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) IRMCT 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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IRMCT 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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IRMCT 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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IRMCT 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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IRMCT Rule Rule 71(B);
Rule 86
Notion(s) Filing Case
Decision on Appeals of Decisions Rendered by a Single Judge - 09.08.2017 NIYITEGEKA Eliézer
(MICT-12-16-R)

10.     The Appeals Chamber accepts Niyitegeka’s argument that, at the time he filed the Request for Certification, it was not clear that he was entitled to appeal as of right the Decision of 29 January 2016, which was issued, in part, on the basis of Rules 73 and 86 of the Rules [of Procedure and Evidence of the Mechanism (“”Rules”)]. The Appeals Chamber recalls that the Appeals Chamber of the ICTR had ruled in Niyitegeka’s case that Rule 73 of the ICTR Rules concerning the requirement of certification prior to appeal applies only to interlocutory appeals during an applicant’s proceedings before a trial chamber and had held that an applicant is entitled to appeal as of right a decision pursuant to Rule 75(G) of the ICTR Rules rendered by another trial chamber after the close of that applicant’s trial and appeal proceedings.[1] Subsequently, Rule 75 of the ICTR Rules – the equivalent of Rule 86 of the Rules – was amended to provide for an express right of appeal of decisions taken under that rule when issued after the conclusion of an applicant’s trial proceedings.[2] However, Rule 86 of the Rules does not provide the same express right of appeal of decisions issued under it after the close of trial proceedings. In addition, only after Niyitegeka filed his Request for Certification did the Appeals Chamber clarify that the requirement of certification to appeal is not applicable to decisions under Rule 86 of the Rules rendered after the close of an applicant’s trial and appeal proceedings and that there lies a right of appeal in such circumstances.[3]

[…]

12.     […] [T]he Appeals Chamber clarifies that an appeal lies as of right of any decision taken under Rule 73 of the Rules by a single judge or trial chamber after an applicant’s trial and appeal proceedings have concluded. This is necessary to give full effect to the continuous obligation imposed upon the Prosecution by Rule 73(E) of the Rules to disclose exculpatory material after the completion of trial and any subsequent appeal.[4]

[1] Niyitegeka Decision of 20 June 2008 [Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R75, Decision on Motion for Clarification, 20 June 2008], paras. 13, 14.

[2] Compare ICTR Rules of 14 March 2008 with ICTR Rules of 1 October 2009. Specifically, the ICTR Rules of 1 October 2009. Specifically, the ICTR Rules of 1 October 2009 were amended to include Rule 75J, which states: “Decisions under paragraph (G) and, after the close of trial proceedings, paragraph (A), and under Rule 69, are subject to appeal directly to a full bench of the Appeals Chamber by either party. Appeals shall be filed within fifteen days of the filing of the impugned decision. A responding party shall, thereafter, file any response within ten days from the date of the filling of the appeal. The Appellant may file a reply within four days of the filing of the response. Failure to comply with these time limits shall constitute a waiver of the right to appeal.”

[3]See Kamuhanda Decision of 14 November 2016 [Case No. MICT-13-33, Decision on Appeal of Decision Declining to Rescind Protective Measures for a Deceased Witness]], para. 6. 

[4] Cf. Prosecutor v. Naser Orić, Case No. MICT-14-79, Decision on an Application for Leave to Appeal the Single Judge’s Decision of 10 December 2015, 17 February 2016 (“Orić Decision of 17 February 2016”), para. 6. 

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ICTR Rule Rule 73;
Rule 75
ICTY Rule Rule 73;
Rule 75
IRMCT Rule Rule 73;
Rule 86
Notion(s) Filing Case
Decision on Appeals of Decisions Rendered by a Single Judge - 09.08.2017 NIYITEGEKA Eliézer
(MICT-12-16-R)

14. The Appeals Chamber recalls that decisions related to witness protection and disclosure of evidence are discretionary decisions.[1] In order to successfully challenge such a decision, Niyitegeka must demonstrate that the Single Judge committed a discernible error resulting in prejudice to him.[2] […]

[1] The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Judgement, 14 December 2015 (“Nyiramasuhuko et al. Appeal Judgement”), paras. 137, 431; Édouard Karemera and Matthieu Ngirumpatse v. The Prosecutor, Case No. ICTR-98-44-A, Judgement, 29 September 2014, para. 85; Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Judgement, 23 January 2014, para. 29.

[2] Nyiramasuhuko et al. Appeal Judgement, para. 68; Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-A, Judgement, 30 January 2015, para. 131.

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Notion(s) Filing Case
Decision on an Appeal of a Decision Rendered by a Single Judge - 06.10.2017 KAMUHANDA Jean de Dieu
(MICT-13-33)

14.     The Appeals Chamber recalls the generally accepted principle that the interpretation and implementation of protective measures should be the least restrictive necessary to provide for the protection of victims or witnesses.[1]

15.     […] the Appeals Chamber observes that the contested language releases the Mechanism and the WISP from accountability for any moral or material prejudice the witness might suffer whether he or she consents to the interview or does not and, therefore, prima facie, it neither encourages nor discourages a witness from consenting to an interview.[2] In addition, Kamuhanda’s contention that the impugned provision necessarily discouraged the witness from agreeing to an interview is not supported by Witness GEK’s explanation for not consenting to the interview. Witness GEK declined the request for the interview not because of the contested language, having to express an understanding that the witness could not hold the Mechanism responsible for his or her decision, but rather because of fears for safety.[3] […]

[1] The Prosecutor v. Théoneste Bagosora et al., Case Nos. ICTR-98-41-AR73 & ICTR-98-41-AR73(B), Decision on Interlocutory Appeals of Decision on Witness Protection Orders, 6 October 2005, para. 19.

[2] Registrar’s Submission [Registrar’s Submission Pursuant to Order of 8 June 2017, 21 June 2017 (confidential)], Annex, RP. 2/1554bis (“I fully understand the meaning and implications of my personal decision and therefore commit myself, through this document, not to hold WISP and the Mechanism in general accountable for any moral and material prejudice which I might suffer from my decision as to whether to participate in such an interview.”) (Emphasis added).

[3] See Registrar’s Submission, Annex, RP. 1/1554bis (“I fear for my safety because even when I appeared before the Tribunal previously, I did so as a protected witness. If they want to interview me, I am prepared to meet with them in court. In all other respects, my response is no.”).

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IRMCT Rule Rule 86
Notion(s) Filing Case
Appeal Judgement - 19.03.2019 KARADŽIĆ Radovan
(MICT-13-55-A)

230. The Appeals Chamber recalls that trial chambers enjoy considerable discretion in relation to the management of the proceedings before them,[1] including on decisions concerning disclosure of evidence and protective measures for witnesses.[2] In order to successfully challenge a discretionary decision, a party must demonstrate that the trial chamber has committed a discernible error resulting in prejudice to that party.[3]

See also para.251.

231. Rule 66(A)(ii) of the ICTY Rules provides in relevant part that, subject to Rules 53 and 69 of the ICTY Rules and within the time-limit prescribed by a trial chamber or a pre-trial Judge appointed pursuant to Rule 65 ter of the ICTY Rules, the Prosecution shall disclose to the Defence copies of the statements of all witnesses whom the Prosecution intends to call to testify at trial. At the time of the Decision on Disclosure Violation of 8 February 2012, Rule 69 of the ICTY Rules provided that:

(A) In exceptional circumstances, the Prosecutor may apply to a Judge or Trial Chamber to order the non-disclosure of the identity of a victim or witness who may be in danger or at risk until such person is brought under the protection of the Tribunal.

[…]

(C) Subject to Rule 75, 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 defence.[4]

Rule 69(C) of the ICTY Rules was amended on 28 August 2012 to read:

Subject to Rule 75, the identity of the victim or witness shall be disclosed within such time as determined by the Trial Chamber to allow adequate time for preparation of the Prosecution or defence.[5]

This remains the operative language of Rule 69(C) of the ICTY Rules. Rule 75(A) of the ICTY Rules provides that “[a] Judge or a Chamber may, proprio motu or at the request of either party, or of the victim or witness concerned, or of the Victims and Witnesses Section, order appropriate measures for the privacy and protection of victims and witnesses, provided that the measures are consistent with the rights of the accused”.[6]

232. The Appeals Chamber observes that in the Šešelj Decision of 24 January 2008, the ICTY Appeals Chamber stated that it did “not accept […] that Rule 69(C) must be interpreted as authorising delayed disclosure prior to the commencement of the opening of the trial only”.[7] It reasoned that the purpose of Rule 69(C) of the ICTY Rules is to allow a trial chamber to grant protective measures that are necessary to protect the integrity of its victims and witnesses, subject to the caveat that such measures are consistent with the rights of the accused to have adequate time for the preparation of his defence. The ICTY Appeals Chamber then stated that “[t]here is no rule that the rights of the defence to have adequate time for preparation mandate that delayed disclosure be granted only with reference to the beginning of trial”.[9] It concluded that “[t]he matter rather falls under the discretion of the Trial Chamber”.[10] 

233. On 14 December 2011, the ICTR Appeals Chamber in the Bagosora and Nsengiyumva case held that the trial chamber in that case had 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 trial. In interpreting a provision of the ICTR Rules that was identical to Rule 69(C) of the ICTY Rules, the ICTR Appeals Chamber stated that, while a trial chamber has discretion to order protective measures where it has established the existence of exceptional circumstances, “this discretion is still constrained by the scope of the Rules”.[12] It emphasized that at the time of the trial chamber’s decision in that case, the phrase “prior to the trial” was part of Rule 69(C) of the ICTR Rules. It further stated that it did not consider that the trial chamber’s “disregard for the explicit provision of the Rules was necessary for the protection of witnesses”.[14] It noted a protective measures decision in the Nsengiyumva case prior to the joinder of the two cases[15] in which the trial chamber had ordered the temporary redaction of identifying information until witnesses were brought under the protection of the ICTR, but had nonetheless required that the defence be provided with unredacted witnesses statements within sufficient time prior to the trial.[16] It continued that “[a]t no point did the Trial Chamber indicate that any problems had arisen from this previous arrangement justifying a more restrictive disclosure schedule”.[17]

[…]

235. […] While the ICTR Appeals Chamber stated that a trial chamber’s discretion to order protective measures is constrained by the scope of the Rules, which provided that such disclosure be made “prior to the trial”, it did not rule out a deviation from this requirement for the purposes of a more restrictive disclosure schedule required for the protection of witnesses. Thus, the Appeals Chamber does not consider that the Bagosora and Nsengiyumva Appeal Judgement overruled the Šešelj Decision of 24 January 2008 in which the ICTY Appeals Chamber concluded that the allowance for delayed disclosure until after the commencement of trial falls within a trial chamber’s discretion to allow such protective measures that are necessary for the protection of witnesses, subject to safeguarding the rights of the accused.[19] In this respect the Appeals Chamber notes that the ICTR Appeals Chamber in the Bagosora and Nsengiyumva Appeal Judgement did not refer to the decision of the ICTY Appeals Chamber in the Šešelj case and did not propose to depart from its reasoning. […]

[1] Prlić et al. Appeal Judgement, para. 26; Šainović et al. Appeal Judgement, para. 29. See also Nyiramasuhuko et al. Appeal Judgement, para. 137; Ndahimana Appeal Judgement, para. 14.

[2] Nyiramasuhuko et al. Appeal Judgement, para. 431; Karemera and Ngirumpatse Appeal Judgement, para. 85; Bagosora and Nsengiyumva Appeal Judgement, para. 79.

[3] Stanišić and Župljanin Appeal Judgement, para. 470; Nyiramasuhuko et al. Appeal Judgement, paras. 68, 138, 185, 295, 431, 2467; Popović et al. Appeal Judgement, para. 131; Nizeyimana Appeal Judgement, para. 286.

[4] IT/32/Rev. 46, 20 October 2011.

[5] IT/32/Rev. 47, 28 August 2012.

[6] This was the language of Rule 75(A) of the ICTY Rules at the time of the Decision on Disclosure Violation of 8 February 2012 and remains the operative language of this rule.

[7] [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR73.6, Decision on Vojislav Šešelj’s Appeal Against the Trial Chamber’s Oral Decision of 7 November 2007, 24 January 2008 (“Šešelj Decision of 24 January 2008”)], para. 15.

[8] Šešelj Decision of 24 January 2008, para. 15.

[9] Šešelj Decision of 24 January 2008, para. 15.

[10] Šešelj Decision of 24 January 2008, para. 15.

[11] Bagosora and Nsengiyumva Appeal Judgement, paras. 83, 85.

[12] Bagosora and Nsengiyumva Appeal Judgement, para. 83.

[13] Bagosora and Nsengiyumva Appeal Judgement, para. 83. Rule 69(C) of the ICTR Rules was amended at the 12th Plenary Session held on 5 and 6 July 2002 so as to no longer include the wording “prior to the trial”.

[14] Bagosora and Nsengiyumva Appeal Judgement, para. 84.

[15] The cases against Anatole Nsengiyumva and Théoneste Bagosora were originally undertaken separately and joined on 29 June 2000 along with the cases against Aloys Ntabakuze and Gratien Kabiligi. See Bagosora and Nsengiyumva Appeal Judgement, para. 4.

[16] Bagosora and Nsengiyumva Appeal Judgement, para. 84, referring to 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, p. 4.

[17] Bagosora and Nsengiyumva Appeal Judgement, para. 84.

[18] See Bagosora and Nsengiyumva Appeal Judgement, para. 84. Specifically, the ICTR Appeals Chamber stated: “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.” Bagosora and Nsengiyumva Appeal Judgement, para. 84.

[19] Šešelj Decision of 24 January 2008, para. 15. The Appeals Chamber observes the longstanding practice of ICTY trial chambers in allowing delayed disclosure after the commencement of trial. See, e.g., Prosecutor v. Milan Lukić and Sredoje Lukić, Case No. IT-98-32/1-T, Decision on Milan Lukić’s Motion to Compel Disclosure of Contact Information and on the Prosecution’s Urgent Motion to Compel Production of Contact Information, 30 March 2009, para. 21; Prosecutor v. Rasim Delić, Case No. IT-04-83-PT, Decision, 8 December 2006, p. 4; [Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-T, Decision on Prosecution’s Motion for Order of Protection, 1 August 2006], p. 6; Prosecutor v. Milan Martić, Case No. IT-95-11-PT, Decision on Prosecution’s Motion to Amend its Rule 65 ter Witness List, 9 December 2005, pp. 5, 6; [Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Decision on Prosecution’s Twelfth Motion for Protective Measures for Victims and Witnesses, 12 December 2002], p. 6; Prosecutor v. Momčilo Krajišnik and Biljana Plavšić, Case No. IT-00-39&40-PT, First Decision on Prosecution’s Motion for Protective Measures for Sensitive Source Witnesses, 24 May 2002, paras. 7, 15, 19; Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-PT, Order for Delayed Disclosure of Statements and Protective Measures, 19 March 1999, pp. 2, 3.

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ICTR Rule Rule 69 ICTY Rule Rule 69
Notion(s) Filing Case
Appeal Judgement - 19.03.2019 KARADŽIĆ Radovan
(MICT-13-55-A)

252.  […] Rule 75(A) of the ICTY Rules provides that a trial chamber may order appropriate measures for the privacy and protection of victims and witnesses, provided that the measures are consistent with the rights of the accused, whereas Rule 75(F)(i) of the ICTY Rules requires a chamber to apply the protective measures ordered in prior ICTY proceedings mutatis mutandis to the proceeding before it unless and until they are rescinded, varied, or augmented.[1] Given these materially distinct considerations, the Trial Chamber’s continuation of protective measures for Prosecution witnesses pursuant to Rule 75(F)(i) of the ICTY Rules has no bearing on the exercise of its discretion in denying protective measures to Defence witnesses under Rule 75(A) of the ICTY Rules. […]

[1] [Footnote omitted].

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ICTY Rule Rule 75
Notion(s) Filing Case
Appeal Judgement - 29.06.2022 FATUMA Marie Rose et al.
(MICT-18-116-A)

77.  The Appeals Chamber notes that there is no requirement in the jurisprudence that unauthorised disclosure of protected information must take place in a public domain or be accessible to the general public in order to amount to an interference with the administration of justice under Rule 90(A)(ii) of the Rules.[1] In addition, the Rules and previous contempt jurisprudence do not sustain the proposition that release of protected information does not amount to “disclosure” in circumstances where the recipient is already in possession of such information. To the contrary, the ICTY Appeals Chamber in the Jović case expressly confirmed that the fact that protected information may have been previously disclosed by a third party does not mean that such information is no longer protected or that its subsequent disclosure will not be in violation of a court order.[2]The Appeals Chamber considers that the Jović Contempt Appeal Judgement and the Nshogoza Contempt Appeal Judgement both support the principle that release, whether in a public or private domain, of protected information may constitute unauthorised disclosure, irrespective of whether the intended recipient of such information was already aware of it due to previous disclosure by another person.

[1] In the Nshogoza case, for example, the accused was held responsible for disclosing to Augustin Nyagatare and a notary Witness GAA’s identity, as a Prosecution witness, and Witness A7/GEX’s identity, as either someone who had given a statement to the Prosecution or as a potential Prosecution witness. See Nshogoza Contempt Appeal Judgement, para. 48, referring to, inter alia, Nshogoza Contempt Trial Judgment, para. 186.

[2] Jović Contempt Appeal Judgement, para. 30. See also Šešelj Contempt Appeal Judgement of 19 May 2010, para. 29.

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IRMCT Rule Rule 90(A)(ii)