Before: Judge McDonald, Presiding

Judge Stephen

Judge Vohrah

Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision: 10 August 1995







The Office of the Prosecutor:

Mr. Grant Niemann
Ms. Brenda Hollis

Mr. Alan Tieger
Mr. William Fenrick

Mr. Michael Keegan

Counsel for the Accused:

Mr. Michail Wladimiroff
Mr. Milan Vujin
Mr. Krstan Simic


This Tribunal is faced, in this its first case, the prosecution of Dusko Tadic, with a problem posed for it by an interlocutory application by the prosecution seeking protective measures regarding the identity of certain prosecution witnesses.

Although the application is concerned only with the case of Dusko Tadic and this Chamber must decide it solely by reference to this case, it is clear that the problem which the Chamber confronts will not be unique to this case but is most likely to recur in many, if not most, cases that will come before it.

The problem concerns the extent to which, if at all, the identity of witnesses who fear for their safety or that of their family or associates should they give evidence can be kept from the public, from the defence or from both. It is a problem inherent in the circumstances of the Tribunal. The Tribunal has no police force or protection service that can care for the safety of witnesses once they leave the precincts of the Tribunal. It has no witness protection programme nor the funds to provide one. A number of the witnesses live in the territory of former Yugoslavia or have family there and fear that they or their family may be harmed, either in revenge for having given evidence or in order to deter others. Other witnesses may fear that even as refugees in other countries they may be at risk. In the event, a number of witnesses in this case have sought anonymity, either as a condition of giving evidence or as a request that may mature into such a condition.

The problem is, of course, how to respond to the very natural concern of witnesses while at the same time according justice to the accused and ensuring a fair trial.

An understanding of the problem begins with an appreciation of the origins of this Tribunal. Earlier resolutions of the Security Council in 1991 and 1992 led to Resolution 808 (1993) which decided that an international tribunal for the prosecution of persons responsible for serious violations of international humanitarian law in former Yugoslavia be established and requested the Secretary General to submit a report on all aspects of the matter. This the Secretary General did and in dealing with trials to be conducted by the Tribunal paragraph 99 of his Report reads:

'The Trial Chambers should ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence and with full respect for the rights of the accused. The Trial Chamber should also provide appropriate protection for victims and witnesses during the proceedings."

Paragraph 103 reads:

"The hearings should be held in public unless the Trial Chamber decides otherwise in accordance with its rules of procedure and evidence."

The report also deals with the "Rights of the accused" and with the "Protection of victims and witnesses". Paragraph 106 states:

"It is axiomatic that the International Tribunal must fully respect internationally recognised standards regarding the rights of the accused at all stages of its proceedings. In the view of the Secretary-General, such international recognised standards are, in particular, contained in article 14 of the International Covenant on Civil and Political Rights."

Then paragraph 108 reads:

"In the light of the particular nature of the crimes committed in the former Yugoslavia, it will be necessary for the International Tribunal to ensure the protection of victims and witnesses. Necessary protection measures should therefore be provided in the rules of procedure and evidence for victims and witnesses, especially in cases of rape or sexual assault. Such measures should include, but should not be limited to the conduct of in camera proceedings, and the protection of the victim's identity."

Each of the four above paragraphs is followed by recommended Articles to give effect to them. On adoption by the Security Council , these became Articles 20, 21 and 22 of the Statute of the Tribunal.

Article 20(1) and (4), parts of Article 21 and the whole of Article 22 are of direct relevance to this application. Indeed they set the scene for the problem raised by the application. They read as follows:

Article 20(1): Commencement and Conduct of Trial Proceedings

"The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses."

Article 20(4):

"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: Rights of the Accused

1. All persons shall be equal before the International Tribunal

2. In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute.

3. The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute.

4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:




(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;



Article 22: Protection of Victims and Witnesses

"The International Tribunal shall provide in its rules of procedure and evidence for the protection of victims and witnesses. Such protection measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim's identity."

In conformity with Article 15 of the Statute, the judges of the Tribunal have adopted rules of procedure and evidence. Relevant to the present application are the following rules which seek to give effect to the above Articles of the Statute:

Rule 66: Disclosure by the Prosecutor

(A) The Prosecutor shall make available to the defence, as soon as practicable after the initial appearance of the accused, copies of the supporting material which accompanied the indictment when confirmation was sought as well as all prior statements obtained by the Prosecutor from the accused or from prosecution witnesses.

(B) The Prosecutor shall on request, subject to Sub-rule (C) permit the defence to inspect any books, documents, photographs and tangible objects in his custody or control, which are material to the preparation of the defence, or are intended for use by the Prosecutor as evidence at trial or were obtained from or belonged to the accused."

Rule 67: Reciprocal Disclosure

(A) As early as reasonably practicable and in any event prior to the commencement of the trial:
(i) the Prosecutor shall notify the defence of the names of the witnesses that he intends to call in proof of the guilt of the accused and in rebuttal of any defence plea of which the Prosecutor has received notice in accordance with Sub-rule (ii) below;"

(ii) .....................................

(B) .........................

(C) .........................

(D) If either party discovers additional evidence or material which should have been produced earlier pursuant to the Rules, that party shall promptly notify the other party and the Trial Chamber of the existence of the additional evidence or material."

Rule 68: Disclosure of Exculpatory Evidence

"The Prosecutor shall, as soon as practicable, disclose to the defence the existence of evidence known to the Prosecutor which in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence."

Rule 69: Protection of Victims and Witnesses

(A) 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."

(B) In the determination of protective measures for victims and witnesses, the Trial Chamber may consult the Victims and Witnesses Unit."

Rule 70: Matters not Subject to Disclosure

(A) Notwithstanding the provisions of Rules 66 and 67, reports, memoranda, or other internal documents prepa`red 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 him 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."

Rule 75: Measures for the Protection of Victims and Witnesses

(A) A Judge or a Chamber may, proprio motu or at the request of either party, or of the victim or witness concerned or of the Victims and Witnesses Unit, order appropriate measures for the privacy and protection of victims and witnesses, provided that the measures are consistent with the rights of the accused.

(B) A Chamber may hold an in camera proceeding to determine whether to order:

(i) Measures to prevent disclosure to the public or the media of the identity or whereabouts of a victim or a witness, or of persons related to or associated with him by such means as:
(a) expunging names and identifying information from the Chamber's public records;

(b) non-disclosure to the public of any records identifying the victim:

(c) giving of testimony through image- or voice- altering devices or closed circuit television; and

(d) assignment of a pseudonym;

(ii) closed sessions, in accordance with Rule 79;

(iii) appropriate measures to facilitate the testimony of vulnerable victims and witnesses, such as one-way closed circuit television.

(C) A Chamber shall, whenever necessary, control the manner of questioning to avoid any harassment or intimidation."

Rule 79: Closed Sessions

(A) The Trial Chamber may order that the press and the public be excluded from all or part of the proceedings for reasons of:
(i) public order or morality;

(ii) safety, security or non-disclosure of the identity of a victim or witness as provided in Rule 75; or

(iii) the protection of the interests of justice"

Beginning with the Report of the Secretary-General and carrying on through the above provisions of the Statute and the Rules there can be discerned an apparent concern for and, indeed, a degree of tension between what the Secretary-General calls the "axiomatic" need fully to respect "unconditionally recognised standards regarding the rights of the accused" and the quite distinct need "to ensure the protection of victims and witnesses." It is the reconciliation of these two needs that is the concern of this Chamber in this application.

Before turning to decided cases for whatever assistance they may provide, it is proper first to examine the terms of the Statute and Rules set out above. It is noteworthy that it was very much part of the prosecution case that it is the Statute and Rules that are determinative and that little is to be gained from case law because of the unique nature of this Tribunal.

Article 20(1) instructs Trial Chambers to ensure that a trial is "fair" and "that proceedings are conducted......with full respect for the rights of the accused and due regard for the protection of victims and witnesses." Then Article 21 sets out what are those rights of the accused that are to be given full respect, while Article 22 directs the Tribunal to make rules for witnesses' protection including but not limited to in camera proceedings and protection of identity.

There is a marked contrast, its significance conceded by the prosecution, to be seen in the language of Article 20(1) between what it says about ensuring that proceedings are conducted with full respect for the rights of the accused and what it then says about proceedings being conducted with due regard for the protection of victims and witnesses. This is, if anything, given more emphasis by the further contrast between the detailed and emphatic enumeration of distinct rights of the accused in Article 21 and the rule-making direction in Article 22, which does no more than direct that provision be made in the Rules for witness protection, in particular two specific forms of such protection, in camera proceedings and protection of identity.

While these Articles, rather than resolving the current problem, essentially lay the ground for it, they do at the same time provide some guidance towards its resolution. First are the contrasts noted above in both the tone and the substance of Articles 21 and 22; secondly there is the striking difference between the entitlement to a "fair and public trial" conferred by Article 21(2), expressly made "subject to article 22", and all the other rights of the accused specified in the remainder of Article 21, which are wholly unqualified by any reference to Article 22. The fact that Article 21(2) is made subject to Article 22 makes all the more significant the unqualified nature of the other rights conferred on the accused by Article 21. It surely is tantamount to an assertion that the remainder of Article 21 is not subject to Article 22; otherwise I find the confining of the reference to Article 22 solely to Article 21(2) as inexplicable.

That phrase "subject to Article 22" itself repays analysis. What it is in Article 21(2) that is to be subject to Article 22 can scarcely be the combined concept which precedes that phrase, the concept of "a fair and public hearing." It must rather be only one component of that concept, the public quality of the hearing and not its fairness, that is made subject to Article 22, and this for two reasons: first, because, while Article 22 specifically contemplates non-public hearings, it certainly does not contemplate unfair hearings; secondly, because Article 20(1) itself, unqualifiedly and quite separately from Article 21, requires a Trial Chamber to ensure that a trial is "fair." If this understanding of the phrase "subject to Article 22" be correct and it is primarily the public quality, not the fairness, of a hearing that may have to give way to the need to protect victims and witnesses, that in turn suggests that the kind of protection being thought of in Article 22 is essentially those measures that will affect the public nature of the trial, rather than its fairness.

Perhaps it is permissible to seek further guidance from the Secretary-General's Report and this in two ways; first, in paragraph 108, which introduces Article 22, he refers to the need for protection measures for victims and witnesses "especially in cases of rape or sexual assault." What is special about such witnesses is not, of course, that by giving evidence they or their family, more than other victims who give evidence, have reason to fear retaliation. What does make their case special is the combination of possible social consequences of it becoming generally known in communities in the former Yugoslavia that a woman has been a rape victim and also the often acute trauma of facing one's attacker in court and being made to relive the experience of the rape. The customary protection measures to guard against these two possible consequences are in camera proceedings, devices to avoid confrontation with the accused in court and careful control of cross-examination. That being so, it leads me to the conclusion that it is measures such as those, and not any wholesale anonymity of witnesses, that Article 22 primarily contemplates.

While no one of these several considerations is on its own conclusive as to the meaning of the Statute, their combined effect is, to me, convincing. Add to this the express and unqualified terms of Article 21 with its spelling out of specific rights of the accused, including the "minimum guarantees" in (4), as to all of which Article 20(1) requires the Trial Chamber to ensure that they are accorded full respect, and it seems clear that the according of anonymity to prosecution witnesses in the way proposed in the present application, which is likely substantially to disadvantage the defendant, is not a measure contemplated by the terms of the Statute.

The express terms of Article 21: that all persons shall be equal and that the accused shall have "the following minimum guarantees, in full equality" including a guarantee of being tried in his own presence and of having the right "to examine, or have examined, the witnesses against him....." is wholly consistent with this interpretation of the Statute and sits ill with any other view of it.

My conclusion therefore is that the Statute does not authorise anonymity of witnesses where this would in a real sense affect the rights of the accused specified in Article 21 and in particular the "minimum guarantee" in (4). Of course, the Statute clearly mandates the protection of victims and witnesses, including protection of their identity. But this is not to say that it mandates unqualified anonymity of witnesses. Simple protection of identity is something that in appropriate cases, as with offences involving minors, in certain matrimonial cases and where gross indecency and rape are involved, has been habitually accorded by Courts in many jurisdictions for very many years but by recourse to in camera proceedings or restrictions on media reporting without involving the ultimate step of concealing the identity of a witness from the accused and his counsel.

Before leaving the Statute it should be appreciated what full anonymity of a witness could entail were all the relief sought by this application to be granted and fully availed of by the prosecution. The cumulative effect would permit, for the testimony of these important and vulnerable witnesses, hearings in camera, the name and other identifying data of a witness withheld from the defence and the testimony given from a special room linked to the courtroom by closed circuit television and the use of voice altering devices and the image of the witness either so distorted as to be unrecognisable or not transmitted at all to the defence. The consequence could be that to the defence the accuser would appear as no more than a disembodied and distorted voice transmitted by electronic means. Yet this could be the means of bringing before the Chamber evidence which the prosecution has described as either very important or important, evidence which could lead to the accused's conviction on very serious charges.

In view of my conclusion as to the Statute I need spend less time in examining the Rules. Those that I have set out above, which I believe to be the relevant Rules, largely speak for themselves. Rules 66, 67 and 68 are all concerned with ensuring full and early disclosure of all evidence, including details of witnesses to be called. They set the pattern for the rest of the Rules, a pattern concerned to ensure, in compliance with the Statute, a fair trial of an accused.

The only provisions at all dealing with anonymity of witnesses occur in Rules 69, 70 and 75. But Rule 69 is telling in the very partial nature of its exception to full disclosure; it is confined to "exceptional circumstances" and even then only permits of non-disclosure of identity until a victim or witness "is brought under the protection of the Tribunal." Rule 70 is inapplicable to the present case but its presence, like that of Rule 69, is significant, stressing as it does that it is a very limited exception to the general rule of full disclosure.

Rule 75(A) is made expressly subject to "the rights of the accused" and is not specifically concerned with anonymity but very generally with "the privacy and protection of victims and witnesses." In view of what I say below with regard to certain witnesses who were apparently in the role of mere bystanders, it has some present operation in their case but subject always to the observance of the "guaranteed" rights of the accused. Rule 75(B) is highly significant since it expressly provides for an application such as the present but, while being entirely precise as to what may be ordered, confines itself in para. (i) to preventing disclosure of identity of victims or witnesses "to the public or the media" There is thus in (i) no question of non-disclosure to the accused. The closest that Rule 75 comes to that is in (B) (iii) but that reference may refer to no more than relieving a witness from the ordeal of confrontation thus, as it says, facilitating the testimony of vulnerable victims and witnesses. Rule 75B(iii) would clearly cover the relieving of a witness from the ordeal of face to face confrontation and in the case of vulnerable witnesses it would also extend to non-disclosure of their names where this does not in a real sense affect the rights of the accused. But as to any general anonymity in the case of witnesses who have had dealings with the defendant and are known to him, I would regard it as curious indeed for the Rules, after such specific and elaborate provisions for full disclosure, to introduce so radical a concept of anonymity by such indirect and ambiguous wording.

That said, there are some of the witnesses for whom protection is sought by the prosecution with whom I deal below and to whom special circumstances apply. In discussing below the decided cases I refer to Jarvie's case and the concept of identity as known to the accused. That concept can be significant in two quite different ways. The first is the common case with under-cover police witnesses, as instanced in Jarvie, where the accused has known the witness in the past but only by a false name. In that case what justice may require, when protection of witnesses is important, is that only the false name should be revealed. The second significance of the concept is where the witness has been a mere chance observer who is not known to the accused by any name or at all, having had no direct contact with him but having seen occurrences involving the accused to which he can testify.

In the case of two witnesses, J and K, bystanders having no other involvement with the accused than as coincidental observers of alleged acts of his, on the information at present disclosed to the Chamber there would seem to be no question of their identity being either already known to him or possessing particular significance for his defence if revealed to him.

If, as rather appears from the material before the Chamber, witness J and K do fall into this category then different considerations apply to them from those affecting witnesses who have had direct prior dealings with the accused and whose identity as know to him seem to me to be essential so that he and his counsel can make sense of their evidence and place it in its contextual setting, thus allowing the defence to be conducted effectively.

This was a distinction acknowledged by defence counsel in his submission before us as possibly applying to witness J and K and it leads to different consequences in their case. True, to conceal the names and addresses of these two witnesses may prevent the making of prior enquiry, conceivably going to their credit, but in no way hinders the defence in understanding the role of the witness and what part, if any, he or she played as an observer of the events which the witness describes.

If it proves to be the case that witnesses J and K do, in fact, clearly fall into this category of mere chance observers then, having regard to all the circumstances of understandable fear of consequences that witnesses have, I would favour the non-disclosure of the name and address of such witnesses since knowledge of their identity would not add to the information which the defence needs to cross-examine them about the events to which they testify Such non-disclosure may, it is true, impede or perhaps prevent enquiries as to the past history of these witnesses, which might go to credit, but it will not obstruct cross-examination as to the matters observed by them and of which they give evidence. It therefore does not so hinder the defence as to deny that element of fairness stipulated for in Articles 20(1) and Article 21(2) nor do violence to his guaranteed rights under Article 21(4); at the same time it gives effect to Article 22.

I can conclude my survey of the Rules by saying, in sum, that they give no support for anonymity of witnesses at the expense of fairness of the trial and the rights of the accused spelt out in Article 21. In this they are, in their entirety, consistent with the Statute

I turn now to the cases. They are, quite generally and in a variety of jurisdictions, in favour of allowing an accused and his counsel to see and hear the witnesses as they give their evidence and are cross-examined.

I begin with a general proposition, from English law, unaffected as it is by any special statutory or constitutional provision. In D v National Society for the Prevention of Cruelty to Children 1978 AC at p. 232 Lord Simon of Glaisdale said:

"The public interest that no innocent man should be convicted of crime is so powerful that it outweighs the general public interest that sources of police information should not be divulged,.............:".

Then, in the leading case of Kostovski 1989 Series A no. 166, the European Court of Human Rights (the EC of HR) expressed general views on the question of anonymous witnesses. The background of the case is informative and emphasises its particular relevance.

The Dutch Supreme Court in Kostovski had given effect "with the increase in violent, organised crime" to a felt need "to protect those witnesses who had justification for fearing reprisals, by granting them anonymity." The Dutch Government had set up in 1984 a Commission on Threatened Witnesses which had reported that "In some cases one cannot avoid anonymity of present there are forms of organised criminality of a gravity that the legislature of the day would not have considered possible." It added that "in a society governed by the needs of law.....the frustration of the course of justice resulting [from this situation] cannot possibly be accepted." The Commission accordingly recommended that, where a witness would run an unacceptable risk if his or her identity were known, an anonymous statement might be admitted in evidence if the witness had been examined by an examining magistrate, the accused being given a right of appeal against the latter's decision to grant anonymity. The Dutch Government decided to defer the enacting of legislation to implement these recommendations of the Commission pending the EC of HR's decision in Kostovski.

Kostovski relied on the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6, paras. 1 and 3(d), which are the antecedent of and hence strikingly similar to Article 21 paras. 2 and 4(d) of our Statute, save that in our Statute para. 2 is made subject to Article 22; not so of course, as noted above, the detailed provisions of para. 4 of Article 21. It is noted that no equivalent of Article 22 appears in the European Convention; decisions on it must be read in the light of that fact.

What the EC of HR said in Kostovski about anonymity is of particular relevance to the present case. It said, at p. 21:

"The right to a fair administration of justice holds so prominent a place in a democratic society......that it cannot be sacrificed to expediency. The Convention does not preclude reliance, at the investigation stage of criminal proceedings, on sources such as anonymous informants. However, the subsequent use of anonymous statements as sufficient evidence to found a conviction, as in the present case, is a different matter. It involved limitations on the rights of the defence which were irreconcilable with the guarantees contained in Article 6. In fact the Government accepted that the applicant's conviction was based 'to a decisive extent' on the anonymous statements."

It is noteworthy that the relevant part of Article 6 of the European Convention is almost word for word the same as Article 21 (4) of the Statute of the Tribunal. The Court had earlier said, at p. 20, that:

"If the defence is unaware of the identity of the person it seeks to question, it may be deprived of the very particulars enabling it to demonstrate that he or she is prejudiced, hostile or unreliable. Testimony or other declarations inculpating an accused may well be designedly untruthful or simply erroneous and the defence will scarcely be able to bring this to light if it lacks the information permitting it to test the author's reliability or cast doubt on his credibility. The dangers inherent in such a situation are obvious."

Kostovski is a recent decision. It relied upon the Court's earlier decision in Unterpertinger 1986 Series A no. 110 where there had been a reading out in Court of statements made by witnesses to the police without any opportunity for cross-examination. In that case the EC of HR, at p. 11, said of this use of these statements that:

"the use made of them as evidence must nevertheless comply with the rights of the defence, which it is the object and purpose of Article 6 to protect. This is especially so where the person 'charged with a criminal offence', who has the right under Article 6 para. 3(d) to 'examine or have examined' witnesses against him, has not had an opportunity at any stage in the earlier proceedings to question the persons whose statements are read out at the hearing."

The Court went on to say that the Austrian Court had treated these statements to the police:

"as proof of the truth of the accusations made by the women at the time. Admittedly, it was for the Court of Appeal to assess the material before it as well as the relevance of the evidence which the accused sought to adduce; but Mr. Uterpertinger was nevertheless convicted on the basis of 'testimony' in respect of which his defence rights were appreciably restricted.

That being so, the applicant did not have a fair trial and there was breach of paragraph 1 of Article 6 of the Convention, taken together with the principles inherent in paragraph 3(d)".

There are a number of recent decisions of the EC of HR which bear on the matter and which follow the decision in Kostovski and Unterpertinger and specifically cite with approval the decision in Kostovski - Windisch v Austria (Case 25 of 1989) Delta v France (Case 26 of 1989) and Ludi v Switzerland, a 1992 decision of the Court. The first two of these cases found a violation both of the accused's right to a fair and public hearing and of his right to examine or have examined witnesses against him at trial, a right conferred by the European Convention. The relevant words of the Convention are, of course, very similar to the relevant Articles of our Statute; not suprisingly since the Convention formed a model on which these parts of the International Covenant on Civil and Political Rights was based. That Covenant in turn was the inspiration for much in the Statute of this Tribunal; thus the Secretary-General refers in paragraph 106 of his Report to Article 21 of our Statute as giving effect to those internationally recognised standards regarding the rights of the accused which are "in particular, contained in Article 14 of the International Covenant."

The 1992 case of Ludi v Switzerland distinguished on the facts the cases of Kostovoski and Unterpertinger but nevertheless held that the rights of the defence were so restricted as to violate the right to a fair trial. While acknowledging the absence from the Convention of an equivalent of Article 22 of our Statute, nevertheless there exists a solid body of decisions in the EC of HR which is consistent with the interpretation which I place upon the Statute and Rules of the Tribunal.

There are decision which have been able to take a different view by emphasising that admissibility and assessment of evidence is primarily a matter for regulation by national law and national courts - first Asch v Austria, 1990. in which the Court distinguished Unterpertinger and Delta on the very special facts present in Asch; it did not, in any event, concern an anonymous witness but, rather the case of hearsay evidence. Then in Hayward v Sweden 1990, a decision not of the Court but of the Commission, reliance was again placed upon admissibility of evidence being a matter for national Courts. This is not, however, a consideration of any relevance in the case of this Tribunal. In an interesting article by Osborne in [1993] Criminal Law Review p. 255 all these EC of HR cases are discussed and the conclusion is reached that Unterpringer, Kostovski and Windisch correctly state the effect of the European Convention. With respect, I am of the same view; the general principle enunciated by the EH of HR in those cases and in particular in Kostovski I regard as providing clear guidance as to what are internationally recognised standards regarding the rights of an accused.

In the United States the situation is affected by the 6th Amendment and its provision for confrontation of accusers. In the case of Delaware v Van Arsdall 1989 the Supreme Court, at p. 683, cited with approval Pointer v Texas 1965 380 US 400 to the effect that "the main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination" (the Court's own emphasis). After acknowledging that there might be imposed reasonable limits on cross-examination based on concerns about harassment, prejudice, confusion of the issues, the witness' safety and so on, the Court said that there was nevertheless a guarantee of an opportunity for effective cross-examination and by cutting off all questioning about a particular event that might have given a witness a motive for favouring the prosecution, the trial court had violated the accused's constitutional right of confrontation.

The Supreme Court, by a majority, did not in fact set aside the conviction because, under well established doctrine, the constitutional error was, in the particular circumstances of the case "harmless beyond a reasonable doubt" However it left no room for doubt that there is a violation of an accused's constitutional rights if he is:

"prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness".

Passing from the special case of the U.S. and its constitutional right of confrontation, other jurisdictions have dealt with the problem.

In Jarvie v Magistrates' Court of Victoria a 1994 decision of the Appeal Division of the Supreme Court of Victoria, the facts were very special. The identity as known to the accused of the undercover police witnesses was, of course, well known to the accused but not their true names. It was their true names that the Court held might be concealed. There was therefore no question of the defence not knowing who was testifying, only ignorance of their true identity. This is very different from the sort of anonymity in question in the present case, where, if granted, the defence would be left in ignorance of who it is who is giving evidence of dealings the accused is alleged to have had with the witness.

It was cross-examination as to credit, and only credit, not as to relevant facts, that was in issue in Jarvie. Hence the decision. Brooking J. in the leading judgment, while holding that the true identity could be withheld, said that:

"the overriding need for a fair trial must mean that in no circumstances can the identity of a witness be withheld from a defendant if there is good reason to think that disclosure may be of substantial assistance to the defendant in combating the case for the prosecution. ....... whatever the strength of the case in favour of non-disclosure, it cannot prevail. ........the right to a fair trial must not be substantially impaired."

Two English cases, R. v. Watford Magistrates [1992] TLR 285 and R. v. Taylor [1994] TLR 484, which might be thought to support the prosecution case, also turn on very special facts. The first related only to part-hear committal proceedings before a magistrate. The defendants were "a group of youths [who] rampaged through Watford city centre, violently attacking four persons", apparently total strangers to them. The Divisional Court upheld the magistrate, who had allowed the defendants' counsel but not the defendants to see the witnesses. However, it might well be, the Court said, that, when the matter came to trial, on substantial grounds being shown justice would require the witnesses' identity to be disclosed. The Court added that, were the accused in due course to be committed for trial, the question of the witnesses' anonymity would be for the trial judge to determine. From the scant report it seems that the matters of identity of the witnesses were irrelevant, they simply happened to be present when the rampage occurred. In this respect, the positions of witness J and K are, to a degree, comparable.

In R. v.Taylor again only counsel, but not the defendants, had been permitted to see a witness, whose name and address was not revealed, give her evidence in person and be cross-examined.

The Court of Appeal held that "the fundamental right of a defendant to see and know the identity of his accusers, including witnesses for the Crown" might only be denied "in rare and exceptional circumstances." The Court then specified various factors to which, in exercising his discretion, a trial judge should have regard. One was that "The Crown must satisfy the Court that the creditworthiness of the witness had been fully investigated" and the Court said that there were in that case no "grounds for supposing that the witness was not impartial or had an axe to grind." In the present case the prosecution has very frankly admitted that it cannot investigate creditworthiness since the enquiries in former Yugoslavia which that would necessitate would themselves result in wide disclosure of the identity of the witness in question. A special factor in Taylor was that the defendants could, in any event, see the witness giving evidence on a video screen. In all the circumstances the Court determined that it should not interfere with the exercise of discretion of the trial judge.

These cases of quite special circumstances apart, the authorities appear to me to provide strong support for the view that in this case to permit anonymity of witnesses whose identity is of significance to the defendant will not only adversely affect the appearance of justice being done, but is likely actually to interfere with the doing of justice.

It should be added that Counsel for the defendant, a Dutch lawyer assigned by the Tribunal to act for the allegedly indigent defendant, has, very understandably, said that he cannot continue to represent the defendant if only he, and not the defendant, is made aware of witnesses' identities. He points out the effect that that would have on the relationship between him and his Yugoslav client and on his ability adequately to conduct the defence. Accordingly, even if it were thought proper to confine knowledge in this way only to counsel, that course is not open to this Chamber.

From my examination of the Statute, the Rules and such decided cases as we have been referred to, I conclude that the present motions should be disposed of by granting most of the relief sought by the prosecution, much of which is assented to by the defence, but stopping short of denying to the defence, including the accused, the right to see and hear witnesses give evidence before the Tribunal and know their identity as known to the accused, which may not always be their true identity. I would however, as explained above, not apply to J and K this requirement of disclosure if indeed J and K were, as I believe, mere bystanders at the events to which they will attest and were wholly unknown to the accused.

In the case of all vulnerable witnesses their present whereabouts, the name under which he or she presently goes and the whereabouts and present names of his or her family do not appear to me to be matters necessary to be disclosed in order to satisfy a fair trial and the rights of the accused.

Likewise, having regard to the quite special task of the Tribunal, to the express provisions of its Statute and Rules and to the very understandable concerns of certain witnesses regarding consequences for them should the evidence they give become public property, I have no difficulty in acceding to the Prosecutor's application for the evidence of all these vulnerable witnesses to be given in camera. The material that has been furnished to the Chamber in respect of such witnesses makes such an application entirely reasonable and appropriate and will in no way detract from the fairness of the trial.

Since the hearing of this motion memoranda have been received form the parties which somewhat alter details of the precise form of orders that are appropriate. First, it appears that in the case of some vulnerable witnesses their identity is already known to the accused as a result of past media statements made by them. This is so with witness G, probably also with witness H and perhaps, too, with witness I. In each case the defence has now named the person known to be, or thought to be, represented by each of those letters and seeks confirmation from the Prosecution, which the latter is not prepared to give for reasons of the security of witnesses.

An order for disclosure of names, as I would in any event have made, will either confirm or correct the belief of the accused as to the identity of these witnesses and I believe that the accused is entitled to be thus informed. Accordingly, in their case the memoranda occasions no change to the orders which I would have proposed.

In the case of witnesses F, J and K the accused remains in ignorance of their identity. The name of F as known in the Omarska camp, including any nickname applied to her in the camp, should be disclosed to the accused but there will, of course be no disclosure of her present name, if different, nor any past or present address. The nicknames applied in the Omarska camp to other vulnerable witnesses not already correctly identified by the accused should also be disclosed and if they were known only by nickname then their real names at that time need not be disclosed.

As to J and K, the two bystanders, the identity of neither is known to the accused, who seeks the address where they lived at the time of which they are to give evidence so that their then neighbours may be questioned about events to which these witnesses are to depose. I can well appreciate the very real need for such information to be available to the accused so that his defence may be properly conducted. Much depends upon facts as yet either unknown or imperfectly known to this Chamber, for instance, the significance of the evidence of J and K to the charge to which their evidence relates and the availability of alternative evidence of equal worth from witness who are less vulnerable for any of a number of reasons.

In the absence of real insight into such matters, and to ensure both the reality and the appearance of a fair trial of the accused, the general locality where each of the witnesses J and K saw what they did should be revealed. What "general locality" means can only be interpreted by the prosecution, which alone knows the facts. However it should be sufficiently precise as to allow the Defence to make enquiries of others in the vicinity as to what they saw of the incidents of which J and K speak, while not sufficiently precise as to disclose the addresses of J and K.

To the extent to which an order in the terms that I propose prevents the Defence from calling particular witnesses, that may simply be the price to be paid for ensuring a fair trial.

The form of order which I propose has made it unnecessary for me to investigate the extent to which vulnerable witnesses have already exposed their identity by means of media statements.

It follows that I would make the following orders on the prosecution's motions:

I would grant the orders sought in paragraphs (1), (2), (3) as amended, (4), (5), (6), (9), (10), (12), (13) and (14). In all these cases I would omit reference to witness A, in respect of whom the prosecution no longer seeks any order. There remain the orders sought in paragraphs (7) (8) and (11). I would refuse the order sought in paragraph (7) but would grant an order providing for the shielding of these vulnerable witnesses, if they so request it, from direct confrontation with the accused by providing a one-way shielding device permitting the accused to see the witness but not requiring the witness to see the accused. I would refuse the order sought in paragraph (8). It is implicit in all I have written that I would also refuse the order sought in alternative (a) of paragraph (11) as amended. I would instead make an order in the form sought in (11), alternative (b) including nicknames where applicable, but in the case of witness J and K and upon confirmation that they are indeed in the category of mere bystanders as described above, omitting their names from disclosure while providing a description of relevant "general localities"

Date: ____________________ Signed: _______________________

Judge Sir Ninian Stephen