Report No. 198
(2) Partial Anonymity:
For witness B, the prosecution sought non-disclosure to the public and media and also protection from face-to-face confrontation with accused as it could increase danger to safety. The witness did not object to his name being disclosed. The Trial Chamber, on facts, held that the accused's rights must be respected, as stated in Kostovski v. The Netherlands (1990) 12 EHRR 434, Art. 6 of the ECHR, Art. 14 of the ICCPR and Art. 21(4)(e) of the Statute of the Tribunal.
The exceptions were public interest and public policy. In Unterpertinger v. Austria (1991) 13 EHRR 175, the European Court of Human Rights held that non-confrontation of the accused with his accuser could amount to violation of Art. 6(1) of the ECHR. In Delaware v. Fensterer (1985) 474 US 15, the US Supreme Court said that confrontation was necessary to expose the infirmities of forgetfulness, confusion, or evasion, by subjecting the witness to cross-examination.
The Trial Chamber held by reference to Tadic case that the Judges must be able to observe the demeanour of the witnesses, must be aware of the identity of the witness in order to test his reliability; the accused must be enabled to question the witness on issues unrelated to his or her identity or current whereabout.- such as, how the incriminating material was obtained, (excluding information enabling tracing the name). Finally, the identity of the witness must be released when the reasons for requiring such security of the witness, are over.
The Trial Chamber held (as in Tadic) that before anonymity is granted, the following conditions must be satisfied:
(a) there must be real fear of the safety of the witness or his or her family;
(b) the testimony of the witness must be important to the case of the Prosecution;
(c) the Trial Chamber must be satisfied that there is no prima facie evidence that the witnesses are untrustworthy;
(d) the ineffectiveness or non-existence of a witness-protection-programme by the Tribunal and
(e) the protective measures taken, should be necessary.
The Prosecution admitted that accused would not know 'B' merely by his name. But, if that be so, unless there is face to face confrontation, there could not be effective cross-examination. This would violate accused's right to fair trial.
It is further observed by the Trial Chamber that it may conceive of a situation where the rights of the accused can be neutralized by protective measures. This was not such a case. The allegation of danger to safety was not substantiated. It was not made out that the witness was very important for the prosecution. The credibility of the witness had not been investigated.
There was no proof that the physical assaults allegedly suffered by witness 'B' were traceable to any of the accused persons. The request for testifying from a remote room was accordingly rejected. 'B' would testify from the court-room, where his demeanour could be observed by the Judges and the defence counsel. In addition, the accused could see B in the court-room and might communicate freely with their counsel, during the course of his direct testimony and cross-examination.