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" " Lasva Valley, Prosecutor v. Blaskic, Decision of Trial Chamber I on the Prosecutor's Requests of 5 and 11 July 1997 for Protection of Witnesses, IT-95-14 (ICTY TC, Jul. 10, 1997)

IN THE TRIAL CHAMBER

Before:
Judge Claude Jorda, Presiding
Judge Fouad Riad
Judge Mohamed Shahabuddeen

Registry:
Mr. Jean-Jacques Heintz, Deputy Registrar

Decision of:
10 July 1997

THE PROSECUTOR

v.

TIHOMIR BLASKIC


DECISION OF TRIAL CHAMBER I
ON THE PROSECUTOR’S REQUESTS OF 5  AND 11 JULY 1997 FOR PROTECTION OF WITNESSES


The Office of the Prosecutor:

Mr. Mark Harmon
Mr. Andrew Cayley
Mr. Gregory Kehoe

Counsel for the Accused:

Mr. Anto Nobilo
Mr. Russell Hayman

 

1. On 5 June 1997, the Prosecution submitted to the Trial Chamber a motion "for protective measures" (hereinafter "the motion of 5 June 1997"). On 11 June 1997, the Prosecutor filed a second motion, "special request for hearing date" (hereinafter "the motion of 11 June 1997"). Defence counsel for General Blaskic (hereinafter "the Defence"), in its opposition of 13 June 1997 (hereinafter "the response"), responded to those motions. The Prosecutor replied to the opposition in a brief filed on 16 June 1997 (hereinafter "the reply). The Trial Chamber heard the parties during a hearing on 23 June 1997.

The Trial Chamber will first analyse the claims of the parties and then discuss all the disputed points of fact and law.

I. ANALYSIS OF THE CLAIMS AND ARGUMENTS OF THE PARTIES

2. In her request of 5 June 1997, the Prosecutor requested that the Judges of this Trial Chamber take measures to ensure the protection of two witnesses who are "employees of a humanitarian organisation". The measures cover six points:

1) the two witnesses will testify in closed session, but counsel for the humanitarian organisation will be permitted in the courtroom to assist, if so required, the two witnesses and the Trial Chamber regarding questions of confidentiality (hereinafter "measure 1");

2) the witnesses’ names and other identifying information, including their association past or present with the humanitarian organisation will not appear in any record of the Tribunal open to the public, including the transcripts of hearings (hereinafter "measure 2");

3) the motions of 5 and 11 June 1997, and any measure relating to these applications which identify the witnesses and the humanitarian organisation with which they are affiliated will be placed under seal and will not be mentioned in any index listing the sealed documents or proceedings (hereinafter "measure 3");

4) the accused, the Defence, the Prosecution and their representatives may not disclose to anyone (specifically to those who were - or will be- indicted by the Tribunal and to their counsel) the names, addresses and other identifying information of those witnesses, including their affiliation past or present with the humanitarian organisation (hereinafter "measure 4");

5) the two witnesses will not be required to disclose their employment or current domicile or the identity of the persons who are - or who were - affiliated with the humanitarian organisation and who reside in or are nationals of the countries of the former Yugoslavia (hereinafter "measure 5");

6) the words "members of a humanitarian organisation" will be used whenever reference is made to those witness in a decision rendered pursuant to Sub-rule 79(B) of the Rules of Procedure and Evidence (hereinafter "the Rules") or in any other decision or public judgement rendered in this case, and no information identifying them will appear in those documents "hereinafter "measure 6");

The Prosecutor emphasised that the objective of these provisions was to ensure the safety of all the staff of that organisation who might be placed into serious danger by the disclosure of the identify of the said witnesses.

3. In her motion of 11 June 1997, the Prosecution recalled that the decision of 6 June 1997 in respect of protection of witnesses1- which inter alia requested that the accused and his counsel not disclose to the public or the media the names or any identifying information about the witnesses from the former Yugoslavia - did not apply to the two witnesses who were "members of a humanitarian organisation" since they no longer resided on the territory of the former Yugoslavia.

Furthermore, the Prosecutor emphasised the fact that those witnesses had disclosed information to her on a confidential basis and that for this reason - pursuant to Sub-rule 70(B) of the Rules - she could disclose it to the Defence only after having received the consent of the person or organ concerned.

4. In its response of 13 June 1997, the Defence agreed to measures 1, 2, 3 and 6 which the Prosecution had proposed.

In addition, the Defence challenged the application of Sub-rule 70(B) to the statements of the two witness who are "members of a humanitarian organisation" which had been taken by the Office of the Prosecutor. In fact, it considered that the Prosecutor had not provided proof that the said statements had been provided to her on a confidential basis.

The Defence also strongly objected to the application of protective measures 4 and 5 which it considered to be overly restrictive of the accused’s rights.

Lastly, it stressed that the humanitarian organisation had "affirmatively prevented" one of its employees from testifying for it. It added that the Trial Chamber should therefore order the organisation "to refrain from instructing its employees to cooperate with one side and not the other".

5. In her reply, the Prosecutor asserted that the statements of the two witnesses had been communicated to her on a confidential basis pursuant to Sub-rule 70(B) of the Rules.

She also recalled that protective measures 4 and 5 not only fully complied with the rights of the accused, as secured by Article 21 of the Statute, but were also indispensable for the protection of the said witnesses.

Lastly, the Prosecutor noted that the Defence had not satisfied the procedures necessary for the concerned humanitarian organisation to authorise the examination of one of its employees.

6. During the arguments at the hearing at which two individuals were heard - one as a witness - after having emphasised that the safety of the two witnesses was truly in jeopardy, the Prosecutor submitted to the Trial Chamber a modified version of measure 4:

"I. As a general principle, the parties are prohibited from disclosing to anyone, including other witnesses and potential witnesses, the fact that:

A) the witnesses from the humanitarian organisation provided information to the Prosecutor;

B) the witnesses from the humanitarian organisation testified in closed session; and that

C) the Prosecutor intends to call or has called such witnesses to testify.

II. If the Defence determines that it is necessary to disclose the identify of a witness from the humanitarian organisation during the trial and during the course of its examination of a different witness, the following measures should apply:

A) that portion of the examination concerning the witness from the humanitarian organisation shall occur in closed session;

B) the questions shall be phrased so as to not disclose that the witnesses from the humanitarian organisation were employees of that humanitarian organisation;

C) the questions shall be phrased so as not to disclose that the witnesses from the humanitarian organisation testified at the trial or provided information to the Prosecutor;

D) counsel for the humanitarian organisation will promptly be provided with a transcript of the closed session referred to in paragraph A above.

III. If the Defence determines that it is necessary to disclose the identity of a witness from the humanitarian organisation out of court to a witness or potential witness, the following measures should apply:

A) the Defence may apply to the Trial Chamber ex parte (with no notice to or participation of the Prosecutor), for permission to question a potential witness about a witness from the humanitarian organisation. Counsel for the humanitarian organisation shall be notified that such an application is being made and shall be entitled to appear in respect to the application;

B) in assessing the Defence application, the Trial Chamber shall consider the following:

i) whether the Defence has exhausted all other means of obtaining the information;

ii) whether the need to disclose the identity of the witness or witnesses from the humanitarian organisation relates to facts at issue and not to collateral issues.

In respect to the application described in III B) above, the burden shall be on the Defence to demonstrate that it is necessary to identify the witnesses from the humanitarian organisation."

The Defence objected to this measure and considered that it did not respect the rights of the accused and was impossible to implement. It also challenged the legality of Rule 70 of the Rules, considering that it did not place the parties on an equal footing because it could be invoked only by the Prosecution.

II. DISCUSSION

7. After having analysed the applicability of Rule 70 of the Rules to the statements of the two witnesses who are "employees of a humanitarian organisation", the Trial Chamber will consider protective measures 1, 2, 3 and 6 described in paragraph 2 of this decision. It will then review whether the provisions of 4 and 5 are compatible with rights of the accused specifically provided in Article 21 of the Statute. Lastly, the Trial Chamber will deal with the Defence motion to require that the organisation authorise one of its employees to testify on its behalf.

A. Rule 70 of the Rules: matters not subject to disclosure

8. As regards the application of Rule 70 of the Rules to this case, the Trial Chamber considers that at the hearing of 23 June 1997, the Prosecution provided the proof that the information which the two witnesses had supplied to it were confidential at the time it was provided. It notes, moreover, that, pursuant to Sub-rule 70(B) of the Rules, the information was used solely for the purpose of generating new evidence.

Furthermore, the Trial Chamber notes that, according to the provisions of Sub-rule 70(B) of the Rules, the use of that information as evidence is subject to the prior consent of the entity providing it - that is, in the present case, the humanitarian organisation of which the two witnesses are employees.

In view of the objectives of Rule 70 of the Rules, the Trial Chamber must also take into account the nature and functions of the humanitarian organisation as well as the harm to all its operations which might be caused by the information’s being disclosed. In this respect, it considers that in light of the humanitarian organisation’s current and future mission, it is fully entitled to seek the application of the provisions of Rule 70 of the Rules.

The Judges also recall that the consent of the organisation was conditional on the Trial Chamber’s ordering six protective measures which - as the Prosecutor noted in her motion of 5 June 1997 - must be examined in light of Article 22 of the Statute and Rules 54, 75 and 79 of the Rules.

The Trial Chamber must therefore analyse those measures and determine to what extent they are compatible with the rights of the accused.

B. The Protective Measures

1. General Principles

9. The Trial Chamber first recalls - as it did previously in its decision of 6 June 1997 - that it is extremely concerned that the witnesses who may be called to testify before it during the trial should be protected2. It stresses the fact that, in this respect, the Statute affirms the principle, and the Rules establish how this is to be organised. Article 20(1) of the Statute states that there must be "due regard for the protection of victims and witnesses", and Article 22 of the Statute invites the Judges to include this protection in their Rules. Sub-rule 75(A) of the Rules therefore provides that a Judge or Trial Chamber may "order appropriate measures for the privacy and protection of victims and witnesses", specifically, "expunging names and identifying information from the Chamber’s public records" and "non-disclosure to the public of any records identifying the victim". Sub-rule 75(B)(ii) authorises the holding of in camera proceedings. Lastly, Sub-rule 79(A)(ii) of the Rules states that the press and the public may be "excluded from all or part of the proceedings" for various reasons, including, the need to avoid the disclosure of a victim’s or witness’ identity.

The Trial Chamber must also ensure that the rights of the accused enjoy "full respect" (Article 20(1) of the Statute). It must therefore guarantee that the protective measures are compatible with the right of the accused to a "fair and public hearing" (Article 21(2) of the Statute) and, more particularly, his right "to examine, or have examined, the witnesses against him" (Article 21(4) of the Statute).

The Judges also recall their sovereign power to evaluate the measures they deem most appropriate to ensure the protection3 and emphasise - as did Trial Chamber II in the case The Prosecutor v. Tadic4 - that the list of measures provided for in Rule 75 of the Rules is not exhaustive.

2. Protective measures 1, 2, 3, 6

10. The Trial Chamber emphasises that although protective measures 1, 2, 3 and 6 in no manner infringe on the accused’s right "to examine, or have examined, the witnesses against him" (Article 21(4)(e) of the Rules), they do limit his right to a public trial, as provided in Article 20(4) of the Statute5 and Rule 78 of the Rules6.

The Trial Chamber does, however, recall that the Judges of Trial Chamber II - in the case The Prosecutor v. Tadic7 - stated that the "preference for public hearings must be balanced with other mandated interests such as the duty to protect [...] witnesses"8 and that the Judges needed to verify on a case by case basis whether the restrictions which the protection imposed on the rights of the accused were justified by real fear for the safety of the witnesses.

In this respect, the Judges consider that the Prosecutor sufficiently demonstrated - in her motion of 5 June 1997 and at the hearing of 23 June 1997 - that the safety of the two witnesses who are "employees of a humanitarian organisation" and its staff would be seriously threatened should their identity be disclosed to the public and the media. Furthermore, the Trial Chamber notes that the danger that much greater because some of the employees of that organisation are currently posted on the territory of the former Yugoslavia.

It also notes that the Defence did not challenge the application of measures 1, 2, 3 and 6 which the Prosecutor proposed.

11. The Trial Chamber therefore orders that the testimony of the two witnesses who are employees of a humanitarian organisation be heard in camera; that their names, addresses and other identifying information, including their association past or present with the humanitarian organisation, not appear in any of the Tribunal’s records open to the public and that they be placed under seal; that the motions of 5 and 11 June 1997 which identify those witnesses, as well as the humanitarian organisation with which they are affiliated, be placed under seal; that the words "witnesses who are employees of a humanitarian organisation" be used whenever reference is made to those witnesses in the Tribunal’s public records, and that no indication which would identify them appear in those documents.

3. Protective measures 4 and 5

12. In respect of the new version of protective measure 4 which the Prosecution presented at the hearing of 23 June 1997 and which was mentioned in paragraph 6 of this Decision, the Judges would first point out that Trial Chamber II9 - basing itself on Articles 20 and 22 of the Statute as well as Sub-rules 69(C), 75(A) and (B)(iii) of the Rules and on a detailed analysis of national and international case-law, more specifically in the cases R. v. Taylor (Court of Appeals, Criminal Division 22, July 1994) and Kostovski (ECHR 20 December 1989) - had ordered that the names and addresses of four Defence witnesses not be disclosed and that their voices and images be distorted (anonymity). Five reasons justified such provisions: 1) the real fear for the safety of the witnesses and their families; 2) the importance of the testimonies for the Prosecution; 3) the lack of any serious indication that the said witnesses lacked credibility; 4) the ineffectiveness or lack of a witness protection programme; 5) the absolute necessity for the said measure. If a less restrictive measure can ensure the requested protection, it should be applied. The International Tribunal must be satisfied that the accused will not suffer any excessive prejudice which can be avoided, although some imbalance is inevitable.

In this respect, the Trial Chamber notes that protective measure 4 differs from the one considered in the case The Prosecutor v. Tadic insofar as it is less restrictive about the rights of the accused. In fact, although measure 4 limits the accused’s right to "examine or have examined, the witnesses against him" (Article 21(4)(e) of the Statute) - by authorising the disclosure of the identity of the two witnesses only under limited conditions - the Defence knows the identity of the said witnesses.

Indeed, as the Prosecution underscored, the Defence will have "possession of [their] statements" and "the witnesses will testify in person at trial without voice or image distortion and will be subject to a face to face cross-examination."

Furthermore, the Trial Chamber notes - as the Prosecutor demonstrated in her motion of 5 June 1997 and at the hearing on 23 June 1997 - that, as regards witnesses whose safety must be particularly guaranteed, it is clear that any disclosure of their identity might be extremely prejudicial to them.

The Trial Chamber also considers that, given the positions the witnesses held at the time of the facts and circumstances about which they are being called on to testify, they are likely to provide significant clarification in respect of the charges against the accused.

The Judges also emphasise the fact that the Tribunal does not have a victims and witnesses protection programme and is therefore not in a position to guarantee their safety once they have left the confines of the Tribunal10.

The Trial Chamber thus considers that, in view of these exceptional circumstances, it is perfectly justified that the accused, the Defence, the Prosecution and their representatives, be permitted to disclose the identity of the witnesses from the humanitarian organisation only in accordance with the stringent conditions provided in the modified version of measure 4.

Nonetheless, the Trial Chamber wishes to emphasise that, according to Rule 89(D), it "may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial".

13. As regards measure 5, the Trial Chamber first wishes to reiterate its concern for ensuring the safety of all the staff of the humanitarian organisation with which the two witnesses are affiliated and, first and foremost, of those currently posted on the territory of the former Yugoslavia.

The Trial Chamber also considers that the accused has not sufficiently demonstrated that the knowledge he might have about the domicile and current employment of these witnesses as well as the identity of the staff employed in that humanitarian organisation was indispensable for preparing his defence.

It therefore states that the said witnesses are authorised not to disclose their employment or current domicile or identity of the staff who are currently - or were formerly - employed by the humanitarian organisation and who are residents or nationals of the countries of the former Yugoslavia.

C. Equal access to the witnesses from the humanitarian organisation

The Trial Chamber takes note of the fact that, as a Prosecution witness stated at the hearing of 23 June 1997, each of the parties has equal access to the information in the possession of the said humanitarian organisation. It recalls, however, that, in order to obtain the information, both the Prosecutor and the Defence must comply with the procedures in force in that organisation.

As concerns the Defence assertion that Rule 70 of the Rules would not be applicable, the Trial Chamber recalls that the Rules were established by the Judges as part of the mission entrusted to them in Article 15 of the Statute. In this respect, the Rules were drafted in accordance with the letter and spirit of the Statute. The provisions of the Rules must, therefore, be interpreted within their general context and not within the context of one specific provision.

In fact, the provisions of the Rules seek to ensure a general balance between the protection of the rights of the accused, those of the victims and those of the Prosecution.

In that regard, insofar as necessary, the Trial Chamber should apply the provisions of Rule 70 of the Rules in respect of the Defence in the same manner as it does in respect of the Prosecution.

III. DISPOSITION

FOR THE FOREGOING REASONS,

Trial Chamber I,

RULING inter partes and unanimously,

TAKES NOTE of the agreement between the parties in respect of protective measures 1, 2, 3 and 6;

As regards the modified version of measure 4,

ORDERS the parties not to disclose to anyone, including the other witnesses or potential witnesses the fact that: a) the witnesses from the humanitarian organisation supplied information to the Prosecutor; b) the witnesses from the humanitarian organisation testified in camera; and that c) the Prosecutor intends to call or called those witnesses to appear;

ORDERS that, should the Defence deem that it is necessary to disclose the identity of a witness from the humanitarian organisation during the trial or during the examination of a different witness, the following measures shall be applied: a) that portion of the examination relating to the witness from the humanitarian organisation shall take place in camera; b) the questions shall be phrased so as not to disclose the fact that the witnesses from the humanitarian organisation were its employees; c) the questions shall be phrased so as not to disclose the fact that the witnesses from the humanitarian organisation testified during the trial or provided information to the Prosecutor; d) counsel for the humanitarian organisation shall receive promptly the transcript of the in camera session mentioned in paragraph (a) above;

ORDERS that, should the Defence deem it necessary to disclose the identity of a witness from the humanitarian organisation to a witness outside the courtroom, or to a potential witness, the following measures shall be applied: a) the Defence may request the Trial Chamber ex parte (without so informing the Prosecutor and without her participation), for permission to examine a potential witness about a witness from the humanitarian organisation (counsel for the humanitarian organisation shall be informed of such a request and shall be permitted to appear to give an opinion about the said request); b) when it reviews the Defence request - which must demonstrate the need to identify the witnesses from the humanitarian organisation - the Trial Chamber must consider: i) whether the Defence has exhausted all its other methods for obtaining the said information; ii) whether the need to disclose the identity of the witness or witnesses from the humanitarian organisation relates to the facts under review and not to corollary facts;

As regards measure 5,

ORDERS that the two witnesses not be required to disclose their employment, current domicile or the identity of the persons who are - or were - employees of the humanitarian organisation and who are residents or nationals of the countries of the former Yugoslavia;

TAKES NOTE of the fact that each of the parties has equal access to the information in the possession of the humanitarian organisation, so long as the procedures in force in that organisation are respected.

Done in French and English, with the French version being authoritative.

Done this tenth day of July 1997
At The Hague
The Netherlands

(signed)
___________________________
Claude Jorda,
Presiding Judge, Trial Chamber I

(SEAL OF THE TRIBUNAL)


1. Decision of Trial Chamber I on the Prosecutor’s requests of 12 and 14 May 1997 for protection of witnesses, The Prosecutor v. Blaskic, 6 June 1997.
2. Decision of Trial Chamber I on the requests of the Prosecutor dated 12 and 14 May 1997 for the protection of witnesses, The Prosecutor v. Blaskic, 6 June 1997, p. 6, para. 10.
3. Article 22 of the Statute and Rule 75 of the Rules.
4. Decision on the Prosecutor’s motion requesting protective measures for victims and witnesses, The Prosecutor v. Tadic, 10 August 1995.
5. Article 20(4) of the Statute states that "the hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with its rules of procedure and evidence".
6. Rule 78 of the Rules reads: "All proceedings before a Trial Chamber, other than deliberations of the Chamber, shall be held in public, unless otherwise provided".
7. Decision on the Prosecutor’s motion requesting protective measures for victims and witnesses op. cit, 4.
8. ibid., p. 14, para. 33.
9. Decision on the Prosecutor’s motion requesting protective measures for victims and witnesses op. cit, 4.
10. Decision on the Prosecutor’s motion requesting protective measures for victims and witnesses op. cit, 4.

   

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