor could have found the Witness without the help of the providing
government and that the testimony corroborated other evidence the Prosecutor
already had. Even if those conclusions were true, they would not support the
Trial Chamber’s legal conclusion that the testimony in question did not constitute
information provided under Rule 70. That the Prosecutor might have identified
an informant on her own does not mean that the informant’s knowledge was not
in fact “provided . . . on a confidential basis” (or indeed that it was not
“used solely for the purpose of generating new evidence”). That the informant’s
statement happens to corroborate other evidence possessed by the Prosecutor
again does not mean that the statement was not “provided . . . on a confidential
basis” or that it was not “used solely for the purpose of generating
new evidence.” (emphasis added).
- All that Rule 70 requires is that the information “was provided to the
Prosecutor on a confidential basis.” As mentioned in paragraph 20 supra,
for purposes of paragraph (B), the information must also be “used solely for
the purpose of generating new evidence,” but for paragraphs (C) and (D) that
requirement necessarily drops out, for once the information is introduced
as evidence at trial, it by definition is no longer “used solely for the purpose
of generating new evidence.”
- In adopting its restrictive reading of Rule 70, the Trial Chamber seems
understandably to have been concerned that the Prosecutor and cooperating
governments, organisations , or individuals might abuse the Rule’s protections
to the detriment of accused persons. The Appeals Chamber observes that two
safeguards exist to ensure that any misuse does not deprive accused persons
of their rights to challenge the evidence against them and to receive a fair
trial.( footnote 21 ) First, as explained
more fully below in section D.2, the Trial Chambers do possess a limited authority
to police the application of Rule 70 in order to prevent its misapplication.
Second, paragraph (G) of Rule 70 expressly empowers the Trial Chambers to
“exclude evidence if its probative value is substantially outweighed by the
need to ensure a fair trial.” Designed to ensure that the restrictions in
paragraphs (C) and (D) do not undermine the bedrock requirement of fair trial
when the Rule is properly invoked, paragraph (G) also gives Trial Chambers
a tool to protect that requirement if the Rule has been misused.
- The decision of the Trial Chamber was thus vitiated by errors of law,(
footnote 22 ) and (as all the material necessary is available to it
to do so) it now becomes the obligation of the Appeals Chamber to determine
for itself whether Rule 70 applies to that information.
2. The application of Rule 70 to the present case
- The Prosecutor submits that the Trial Chamber exceeded its authority by
characterising for itself evidence which the Prosecution, after having obtained
the consent of the provider, had presented under the terms of Rule 70(C).
According to the Prosecutor , it is for the Prosecutor and the information
provider to make that characterisation . The [
] Government allows that
the Trial Chamber may examine whether the information was indeed provided
in accordance with Rule 70(B).( footnote 23 )
- The Appeals Chamber agrees with the [
] Government that Chambers of the
Tribunal do indeed have the authority to assess whether information has been
provided in accordance with Rule 70(B) and so benefits from the protections
afforded by that Rule. However, such enquiry must be of a very limited nature:
it only extends to an examination of whether the information was in fact provided
on a confidential basis, bearing in mind that the providing of information
may not be confined to a single act, but may consist of a process involving
several acts. This is an objective test. The Chambers may be satisfied of
this simply by a consideration of the information itself, or by the mere assertion
of the Prosecutor, or they may require confirmation from the information provider
or, where the information is in the form of a document , for example, there
may be something on the face of the document which indicates that it was indeed
provided on a confidential basis.
- In the current matter, the Trial Chamber correctly found that it had the
power to determine whether the evidence of the Witness fell within the terms
of Rule 70 . As explained in paragraph 20, its error was in the test which
- The Appeals Chamber, in determining whether the information was provided
on a confidential basis and whether the Prosecutor obtained the consent of
the provider to its presentation in evidence, sees no need in the present
case to hear the parties , as these issues are agreed by both of them. Where,
however, there is any doubt upon the face of the material placed before a
Trial Chamber when the protections of Rule 70 are sought, the Trial Chamber
should invite the party which provided the information and the Prosecutor
to supply evidence upon these issues before ruling upon the application of
Rule 70 to the information in question. The Trial Chamber should give the
information provider an opportunity to be heard on the question by filing
written submissions, but need not allow additional oral submissions by the
information provider unless the Trial Chamber determines that the interests
of justice so require.
- The Appeals Chamber is satisfied that Rule 70 applies to the information
to be given in evidence by the Witness in the present case. The appeal must
therefore be allowed.
- The Prosecutor sought, in addition to an order that Rule 70 applied to
that information, an order that two representatives of the provider be present
in court whilst the evidence is given. Rule 70 does not provide for such an
order, but it is within the discretion of any Trial Chamber to make such an
order. Such an order has already been made by the Trial Chamber, and it is
confirmed by the Appeals Chamber .
FOR THE FOREGOING REASONS
THE APPEALS CHAMBER
PURSUANT TO Rules 70, 73, 75, 107 and 108bis of the Rules;
GRANTS the Request for Review and the Interlocutory Appeal;
QUASHES the Impugned Decision,
and ORDERS as follows:
The evidence of the Witness shall be heard in accordance with Rule 70
paragraphs (B) to (G);
Two representatives of the [
] Government may be present in the courtroom
during the testimony of the Witness.
Done in both English and French, the French text being authoritative.
Judge Claude Jorda
Dated this twenty-third day of October 2002
At The Hague,
[Seal of the Tribunal]
Footnote 1 - “Request of [ … ] for Review
of Decision on the Prosecution’s Motion to Grant Specific Protection pursuant
to Rule 70”.
Footnote 2 - “Prosecution’s Response
to the ‘Request of [ … ] for Review of Decision on the Prosecution’s Motion
to Grant Specific Protection Pursuant to Rule 70’”.
Footnote 3 - “Prosecution’s Interlocutory
Appeal against the Trial Chamber’s 25 July 2002 ‘Decision on the Prosecution’s
Motion to Grant Specific Protection pursuant to Rule 70’”.
Footnote 4 - “Decision on Prosecution’s
Application for Certification under Rule 73(B) concerning Rule 70”, 29 August
Footnote 5 - “Order for Joinder of Requests
and Scheduling Order”.
Footnote 6 - “Observations by the Amici
Curiae on the ‘Prosecution’s Interlocutory Appeal against the Trial
Chamber’s 25 July 2002 ‘Decision on the Prosecution’s Motion to Grant Specific
Protection pursuant to Rule 70’ and the ‘Request of [ ... ] for Review of
Decision on the Prosecution’s Motion to Grant Specific Protection pursuant
to Rule 70’”, 13 September 2002; “Prosecution’s Reply to Observations of
the Amici Curiae on the Prosecution’s Interlocutory Appeal regarding
Rule 70”, 18 September 2002.
Footnote 7 - Request for Review, p.2.
Footnote 8 - “Reply of [ ... ] to Observations
by the Amici Curiae”, 18 September 2002, p.5.
Footnote 9 - “[…] and shall in any event
not be given in evidence without prior disclosure to the accused.”
Footnote 10 - In general terms, the
Trial Chamber appears to have recognised this basic purpose. See Impugned
Footnote 11 - Prosecutor v. Blaškic,
IT-95-14-T, “Decision of Trial Chamber I on the Prosecutor’s Motion for
Video Deposition and Protective Measures”, 13 November 1997, §10 (“Blaškic
Decision”); see also Prosecutor v. Brdjanin & Talic, IT-99-36-T,
“Public Version of the Confidential Decision on the Alleged Illegality of
Rule 70, 6 May 2002”, §17 (“Brdjanin & Talic Decision”).
Footnote 12 - Brdjanin & Talic Decision,
Footnote 13 - “[…] after obtaining
the consent of the person or entity providing information under this Rule,
the Prosecutor elects to present as evidence any testimony, document or
other material so provided […].”
Footnote 14 - “[…] introduce in evidence
any information provided under this Rule, […].”
Footnote 15 - “[…] the Prosecutor is
in possession of information which has been provided […].”
Footnote 16 - Impugned Decision, §10.
Footnote 17 - Impugned Decision, §10
Footnote 18 - Id.
Footnote 19 - Id.
Footnote 20 - The Amici Curiae also
advance such an interpretation before the Appeals Chamber. See “Observations
by the Amici Curiae on the ‘Prosecution’s Interlocutory Appeal against
the Trial Chamber’s 25 July 2002 ‘Decision on the Prosecution’s Motion to
Grant Specific Protection pursuant to Rule 70’ and the ‘Request of [ ...
] for Review of Decision on the Prosecution’s Motion to Grant Specific Protection
pursuant to Rule 70’”, 13 September 2002, §28.
Footnote 21 - See Statute Article 21(2),
Footnote 22 - Prosecutor v. Milosevic,
IT-99-37-AR73, IT-01-50-AR73 & IT-01-51-AR73, “Reasons for Decision on Prosecution
Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002, §6.
Footnote 23 - “Reply of [ ... ] to
Observations by the Amici Curiae”, 18 September 2002, p.3.