Report No. 198
"First, the party making the application for video-link testimony should make arrangements for an appropriate location from which to conduct the proceedings. The venue must be conducive to the giving of truthful and open testimony. Furthermore, the safety and solemnity of the proceedings at the location must be guaranteed. The nonmoving party and the Registry must be informed at every stage of the efforts of the moving party and they must be in agreement with the proposed location. Where no agreement is reached on an appropriate location, the Trial Chamber shall hear the parties and the Registry, and make a final decision.
Second, the Trial Chamber will appoint a Presiding Officer to ensure that the testimony is given freely and voluntarily. The Presiding Officer will identify the witnesses and explain the nature of the proceedings and the obligation to speak the truth. He will inform the witnesses that they are liable to prosecution for perjury in case of false testimony, will administer the taking of the oath and will keep the Trial Chamber informed at all times of the conditions at the location. Third, unless the Trial Chamber decides otherwise, the testimony shall be given in the physical presence only of the Presiding Officer and, if necessary, of a member of the Registry-technical staff.
Fourth, the witnesses must, by means of a monitor, be able to see, at various times the Judges, the accused and the questioner, similarly, the Judges, the accused and the questioner must each be able to observe the witness on the monitor. Fifth, a statement made under solemn declaration by a witness shall be treated as having been made in the courtroom and the witness shall be liable to prosecution for perjury in exactly the same way as if he had given evidence at the seat of the International Tribunal."
(F) 28.4.97: Decision on the motion by prosecution for protective measures pseudonymed 'B' to 'M'.
This matter related to all the four accused Zejmit Delalic, Zdiavka Mucia, Hazim Deliv and Esad Landzo.
The Trial Chamber quoted the relevant rules of Procedure and Evidence. They are as follows:
"Rule 75: Measures for protection of victims and witnesses:
(A) A Judge or a Chamber may, proprio motu or at the request of either party, or of the Victims and Witnesses Unit, order appropriate measures for the privacy and protection of victims or witnesses, provided that the measures are consistent with the rights of the accused.
(B) A Chamber may hold an in camera proceeding to determine whether to order:
(i) measures to prevent disclosure to the public or the media of the identity or whereabouts of a victim or a witness, or of persons related to or associated with him by such means as:
(a) expunging names and identifying information from the Chambers' public records;
(b) non-disclosure to the public of any records identifying the victim;
(c) giving testimony through image-or voice-altering devices or closed circuit television; and
(d) assignment of a pseudonym.
(ii) closed sessions, in accordance with Rule 79;
(iii) appropriate measure to facilitate the testimony of vulnerable victims and witnesses, such as one-way closed circuit television.
(C) A Chamber shall, whenever necessary, control the manner of questioning to avoid any harassment or intimidation."
"Rule 78: Open Sessions:-All proceedings before a Trial Chamber, other than deliberations of the Chamber, shall be held in public.
Rule 79: Closed Sessions:(A) The Trial Chamber may order that the press and the public be excluded from all or part of the proceedings for reasons of:
(i) public order or morality;
(ii) safety, security or non-disclosure of the identity of a victim or witness as provided in Rule 75; or
(iii) the protection of the interests of justice.
(B) The Trial Chamber shall make public the reasons for its order.
Rule 90: Testimony of Witnesses-(A) Witnesses shall, in principle, be heard directly by the Chamber unless a Chamber has ordered that the witness be heard by means of a deposition as provided for in Rule 71. "
In the case on hand, the prosecution prayed for 11 separate protective measures for the 12 witnesses 'B' to 'M' and certain special measures to witness 'B'. The Chamber characterized them as falling into 3 groups:
(1) Measures, sought for all 12 witnesses are for confidentiality or protection from the public and media.
(2) Additional protection for witness 'B' only in the form of partial anonymity from the accused.
(3) Additional protection for witness 'B' against 'retraumatisation'.
On these issues, the Trial Chamber, after referring to the elaborate arguments of both sides, proceeded to state as follows. It said that Art. 15 of the Statute enables the Judges to frame rules of procedure and evidence, including rules for protection of victims and witnesses. Art 22 provides that the measures set out in such rules shall 413"include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim's identity."
After referring to Art 14 of the ICCPR, the Trial Chamber referred to Art. 21(4) which prescribes minimum guarantees of fair trial and in particular to sub. cl (e) thereof which refers to the right to witness examination by open confrontation and to Rules 69, 75, 79, 90 and 96, and dealt with the various issues, as follows:
(1) Confidentiality: The prayers were concerned with seeking nondisclosure of identifying information to the public or the media. This would, no doubt, somewhat encroach into the right of the accused for a 'public-hearing', a right guaranteed under Art 21(2) of the statute and a requirement of Art 20(4), unless otherwise directed by the Trial Chamber. Rule 78 is based on Art. 20(4).
The circumstances under which the public/media could be excluded are set out in Rule 79. (This aspect, covered 11 out of 12 witnesses). Reasons assigned were 'fear' that public knowledge of their testimony would result in danger to themselves and their families (and in case of witness 'C', it was not fear but 'privacy'). The Trial Chamber II then referred to the ruling in Prosecutor v. Dusko Tadic: (d. 31.7.96), construing the provisions of Rule 79(A)(ii) wherein it was stated:
"In balancing the interests of the accused, the public and witness R, the Trial Chamber considers that the public's right to information and the accused's right to a public hearing must yield in the present circumstances to confidentiality in the light of the affirmative obligation under the statute and the rules to afford protection to victims and witnesses. This Trial Chamber must take into account witness R's fear of the serious consequences to the members of his family if information about his identity is made known to the public or the media'.
Article 21(2) states that the accused is entitled to the exercise of the right to a public hearing, subject to Art. 22. Art. 22 states that the Tribunal shall provide in its rules of procedure and evidence, for the protection of victims and witnesses. "Such protective measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim's identity."
The Trial Chamber stated that the 'protection of the witness by in camera proceedings does not invariably detract from the right of the accused, nor from the duty of the Trial Chamber to give full respect to the right of the accused (see Rule 75(B)(i)). It stated that the Trial Chamber notes the importance of not denying the right of the accused for a public hearing except for good reasons.
Rule 75A 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 Unit, order appropriate measures for the privacy and protection of victims and witnesses provided that the measures are consistent with the rights of the accused."
The Chamber quoted the principal advantage of permitting the public and the press to a hearing, namely, that it 'contributes to ensuring a fair trial'. In Pretts & Ors v. Italy: (1984) 6 EHRR 182, it was stated by European Court that:
"publicity is seen as one guarantee of fairness of trial; it offers protection against arbitrary decision and builds confidence by allowing the public to see justices administer."
The Chamber stated that a public hearing is mainly for the benefit of the accused and not necessarily for the public. It quoted Chief Justice Warren in Estes v. Texas (1965) 381. US 532 of US Supreme Court to the following effect:
There can be no blinking the fact that there is a strong societal interest in public trials. Openness in Court proceedings may improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously...."
The Trial Chamber must balance both interest.- that is a balance between the accused and the victim/witness. Rule 79 enables the exclusion of the press and public from the proceedings for various reasons including the safety of the victim/witness.
Several Rules relate to the maintaining of a balance between the right of the accused to a public hearing and the protection of victims and witnesses. Rule 69 allows non-disclosure at the 'pre-trial' stage, of the identity of a victim or witness who may be in danger until the witness is brought under the protection of the International Tribunal.
This nondisclosure applies to the press, public and the accused. Under Rule 75, appropriate measures consistent with the rights of the accused may be taken, to protect victims and witnesses. Rule 79 enables the exclusion of the press and public from the proceedings on the ground of public order, or morality, or the safety or non-disclosure of the identity of victim or witness or the protection of the interests of justice. The Trial Chamber observed:
"It is clear from the construction of the provisions of the relevant Articles of the Statute of the International Tribunal, namely Article 20 (4), 21(2) and 22 and the enabling Rules, namely, Rules 69, 75 and 79, that the Statute which is the legal framework for the application of the rules, provides that the protection of victims and witnesses, is an acceptable reason to limit the accused's right to a public trial.
Article 14(1) of the ICCPR and Art. 6(1) of the ECHR state that everyone is entitled to a fair and public hearing. Nevertheless, both Articles provide that the press and the public may be excluded in the interests of morals, public order or national security, where the interests of juveniles or the protection of the private life of the parties so require, or where publicity would prejudice the interests of justice."
The Trial Chamber refused to grant all the prayers for closed sessions asked for in relation to the various witnesses and held that 'a combination of protective measures, including closed sessions, will satisfy the needs of the witnesses and constitute adequate protective measures in these proceedings'.
As to 'witness C' (a male), a victim of sexual assault, the prayer for a closed session was allowed. Public order or morality were good reasons for excluding media and public (under Rule 79(A)(i)). In a number of jurisdictions, both civil and common law, identity of an alleged victim of sexual assault is kept away from the publi.- section 4 of the (UK) Sexual Offences (Amendment) Act, 1976, permitting anonymity in name, address or picture and Canadian Criminal Code (1954), section 442(3) permits granting anonymity from the public, upon application to Court.
Civil law jurisdictions such as Switzerland, Denmark and Germany have similar legislations. Swiss law prohibits the publication of identity of a victim if it is necessary to protect the interests of the prosecution or if the victim requests non-disclosure. The Court room may be closed during the victim's testimony. In Denmark, a victim in an incest or rape case, may request a trial in camera and the request would be granted. In Germany, publicity can be restricted or excluded, in order to protect the accused and witnesses.
Further, in Prosecutor v. Dusko Tadic (dt. 10.8.95) the majority cited several cases decided in the US, permitting non disclosure of identity of sexually assault victims. (Florida v. B.J.F (1989) 491 US 524, Waller v. Georgia (1984) 467 US 39; for partial closure see Douglas v. Wainright (1984) 739 F.2d. 531 (11th Cir); for total closure see Press-Enterprise Co. v. Superior Court: (1984) 464 US 501.
In regard to witnesses 'D' through to 'M', the fears were held not to be fully substantiated and therefore, instead of total confidentiality, the Chamber directed that the witnesses be shielded from visual recognition by the public and media, but evidence will be in open session but through image altering devices.