Before:
Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon
Registrar:
Mr. Hans Holthuis
Order of:
8 July 2003
DECISION ON PROSECUTION’S THIRD OMNIBUS MOTION FOR LEAVE TO AMEND THE WITNESS LIST AND REQUEST PROTECTIVE MEASURES FOR SENSITIVE SOURCE WITNESSES
_________________________________________________
The Office of the Prosecutor
Ms. Carla Del Ponte
Mr. Geoffrey Nice
Mr. Dermot Groome
The Accused
Slobodan Milosevic
Amici Curiae
Mr. Steven Kay, QC
Mr. Branislav Tapuskovic
Mr. Timothy L.H. McCormack
THIS TRIAL CHAMBER of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“International Tribunal”),
BEING SEISED of a partly confidential and ex parte “Prosecution’s Third Omnibus Motion for Leave to Amend the Witness List and Request Protective Measures for Sensitive Source Witnesses”, filed by the Office of the Prosecutor (“Prosecution”) on 23 June 2003 (“Motion”),
NOTING the partly confidential and ex parte “Supplemental Filing To The Prosecution’s Third Omnibus Motion For Leave To Amend The Witness List And Request Protective Measures For Sensitive Source Witnesses”, filed by the Prosecution on 25 June 2003 (“Supplement”),
NOTING that the Motion and Supplement together seek:
(a) to add 7 witnesses to its witness list for the Croatia and Bosnia part of the trial and remove 64 witnesses from that witness list;
(b) for B-174, B-114 and B-215 (collectively, “Three Witnesses”), who are said to have exceptionally serious security concerns, protective measures of delayed disclosure to the amici curiae, Accused and the appointed lawyers for the Accused,1
(c) following such delayed disclosure, the documents and knowledge of their contents (including the identity of these witnesses) be only disclosed to third parties to the extent that such disclosure is directly and specifically necessary and that the third parties to whom it is disclosed initially sign a non-disclosure agreement,2
NOTING the “Amici Curiae Observations On Prosecution’s Third Omnibus Motion For Leave To Amend the Witness List And Request Protective Measures For Sensitive Source Witnesses Filed On 23 June 2003”, filed by 27 June 2003 (“Observations”),
NOTING that the Observations provide factors the Trial Chamber can consider in its determination of whether to allow an amendment to the witness list, to order delayed disclosure, and to require non-disclosure agreements,3
CONSIDERING the Trial Chamber’s ruling subsequent to the filing of the Prosecution’s pre-trial material for the Croatia and Bosnia part of these proceedings that it would only allow the admission of additional material by the Prosecution on good cause being shown,4
CONSIDERING that the Trial Chamber accepts that the 7 additional witnesses the Prosecution seeks to add to the witness list satisfies its requirement that good cause be shown, in that the witnesses have only been interviewed within the last few months and that the witnesses only recently agreed to testify,
CONSIDERING the fact that 64 other witnesses will be removed from the witness list,
NOTING that with respect to the protective measures sought for the Three Witnesses the Prosecution seeks to add to the witness list, the Prosecution relies upon Rules 69, 75 and 79 of the Rules of Procedure and Evidence of the International Tribunal (“Rules”),
NOTING the confidential and ex parte Annexes to the Motion and the Supplement setting out the nature of the testimony the Three Witnesses would give and the reasons for the application for the protective measures of delayed disclosure and the additional measures sought,
CONSIDERING that the Trial Chamber set out in detail, in its Decision of 13 March 2003 and in previous decisions, the preconditions to be satisfied before the particular measures sought will be granted,5 and will apply those preconditions to the relief sought in this application,
CONSIDERING that the Trial Chamber has applied the relevant criteria and has determined that the protective measures sought for the Three Witnesses are appropriate , and that such orders are consistent with the rights of the Accused. The reasons for this are the particular security risks attaching to the Three Witnesses and the important nature of the testimony it is said the Three Witnesses will give,
CONSIDERING FURTHER that, with respect to the application in respect of the Three Witnesses that the Accused and the appointed lawyers not disclose the material to third parties except to the extent directly and specifically necessary for the preparation and presentation of the defence case (and the amici curiae do so to the extent necessary to assist the Trial Chamber), and that they obtain non -disclosure agreements before doing so, the Chamber will grant this request, on the basis that it applies to a special and limited category to which these Three Witnesses belong,6
PURSUANT TO RULES 54, 69, 75 and 89(C) of the Rules,
HEREBY GRANTS THE MOTION and ORDERS as follows:
(1) The 7 witnesses identified in confidential Annex A to the Motion may be added to the witness list;
(2) The 64 witnesses identified in confidential Annex A to the Motion may be deleted from the witness list;
(3) As to the protective measures of delayed disclosure and third party agreements sought in respect of the Three Witnesses identified in confidential Annex A to the Motion
(a) disclosure of unredacted witness statements and related exhibits shall be made to the amici curiae not less than 30 days, and to the Accused and his appointed associates not less than 10 days, before the witness is expected to testify;
(b) the Accused and his appointed associates shall not disclose the witness statements and related exhibits to third parties except to the extent directly and specifically necessary for the preparation and presentation of the defence case (or, in the case of the amici curiae, the extent to which they are assisting the Trial Chamber ); and
(c) the Accused, his appointed associates and amici curiae shall initially obtain non-disclosure agreements from third parties (as provided by the Prosecution) as a precondition for release of the witness statements and related exhibits to them.
Done in English and French, the English text being authoritative.
_______________
Richard May
Presiding
Dated this eighth day of July 2003
At The Hague
The Netherlands
[Seal of the Tribunal]
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