The Prosecutor v. Slobodan Milosevic - Case No. IT-02-54-AR108bis & AR73.3

"Public Version of the Confidential Decision on the Interpretation and Application of Rule 70"¹

23 October 2002
Appeals Chamber (Judges Shahabuddeen [Presiding], Hunt, Güney, Pocar and Meron)

Procedural Background

· On 25 July 2002 Trial Chamber III issued its Decision on the Prosecution’s Motion to Grant Specific Protection pursuant to Rule 70 of the Rules of Procedure and Evidence (hereinafter the "Impugned Decision").²

· On 8 August 2002 the […] Government filed a request for review by the Appeals Chamber of the Impugned Decision pursuant to Rule 108 bis of the Rules (hereinafter "Request for review").

· On 4 September 2002 the Prosecution filed an interlocutory appeal against the Impugned Decision under Rule 73 of the Rules (hereinafter "Interlocutory Appeal").

· On 6 September 2002 the Appeals Chamber issued an Order joining the Interlocutory Appeal and the Request for Review, and suspending execution of the Impugned Decision.

The Decision

The Appeals Chamber granted the Request for Review and the Interlocutory Appeal. It ordered that the evidence be heard in accordance with Rule 70 (B)-(G) and that two representatives of the […] Government may be present in the courtroom during the testimony of the Witness.

The Reasoning

The admissibility of the Request for Review

Rule 108 bis (A) of the Rules³ 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.

In the present case the […] Government put forward two issues of general importance. The first dealt with the fundamental procedural fairness. The […] Government alleged that it had been deprived of the opportunity to be heard before the Trial Chamber and to be given notice of the Impugned Decision. The second dealt with 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 70.⁴ The […] Government submitted 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.

According to the Appeals Chamber "Rule 70 is indeed the basis of cooperation with the Prosecution for governments and other bodies who possess confidential and sensitive information that assist its investigations".⁵ The Appeals Chamber has considered that the Impugned Decision related to the extent to which the Chambers of the Tribunal may intervene in this relationship and, as such, concerned an issue of general importance relating to the powers of the Tribunal like the question of procedural fairness.

The Impugned Decision

The Trial Chamber held that Rule 70 did not apply to the evidence of the Witness, but recognised the right of States to protect their national security interests and ordered protective measures designed to match those sought by the Prosecutor on behalf of the […] Government.

The […] Government alleged that it should have been heard by the Trial Chamber prior to the Impugned Decision, that the Trial Chamber had erred in deciding that Rule 70 did not apply to the Witness without proper inquiry, and that the Trial Chamber had applied an erroneous legal test in determining whether Rule 70 applied.

The Prosecution submitted that the Trial Chamber had erred in concluding that it had the authority to review whether the evidence of the Witness fell within Rule 70 and based itself on its own test that Rule 70 did not apply.

Interpretation of Rule 70

The aim and the essence of Rule 70

According to the Appeals Chamber, Rule 70 "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 source will be protected."⁶ It recalled the jurisprudence of the Tribunal according to which "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"⁷ and according to which without such guarantees of confidentiality, it would be "almost impossible to envisage this Tribunal, of which the Prosecution is an integral organ, being able to fulfil its functions".⁸

The nature of the information

On the question of whether the information to which paragraphs (C) and (D) refer (1) has been provided to the Prosecutor on a confidential basis or (2) has been provided to the Prosecutor on a confidential basis and has been used solely for the purpose of generating new evidence, the Appeals Chamber has clearly stated that the "it becomes a matter of necessary textual interpretation, […] that the information referred to in paragraphs (C) and (D) must be that which was provided to the Prosecutor on a confidential basis […], and not that which was so provided and which has been used solely for the purpose of generating new evidence […]".⁹ Thus it considered that the Trial Chamber had erred in adopting the first option.

The purpose of providing information

The Appeals Chamber considered that the Trial Chamber had "impermissibly" interpreted Rule 70(B) by introducing a requirement 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".¹⁰ According to the Appeals Chamber there is "[n]o doubt [that] 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."¹¹

Definition of the term "information" and criterion of applicability of Rule 70

The Trial Chamber ruled that three characteristics prevented the testimony at issue from being Rule 70 information provided under: (1) it was testimony, that is provision of a witness, rather than information; (2) the witness was one the Prosecution could have found in any case; (3) the testimony corroborated other evidence the Prosecution already had.

The Appeals Chamber considered that none of these characteristics as relevant to determining whether the information felt within Rule 70.

As of for the word "information", the Appeals Chamber found that the Trial Chamber had adopted an overly narrow interpretation. In its view "[w]hen 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".¹²

As for the Trial Chamber’s second and thirds grounds for excluding the testimony, the Appeals Chamber declared that these constituted "hypothetical factual conclusions".¹³ In its view, "[a]ll that Rule 70 requires is that the information was provided to the Prosecutor on a confidential basis." It clearly stated that, for the purpose 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".¹⁴

The application of Rule 70 to the present case

Objective test to examine whether the information was in fact provided on a confidential basis

The Appeals Chamber acknowledged that the Chambers of the Tribunal do indeed have the authority to assess whether information has been provided under Rule 70(B) and has set an "objective test". The test is that "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".¹⁵

In the present case, it considered that the Trial Chamber had correctly ruled when it found that it had the power to determine whether the evidence of the Witness fell within the terms of Rule 70 but had erred in the test it applied.

Procedure to follow in case of a doubt upon the confidential nature of the information

Where there is any doubt about the material placed before a Trial Chamber when the protection 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 [and] 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".¹⁶

In the present case, the Appeals Chamber was satisfied that Rule 70 applied to the information to be given in evidence by the Witness and allowed the appeal.

Presence in the courtroom of two representatives of the provider whilst evidence is given

The Appeals Chamber declared that Rule 70 does not provide for such an order but nevertheless stated that it is within the discretion of any Trial Chamber to make such an order. It thus confirmed the related Order of the Trial Chamber.

________________________________________
1. This Decision is the public and redacted version of the Appeals Chamber's confidential "Decision on the Interpretation and Application of Rule 70" issued on 23 October 2002. In the redacted version the concerned Government is referred to as "[…] Government".
2. In this Decision the Trial Chamber ruled that Rule 70 of the Rules of Procedure and Evidence (hereinafter the "Rules"), which protects the sources of certain information given on a confidential basis, did not apply to the evidence of a witness to be called by the Prosecution under the terms of that Rule. The proposed witness is an official of the […] Government (hereinafter the "Witness"). The Trial Chamber nevertheless decided, "in order to protect the security interests of the Government which has provided confidential information to the Prosecution", to provide specific measures of protection for the examination and the cross-examination. The public redacted version of the document is summarised in Judicial Supplement No. 35.
3. Rule 108 bis (State Request for Review)
(A) 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.
4. Rule 70 (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 Sub-rules (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 Sub-rule (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.
5. Para. 9.
6. The Appeals Chamber noted that the Trial Chamber recognised this basic purpose in paragraph 5 of the Impugned Decision.
7. Blaskic, IT-95-14-T, Decision of Trial Chamber I on the Prosecutor's Motion for Video Deposition and Protective Measures, 13 November 1997, para. 10 (hereinafter "Blaskic Decision"). See also Brdjanin & Talic, IT-99-36-T, Public Version of the Confidential Decision on the Alleged Illegality of Rule 70, 6 May 2002, para. 17
(hereinafter "Brdjanin & Talic Decision"), Judicial Supplement No. 34.
8. Brdjanin and Talic Decision, para. 18.
9. Para. 20.
10. Para. 21.
11. Ibid.
12. Para. 23. It mentioned in this paragraph that paragraph (C) of the Rules expressly refers to the "testimony, document, or other material so provided" (italics by the Appeals Chamber).
13. Para. 24.
14. Para. 25. It justified its view by stating that once the information is introduced as evidence at trial, it by definition is no longer "used solely for the purpose of generating new evidence."
15. Para. 29.
16. Para. 31.