Delayed disclosure

Notion(s) Filing Case
Appeal Judgement - 14.12.2011 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

79. The Appeals Chamber recalls that the conduct of trial proceedings, including decisions on protective measures and disclosure, is a matter which falls within the discretion of Trial Chambers. This discretion encompasses the ability of a Trial Chamber to revisit its previous decisions. In this regard, it recalls that Rule 69(A) of the Rules explicitly provides that the Trial Chamber may order the non-disclosure of the identity of a victim or witness “until the Chamber decides otherwise”. Accordingly, the fact that there was already an existing protective measures order in Nsengiyumva’s case which the Trial Chamber replaced does not in itself amount to an error. Nonetheless, the Appeals Chamber will now consider whether the Decision on Protective Measures of 7 December 2001[[2]] was in conformity with the Rules.

81. In its Decision on Protective Measures of 7 December 2001, the Trial Chamber acknowledged that the plain language of Rule 69(C) of the Rules required the Prosecution to disclose all protected witnesses’ identifying data prior to the commencement of trial.[3] Nevertheless, it concluded that a departure from the plain language of the Rule was justified by the objective of providing meaningful protection for victims and witnesses.[4] Following consultation with the Witnesses and Victims Support Section of the Prosecution (“WVSS-P”), it found that this unit was unable to place under its protection all the witnesses in the case at the same time.[5] It considered that neither the mandate of witness protection nor the necessity of ensuring that the accused had sufficient time to prepare his defence could be sacrificed and reasoned that “a proper balance must be struck to determine what amount of advance disclosure is strictly necessary to serve the twin aims of Rule 69”.[6] The Trial Chamber concluded that to require the Prosecution to disclose unredacted witness statements and protected witnesses’ identifying data prior to the commencement of trial was “ill advised because it would unnecessarily tax any real notion of witness protection without advancing the Accused’s right to effective cross-examination in any meaningful way”.[7]

82. Although the disclosure requirements under Rule 66 of the Rules are subject to Rule 69, the Appeals Chamber recalls that while a Trial Chamber may order the non-disclosure of the identity of a victim or witness who may be in danger or at risk pursuant to Rule 69(A) of the Rules, it must first establish the existence of exceptional circumstances. In the Decision on Protective Measures of 7 December 2001, the Trial Chamber referred to “the existence of the exceptional circumstance”,[8] without elaborating on what it considered to amount to the exceptional circumstance justifying the non-disclosure of the victims’ and witnesses’ identity. The Appeals Chamber notes, however, that the Trial Chamber recalled that it had consulted with WVSS-P[9] and considered that WVSS-P had informed the Trial Chamber that it lacked the capacity and resources to place all the witnesses under protection at the same time.[10] The Appeals Chamber understands that the Trial Chamber considered that this inability to provide protection to all the witnesses at the same time amounted to an exceptional circumstance warranting the delayed disclosure of the identity of the witnesses. The Appeals Chamber does not find error in this approach.

83. Nevertheless, the Appeals Chamber considers that the Trial Chamber erred in ordering the Prosecution to disclose the identity of protected victims and witnesses and their unredacted statements no later than 35 days before the expected date of their testimony. While a Trial Chamber has discretion pursuant to Rule 69(A) of the Rules regarding the ordering of protective measures where it has established the existence of exceptional circumstances, the Appeals Chamber recalls that this discretion is still constrained by the scope of the Rules. In this regard, it notes that at the time of the decision, Rule 69(C) of the Rules provided that “the identity of the victim or witness shall be disclosed in sufficient time prior to the trial to allow adequate time for preparation of the prosecution and the defence”.[11]

84. Furthermore, the Appeals Chamber does not consider that, as stated by the Trial Chamber, such disregard for the explicit provision of the Rules was necessary for the protection of witnesses.[12] It notes that in the previous witness protection decision in the Nsengiyumva case prior to the joinder, the Trial Chamber had ordered the temporary redaction of identifying information until witnesses were brought under the protection of the Tribunal, but had nonetheless required that the Defence be provided with unredacted witnesses statements “within sufficient time prior to the trial in order to allow the Defence a sufficient amount of time to prepare itself”.[13] At no point did the Trial Chamber indicate that any problems had arisen from this previous arrangement justifying a more restrictive disclosure schedule.

85. In light of the foregoing, the Appeals Chamber considers that the Trial Chamber erred in ordering the Prosecution to disclose the identity of protected victims and witnesses and their unredacted statements no later than 35 days before the expected date of their testimony, rather than prior to the trial, as then provided by the Rules. […]

See also para. 80.

[1] See, e.g., The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Interlocutory Appeal Relating to Disclosure Under Rule 66(B) of the Tribunal’s Rules of Procedure and Evidence, dated 25 September 2006 and filed 26 September 2006, para. 6; The Prosecutor v. Théoneste Bagosora et al., Cases Nos. ICTR-98-41-AR73 & ICTR-98-41-AR73(B), Decision on Interlocutory Appeals of Decision on Witness Protection Orders, 6 October 2005, para. 3.

[2] [The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-I, Decision and Scheduling Order on the Prosecution Motion for Harmonisation and Modification of Protective Measures for Witnesses, dated 5 December 2001, filed 7 December 2001].

[3] The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-I, Decision and Scheduling Order on the Prosecution Motion for Harmonisation and Modification of Protective Measures for Witnesses, dated 5 December 2001, filed 7 December 2001 (“Decision on Protective Measures of 7 December 2001”), paras. 4, 6.

[4] Decision on Protective Measures of 7 December 2001, para. 25. See also ibid., paras. 6, 9.

[5] Decision on Protective Measures of 7 December 2001, paras. 18, 19.

[6] Decision on Protective Measures of 7 December 2001, para. 6.

[7] Decision on Protective Measures of 7 December 2001, para. 9.

[8] Decision on Protective Measures of 7 December 2001, para. 9.

[9] Decision on Protective Measures of 7 December 2001, p. 2.

[10] Decision on Protective Measures of 7 December 2001, para. 18.

[11] Emphasis added.

[12] See Decision on Protective Measures of 7 December 2001, para. 20. See also ibid., para. 21.

[13] The Prosecutor v. Anatole Nsengiyumva, Case No. ICTR-96-12-I, Decision on the Prosecutor’s Motion for the Protection of Victims and Witnesses, delivered orally 26 June 1997, signed 17 November 1997, filed 3 December 1997 (“Nsengiyumva Decision on Protective Measures of 26 June 1997”), p. 4. See also ibid., p. 3. See also The Prosecutor v. Théoneste Bagosora, Case No. ICTR-96-7-I, Decision on the Prosecutor’s Motion for the Protection of Victims and Witnesses, delivered orally 31 October 1997, dated 26 November 1997, filed 3 December 1997, pp. 3, 4. The Appeals Chamber notes that the Kabiligi and Ntabakuze Decision on Protective Measures of 19 May 2000 contained more restrictive disclosure requirements, requiring “the Prosecutor to make such a disclosure, including of any material provided earlier to the Defence in a redacted form, not later than twenty-one (21) days before the protected witness is to testify at trial”. See The Prosecutor v. Gratien Kabiligi and Aloys Ntabakuze, Case No. ICTR-97-34-I, Decision on Motion by the Office of the Prosecutor for Orders for Protective Measures for Victims and Witnesses, 19 May 2000 (“Kabiligi and Ntabakuze Decision on Protective Measures of 19 May 2000”), p. 4.

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ICTR Rule Rule 69 ICTY Rule Rule 69
Notion(s) Filing Case
Decision on Variation of Protective Measures - 08.10.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

6. […] when the Appeals Chamber becomes seised of an appeal against a trial judgement, it becomes the Chamber “seised of the first proceedings” within the meaning of Rule 75(G)(i) of the Rules.[1] The Appeals Chamber, therefore, finds that the Applicant, as a party to the second proceedings,[2] properly filed his Motion before the Appeals Chamber.

7. The Appeals Chamber further recalls that, pursuant to Rule 75(F) of the Rules, protective measures that have been ordered in any proceedings before the Tribunal continue to have effect mutatis mutandis in any other proceedings before the Tribunal unless and until they are rescinded, varied or augmented. Rule 75(G) confers the competence to consider requests to vary protective measures on the Chamber seised of the first proceedings.[3] As previously observed by the Appeals Chamber, if the Chamber seised of the first proceedings were to transfer this competence to the Chamber seised of the second proceedings by way of a general referral, “the regulatory regime of Rule 75(G)(i) of the Rules would be frustrated and an important protection feature for victims and witnesses before the Tribunal would be circumvented”.[4]

8. The Krajišnik Decisions do not contradict the above interpretation.[5] These decisions concerned applications to, inter alia, rescind or vary the measure of delayed disclosure to the accused of witness identities, ordered by the Chamber seised of the first proceedings pursuant to Rule 69 of the Rules.[6] The question addressed in the Krajišnik Decisions is materially different from the present situation, where the Applicant seeks a general referral that any protective measure ordered by the Chamber seised of the first proceedings pursuant to Rule 75 of the Rules may subsequently be varied by the Chamber seised of the second proceedings.[7]

9. On the basis of the above, the Appeals Chamber reiterates that Rule 75(G) of the Rules clearly defines the procedure to be followed if a party seeks to vary protective measures ordered in previous proceedings.[8] As the Motion seeks a de facto circumvention of this Rule, it shall be denied without further consideration.

[1] Prosecutor v. Milan Lukić and Sredoje Lukić, Case No. IT-98-32/1-A, Decision on Radovan Karadžić’s Motion for Variance of Protective Measures, 25 September 2009, (“Lukić Decision”) para. 7, referring to Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Momčilo Perišić’s Motion Seeking Access to Confidential Material in the Blagojević and Jokić Case, 18 January 2006, para. 3. See also Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Michael Bagaragaza’s Motion for Access to Confidential Material, 14 May 2009.

[2] Prosecutor v. Radovan Karadžić, Case No. IT-95/18-PT.

[3] See Rule 75(G)(i) of the Rules.

[4] Lukić Decision, para. 8.

[5] Lukić Decision, para. 9.

[6] Krajišnik Decisions [Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Order Regarding Rule 75 Motion by Mićo Stanišić, 22 August 2007; Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Order Regarding Rule 75 Motion by Stojan Župljanin, 25 February 2009], p. 1, respectively.

[7] Motion, paras 1, 9.

[8] Lukić Decision, para. 10. 

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ICTR Rule Rule 75 ICTY Rule Rule 75
Notion(s) Filing Case
Decision on Access to Confidential Materials - 21.02.2007 KRAJIŠNIK Momčilo
(IT-00-39-A)

The Krajišnik Appeals Chamber was seized of a motion by Stanišić, asking for access to all confidential material in the Krajišnik case for the purposes of his defence. The Prosecution responded that it would not oppose access to all inter partes material subject to material relating to certain witnesses (specified in an ex parte annex) whose identities had been protected from Krajišnik pursuant to Rule 69 orders and who the Prosecution intended to call in the Stanišić trial as well. The question therefore arose whether Rule 75(F), which stipulates that once protective measures are ordered in one trial they are also in effect with regard to other proceedings before the Tribunal, also applies to measures ordered pursuant to Rule 69. The Appeals Chamber answered this question in the affirmative:

P. 7: CONSIDERING that “delayed disclosure” orders are protective measures to which Rule 75(F) of the Rules applies;[1]

CONSIDERING that even though such orders given in the first proceedings could be considered moot once disclosure is made, “the meaning of the expression ‘mutatis mutandis’ itself requires a flexible application of the principle enshrined in [Rule 75] and suggests that the same kinds of protection given to a witness in one case should be automatically extended to this witness in a later case, regardless of whether this is literally ‘continuation’”;[2]

FINDING that the sensitive witnesses in the Krajišnik case, as listed in the Prosecution Annex, were protected by delayed disclosure orders and that, if they are going to testify in another case, the information from the Krajišnik case should similarly be subject to delayed disclosure to the defendants in that other case (unless an order pursuant to Rule 75(G) is made);[3]

[1] Prosecutor v. Radoslav Brðanin, Case No. IT-99-36-A, Decision on Mićo Stanišić’s Motion for Access to All Confidential Materials in the Brðanin Case, 24 January 2007 (“Brðanin Decision”), para. 17.

[2] Ibid.

[3] Ibid.

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ICTR Rule Rule 75(F) ICTY Rule Rule 75(F)