IN THE TRIAL CHAMBER
Before: Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon
Registrar: Mr. Hans Holthuis
Decision of: 30 October 2003
PROSECUTOR
v.
SLOBODAN MILOSEVIC
CONFIDENTIAL
_________________________________________________
DECISION ON PROSECUTION’S APPLICATION FOR A WITNESS
PURSUANT TO RULE 70 (B)
__________________________________________________
The Office of the Prosecutor
Ms. Carla Del Ponte
Mr. Geoffrey Nice
Mr. Dermot Groome
The Accused
Slobodan Milošević
Amici Curiae
Mr. Steven Kay, QC
Mr. Branislav Tapušković
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
("the International Tribunal"),
BEING SEISED of a confidential and partly ex parte "Prosecution
Application for a Witness Pursuant to Rule 70 (B)", filed on 10 October
2003 ("Application"), seeking the following:
- leave to call General Wesley Clark ("the witness"), adding him
to the witness list on the basis that "good cause" has been shown;
- that, in accordance with the Appeals Chamber’s Rule 70 Decision, the witness
and his entire testimony be treated as information protected by
Rule 70 (C) and (D);
- that paragraphs 61, 62, 63, 65, 66, 67 and 85 of the summary attached to
the Motion as ex parte Annex A be led in closed session, on the basis
that, in the opinion of the information provider, the Government of the United
States of America ("US Government"), it constitutes sensitive information
going to that Government’s legitimate national interests;
- that the witness or the US Government representatives can require the testimony
to be moved into closed session when necessary to protect sensitive information;
- to give effect to the protective measures sought, the broadcast of the testimony
be delayed 48 hours (instead of the customary 30 minutes), to enable the US
Government to review the transcript, and the testimony to be entirely in temporary
closed session, the public gallery being closed so as to protect any information
initially given in open session but subsequently required to be given closed
session protection;
- the Prosecution’s testimony should be limited in scope to the content of
the summary attached to the Motion as ex parte Annex A;
- the scope of cross-examination should be restricted to the scope of examination-in-chief,
except to the extent the Accused or Amici Curiae seek to have the scope
of examination expanded by prior agreement of the US Government; and
- the US Government should be entitled to have 2 representatives present in
court during the testimony of the witness,
NOTING the "Amici Curiae Reply to Prosecution Application
for a Witness Pursuant to Rule 70 (B) Dated 10 October 2003" filed on 16
October 2003 ("Response"), in which the following is submitted:
- the Prosecution has not shown "good cause" to add the witness;
- whilst not having seen the summary of the witness (which was annexed by
the Prosecution to its Motion on an ex parte basis), it is suggested
that closed session testimony should be used to protect only that which is
truly confidential and the impact of the Accused’s questioning would be unfairly
restricted by it being in closed session; and
- the procedures proposed by the Prosecution to protect the confidential information
may constitute undue interference with the proceedings and the interests of
the US Government could be adequately dealt with in the courtroom as they
arise if the Government made available at the time of the testimony the necessary
personnel able to take decisions on this;
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 1,
CONSIDERING the Trial Chamber accepts that the explanation
offered in the Motion satisfies the Trial Chamber that its requirement that
good cause be shown is satisfied, in that the basis upon which the witness is
allowed to give evidence by the information provider was only agreed on the
date of the Application and that the witness can give important evidence,
CONSIDERING the Appeals Chamber has held that
- where it can be established that information is provided to the Prosecution
on a confidential basis under Rule 70, then it is protected by paragraphs
(C) and (D) of that Rule 2;
- when 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 (which is often, as in this case, presented in summary form in
a witness statement) 3;
- the Trial Chamber has the authority to assess whether information has
been provided in accordance with Rule 70 (B), although "such enquiry
must be of a very limited nature" 4.
- the Trial Chamber retains the safeguard of a discretion to "exclude
evidence if its probative value is substantially outweighed by the need
to ensure a fair trial" pursuant to Rule 70 (G) 5;
and
- the Trial Chamber has discretion to allow the presence of representatives
of an information provider in court whilst the evidence is given 6,
CONSIDERING that the Trial Chamber accepts, on the basis
of the Prosecution submissions, that the witness and the testimony he will give,
was provided on a "confidential basis" pursuant to Rule 70,
CONSIDERING that it is appropriate, consistent with
the Trial Chamber’s prior practice, for two representatives of the US Government
to be present in court when the testimony of the witness is given,
NOTING the provisions of Rules 75 and 79 of the Rules,
CONSIDERING that the US Government has imposed conditions
on the provision of the "information" as set out in the Prosecution
Application and repeated above,
NOTING Rule 70 (G) which states that nothing in Rule 70 (C) or (D) 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,
PURSUANT TO Rules 70, 75, 79 and 54 of the Rules of
Procedure and Evidence
HEREBY GRANTS THE MOTION and ORDERS as follows:
- General Wesley Clark ("the witness") may be added to the Prosecution
witness list;
- the witness’s testimony shall be treated as information provided pursuant
to and protected by Rule 70 (C) and (D);
- two representatives of the US Government may be present in court during
the testimony of the witness;
- the evidence of the witness shall be given in open session subject to the
protective measures set out below;
- the evidence contained in paragraphs 61, 62, 63, 65, 66, 67 and 85 of the
summary attached to the Motion as ex parte Annex A may be given in
private session in order to protect the national interests of the US and request
may be made for additional evidence to be so given on the same ground;
- the public gallery be closed during the course of the witness’s testimony;
- the broadcast of the testimony be delayed for a period of 48 hours to enable
the US Government to review the transcript and make representations as to
whether evidence given in open session should be redacted in order to protect
the national interests of the US, and shall be delayed for a period thereafter
to enable the Trial Chamber to consider and determine any redactions requested,
and, if ordered, for the redactions to be made to the tape of the testimony
prior to its release;
- the scope of examination-in-chief and cross-examination of the witness be
limited to the content of the summary attached to the Motion as ex parte
Annex A;
- The Accused or Amici Curiae may seek to have the scope of examination
expanded by prior agreement of the US Government (obtained directly from that
Government or through the representation of the Office of the Prosecutor),
once the summary of the evidence-in-chief to be given is disclosed to them;
and
- The Prosecution shall disclose the summary contained in ex parte Annex
A forthwith.
Done in English and French, the English text being authoritative.
___________________________
Richard May Presiding
Dated this thirtieth day of October 2003
At The Hague
The Netherlands
[Seal of the Tribunal]
1 . “Decision on Prosecution Request for Agreement
of Trial Chamber to Amend Schedule of Filings”, 18 April 2002, p.3.
2 . Prosecutor v. Miloševic, “Decision on the Interpretation
and Application of Rule 70”, IT-02-54-AR108bis & AR73.3, 23 October 2002
(“Milosevic Appeals Decision”), para. 20.
3 . Ibid, para. 23.
4 . Ibid, para. 29. The Appeals Chamber states that this is
an objective test, and continues: “The Chambers may be satisfied of this simply
by a consideration of the information itself, or by the mere assertion of the
Prosecutor, or they may require confirmation from the information provider or,
where the information is in the form of a document, for example, there may be
something on the face of the document which indicates that it was indeed provided
on a confidential basis.” Trial Chambers must give the information provider
an opportunity to be heard, allowance to file written submissions satisfying
this requirement (para. 31).
5 . Ibid, para. 26.
6 . Ibid, para. 33.
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