DECISION OF TRIAL CHAMBER I ON THE APPLICATIONS OF THE PROSECUTOR DATED 24 JUNE AND 30 AUGUST 1996 IN RESPECT OF THE PROTECTION OF WITNESSES

[http://www.un.org/icty/blaskic/trialc1/decisions-e/61002ND113279.htm]

Trial Chamber I has received two applications from the Prosecutor dated 24 June and 30 August 1996 in respect of the protection of witnesses.

Given the relative complexity of the facts in dispute and the increasingly divergent positions of the Parties in their successive conclusions, the chronology of the relevant activity must be recounted:

10 November: confirmation of the indictment by Judge McDonald;

3 April: initial appearance of the accused;

17 June: decision ordering inter alia the transmission to the accused, at the latest by 24 June 1996, of the statements attached to the indictment after redaction of the identifying data and the transmission of these data by

1 September 1996 at the latest;

----- transmission of seventy-six redacted statements to the accused;

24 June: application of the Prosecutor requesting leave not to transmit to the accused the ten remaining statements and to present this application in camera and ex parte, i.e., without the accused and his counsel being present;

30 August: application of the Prosecutor requesting to be relieved of his obligation to transmit by 1 September 1996 the identifying data in the seventy-six redacted statements already transmitted;

16 September: written opposition of the accused to the two above-mentioned applications;

18 September: written response of the Prosecutor requesting anonymity for the eighty-seven (rather than eighty-six) witnesses and a general order of non-disclosure.

It is important to note that the accused has been in detention ever since his initial appearance.

The Trial Chamber met on 18 and 19 September 1996 to consider these issues. In accordance with the order of the Presiding Judge of the Trial Chamber dated 18 September 1996, and with the agreement of both parties, all sessions were held in camera.

The Trial Chamber first announced that it intended to dispose of the issues in the following order:

1. the request for an ex parte hearing;

2. the measures of protection for the witnesses;

3. the calendar of the proceedings.

The Trial Chamber will now deal with these issues in that same order, taking into account that it had already ruled on the first issue at its session of 18 September 1996.

This application implies that the accused and his counsel will be excluded from the courtroom during the proceedings in respect of the Prosecutor’s application.

This is an extraordinary request from the perspective of the accused’s right to be present at his trial, a right which he intends to invoke and which the International Covenant on Civil and Political Rights (Article 14) and the Statute of the Tribunal itself (Article 21, para. 4) both proclaim.

At the hearing of 18 September, the Prosecutor attempted to circumvent this right by defending the following submission (provisional transcript, page 10, line 31):

"There is an accused’s right to be present at the trial, but there is no accused’s right to be present at every aspect of that trial".

That distinction is totally artificial, and this Trial Chamber has had no difficulty in setting it aside. The right of the accused to be present at his trial obviously includes every one of its stages, commences from the time the indictment is served, and must be respected both during the preliminary proceedings and the trial itself before the appropriate court.

After deliberation, the Trial Chamber issued a written decision which it read to the Parties during the hearing of 18 September and in which it rejected the application of the Prosecutor for an ex parte hearing. The question is now definitively settled.

The Prosecutor requests: 1. the extension sine die of the order of 17 June 1996 originally requiring the redaction of the identifying data of the witnesses until 1 September 1996 at the latest, and 2. the complete non-disclosure of the statements of those witnesses.

In support of his request, the Prosecutor, required by Sub-rule 69(A) of the Rules of the Tribunal to demonstrate the existence of "exceptional circumstances", called as a witness Mr. Simon Leach, a British police officer, and, since 3 October 1994, a member of the Office of the Prosecutor where he works as "Investigations Team Leader". Mr. Leach referred to the unstable, even dangerous, situation still prevailing in central Bosnia, the ethnic animosity between Croats and Muslims, threats made against certain people, and the justified fears of several potential witnesses for their own safety and the safety of their family members should their identity be disclosed.

These, however, do not constitute recently arisen circumstances. They existed and were known almost one year ago at the time the indictment was submitted; six months ago, at the initial appearance of the accused; and even four months ago at the time of the decision of this Trial Chamber ordering the disclosure of the relevant information.

The Prosecutor is now asserting that, in any case, he is unable to provide reliable information, that witnesses may have moved, that circumstances may have changed, and that, for the time being, he is not in a position to propose specific measures of protection. Hence his application for an indefinite extension of the status quo.

Counsel for the accused objects to this way of considering the matter. The accused, in detention for six months after having surrendered himself voluntarily to the Tribunal, is insisting that his trial begin within a foreseeable time. Everything, however, is interdependent: the accused is entitled to a reasonable time to prepare his defence, but his defence depends in turn on the disclosure of the Prosecutor’s evidence.

A balance must therefore be struck between security for the prosecution and fairness for the Defence. For the time being, it is the security of the prosecution which the Prosecutor seeks to achieve. The burden is his. He cannot absolve himself of it simply by invoking a difficult situation as grounds for postponing indefinitely the solution to which the accused is entitled: to be tried without undue delay (Article 21.4 (c) of the Statute).

According to Mr. Simon Leach, the witnesses have not been interviewed for about two and a half months (provisional transcript, 19 September 1996, page 19, line 3), perhaps since April or May, i.e., four or five months (ib., page 18 line 23). After such a long period, the Prosecutor is now proposing to send Mr. Simon Leach to Bosnia on Monday, 23 September to begin discussions with the local authorities on this subject (ib., page 34, line 29 ff. and page 35). Finding solutions, according to Mr. Leach himself, however, "will take some time" (ib., page 12, line 2). The witness then added that, depending on the case, the appropriate solution might require a month or two or three months (ib., page 15, line 22), or more than five months (ib., page 11, line 27). The trial might as well be postponed indefinitely!

Defence counsel has stated that he is prepared to be accommodating. He is not insisting on enjoying the full benefit of the time-limit which the Rules might give him. Nor is he insisting that the Tribunal translate a significant number of documents into Croatian immediately. He is, however, insisting that the evidence be disclosed. He has pointed out that even the statements which have been transmitted to him were largely blacked out: 50% and more, with the excuse offered that what was blacked out was identifying data (ib.. Mr. Hayman, page 41, lines 22 to 30).

Already at the hearing of 17 June 1996, as this Trial Chamber recalled in its decision of that same date, the Parties declared (decision, page 2)

CONSIDERING that during that hearing, and at the invitation of the Trial Chamber, the Prosecutor modified the conclusions presented in his request and indicated his willingness to transmit to the Defence the Statements of the witnesses and victims, with the names and other identifying data redacted;

CONSIDERING that the Defence has agreed to such a procedure conditional both on the Statements having been translated into a language which the accused understands and on the identity of the witnesses and victims having been disclosed in sufficient time prior to the trial to allow adequate time for preparation of the defence of the accused.

Though somewhat imperfect, this agreement took on the character of a contract. That is how counsel for the accused construes the issue (provisional transcript, 19 September 1996, page 39, line 31):

"That is a contract. The Prosecution cannot breach that contract without very, very grave consequences".

Nonetheless, the Defence does recognise the need for a minimum of precaution in order to counter the difficulties to which disclosure of the evidence might otherwise give rise. During the hearing, defence counsel committed himself in the following terms (ib., Mr. Hayman, page 41, lines 1 to 9I):

"I would submit under this consideration which is, of course, important, that the danger from limited disclosure, disclosure only to myself and Miss Pedisic and to the accused with the proper court orders and guarantees in place, are non-existent. We are not going to share the information with the public. We are not going to share it with the press. We will treat the information with the utmost care. I have not heard anything, not even an argument, much less testimony from Mr. Leach, that would suggest to the contrary."

In the hope that the debates might have allowed the Parties to come to a meeting of the minds, the Trial Chamber adjourned for a half hour after having heard the arguments. When the hearing resumed, the Prosecutor stated:

"We have not agreed on a particular way to operate;" (ib., page 47, line 4)

and each of the Parties maintained its position. The Trial Chamber, however, is very keen to see the case move forward and cannot be satisfied with a fruitless status quo which penalises the Defence while not even ensuring progress in the proceedings and threatens to provoke an unnecessary delay in the judgement which is the raison d’être for the existence of the Tribunal.

In order to resolve the difficulty, the Trial Chamber will first base itself inter alia on Articles 20, 21 and 22 of the Statute of the Tribunal. In particular, it calls attention to paragraph 1 of Article 20:

"1. The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses."

The Trial Chamber will also base itself, subject to the same qualification, on Rules 66, 67, 69, 75 and 79 of the Rules of the Tribunal. It emphasises that the evidence shall be made available by the Prosecutor "as soon as practicable after the initial appearance of the accused" (Rule 66) and that the Prosecutor may request measures of non-disclosure only "in exceptional circumstances" (Rule 69).

In this case, the Prosecutor did to some extent demonstrate that an "exceptional" situation does exist, although everything which falls within the jurisdiction of the Tribunal might be considered to be exceptional. Nonetheless, the Prosecutor was unable to recommend any protective measures to the Tribunal other than an extension of the status quo, which is the equivalent of a denial of justice to the Defence, and a mere suggestion of further investigations which threaten to postpone the start of the trial indefinitely.

The Trial Chamber was astonished by the Prosecutor’s total lack of mention, be it in his applications, his written briefs, or his oral argument, of possible support from the Victims and Witnesses Unit.

For now, the Tribunal wishes to put an end to this procedural imbroglio. To do so, the Trial Chamber deems it appropriate to prescribe measures which, as radical as they may appear, will have the merit of closing a debate on procedure and will further the interests of justice in a case where the Parties have been unable to do so on their own.

It will therefore be ordered:

1. that, within fifteen days from this decision, the Prosecutor shall make available to the accused and to his counsel the full text of the seventy-six - or seventy-seven - statements which have already been transmitted to them;

2. that, by 1 December 1996, the Prosecutor shall make available to the accused and his counsel the full text of the ten other statements for which the Prosecutor has requested complete non-disclosure;

3. that the Prosecutor shall, if he deems it necessary, obtain, within the time-limits stated in paragraphs 1 and 2 above, the consent of the signatories of the statements to their being made available to the Defence, failing which he may not call those witnesses at the trial;

4. that the accused, his counsel and their agents shall disclose to the public or to the media neither the names of the witnesses in question nor any information which might permit their identity to be discovered and shall ensure that their own steps do not open the door to such identification, under pain of contempt of the Tribunal.

Two dates remain to be set: the time-limit for filing preliminary motions by the accused and the start of the trial itself.

a) Preliminary motions

Sub-rule 73(B) states that the accused must bring his motions, if any, "within sixty days after his initial appearance and, in any case, before the hearing on the merits".

Sub-rule 73(C) provides a safety valve: "Failure to apply within the time-limit prescribed shall constitute a waiver of the right. Upon a showing of good cause, the Trial Chamber may grant relief from the waiver".

In an undated submission filed with the Registry on 30 May 1996, the accused suggested that the sixty-day period "be counted by the Tribunal from the date the accused and his attorneys have been given all the evidence the Tribunal possesses translated into the Croatian language".

In an order of 26 August 1996, the Presiding Judge of this Trial Chamber reviewed the legal situation:

"CONSIDERING that, as noted by the Chamber during the status conference of 17 June 1996, the time-limit for the submission of preliminary motions as stipulated in Sub-rule 73(B) of the Rules cannot be observed since the Defence has not been notified of all the statements."

Since the calendar for the disclosure of the evidence has now been set up, the time-limit for filing preliminary motions, should the accused wish to bring any, must be set for the guidance of all the parties concerned.

It will therefore be ordered that the sixty-day period provided for in Rule 73 of the Rules for the bringing of preliminary motions by the accused shall begin at the expiration of the fifteen-day period stipulated in the previous chapter of this Decision.

b) Start of the trial

Rule 62 of the Rules gives the Trial Chamber jurisdiction for initiating the procedure for setting the date for trial. This follows logically from Article 20, para. 3 of the Statute: "The Tribunal shall then set the date for trial."

The Trial Chamber sought the wishes and suggestions of the Parties. The Prosecutor suggested February 1997. Defence counsel stated that he would be prepared to proceed by December 1996 after the decision on any possible preliminary motions he might bring. This grey area has not been dispelled.

Without entering into any further discussion, given the interests in question and having consulted with the Registrar, the Trial Chamber sets the date of Wednesday, 8 January 1997 at 10 am for the start of the trial.

1. that, within fifteen days from this decision, the Prosecutor shall make available to the accused and to his counsel the full text of the seventy-six - or seventy-seven - statements which have already been transmitted to them;

2. that, by 1 December 1996, the Prosecutor shall make available to the accused and his counsel the full text of the ten other statements for which the Prosecutor has requested total non-disclosure;

3. that the Prosecutor shall, if he deems it necessary, obtain, within the time- periods stated in paragraphs 1 and 2 above, the consent of the signatories of the statements to their being made available to the Defence, failing which he may not call those witnesses at the trial;

4. that the accused, his counsel and their agents disclose to the public or to the media neither the names of the witnesses in question nor any information which might permit their identity to be discovered and shall ensure that their own steps do not open the door to such identification, under pain of contempt of the Tribunal.

5. that the sixty-day period provided for in Rule 73 of the Rules for the filing of preliminary motions by the accused shall begin at the expiration of the fifteen-day period stipulated in paragraph 1 of this disposition.

6. that the start of the trial of this case is set for Wednesday, 8 January 1997 at 10 am.

Done in French and English, both versions being authoritative.

This second day of October 1996
The Hague, The Netherlands

______________________________
Claude Jorda Presiding Judge, Trial Chamber

Source:
http://www.un.org/icty/blaskic/trialc1/decisions-e/61002ND113279.htm