IN TRIAL CHAMBER II
Before: Judge David Hunt, Pre-Trial Judge
Registrar: Mr Hans Holthuis
Decision of: 16 July 2001
PROSECUTOR v Dragan NIKOLIC
PROSECUTOR v Mitar VASILJEVIC
PROSECUTOR v Radoslav BRĐANIN & Momir TALIC
DECISION ON REQUEST PURSUANT TO RULE 75(D) BY PROSECUTION IN PROSECUTOR v MOMCILO KRAJISNIK & BILJANA PLAVSIC (Case IT-00-39&40-PT)
(in Prosecutor v Momcilo Krajisnik & Biljana Plavsic)
Mr Mark Harmon & Mr Alan Tieger for the Prosecutor
Mr Deyan Ranko Brashich, for Momcilo Krajisnik
Mr Robert J Pavich, for Biljana Plavsic
(in Prosecutor v Dragan Nikolic)
Mr Dirk Ryneveld & Mr Dermot Groome for the Prosecutor
Mr Howard Morrison QC for Dragan Nikolic
(in Prosecutor v Mitar Vasiljevic)
Mr Dermot Groome, Mr Frederic Ossogo & Ms Sabine Bauer for the Prosecutor
Mr Vladimir Domazet for Mitar Vasiljevic
(in Prosecutor v Radoslav Brdjanin & Momir Talic)
Ms Joanna Korner, Mr Andrew Cayley, Mr Nicolas Koumjian, Ms Anna Richterova
& Ms Ann Sutherland for the Prosecutor
Mr John Ackerman for Radoslav Brdjanin
Maître Xavier de Roux and Maître Michel Pitron for Momir Talic
1. The prosecution applied to Trial Chamber III - in Prosecutor v Momcilo Krajisnik & Biljana Plavsic (Case IT-00-39&40-PT) - requeting that Trial Chamber, inter alia, to refer to this Trial Chamber its application to vary orders made by this Trial Chamber granting protective measures in three cases: Prosecutor v Dragan Nikolic (Case IT-94-2-PT), Prosecutor v Mitar Vasiljevic (Case IT-98-32-PT) and Prosecutor v Radoslav Brdjanin & Momir Talic (Case IT-99-36-PT).1 The stated purpose of the variation sought is "to enable the use of protected material and appearance of the witnesses" in Prosecutor v Krajisnik & Plavsic2, because (it is asserted):3
Pursuant to Rule 75D [sic] the Prosecutor is prohibited from releasing the witness statements to the Defence in this proceeding [that is, in Prosecutor v Krajisnik & Plavsic] prior to an appropriate order being made by the respective Trial Chamber that granted the protective measures to the Witnesses.
Trial Chamber III passed on the Prosecution Motion to this Trial Chamber.4
2. The Prosecution Motion was filed on a confidential and ex parte basis. The confidentiality was required because it details the names of the witnesses which it wishes to call in Prosecutor v Krajisnik & Plavsic who are also to be called by it in the three nominated cases before this Trial Chamber. It is not immediately clear why the Prosecution Motion was filed on an ex parte basis,5 but, in the light of its proposed refusal, it is unnecessary to deal with that issue here. Parties seeking the variation of protective measures granted in other cases should nevertheless keep in mind that it may be necessary to give notice of their application not only to the parties in the case in which the protective measures were granted but also to the witnesses in whose favour the protective measures were granted. However, notwithstanding the basis upon which the application was filed, a significant procedural issue arises in what has become an increasing use of Rule 75(D) and, as nothing in this Decision reveals any of the confidential material in the Prosecution Motion, and as it could not be said that the disclosure of the fact of the application is likely to prejudice anyone, the Decision is given upon a completely open basis.
3. Rule 75(D) is mandatory in its requirement that (where the Trial Chamber which granted the protective measures which are sought to be varied can still be constituted by the same judges) only that Chamber can make an order varying them. It is not only unnecessary, but it is also inconvenient and it may well be prejudicial to the other party, for the application to be made in the first instance to the Trial Chamber hearing the case in which it is sought to use material which is the subject of the protective measures granted by another Trial Chamber. This problem was discussed in Prosecutor v Brdjanin & Talic,6 where reference was made to prejudice suffered by the prosecution from the adoption of such a procedure.7 It has also been stated since that the application to the Trial Chamber which granted the protective measures should be made in the proceedings in which the protective measures were granted.8 It is only in those proceedings that the order varying the protective measures can be made. It is very confusing for the Registry (and for everyone else) if the application for that order is made to the Trial Chamber which granted the protective measures but in a document headed with the name of the proceedings in which the confidential material is sought to be used.
4. So far as the present application is concerned, none of the three nominated cases before this Trial Chamber has yet reached trial, there has been no material relevant to the facts of the case tendered upon a confidential basis and no evidence relevant to the facts of the case has been given in closed or private sessions. The only protective measures granted by this Trial Chamber in each of those cases are directed to preventing the disclosure by the Defence in that case, except in limited circumstances, of the identity of certain witnesses to be called by the prosecution or of any material provided by the prosecution on a confidential basis (including witness statements).9 Whilst it may well be that the prosecution intends in Prosecutor v Krajisnik & Plavsic to use the same witness statements as it proposes to use in the three nominated cases, there is nothing in the orders made by this Trial Chamber which prevents it from doing so, or from disclosing those statements to the Defence in that case or from calling the witnesses in that case.
5. The application by the prosecution is misconceived so far as these three cases are concerned. The prosecution should seek fresh protective measures from Trial Chamber III in relation to disclosure by the Defence in that case, which will no doubt be in much the same terms as those granted in the three nominated cases. This Trial Chamber does suggest, with respect, that consideration be given to the inclusion of two additional protective measures in relation to any confidential material received from other cases:
(i) one preventing any disclosure of the fact that the witnesses in question will also be (or have also been) witnesses in other cases before the Tribunal;10 and
(ii) another (in relation to confidential material other than witness statements proposed to be used in the case for which the variation is sought) permitting the redaction of that material insofar as it identifies any witnesses until the Defence is able to demonstrate from the redacted material that such witnesses may materially assist the defence in some identified way in the conduct of his case and also that such assistance is not otherwise reasonably available.11
6. The application is refused.
Done in English and French, the English text being authoritative.
Dated this 16th day of July 2001,
At The Hague,
Judge David Hunt
[Seal of the Tribunal]
1. Prosecutor v Krajisnik & Plavsic,
Case IT-00-39&40-PT, Prosecution's Motion for Protective Measures Pursuant
to Rule 75(A) and (D), 23 May 2001 ("Prosecution Motion"), par 4.
2. Ibid, par 4.
3. Ibid, par 3.
4. Request to Trial Chambers I and II and to the President Pursuant to Rule 75(D), 9 July 2001, third unnumbered page.
5. Ex parte proceedings are appropriate only where the disclosure to the other party or parties in the proceedings of the information conveyed by the application, or of the fact of the application itself, would be likely to prejudice unfairly either the party making the application or some person or person involved in or related to that application: Prosecutor v Simic et al, Case IT-95-9-PT, Decision on (1) Application by Stevan Todorovic to Re-Open the Decision of 27 July 1999, (2) Motion by ICRC to Re-Open Scheduling Order of 18 November 1999, and (3) Conditions for Access to Material, 28 Feb 2000, par 41; Prosecutor v Brdanin & Talic, Decision on Second Motion by Prosecution for Protective Measures, 27 Oct 2000, pars 8-11.
6. Prosecutor v Brdanin & Talic, Decision on Second Motion by Radoslav Brdanin for Access to Confidential Documents, 20 June 2001, pars 3-5.
7. One such application by a defendant was dealt with after transfer from this Trial Chamber without the prosecution being given the opportunity to be heard.
8. Prosecutor v Brdanin & Talic, Decision on Second Motion by Momir Talic for Access to Confidential Documents, 26 June 2001, par 2.
9. Prosecutor v Nikolic, Decision on Second Motion by Prosecution for Protective Measures, 29 November 2000; Decision on Third Motion by Prosecution for Protective Measures, 20 March 2001; Prosecutor v Vasiljevic, Decision on Motion by Prosecution for Protective Measures, 8 Sept 2000; Prosecutor v Brdanin & Talic, Decision on Motion by Prosecution for Protective Measures, 3 July 2000.
10. Prosecutor v Kvocka et al, Case IT-98-30/1-T, Decision on Defence Request for Release of Confidential Material, 3 Oct 2000, p 3.
11. Prosecutor v Brdanin & Talic, Second Decision on Motions by Radoslav Brdanin and Momir Talic for Access to Confidential Documents, 15 Nov 2000, pars 8-13.