Protective measures

Notion(s) Filing Case
Contempt Appeal Judgement - 27.09.2006 MARIJAČIĆ & REBIĆ
(IT-95-14-R77.2-A)

42. Rule 79 of the Rules lists three reasons for holding closed sessions, one of which is the safety, security or non-disclosure of the identity of a witness as provided in Rule 75 of the Rules. The consequence of a closed session is that all information mentioned therein including the identity of the witness who testifies is protected from the public. It is not for third parties to determine which part of a closed session is protected. […]

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ICTY Rule Rule 79
Notion(s) Filing Case
Decision on Clarification - 20.06.2008 NIYITEGEKA Eliézer
(ICTR-96-14-R75)

Eliézer Niyitegeka filed a motion for review before the Appeals Chamber, requesting the Appeals Chamber, inter alia, to admit excerpts of closed session transcripts from other cases to which he had not been granted access. The Appeals Chamber declined to examine those excerpts “obtained in direct violation of Trial Chambers’ orders”.[1] Following the Appeals Chamber’s decision, Eliézer Niyitegeka requested access to the relevant closed session transcripts to the relevant Trial Chambers. His requests were denied, together with his requests for reconsideration and for certification of an appeal. Eliézer Niyitegeka then filed a motion for clarification before the Appeals Chamber.

8.       […] the Appeals Chamber recalls that, in its Decision on Third Request for Review, it stated that the closed session material submitted by the Applicant in support of his Third Request for Review had been “obtained in direct violation of Trial Chambers’ orders”.[2] The Appeals Chamber was well aware that the Applicant was not a party to the proceedings in which the protective measures were ordered. However, it considered that, by obtaining and making use of closed session material to which he undoubtedly knew that he was not authorized to have access, the Applicant took part in the breach of the Trial Chambers’ orders committed by those who were directly bound by them. The Applicant therefore participated in the violation of the orders for protective measures imposed by the Trial Chambers and, thereby, “seriously undermine[d] the integrity of the Tribunal’s proceedings”.[3]    

11.     […] the Appeals Chamber clarifies that, although the Applicant was not a party to the cases in which the protective measures were ordered, he was bound by the Trial Chambers’ orders not to disclose confidential material from the moment it came into his possession. Similar to what the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia found in respect of closed session orders,[4] the Appeals Chamber considers that the orders of protective measures apply to all persons coming into possession of protected information. This is necessary, in particular, in order to comply with the Tribunal’s obligation pursuant to Article 21 of the Statute to protect witnesses on whose behalf protective measures have been ordered. Such orders would be meaningless if third parties were allowed to disclose confidential information on the sole ground that the orders were not expressly directed to them.

[1] Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Third Request for Review, 23 January 2008 (“Decision on Third Request for Review”), para. 9.

[2] Decision on Third Request for Review, para. 9, citing The Prosecutor v. Mikaeli Muhimana, Case No. ICTR-95-1B-T, Decision on Defence Motion for Protective Measures for Defence Witnesses, 6 July 2004 and The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-R75, Order on Protective Measures for Prosecution Witnesses, 10 December 2004.

[3] Decision on Third Request for Review, para. 9.

[4] See Prosecutor v. Josip Jović, Case No. IT-95-14 & 14/2-R77-A, Judgement, 15 March 2007, para. 22; Prosecutor v. Ivica Marijačić and Markica Rebić, Case No. IT-95-14-R77.2-A, Judgement, 27 September 2006, para. 24. 

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ICTR Rule Rule 75 ICTY Rule Rule 75
Notion(s) Filing Case
Decision on Clarification - 20.06.2008 NIYITEGEKA Eliézer
(ICTR-96-14-R75)

Eliézer Niyitegeka filed a motion for review before the Appeals Chamber, requesting the Appeals Chamber, inter alia, to admit excerpts of closed session transcripts from other cases to which he had not been granted access. The Appeals Chamber declined to examine those excerpts “obtained in direct violation of Trial Chambers’ orders”.[1] Following the Appeals Chamber’s decision, Eliézer Niyitegeka requested access to the relevant closed session transcripts to the relevant Trial Chambers. His requests were denied, together with his requests for reconsideration and for certification of an appeal. Eliézer Niyitegeka then filed a motion for clarification before the Appeals Chamber.

14.     Rule 75(G) of the Rules, which allows for the possibility of seeking to rescind, vary, or augment protective measures ordered at trial does not provide for an appeal as of right, nor do the Rules address the issue of whether a decision rendered by a Trial Chamber after the close of trial and appeal proceedings is subject to appeal. However, because issues related to access to confidential material by a convicted person concern the important question of balance between the right of the convicted person to access potentially exculpatory material and the need to guarantee the protection of victims and witnesses,[5] the Appeals Chamber considers, proprio motu, that an applicant is entitled to challenge a decision by a Trial Chamber, pursuant to Rule 75(G) of the Rules, rendered after the close of trial and appeal proceedings before the Appeals Chamber.

[1] Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Third Request for Review, 23 January 2008 (“Decision on Third Request for Review”), para. 9.

[2] Decision on Third Request for Review, para. 9, citing The Prosecutor v. Mikaeli Muhimana, Case No. ICTR-95-1B-T, Decision on Defence Motion for Protective Measures for Defence Witnesses, 6 July 2004 and The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-R75, Order on Protective Measures for Prosecution Witnesses, 10 December 2004.

[3] Decision on Third Request for Review, para. 9.

[4] See Prosecutor v. Josip Jović, Case No. IT-95-14 & 14/2-R77-A, Judgement, 15 March 2007, para. 22; Prosecutor v. Ivica Marijačić and Markica Rebić, Case No. IT-95-14-R77.2-A, Judgement, 27 September 2006, para. 24.

[5] Cf. Prosecutor v. Enver Had‘ihasanović et al., Case No. IT-01-47-AR73, Decision on Application for Leave to Appeal, 1 February 2002, p. 2. 

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ICTR Rule Rule 75 ICTY Rule Rule 75
Notion(s) Filing Case
Decision on Access (Perišić) - 27.04.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

14. The Appeal Chamber notes that protective measures ordered in one proceeding “shall continue to have effect mutatis mutandis in any other proceeding before the Tribunal”.[1] It further recognises that once the Appeals Chamber has granted access to confidential materials from another case, it then determines if and what additional protective measures are necessary in order to “strike a balance between the rights of a party to have access to material to prepare its case and guaranteeing the protection and integrity of confidential information”.[2]

15. The Appeals Chamber finds that existing protective measures should continue to apply to any material released to Perišić. It will further give the opportunity to the parties to the Dragomir Milošević case to request additional protective measures, if they so choose.

[1] Rule 75(F)(i) of the Rules; see also Galić Decision, para. 11.

[2] Blagojević and Jokić Decision, para. 16, referring to Naletilić Decision, p. 7. 

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ICTR Rule Rule 75 ICTY Rule Rule 75
Notion(s) Filing Case
Decision on Access (Karadžić) - 19.05.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

The Prosecution requested that it be able to withhold material from Karadžić that may relate to protected witnesses in Dragomir Milošević who may be called in the Karadžić case and for whom delayed disclosure may be justified. The Prosecution therefore suggested that the Registry withhold access to this material in accordance with the time frames set out in such orders as may be issued by the Karadžić Trial Chamber or, at least, until the Prosecution is required to file its witness list in the Karadžić case. It further submitted that, should it subsequently decide to not call one or more protected witnesses from the Dragomir Milošević case in the Karadžić case, it will notify the Registry, which may allow access to the materials relating to those witnesses. The Appeals Chamber considered that the particular time frames of the Karadžić case favoured the approach suggested by the Prosecution and held:

14. […] The Appeals Chamber considers that the Trial Chamber seized of the Karadžić case is best placed to evaluate, pursuant to Rule 69 of the Rules, whether exceptional circumstances exist to warrant delayed disclosure of the materials related to Prosecution witnesses. Considering the fact that the Prosecution was to provide its witness list by 18 May 2009, the Appeals Chamber deems that, in these circumstances, it is in the interests of judicial expediency to adopt the suggested approach. Accordingly, the Appeals Chamber allows the Prosecution to withhold the material until the Trial Chamber seized of the Karadžić case decides on the Prosecution’s requests for delayed disclosure of inter partes confidential material from the Dragomir Milošević case. The Appeals Chamber holds that the Prosecution will have to file any such requests for delayed disclosure before the Trial Chamber seized of the Karadžić case by 26 May 2009.

In paragraphs 15-17, the Appeals Chamber restated its usual approach concerning access to Rule 70 material and other protective measures.

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ICTY Rule Rule 69;
Rule 75
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
Appeal Judgement - 16.11.2001 MUSEMA Alfred
(ICTR-96-13-A)

71.     In this instance, the Trial Chamber found that exceptional circumstances existed which justified the non-disclosure of the identities of Prosecution witnesses.  In the opinion of the Appeals Chamber, the Trial Chamber was, in the circumstances, bound to consider the testimony of these witnesses in the same way as that of witnesses who were not afforded protective measures.  Indeed, when assessing the probative value of the testimony of a protected witness, the Trial Chamber may take into consideration his status as protected witness, but it is incorrect to say that a Trial Chamber must exercise “special caution” in assessing such evidence. 

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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)
Notion(s) Filing Case
Decision on Clarification - 26.05.2003 BLAŠKIĆ Tihomir
(IT-95-14-A)

26.     The Appeals Chamber considers that the ultimate concern behind a more elaborate regime of access […] is […] to strike a reasonable balance between the rights of the accused (or appellant) and the protection of witnesses and victims.  That concern can be addressed through protection of different degrees, but the measures employed to achieve such protection do not have to be identical. […] it is not likely that the refusal of confidential witnesses to give consent to have their testimony disclosed to the Applicants can prevent such testimony from being disclosed at the expense of the rights of the accused.  This is because the testimony once given in court becomes part of the trial record, thus part of the record of the Tribunal.  The use of such record in other proceedings before the Tribunal, or its possible use, if any, outside of the Tribunal, is subject to, and only subject to, existing protective measures indicated by the Chambers pursuant to the Rules and having considered the legitimate concerns of the witnesses prior to their testimony.  Those existing protective measures, however, can be varied under Rule 75 to safeguard the rights of the accused before the International Tribunal.

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Notion(s) Filing Case
Decision on Rescinding Protective Measures - 14.11.2016 KAMUHANDA Jean de Dieu
(MICT-13-33)

6. As a preliminary matter, the Appeals Chamber notes that the Impugned Decision was rendered after the close of the trial and appeal proceedings in Kamuhanda’s case[1] and that, therefore, Rule 80(B) of the Rules, which requires certification to appeal a decision rendered at trial, by its plain language is not applicable in the present case.[2] The Appeals Chamber further observes that Rule 86 of the Rules, which regulates measures for the protection of victims and witnesses, does not expressly provide for an appeal as of right or address the issue of whether a decision rendered by a Single Judge after the close of trial and appeal proceedings is subject to appeal. In interpreting an equivalent provision in the ICTR Rules, the ICTR Appeals Chamber has held that an applicant is entitled to appeal a decision on witness protective measures which was rendered after the close of the trial and appeal proceedings.[3] Bearing this practice in mind and in light of the importance of the protection of victims and witnesses to the proper functioning of the Mechanism,[4] the Appeals Chamber considers that it has jurisdiction over this appeal.

[1] See supra [Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33, Decision on Appeal of Decision Declining to Rescind Protective Measures for a Deceased Witness, 14 November 2016], paras. 2, 3.

[2] Rule 80(B) of the Rules reads: “Decisions rendered on such motions are without interlocutory appeal save with certification by the Trial Chamber, which may grant such certification if the decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber an immediate resolution by the Appeals Chamber may materially advance the proceedings.” See also Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R75, Decision on Motion for Clarification, 20 June 2008 (“Niyitegeka Decision of 20 June 2008”), para. 13 (interpreting the parallel for certification in the ICTR Rules of Procedure and Evidence (“ICTR Rules”), Rule 73(B) of the ICTR Rules).

[3] See Niyitegeka Decision of 20 June 2008, para. 14. See also Georges A.N. Rutaganda v. The Prosecutor, Case No. ICTR-96-3-R, Order to the Registrar Concerning Georges Rutaganda’s Access to Documents, 22 January 2009, p. 2.

[4] See [Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33] Decision on a Motion for a Public Redacted Version of the 27 January 2010 Decision on Application of The Prosecutor of the Tribunal for Variation of Protective Measures, 11 May 2016, p. 2; Prosecutor v. Dragoljub Kunarac et al., Case Nos. MICT-15-88-R86H.1/MICT-15-88-R86H.2, Decision on Prosecution Requests for a Public Redacted Version of a Decision on Applications Pursuant to Rule 86(H), 9 February 2016, p. 1 and references cited therein.

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ICTR Rule Rule 73(B) MICT Rule Rule 80(B);
Rule 86
Notion(s) Filing Case
Decision on Rescinding Protective Measures - 14.11.2016 KAMUHANDA Jean de Dieu
(MICT-13-33)

9. Pursuant to Rule 86(F)(i) of the Rules, protective measures ordered before the ICTY, the ICTR, or the Mechanism (“first proceedings”), continue to have effect in any other proceedings before the Mechanism (“second proceedings”) unless and until they are rescinded, varied or augmented. The Appeals Chamber observes that Kamuhanda requested rescission of protective measures granted to a witness in his own case and, therefore, the Single Judge became seised of the “first proceedings”. In contrast, Rules 86(F)(i), 86(H) and 86(I) of the Rules which form the basis of the Impugned Decision, govern the continuation of protective measures in a “second proceedings” and the conditions for their rescission upon a request from a party to the “second proceedings”, a domestic jurisdiction, or a protected victim or witness.

10. Since Kamuhanda is a party to the “first proceedings” seeking rescission of protective measures in his own case, neither Rule 86(F)(i) nor Rule 86(H), and consequently Rule 86(I) of the Rules, apply in relation to Kamuhanda’s request. Notwithstanding, the Appeals Chamber considers that it was within the Single Judge’s discretion to take into account the conditions for rescission of protective measures set out in Rule 86(I) of the Rules, as the consent of the witness concerned, the existence of exigent circumstances or the potential for a miscarriage of justice may be relevant factors in balancing the interests of the convicted person and the need for the continued protection of victims and witnesses.[1] However, the conditions set out in Rule 86(I) of the Rules are not required as a matter of law in the circumstances of this case where a party is seeking the modification of protective measures granted to one of its witnesses in its own case.

11. The Appeals Chamber further recalls that, pursuant to Rule 86(A) of the Rules, a Chamber may, at the request of either party, order appropriate measures for the privacy and protection of victims and witnesses.[2] Rule 86(A) of the Rules is applicable mutatis mutandis to matters of rescission or variation of protective measures sought by a party in its own case.[3] In assessing whether protective measures should be rescinded or varied under Rule 86(A) of the Rules, a Chamber should take into consideration any information relevant to the requested modification. In such cases, the consent of the witness is not necessarily required if the Chamber is otherwise satisfied that the modification or rescission is justified in the circumstances of the case.

[1] See Impugned Decision [Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33, Decision on Motion to Rescind Protective Measures for Defence Witness ALM, 29 March 2016], p. 3. The Appeals Chamber notes that, although the Impugned Decision contains a reference to Rule 86(J) of the Rules (see Impugned Decision, p. 2), no finding was entered by the Single Judge pursuant to this Rule.

[2] See also Rule 2(C) of the Rules.

[3] See The Prosecutor v. François Karera, Case No. ICTR-01-74, Decision Rescinding the Protective Measures of Witness BMI, 27 September 2011, paras. 5, 6; Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-T, Order on Rescission of Protective Measures in relation to Witness Ljubinko Cvetić, 7 December 2006, paras. 1, 2. See also Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54-T, Decision on Jean de Dieu Kamuhanda’s Motion for Protective Measures for Defence Witnesses, 22 March 2001(“Protective Measures Decision”), para. 24 (where the Trial Chamber noted that Kamuhanda could seek at any time variation or augmentation of the protective measures granted to the potential witnesses, including Witness ALM).

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MICT Rule Rule 86
Notion(s) Filing Case
Decision on Rescinding Protective Measures - 14.11.2016 KAMUHANDA Jean de Dieu
(MICT-13-33)

12. In granting protective measures in the present case, the Trial Chamber considered that “the fears of the potential witnesses and their families, if they testify on behalf of [Kamuhanda] without protective measures” were well founded.[1] The Appeals Chamber notes that, following the death of a witness who had benefited from protective measures, security concerns may remain for the witness’s family. Therefore, the security concerns of members of a deceased witness’s family may constitute a relevant consideration in determining whether the protective measures granted to the witness should remain in place or be rescinded under Rule 86(A) of the Rules.

[1] Protective Measures Decision, paras. 14, 16, p. 6.

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MICT Rule Rule 86(A)
Notion(s) Filing Case
Decision on Inter Partes Proceedings in Rule 86 Matters - 09.03.2017 KARADŽIĆ Radovan
(MICT-13-55-A)

7.       As to Karadžić’s request for participation in the Rule 86 proceedings referred to in the Motion, the Appeals Chamber notes that the proceedings concern requests for variation of protective measures granted by the International Criminal Tribunal for the former Yugoslavia with regard to Prosecution witnesses. In these circumstances, when deciding whether to vary the existing protective measures, the Appeals Chamber considered it appropriate to seek information from the Prosecution. The Appeals Chamber did not consider it necessary to lift the ex parte status of the Rule 86 Applications in respect of Karadžić and invite him to make submissions because it did not consider that Karadžić would be in a position to supplement the witness protection information from the Witness Support and Protection Unit of the Mechanism or offer other information relevant to witness protection concerns of Prosecution witnesses. The Appeals Chamber emphasizes that the Rule 86 Applications concern the application of witness protection measures in domestic proceedings, not Karadžić’s appeal. For these reasons, the Appeals Chamber finds that Karadžić has failed to demonstrate that he has standing to participate in the Rule 86 proceedings identified in the Motion.

[1] In addition, the Appeals Chamber observes that the Practice Direction on the Procedure for Variation of Protective Measures allows for applications pursuant to Rule 86 of the Rules to be filed ex parte with regard to one or more of the parties in the proceedings, provided that the applicant provides an explanation of the good cause for filing the application ex parte. See Practice Direction on the Procedure for Variation of Protective Measures, para. 6. The Appeals Chamber is satisfied that the Rule 86 Applications evince good cause for their ex parte status as they contain information identifying domestic investigations and pre-trial proceedings.

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MICT Rule Rule 86
Notion(s) Filing Case
Decision on Pseudonyms of Witnesses - 22.05.2017 KARADŽIĆ Radovan
(MICT-13-55-A)

Pages 3-4:

RECALLING that, pursuant to Rule 71(B) of the Rules, the Prosecution shall, on request, permit the Defence to inspect any books, documents, photographs, and tangible objects in its custody or control, which are material to the preparation of the defence;

CONSIDERING, that the pseudonyms that Karadžić wishes to inspect are not books, documents, photographs, or tangible objects in the Prosecution’s custody or control, but rather information contained in confidential and ex parte filings;

FINDING, therefore, that Rule 71(B) of the Rules is not applicable;

[…]

CONSIDERING that disclosing pseudonyms of protected witnesses in this case who were the subject of Rule 86 proceedings may reveal details about non-public investigations in other jurisdictions[1] which were communicated to the Mechanism on a confidential and ex parte basis;

[1] See Response [Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-A, Prosecution’s Response to Karadžić Motion to Compel Inspection of Pseudonyms of Witnesses Subject to Ex Parte Rule 86 Proceedings, 25 April 2017], para. 8. 

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MICT Rule Rule 71(B);
Rule 86