ICC-01/04-01/07-176-AnxA 01-02-2008 1/196 SL PT OA2
Cour Pénale Internationale
International Criminal Court
Original : English N° : ICC-01/04-01/07 Date: 1 February 2008
THE APPEALS CHAMBER
Before : Judge Philippe Kirsch, Presiding Judge Judge Georghios M. Pikis Judge Navanethem Pillay Judge Sang-Hyun Song Judge Erkki Kourula
Registrar : Mr Bruno Cathala
SITUATION IN THE DEMOCRATIC REPUBLIC OF CONGO IN THE CASE OF THE PROSECUTOR v. GERMAIN KATANGA
Public ANNEX A to the Defense Document Providing Additional Details on the "Defense Appeal Brief concerning the First Decision on the Prosecution request for Authorisation to redact Witness Statements"
The Office of the Prosecutor Defence Counsel Mr Luis Moreno-Ocampo, Prosecutor Mr David Hooper Ms Fatou Bensouda, Deputy Prosecutor Ms Caroline Buisman Mr Eric MacDonald, Trial Lawyer Mrs. Florence Darques-Lane, Legal Adviser
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Authorities
1. In the present filing the Defence, pursuant to authorisation of the Appeals Chamber,1 submits a number of authorities which supports the issue raised in the Defence Application to Request Leave to Provide Additional Details and Authorities on the "Public Defence Appeal Brief concerning the First Decision on the Prosecution Request for Authorisation to Redact Witness Statements "."
2. A brief survey of the jurisprudence of international criminal jurisdictions demonstrates that the Single Judge erroneously enlarged the scope of application of rule 81(2) of the Rules by considering as Prosecution sources those individuals - whose identity and identifying information could be redacted pursuant to the said rule - who, despite not being Prosecution witnesses for the purpose of the confirmation hearing, have been or are about to be interviewed by the Prosecution:
(ICC)
The Prosecution v. Lubanga Dyilo, ICC-01/04-01/06-T-71-ENG ET WT 18-01-2004 4/12 NBT, pages 4, 10. The Prosecution v. Katanga, Decision on the Prosecution Request for Authorisation to Redact Statements of Witnesses 4 and 9, ICC-01/04-01/07-160, 23 January 2008, para. 29.
(ICTY)
Prosecutor v. Blaskic, Decision of Trial Chamber 1 on Prosecutor's Requests of 5 and 11 July 1997 on the Protection of Witnesses, Decision of 10 July 1997, http://www.un.ora/ictv/blaskic/trialcl/decisions-e/70710PM1133Q4.htm
Order in relation to the Defence Application to Request Leave to Provide Additional Details and Authorities, ICC-01/04-01/07-164, 24.01.08. 2 Defence Application to Request Leave to Provide Additional Details and Authorities on the "Public Defence Appeal Brief concerning the First Decision on the Prosecution Request for Authorisation to Redact Witness Statements", ICC-01/04-01/07-150, 21.01 08.
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Prosecutor v. Blaskic, Decision of Trial Chamber I on the Prosecutor's Motion for Video Deposition and Protective Measures, 11 November 1997, para. 10, http://www.un.org/ictv/blaskic/trialcl/decisions-e/71113PM113320.htm Prosecutor v Blaskic, Decision on Prosecutor's request for Authorization to Delay Disclosure of Rule 70 Information, 6 May 1998, para. 14, http://www.un.org/icty/blaskic/trialcl/decisions-e/80506DE113452.htm Prosecutor v. Kordic & Cerkez, Order on Motion to Compel Compliance by the Prosecutor with Rules 66 (A) And 68, 26 February 1999, page 3, http://www.un.org/ictv/kordic/trialc/order-e/90226EV55547.htm Prosecutor v. Brdanin & Talic, Decision on Motion by Prosecution for Protective Measures, 3 July 2000, para. 29-30, http://www.iin.org/ictv/brdjanin/trialc/decision- e/OQ703PM213035.htm Prosecutor v. Brdanin & Talic, Decision on Second motion by the Prosecution for Protective Measures, 27 October 2000, para. 31, http://www.un.org/ictv/brdianin/trialc/decision-e/Q1027PM213940.htm Prosecutor v. Brdanin & Talic, Decision On Fifth Motion By Prosecution For Protective Measures, 15 November 2000, paras. 5-6, http://www.un.org/ictv/brdianin/trialc/decision-e/01115PM213937.htm Prosecutor v. Brdanin & Talic, Decision On Prosecution's Request For Variation Of Third Protective Measures Decision, 29 November 2000, para. 14, http://www.un.Org/icty/brdianiiVtrialc/decision-e/Q1129PM214121 .htm Prosecutor v. Milosevic, Decision On Prosecution Motion For Provisional Protective Measures Pursuant To Rule 69, 19 February 2002, para. 29, http://www.un.org/ictv/milosevic/trialc/decision-e/20219PM517175.htm Prosecutor v. Brdanin & Talic, Public Version of the Confidential Decision on the Alleged Illegality of Rule 70 of 6 May 2002, 23 May 2002, paragraphs 18-19, http://www.un.org/icty/Supplement/supp33-e/brdianin.htm Prosecutor v. Milosevic, Case No. IT-02-54-T, Decision on Prosecution Motion to utilize redacted statement and order of non-disclosure, 29 May 2002, pages 2-3 http://www.un.org/icty/milosevic/trialc/decision-e/020529.pdf Prosecutor v. Mrksic, Case No. Case No. IT-95-13/1-PT, Decision on Defence Motion Requesting the Determination of Rules for Communicating with Potential Witnesses of the Opposing Party, 7 May 2003, pages 2-3, http://www.un.org/icty/mrksic/trialc/decision-e/0305Q7.htm
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(ICTR)
Prosecutor v. Kajelijeli, Case No. ICTR-98-44A-T, Decision On The Motions Of The Parties Concerning The Inspection And Disclosure Of A Videotape, 28 April 2003, para. 14, http://69.94.11.53/default.htm The Prosecutor v. Bagosora et al, Case No. ICTR-98-41-T, Decision On Disclosure Of Identity Of Prosecution Informant, 24 May 2006, para. 5, http://69.94.11.53/ENGLISH/cases/Bagosora/decisions/240506b.htm The Prosecutor v. Bagosora et al, Case No. ICTR-98-41-AR73, Decision on Interlocutory Appeal Relating to Disclosure Under Rule 66(B) of the Tribunal's Rules of Procedure and Evidence, 25 September 2006, paras. 9 and 11, http://69.94.11.53/ENGLTSH/cases/Bagosora/decisions/250906.htm# ftn32# ftn32
(ECHR)
Al-Nashifv. Bulgaria (Application no. 50963/99), Judgment, 20 June 2002, paras. 94- 98, http://www.bghelsinki.org/upload/resources/al-nashif-eng.doc
(National Jurisdiction)
United States District Court, S.D. Florida., Al NAJJAR v. RENO, 97 F. Supp. 2d 1329, No. 99-3458-CIV., 31 May 31 2000, http://international.westlaw.com/find/default. wl?spa=inthague- 000&rs=WLIN8.01&fn=_top&sv=Split&findjuris=00001&cite=97f+suppl.2d&utid= %7bl 60ABE67-8A96-4305-91B6- 3374A619CF21 %7d&vr=2.0&rp=%2ffind%2fdefault. wl&mt=InternationalLaw
(Other source)
- United Nations, Economic and Social Council, Commission of Human Rights, Question of the Human Rights of All Persons Subjected to Any Form of Detention or
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Imprisonment (Columbia), E/CN.4/1998/39/Add.2, 30 March 1998, paras. 70 and 71, http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/elb44569379d86b0802566 59005262b3?Qpendocument
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IN THE TRIAL CHAMBER
Before: Judge Claude Jorda, Presiding Judge Fouad Riad Judge Mohamed Shahabuddeen
Registry: Mr. Jean-Jacques Heintz, Deputy Registrar
Decision of: 10 July 1997
THE PROSECUTOR
v.
TIHOMIR BLASKIC
DECISION OF TRIAL CHAMBER I ON THE PROSECUTOR'S REQUESTS OF 5 AND 11 JULY 1997 FOR PROTECTION OF WITNESSES
The Office of the Prosecutor;
Mr. Mark Harmon Mr. Andrew Cayley Mr. Gregory Kehoe
Counsel for the Accused:
Mr. Anto Nobilo Mr. Russell Hayman
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l. On 5 June 1997, the Prosecution submitted to the Trial Chamber a motion "for protective measures" (hereinafter "the motion of 5 June 1997"). On 11 June 1997, the Prosecutor filed a second motion, "special request for hearing date" (hereinafter "the motion of 11 June 1997"). Defence counsel for General Blaskic (hereinafter "the Defence"), in its opposition of 13 June 1997 (hereinafter "the response"), responded to those motions. The Prosecutor replied to the opposition in a brief filed on 16 June 1997 (hereinafter "the reply). The Trial Chamber heard the parties during a hearing on 23 June 1997.
The Trial Chamber will first analyse the claims of the parties and then discuss all the disputed points of fact and law.
1. ANALYSIS OF THE CLAIMS AND ARGUMENTS OF THE PARTIES
2. In her request of 5 June 1997, the Prosecutor requested that the Judges of this Trial Chamber take measures to ensure the protection of two witnesses who are "employees of a humanitarian organisation". The measures cover six points:
1) the two witnesses will testify in closed session, but counsel for the humanitarian organisation will be permitted in the courtroom to assist, if so required, the two witnesses and the Trial Chamber regarding questions of confidentiality (hereinafter "measure 1");
2) the witnesses' names and other identifying information, including their association past or present with the humanitarian organisation will not appear in any record of the Tribunal open to the public, including the transcripts of hearings (hereinafter "measure 2");
3) the motions of 5 and 11 June 1997, and any measure relating to these applications which identify the witnesses and the humanitarian organisation with which they are affiliated will be placed under seal and will not be mentioned in any index listing the sealed documents or proceedings (hereinafter "measure 3");
4) the accused, the Defence, the Prosecution and their representatives may not disclose to anyone (specifically to those who were - or will be- indicted by the Tribunal and to their counsel) the names, addresses and other identifying information of those witnesses, including their affiliation past or present with the humanitarian organisation (hereinafter "measure 4");
5) the two witnesses will not be required to disclose their employment or current domicile or the identity of the persons who are - or who were - affiliated with the humanitarian organisation and who reside in or are nationals of the countries of the former Yugoslavia (hereinafter "measure 5");
6) the words "members of a humanitarian organisation" will be used whenever reference is made to those witness in a decision rendered pursuant to Sub-rule 79(B) of the Rules of Procedure and Evidence (hereinafter "the Rules") or in any other decision or public judgement rendered in this case, and no information identifying them will appear in those documents "hereinafter "measure 6");
The Prosecutor emphasised that the objective of these provisions was to ensure the safety of all the staff of that organisation who might be placed into serious danger by the disclosure of the identify of the said witnesses.
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3. In her motion of 11 June 1997, the Prosecution recalled that the decision of 6 June 1997 in respect of protection of witnesses1- which inter alia requested that the accused and his counsel not disclose to the public or the media the names or any identifying information about the witnesses from the former Yugoslavia - did not apply to the two witnesses who were "members of a humanitarian organisation" since they no longer resided on the territory of the former Yugoslavia.
Furthermore, the Prosecutor emphasised the fact that those witnesses had disclosed information to her on a confidential basis and that for this reason - pursuant to Sub-rule 70(B) of the Rules - she could disclose it to the Defence only after having received the consent of the person or organ concerned.
4. In its response of 13 June 1997, the Defence agreed to measures 1, 2, 3 and 6 which the Prosecution had proposed.
In addition, the Defence challenged the application of Sub-rule 70(B) to the statements of the two witness who are "members of a humanitarian organisation" which had been taken by the Office of the Prosecutor. In fact, it considered that the Prosecutor had not provided proof that the said statements had been provided to her on a confidential basis.
The Defence also strongly objected to the application of protective measures 4 and 5 which it considered to be overly restrictive of the accused's rights.
Lastly, it stressed that the humanitarian organisation had "affirmatively prevented" one of its employees from testifying for it. It added that the Trial Chamber should therefore order the organisation "to refrain from instructing its employees to cooperate with one side and not the other".
5. In her reply, the Prosecutor asserted that the statements of the two witnesses had been communicated to her on a confidential basis pursuant to Sub-rule 70(B) of the Rules.
She also recalled that protective measures 4 and 5 not only fully complied with the rights of the accused, as secured by Article 21 of the Statute, but were also indispensable for the protection of the said witnesses.
Lastly, the Prosecutor noted that the Defence had not satisfied the procedures necessary for the concerned humanitarian organisation to authorise the examination of one of its employees.
6. During the arguments at the hearing at which two individuals were heard - one as a witness - after having emphasised that the safety of the two witnesses was truly in jeopardy, the Prosecutor submitted to the Trial Chamber a modified version of measure 4:
"I. As a general principle, the parties are prohibited from disclosing to anyone, including other witnesses and potential witnesses, the fact that:
A) the witnesses from the humanitarian organisation provided information to the Prosecutor;
B) the witnesses from the humanitarian organisation testified in closed session; and that
C) the Prosecutor intends to call or has called such witnesses to testify. http://www.un.org/ictv/blaskic/trialcl/decisions-e/70710PM113304.htm Page 3 of 10 ICC-01/04-01/07-176-AnxA 01-02-2008 9/196 SL PT OA2
II. If the Defence determines that it is necessary to disclose the identify of a witness from the humanitarian organisation during the trial and during the course of its examination of a different witness, the following measures should apply:
A) that portion of the examination concerning the witness from the humanitarian organisation shall occur in closed session;
B) the questions shall be phrased so as to not disclose that the witnesses from the humanitarian organisation were employees ofthat humanitarian organisation;
C) the questions shall be phrased so as not to disclose that the witnesses from the humanitarian organisation testified at the trial or provided information to the Prosecutor;
D) counsel for the humanitarian organisation will promptly be provided with a transcript of the closed session referred to in paragraph A above.
III. If the Defence determines that it is necessary to disclose the identity of a witness from the humanitarian organisation out of court to a witness or potential witness, the following measures should apply:
A) the Defence may apply to the Trial Chamber exporte (with no notice to or participation of the Prosecutor), for permission to question a potential witness about a witness from the humanitarian organisation. Counsel for the humanitarian organisation shall be notified that such an application is being made and shall be entitled to appear in respect to the application;
B) in assessing the Defence application, the Trial Chamber shall consider the following: i) whether the Defence has exhausted all other means of obtaining the information; ii) whether the need to disclose the identity of the witness or witnesses from the humanitarian organisation relates to facts at issue and not to collateral issues.
In respect to the application described in III B) above, the burden shall be on the Defence to demonstrate that it is necessary to identify the witnesses from the humanitarian organisation."
The Defence objected to this measure and considered that it did not respect the rights of the accused and was impossible to implement. It also challenged the legality of Rule 70 of the Rules, considering that it did not place the parties on an equal footing because it could be invoked only by the Prosecution.
II. DISCUSSION
7. After having analysed the applicability of Rule 70 of the Rules to the statements of the two witnesses who are "employees of a humanitarian organisation", the Trial Chamber will consider protective measures 1, 2, 3 and 6 described in paragraph 2 of this decision. It will then review whether the provisions of 4 and 5 are compatible with rights of the accused specifically provided in Article 21 of the Statute. Lastly, the Trial Chamber will deal with the Defence motion to require that the organisation authorise one of its employees to testify on its behalf.
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A. Rule 70 of the Rules: matters not subject to disclosure
8. As regards the application of Rule 70 of the Rules to this case, the Trial Chamber considers that at the hearing of 23 June 1997, the Prosecution provided the proof that the information which the two witnesses had supplied to it were confidential at the time it was provided. It notes, moreover, that, pursuant to Sub-rule 70(B) of the Rules, the information was used solely for the purpose of generating new evidence.
Furthermore, the Trial Chamber notes that, according to the provisions of Sub-rule 70(B) of the Rules, the use ofthat information as evidence is subject to the prior consent of the entity providing it - that is, in the present case, the humanitarian organisation of which the two witnesses are employees.
In view of the objectives of Rule 70 of the Rules, the Trial Chamber must also take into account the nature and functions of the humanitarian organisation as well as the harm to all its operations which might be caused by the information's being disclosed. In this respect, it considers that in light of the humanitarian organisation's current and future mission, it is fully entitled to seek the application of the provisions of Rule 70 of the Rules.
The Judges also recall that the consent of the organisation was conditional on the Trial Chamber's ordering six protective measures which - as the Prosecutor noted in her motion of 5 June 1997 - must be examined in light of Article 22 of the Statute and Rules 54, 75 and 79 of the Rules.
The Trial Chamber must therefore analyse those measures and determine to what extent they are compatible with the rights of the accused.
B. The Protective Measures
1. General Principles
9. The Trial Chamber first recalls - as it did previously in its decision of 6 June 1997 - that it is extremely concerned that the witnesses who may be called to testify before it during the trial should be protected-. It stresses the fact that, in this respect, the Statute affirms the principle, and the Rules establish how this is to be organised. Article 20(1) of the Statute states that there must be "due regard for the protection of victims and witnesses", and Article 22 of the Statute invites the Judges to include this protection in their Rules. Sub-rule 75(A) of the Rules therefore provides that a Judge or Trial Chamber may "order appropriate measures for the privacy and protection of victims and witnesses", specifically, "expunging names and identifying information from the Chamber's public records" and "non-disclosure to the public of any records identifying the victim". Sub-rule 75(B)(ii) authorises the holding of in camera proceedings. Lastly, Sub-rule 79(A)(ii) of the Rules states that the press and the public may be "excluded from all or part of the proceedings" for various reasons, including, the need to avoid the disclosure of a victim's or witness' identity.
The Trial Chamber must also ensure that the rights of the accused enjoy "full respect" (Article 20(1) of the Statute). It must therefore guarantee that the protective measures are compatible with the right of the accused to a "fair and public hearing" (Article 21(2) of the Statute) and, more particularly, his right "to examine, or have examined, the witnesses against him" (Article 21(4) of the Statute). http://www.un.org/ictv/blaskic/trialcl/decisions-e/70710PM113304.htm Page 5 of 10 ICC-01/04-01/07-176-AnxA 01-02-2008 11/196 SL PT OA2
The Judges also recall their sovereign power to evaluate the measures they deem most appropriate to ensure the protection- and emphasise - as did Trial Chamber II in the case The Prosecutor v. Tadicr - that the list of measures provided for in Rule 75 of the Rules is not exhaustive.
2. Protective measures 1. 2. 3. 6
10. The Trial Chamber emphasises that although protective measures 1, 2, 3 and 6 in no manner infringe on the accused's right "to examine, or have examined, the witnesses against him" (Article 21(4)(e) of the Rules), they do limit his right to a public trial, as provided in Article 20(4) of the Statute1 and Rule 78 of the Rulese.
The Trial Chamber does, however, recall that the Judges of Trial Chamber II - in the case The Prosecutor v. Tadifr - stated that the "preference for public hearings must be balanced with other mandated interests such as the duty to protect [...] witnesses"^ and that the Judges needed to verify on a case by case basis whether the restrictions which the protection imposed on the rights of the accused were justified by real fear for the safety of the witnesses.
In this respect, the Judges consider that the Prosecutor sufficiently demonstrated - in her motion of 5 June 1997 and at the hearing of 23 June 1997 - that the safety of the two witnesses who are "employees of a humanitarian organisation" and its staff would be seriously threatened should their identity be disclosed to the public and the media. Furthermore, the Trial Chamber notes that the danger that much greater because some of the employees ofthat organisation are currently posted on the territory of the former Yugoslavia.
It also notes that the Defence did not challenge the application of measures 1, 2, 3 and 6 which the Prosecutor proposed.
11. The Trial Chamber therefore orders that the testimony of the two witnesses who are employees of a humanitarian organisation be heard in camera; that their names, addresses and other identifying information, including their association past or present with the humanitarian organisation, not appear in any of the Tribunal's records open to the public and that they be placed under seal; that the motions of 5 and 11 June 1997 which identify those witnesses, as well as the humanitarian organisation with which they are affiliated, be placed under seal; that the words "witnesses who are employees of a humanitarian organisation" be used whenever reference is made to those witnesses in the Tribunal's public records, and that no indication which would identify them appear in those documents.
3. Protective measures 4 and 5
12. In respect of the new version of protective measure 4 which the Prosecution presented at the hearing of 23 June 1997 and which was mentioned in paragraph 6 of this Decision, the Judges would first point out that Trial Chamber II- - basing itself on Articles 20 and 22 of the Statute as well as Sub-rules 69(C), 75(A) and (B)(iii) of the Rules and on a detailed analysis of national and international case-law, more specifically in the cases R. v. Taylor (Court of Appeals, Criminal Division 22, July 1994) and Kostovski (ECHR 20 December 1989) - had ordered that the names and addresses of four Defence witnesses not be disclosed and that their voices and images be distorted (anonymity). Five reasons justified such provisions: 1) the real fear for the safety of the witnesses and their families; 2) the importance of the testimonies for the Prosecution; 3) the lack of any serious indication that the said witnesses lacked credibility; http://www.un.org/ictv/blaskic/trialcl/decisions-e/70710PM113304.htm Page 6 of 10 ICC-01/04-01/07-176-AnxA 01-02-2008 12/196 SL PT OA2
4) the ineffectiveness or lack of a witness protection programme; 5) the absolute necessity for the said measure. If a less restrictive measure can ensure the requested protection, it should be applied. The International Tribunal must be satisfied that the accused will not suffer any excessive prejudice which can be avoided, although some imbalance is inevitable.
In this respect, the Trial Chamber notes that protective measure 4 differs from the one considered in the case The Prosecutor v. Tadic insofar as it is less restrictive about the rights of the accused. In fact, although measure 4 limits the accused's right to "examine or have examined, the witnesses against him" (Article 21(4)(e) of the Statute) - by authorising the disclosure of the identity of the two witnesses only under limited conditions - the Defence knows the identity of the said witnesses.
Indeed, as the Prosecution underscored, the Defence will have "possession of [their] statements" and "the witnesses will testify in person at trial without voice or image distortion and will be subject to a face to face cross-examination."
Furthermore, the Trial Chamber notes - as the Prosecutor demonstrated in her motion of 5 June 1997 and at the hearing on 23 June 1997 - that, as regards witnesses whose safety must be particularly guaranteed, it is clear that any disclosure of their identity might be extremely prejudicial to them.
The Trial Chamber also considers that, given the positions the witnesses held at the time of the facts and circumstances about which they are being called on to testify, they are likely to provide significant clarification in respect of the charges against the accused.
The Judges also emphasise the fact that the Tribunal does not have a victims and witnesses protection programme and is therefore not in a position to guarantee their safety once they have left the confines of the Tribunal—.
The Trial Chamber thus considers that, in view of these exceptional circumstances, it is perfectly justified that the accused, the Defence, the Prosecution and their representatives, be permitted to disclose the identity of the witnesses from the humanitarian organisation only in accordance with the stringent conditions provided in the modified version of measure 4.
Nonetheless, the Trial Chamber wishes to emphasise that, according to Rule 89(D), it "may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial".
13. As regards measure 5, the Trial Chamber first wishes to reiterate its concern for ensuring the safety of all the staff of the humanitarian organisation with which the two witnesses are affiliated and, first and foremost, of those currently posted on the territory of the former Yugoslavia.
The Trial Chamber also considers that the accused has not sufficiently demonstrated that the knowledge he might have about the domicile and current employment of these witnesses as well as the identity of the staff employed in that humanitarian organisation was indispensable for preparing his defence.
It therefore states that the said witnesses are authorised not to disclose their employment or current domicile or identity of the staff who are currently - or were formerly - employed by http://www.un.org/ictv/blaskic/trialcl/decisions-e/70710PM113304.htm Page 7 of 10 ICC-01/04-01/07-176-AnxA 01-02-2008 13/196 SL PT OA2
the humanitarian organisation and who are residents or nationals of the countries of the former Yugoslavia.
C. Equal access to the witnesses from the humanitarian organisation
The Trial Chamber takes note of the fact that, as a Prosecution witness stated at the hearing of 23 June 1997, each of the parties has equal access to the information in the possession of the said humanitarian organisation. It recalls, however, that, in order to obtain the information, both the Prosecutor and the Defence must comply with the procedures in force in that organisation.
As concerns the Defence assertion that Rule 70 of the Rules would not be applicable, the Trial Chamber recalls that the Rules were established by the Judges as part of the mission entrusted to them in Article 15 of the Statute. In this respect, the Rules were drafted in accordance with the letter and spirit of the Statute. The provisions of the Rules must, therefore, be interpreted within their general context and not within the context of one specific provision.
In fact, the provisions of the Rules seek to ensure a general balance between the protection of the rights of the accused, those of the victims and those of the Prosecution.
In that regard, insofar as necessary, the Trial Chamber should apply the provisions of Rule 70 of the Rules in respect of the Defence in the same manner as it does in respect of the Prosecution.
III. DISPOSITION
FOR THE FOREGOING REASONS,
Trial Chamber I,
RULING inter partes and unanimously,
TAKES NOTE of the agreement between the parties in respect of protective measures 1, 2, 3 and 6;
As regards the modified version of measure 4,
ORDERS the parties not to disclose to anyone, including the other witnesses or potential witnesses the fact that: a) the witnesses from the humanitarian organisation supplied information to the Prosecutor; b) the witnesses from the humanitarian organisation testified in camera; and that c) the Prosecutor intends to call or called those witnesses to appear;
ORDERS that, should the Defence deem that it is necessary to disclose the identity of a witness from the humanitarian organisation during the trial or during the examination of a different witness, the following measures shall be applied: a) that portion of the examination relating to the witness from the humanitarian organisation shall take place in camera; b) the questions shall be phrased so as not to disclose the fact that the witnesses from the humanitarian organisation were its employees; c) the questions shall be phrased so as not to disclose the fact that the witnesses from the humanitarian organisation testified during the trial
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or provided information to the Prosecutor; d) counsel for the humanitarian organisation shall receive promptly the transcript of the in camera session mentioned in paragraph (a) above;
ORDERS that, should the Defence deem it necessary to disclose the identity of a witness from the humanitarian organisation to a witness outside the courtroom, or to a potential witness, the following measures shall be applied: a) the Defence may request the Trial Chamber ex parte (without so informing the Prosecutor and without her participation), for permission to examine a potential witness about a witness from the humanitarian organisation (counsel for the humanitarian organisation shall be informed of such a request and shall be permitted to appear to give an opinion about the said request); b) when it reviews the Defence request - which must demonstrate the need to identify the witnesses from the humanitarian organisation - the Trial Chamber must consider: i) whether the Defence has exhausted all its other methods for obtaining the said information; ii) whether the need to disclose the identity of the witness or witnesses from the humanitarian organisation relates to the facts under review and not to corollary facts;
As regards measure 5,
ORDERS that the two witnesses not be required to disclose their employment, current domicile or the identity of the persons who are - or were - employees of the humanitarian organisation and who are residents or nationals of the countries of the former Yugoslavia;
TAKES NOTE of the fact that each of the parties has equal access to the information in the possession of the humanitarian organisation, so long as the procedures in force in that organisation are respected.
Done in French and English, with the French version being authoritative.
Done this tenth day of July 1997 At The Hague The Netherlands
(signed)
Claude Jorda, Presiding Judge, Trial Chamber I
(SEAL OF THE TRIBUNAL)
1. Decision of Trial Chamber I on the Prosecutor's requests of 12 and 14 May 1997 for protection of witnesses, The Prosecutor v Blaskic, 6 June 1997. 2. Decision of Trial Chamber I on the requests of the Prosecutor dated 12 and 14 May 1997 for the protection of witnesses, The Prosecutor v Blaskic, 6 June 1997, p. 6, para. 10. 3 Article 22 of the Statute and Rule 75 of the Rules. 4. Decision on the Prosecutor's motion requesting protective measures for victims and witnesses, The Prosecutor v Tadic, 10 August 1995. 5. Article 20(4) of the Statute states that "the hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with its rules of procedure and evidence". 6. Rule 78 of the Rules reads: "All proceedings before a Trial Chamber, other than deliberations of the Chamber, shall be held in public, unless otherwise provided". http://www.un.org/icty/blaskic/trialcl/decisions-e/70710PM113304.htm Page 9 of 10 ICC-01/04-01/07-176-AnxA 01-02-2008 15/196 SL PT OA2
7. Decision on the Prosecutor's motion requesting protective measures for victims and witnesses op cit, 4 8. ibid. p. 14, para. 33. 9. Decision on the Prosecutor's motion requesting protective measures for victims and witnesses op cit, 4 10. Decision on the Prosecutor's motion requesting protective measures for victims and witnesses op cit, 4.
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IN THE TRIAL CHAMBER
Before: Judge Claude Jorda, Presiding Judge Fouad Riad Judge Mohamed Shahabuddeen
Registry: Mr. Jean-Jacques Heintz, Deputy Registrar
Decision of: 11 November 1997
THE PROSECUTOR
v.
TIHOMIR BLASKIC
DECISION OF TRIAL CHAMBER I ON THE PROSECUTOR'S MOTION FOR VIDEO DEPOSITION AND PROTECTIVE MEASURES
The Office of the Prosecutor:
Mr. Mark Harmon Mr. Andrew Cayley Mr. Gregory Kehoe Mr. William Fenrick
Counsel for the Accused:
Mr. Anto Nobilo Mr. Russell Hayman
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I. Procedural background
1. On 10 June 1997, the Prosecutor submitted to the Trial Chamber a motion "for video deposition and protective measures for Witness A" (hereafter the "motion"). The Defence responded to the request with an opposition dated 17 June 1997. The Prosecutor on 4 July 1997 submitted a supplemental brief in support of her motion and a declaration by one of the members of her Office in support of her supplemental brief. The brief was accompanied by a letter from the Government of the country of which A is a national (hereafter "Government concerned") containing conditions for the witness to be heard. On 1 August 1997 the Defence responded to the Prosecutor's Brief with a supplemental brief.
The Prosecutor, on 20 August 1997, responded to the Defence's brief with a "Prosecutor's reply to defence supplemental brief in opposition to the motion for video deposition".
2. In her initial motion, the Prosecutor asked the Trial Chamber to order the taking of a video deposition and the imposition of limited protective measures in relation to Witness A's testimony, pursuant to Rules 54, 70, 71, 75 and 79 of the Rules of Procedure and Evidence (hereafter "Rules").
3. The Prosecutor emphasised that the Government concerned would not waive its immunity or give its consent for A to testify unless the Chamber approved the procedure being requested.
4. The Defence, for its part, considered that the Prosecution had been unable to establish "exceptional circumstances" in the sense of Rule 71 which would warrant that A depose by video rather than testify in person in court. The Defence went on to state that the Prosecution had not demonstrated that the protective measures it was seeking for this witness were justified under Rule 70(B) or any other rule. The Defence asked that, if he was to testify at the trial, it might conduct a full cross-examination of Witness A and have access to all the material used directly or indirectly by him to prepare his testimony.
5. The Chamber heard the parties and a representative of the Government concerned in court on 23 June 1997. It noted that there was no longer any disagreement between the parties in respect to holding a closed hearing, rather than a video conference, during which A would testify. However, for the Prosecution, A's questioning would remain subject to the conditions laid down by the Government concerned, namely: a. Witness A's testimony must be presented to the Tribunal during a closed session and in the presence of representatives of the Government concerned; b. The counsel for the Prosecution would restrict the questions of his direct examination to those submitted prior to the hearing to the Government concerned and the Defence; c. The Defence's cross-examination and any re-direct examination by the Prosecution would be restricted to the matters raised during the Prosecutor's direct examination; d. The provisions of Rule 70 would apply to Witness A's testimony. With the consent of the counsel representing the Government concerned, Witness A might decline to answer questions on grounds of confidentiality pursuant to Rule 70(D) or if they were outside the scope of those submitted in advance by the Prosecution. hUp://www.un.org/icty/blaskic/trialcl/decisions-e/71113PM113320.htm Page 2 of 9 ICC-01/04-01/07-176-AnxA 01-02-2008 18/196 SL PT OA2
e. If the Trial Chamber asked that the testimony taken in closed session be presented in open court the Government concerned would like to revise the transcripts to expunge any classified information deemed to be sensitive and any matters other than the substantive questions and answers. Thus, no transcript or similar written document would be made public without the prior written consent of the Government concerned.
The Defence objected to the conditions thus set on the grounds that they would constitute an unjustified and unjustifiable infringement of its rights. The Defence argued in particular that the information which the Prosecutor wished to move into evidence pursuant to Rule 70, had not been obtained within the purview ofthat rule; that the Prosecutor had obtained that information outside its purview; and that she had sought to use that rule to restrict the Defence's fundamental right to cross-examine Witness A.
6. The Chamber noted that the conditions set by the Prosecution at the request of the Government concerned impacted on the manner in which this hearing was to be conducted, in particular with regard to the limits on cross-examination and to the faculty Witness A would be granted to decline from answering on the grounds of confidentiality.
7. The form of the hearing depended expressly on Rule 70 and raised the issue of whether the conditions for its application, and in particular the conditions in Sub-rule 70(B), were satisfied in this instance.
8. Should they be satisfied, then the issue would be whether the provisions in Sub-rule 70(D) must apply ipso facto with all the ensuing consequences for the rights of the accused at the time of cross-examination or whether, on the contrary, these provisions relative to, as the title indicates, "matters not subject to disclosure" must be construed especially strictly in order to leave the accused the faculty of exercising as fully as possible the rights acknowledged him by the Statute. Thus, the Chamber, the guarantor of balance between the rights of the parties, would be exercising control on the basis of the powers vested in it when the witness appears
9. To be able to address these questions in this case, the Chamber would review, first, the conditions for Rule 70 to apply, and, secondly, the exercise of the rights of the accused in the context of Rule 70 in relation to direct examination and cross-examination, to any documents which might be produced during the deposition, and to an open hearing and the right to a fair trial.
II. The conditions for Rule 70 to apply
10. The Chamber points out that, as its title indicates, Rule 70 deals with matters not subject to disclosure pursuant to Rules 66, 67 or 68. The Chamber would like to underscore that the exceptions to the obligation to disclose contained in Sub-rules 70(B) to (E) were introduced into the Rules to permit the use, as and when appropriate, of certain information which, in the absence of explicit provisions, would either not have been provided to the Prosecutor or have been unusable on account of its confidential nature or its origin. This exceptional but strictly delineated right has moreover been recognised mutatis mutandis for the accused by Sub-rule 70(F) when it was amended in July 1997.
11. The obligations in Rule 70 vary depending on the stage of the proceedings. Sub-rule (B) bears on the pre-trial stage, whereas (C) and (D) relate to the production of evidence at trial.
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12. The "information under this Rule" mentioned in (D) refers to the information as described in (B). The latter requires that the following conditions be met:
- The information must be in the Prosecutor's possession;
- It must have been provided confidentially and be used solely for the purpose of generating new evidence.
A. The information under Rule 70(B) must be in the Prosecutor's possession
13. The Chamber notes that the information provided by Witness A has been transmitted to the Prosecution and that thereby the first condition of Sub-rule 70(B) has been met.
B. The condition of confidentiality in Rule 70(B)
14. In regard to the condition of confidentiality, the Chamber considers that, contrary to the Defence's argument, Sub-rule 70(B) does not suggest that it is the Prosecutor who is seeking that the information gathered be kept confidential but rather that it is the person or entity who has provided it who is stipulating a condition to that effect. This is also why Rule 70(B) makes no reference whatsoever to a request for information being kept confidential prior to the witness' questioning.
15. In addition, the Defence argument that the publication of a book written by the witness means that nothing confidential is involved is not warranted either if the initial information includes access to cables and other documents not included in the book published. The Chamber notes that, according to the declaration by a member of the Office of the Prosecutor, the content and precision of the information the witness was privy to went beyond the contents of the book written by the witness and that confidential, classified information was involved. In this respect, it is neither for the Chamber nor the parties to determine whether the information in the possession of the Prosecutor is confidential or not; the person or entity having the information is the sole judge of what was deemed to be confidential and what must be kept so in whole or in part.
Thus, nothing supports the Defence's argument on this point. To the contrary, the Prosecutor's argument that she could not know how she would use the information prior to even gathering it under Rule 70, seems well-founded.
16. The Chamber considers in the case in hand that the information has been obtained under Rule 70 and that the condition of confidentiality is satisfied.
C. Use of confidential information solely for the purpose of generating new evidence
17. The Prosecutor argues that the information she has received confidentially under Sub-rule 70(B) could be used as evidence under Sub-rules 70(C) and (D) whether or not it has been used solely for the purpose of generating new evidence as contemplated under (B). In other words, it is sufficient that the first of the two conditions in Sub-rule 70(B) be satisfied for Sub-rules 70(C) and (D) to apply; whether or not the second condition is met is immaterial.
18. The Defence argues for its part that Sub-rules 70(C) and (D) apply only to the initial information which has been provided confidentially and used solely for the purpose of http://www.un.org/icty/blaskic/trialcl/decisions-e/71113PM113320.htm Page 4 of 9 ICC-01/04-01/07-176-AnxA 01-02-2008 20/196 SL PT OA2
generating new evidence, and that the two conditions in Sub-rule 70(B) have not been fulfilled in this instance.
The Defence feels that by requiring the information to meet this twofold condition the intention of the drafters of the Rules had been to apply to the initial information alone the provisions restricting the rights of the Defence.
19. In the case in hand, the Chamber considers that the fact that the Prosecutor had reportedly spoken to Witness A before speaking to the holder of the information is irrelevant, and, all the more so, insofar as Witness A is the author of the information in question. The Chamber notes that the initial information (including access to confidential documents) has enabled the Prosecutor to obtain from Witness A information which Witness A might otherwise have been unwilling or unable to provide. Therefore, the initial information has been used "solely for the purpose of generating new evidence" in the sense of Sub-rule 70(B).
20. Thus, even if the Defence is correct in construing that Sub-rules 70(C) and (D) relate only to initial information provided confidentially and used solely for the purpose of generating new evidence, the Chamber considers that the information involved meets this twofold condition and that Sub-rules 70(C) and (D) accordingly apply to that information.
21. It is for this reason that there is no need for the Chamber to consider any further the question of interpretation raised. Conversely, the issue is what should be understood by "initial information" to ascertain the rules governing its production at trial.
D. Definition of initial information
22. The Chamber notes that the initial information referred to in Rule 70 is information which has been provided confidentially and has permitted or permits further investigation. It might include "any testimony, document or other material" as suggested by Sub-rule 70(C). The initial information might become evidence if it is introduced as such at the trial or it might generate new evidence. In the latter case, in principle new evidence would not be entitled to protection under Rule 70, as the latter's provisions protect the initial information and its origin but not any new evidence collected. The only reservation relates to the closeness of the new evidence collected to the initial information or its origin. If the connection is so close that, in particular, it would permit the origin of the initial information to be identified and thus jeopardise the principle of confidentiality in Sub-rule 70(B), the evidence collected must be entitled to the same protection as the initial information. It is for the Chamber to ensure this within the strict bounds of the requisite respect of the rights of the defence.
23. In conclusion, the Chamber considers that the conditions in Sub-rule 70(B) have been satisfied and it grants the Prosecution's motion for Witness A to appear as stated in Sub-rule 70(D). The witness could thus provide as evidence the confidential information in the Prosecutor's possession which his Government's authorities will have authorised him to disclose. Lastly, subject to what follows below, the witness might invoke grounds of confidentiality under (D) if the parties' questions relate to an area deemed sensitive.
III. The exercise of the rights of the accused under Rule 70 and the Chamber's powers
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24. The Chamber will now address in turn the form of the examination and cross- examination, the issue of any documents which might be produced during the examination, the disclosure of the proceedings, and the overall control it plans to apply.
A. Conduct of direct examination and cross-examination
1. General limits to the cross-examination
25. One of the Prosecution's conditions, set at the request of the Government concerned, that Witness A testify before the Chamber, restricts the scope of the Defence cross-examination: "The Defence's cross-examination and any Prosecution re-direct examination will be limited to matters raised as a part of the Prosecution's direct examination". Furthermore, applying Sub-rule 70(D) enables Witness A to decline to answer certain questions on grounds of confidentiality, which constitutes an additional restriction on the cross-examination.
The Defence argues that granting such a motion to limit the cross-examination would be a patent infringement of the provisions of Article 21 of the Statute relative to the rights of the accused. It further notes that there is no rule stipulating that the Defence's right to cross- examine witnesses could be limited to matters raised by the Prosecution.
26. The Prosecutor's argumentation is based on the overall equilibrium laid down in Rule 70 in that the limitation on cross-examination is imposed not only on the Defence but on both parties and the Chamber. The fact is that the questions which the Prosecutor wishes to put to Witness A must be submitted in advance to the Government concerned and the Defence would be entitled to question Witness A freely within the confines as laid down by the scope of the direct examination.
27. The Chamber notes that, to a large extent, the Prosecution, even should it feel so inclined, holds no sway over the conditions under which it must conduct its direct examination. The first of the restrictions laid down relates to the confidential nature of the questions involved, which is at the very foundation of the Prosecution's motion. This confidentiality serves primarily to protect the higher interests of the origin of the information, in this instance the national security of the Government concerned. Thus, the Chamber considers that if the Defence's ability to react is reduced, the Prosecution's ability to act is reduced to a similar degree.
28. Incidentally, the Chamber points out that national procedures vary and that all do not leave the field wide open for cross-examination. Far from it, it is frequent for limits of this kind to be set, while sometimes they are tempered by the fact that the questions regarded as relevant by the judge could be asked even when appearing to the party having conducted the direct examination to lie outside the latter's scope.
29. The Chamber considers in effect that, in accordance with Sub-rule 70(E), within the bounds of the direct examination, the cross-examination must be allowed to be exercised fully. In this instance, the Prosecution chose to present a witness and has the initiative in respect of questions. The Chamber is of the view that, within that framework, the Judges must exercise fully their control pursuant to the Statute and the Rules.
30. Finally, the Chamber decides that the Defence's cross-examination must be limited to the scope of the direct examination, and that it would be for the Chamber to rule, as and when http://www.un.org/icty/blaskic/trialcl/decisions-e/71113PM113320.htm Page 6 of 9 ICC-01/04-01/07-176-AnxA 01-02-2008 22/196 SL PT OA2
appropriate, on the relevance of the matters raised. The limits on cross-examination are imposed in the same way to the Prosecution's re-direct examination.
2. Prior submission of the Prosecution's questions to the Government concerned
31. For the reasons outlined above, the Chamber grants the Prosecution's motion, based on the request from the Government concerned, that the Prosecution's questions be submitted for approval to that Government, prior to hearing the witness; this will limit to a certain extent the scope of direct examination and by extension the scope of cross-examination.
3. Presence of representative of the Government concerned
32. The Chamber also accedes to the Prosecution's request for a representative of the said Government to be present when Witness A is heard. However, should the representative want to make any recommendations to the witness, he must address the Chamber and give his grounds for intervening. Naturally, each of the parties could comment on this point.
B. Documents possibly produced
33. The Defence argues that during his direct examination Witness A will be referring to classified documents and recalling certain events when reading them. The Defence holds that if Witness A examines such documents before or during his testimony, it must be also allowed to examine them for use during its cross-examination.
34. For the Chamber, this is not an issue. The material before it indicates clearly that the documents in question are in the possession of their owner, in this instance a Government, which must at all events give its consent for their disclosure as required under Sub-rule 70(B).
Lastly, on grounds of confidentiality, the witness can, pursuant to Sub-rule 70(D), decline to answer questions bearing on such documents.
C. Disclosure of proceedings
35. Consistent with the provisions of Rule 79, when the Chamber orders a closed session, the press and the public can not attend the hearing of a witness, and the transcripts of such hearings are regarded as confidential in their entirety and are not subject to disclosure.
Thus, the Chamber dismisses the request from the Government - taken up by the Prosecution - to allow it to revise the transcripts, since they would not be made public in any event.
The parties may, however, as is the practice, make recommendations to the Chamber relative to expunging transcripts.
D. Chamber's overall control over the respect of the rights of the Defence
36. Rule 70's provisions must be construed in the light of Article 21(4)(e) of the Statute and of Sub-rule 70(G). The testimony, documents and other material provided pursuant to Sub- rule 70(B), where a person or entity having information has consented to its total or partial disclosure, must be subject to a comprehensive and full cross-examination by the Defence under the Chamber's control. While the entity or person having the information, documents. http://www.un.org/ictv/blaskic/trialcl/decisions-e/71113PM113320.htm Page 7 of 9 ICC-01/04-01/07-176-AnxA 01-02-2008 23/196 SL PT OA2
or other material remains in control of consent to disclose, the Chamber reserves the right to exclude any or all evidence if its production would not insure a fair trial for the accused.
37. The limitations in Sub-rule 70(D), in particular on cross-examination, must be confined strictly. Indeed, the choice of questions lies with the Prosecution; and the Chamber recalls that the cross-examination must be conducted within the limits of the matters raised. Nonetheless, pursuant to the provisions of the Statute and of the Rules referred to above, the Chamber will be exercising strict control when the witness is heard, and may well exclude all or part of the testimony if it concludes that there is a gross disparity in the treatment of the parties to the trial.
IV. DISPOSITION
38. FOR THE FOREGOING REASONS
Trial Chamber I, adjudicating in the presence of the parties and with the unanimity of its members,
DECIDES to grant the motion from the Prosecution, in that its aim is to allow Witness A to come and testify before the Chamber, under the following conditions:
- Witness A shall be heard at a closed session;
- classified documents the provision of which was sought by the Defence shall not be provided to it unless the Government concerned should decide to provide them on its own initiative;
- the scope of the Defence cross-examination shall be restricted to the scope of the direct examination, the Chamber reserving for itself the right to rule in any dispute in this respect;
- in accordance with Sub-rule 70(D), Witness A may decline to answer a question about the information involved or about its origin on grounds of confidentiality;
- a representative of the Government concerned may be present in the courtroom at the time of Witness A's deposition,
STATES that there are no grounds for authorising the Government concerned to revise the transcripts of Witness A's deposition,
REJECTS moreover the additional motions of the Defence,
RECALLS that the Statute of the Tribunal as well as the latter's Rules of Procedure and Evidence guarantee the accused a fair trial and that the provisions of Sub-rule 70(G), in particular, enable the Chamber to exclude any evidence whose probative value would be substantially outweighed by the needs of a fair trial.
Done in French and in English, the French version being authoritative.
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Done this thirteenth day of 13 November 1997, At The Hague, The Netherlands
(Signed) Judge Claude Jorda Presiding Judge, Trial Chamber I
(Seal of the Tribunal)
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IN THE TRIAL CHAMBER
Before: Judge Claude Jorda, Presiding Judge Fouad Riad Judge Mohamed Shahabbudeen
Registrar: Mr. Jean-Jacques Heintz, Deputy-Registrar
Order of: 6 May 1998
THE PROSECUTOR
v.
TIHOMIR BLASKIC
DECISION ON PROSECUTOR'S REQUEST FOR AUTHORIZATION TO DELAY DISCLOSURE OF RULE 70 INFORMATION
The Office of the Prosecutor;
Mr. Mark Harmon Mr. Andrew Cayley Mr. Gregory Kehoe
Defence Counsel;
Mr. Anto Nobilo Mr. Russell Hayman
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1. On 6 January 1998, the Prosecution filed a confidential request for authorisation to delay the disclosure of Rule 70 information of the Rules of Procedure and Evidence (hereinafter "the Rules") concerning the witnesses from a humanitarian organisation (hereinafter "the Request"). The Defence submitted its response in opposition to the request on 26 January 1998 (hereinafter "the Response"). Finally, the Prosecution filed its reply to the Defence opposition on 11 March 1998 (hereinafter "the Reply").
The Trial Chamber will first analyse the claims of the parties and then discuss all the factual and legal points in contention.
I. ANALYSIS OF THE CLAIMS OF THE PARTIES
2. In its Request, the Prosecution asks the Trial Chamber to order, pursuant to Rule 75 of the Rules, additional protective measures for three witnesses who are members of a humanitarian organisation, that is, to delay the disclosure of their prior statements to the Defence until one week before they testify, in order to reduce the risks for the staff members of this organisation. The Prosecution justifies the need for such measures by referring to the previous breach of confidentiality of statements made in closed session by two members of the said humanitarian organisation before the Trial Chamber on 23 June 1997 and their publication in a Zagreb newspaper the very next day.
In support of its Request, the Prosecution first submits that, as regards the information provided on a confidential basis, Rule 70 of the Rules is applicable in this case to the prior witness statements, and that, consequently, disclosure of the said statements to the Defence can take place solely with the consent of the humanitarian organisation concerned.
Second, the Prosecution asserts that because no time frame is provided in Rule 70, it must be assumed, interpreted in light of Sub-rule 66(A) of the Rules, that the provider of the confidential information, in this case the humanitarian organisation, will determine when disclosure to the Defence may occur.
The Prosecution then submits that the requested delay for disclosure will not substantially prejudice the rights of the accused to a fair and public hearing (Article 21(2) of the Statute of the Tribunal) and to examine or have examined the witnesses against him (Article 21(4)(e) of the Statute of the Tribunal). In fact, according to the Prosecution, the request refers to only three of the more than four hundred statements submitted to the Defence which already knows the identity of each of these witnesses.
3. In its response, the Defence objects to the Prosecutor's request and asks for the immediate disclosure of the prior statements of the three witnesses from the humanitarian organisation, or in the alternative, that their appearance be barred.
The Defence first submits that the Prosecutor's request constitutes an implicit and unfounded assertion that the Defence is responsible for the leak of confidential information which occurred on 23 June 1997 and underscores that, even if this were the case, such an additional measure would be totally ineffective.
The Defence then asserts that the request runs contrary to the provisions of the Rules, particularly Sub-rule 66(A), and Rules 70 and 75. According to the Defence, although the person or entity having provided confidential information must in fact consent to its being http://www.un.org/ictv/blaskic/trialcl/decisions-e/80506DE113452.htm Page 2 of 8 ICC-01/04-01/07-176-AnxA 01-02-2008 27/196 SL PT OA2
given in evidence, pursuant to Sub-rule 70(B) of the Rules, its consent is not required for the disclosure of prior statements, and if necessary, for the time frame in which such disclosure must take place. To interpret this Rule otherwise would retroactively authorise and approve the Prosecutor's violation of her obligation to disclose prior statements "as soon as practicable" in accordance with Rule 66(A) of the Rules. The Defence also underscores that "neither Sub-rule 75(A), nor the Trial Chamber's Decision authorizes the Prosecutor to delay turning over witness statements to the Defense"-.
Finally the Defence argues that the additional measure requested by the Prosecutor violates the rights of the accused as recognised in Articles 21(2) and 21(4)(e) of the Statute of the Tribunal, as well as in Sub-rule 75(A) of the Rules which stipulates that the protective measures for victims and witnesses should be consistent with the rights of the accused. The fact that the Prosecutor has disclosed four hundred witness statements to the Defence, as well as the fact that the Defence knows the identity of the witnesses concerned are not sufficient guarantees to enable the Defence to prepare a proper cross-examination of the said witnesses.
4. In its reply, the Prosecution asserts that its proposal for a one-week time limit for the disclosure of prior statements constitutes a compromise between the need to protect the interest of the humanitarian organisation and respect for the rights of the accused.
The Prosecution then recalls that the said humanitarian organisation has not given its consent for its staff members to testify before the International Tribunal and that the conditions for this consent were reassessed following the incident of 23 June 1997.
With respect to the Defence allegation that the Prosecutor has continually violated her disclosure obligation under Sub-rule 66(A) of the Rules, the Prosecution replies that the assertion does not take into account the contradiction it deems to exist between this provision and Sub-rule 70(B) of the same Rules.
Lastly, the Prosecution indicates that the right of the accused to a fair trial and to examine Prosecution witnesses is not absolute and may be limited inter alia for reasons of confidentiality, with the Trial Chamber, in any case, reserving the right to exclude all or parts of the testimony pursuant to Sub-rule 89(D) of the Rules.
II. DISCUSSION
5. The Trial Chamber must rule whether to grant an additional protective measure for three witnesses from a humanitarian organisation, consisting of postponing the disclosure of their prior statements to the Defence to one week before their hearing. Two of the said witnesses are already protected, in accordance with this Trial Chamber's decision of 10 July 1997-.
6. The general practice for the disclosure of documents by the Prosecutor is governed by Rule 66 of the Rules. The measure, requested in the name of witness protection, would clearly be an exception to this practice, and the Trial Chamber must determine whether it is included in the exceptions provided by Rules 66 and 70 of the Rules. The Trial Chamber will then examine whether this measure may be ordered as an "appropriate measure" for the protection of witnesses pursuant to Rule 75 of the Rules, as maintained by the Prosecutor while basing her argument however on an interpretation of Sub-rule 70(B).
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of exceptions to the obligation to disclose prior witness statements
7. Sub-rule 66(A) of the Rules requires that the Prosecutor disclose certain documents to the Defence, including prior witness statements. This obligation is general and permanent. The Trial Chamber had already concluded on this issue that:
"[t] he principles [...] in support of the interpretation of Sub-rule 66(A) lead the Trial Chamber to the decision that all the previous statements of the accused •which appear in the Prosecutor 'sflle, whether collected by the Prosecution or originating from any other source, must be disclosed to the Defence immediately [...] Furthermore, the Trial Chamber considers that the same criteria as those identified in respect of the accused's previous statements must apply mutatis mutandis to the previous statements of the witnesses also indicated in Sub-rule 66(A). 'A
The Rules provide a limited number of exceptions to this principle, that is, Sub-rule 66(C) and Rule 70 of the Rules.
8. Sub-rule 66(C) of the Rules permits the Prosecutor to apply to the Trial Chamber for relief from the obligation to disclose certain documents to the Defence, insofar as such disclosure may prejudice further or ongoing investigations, be contrary to the public interest or affect the security interests of any State. In this regard, the Trial Chamber is of the opinion that it is clear from the provision that it applies only to documents mentioned in Sub-rule 66(B) (that is, "any books, documents, photographs, and tangible objects" in the Prosecutor's custody or control) and not to those documents mentioned in Sub-rule 66(A). In fact Sub-rule 66(C) explicitly states that it provides relief from "the obligation to disclose pursuant to Sub- rule [66](B)". Yet, the prior witness statements undeniably fall solely under Sub-rule 66(A) of the Rules and cannot therefore be subject to an exception under Sub-rule 66(C).
9. Rule 70, formally entitled "Matters not Subject to Disclosure" provides other circumstances relieving the Prosecutor of the said obligation. Sub-rule 70(A) refers to "reports, memoranda, or other internal documents prepared by a party, its assistants, or representatives in connection with the investigation or preparation of the case." It is clear that the prior Prosecution witness statements may not in any event be considered to be included in this category of documents.
10. The Trial Chamber deems it necessary however to review more thoroughly the interpretation offered by the Prosecutor for the implementation of Sub-rule 70 (B) of the Rules.
The Prosecution first submits that the prior statements of the witnesses concerned constitute confidential information, used solely to gather new evidence, within the meaning of Rule 70 of the Rules. The Prosecution then deduces from this fact that the disclosure of the said prior statements is governed by Sub-rule 70(B) of the Rules and that it is subject to the consent of the humanitarian organisation which provided them.
11. Sub-rule 70(B) of the Rules states:
"If the Prosecutor is in possession of information which has been provided to the Prosecutor on a confidential basis and which has been used solely for the http://www.un.ora/ictv/blaskic/trialcl/decisions-e/80506DE113452.htm Page 4 of 8 ICC-01/04-01/07-176-AnxA 01-02-2008 29/196 SL PT OA2
purpose of generating new evidence, that initial information and its origin shall not be disclosed by the Prosecutor without the consent of the person or entity providing the initial information andshall in any event not be given in evidence without prior disclosure to the accused."
12. The conditions linked to the applicability of Sub-rule 70(B) of the Rules- to the statements in questions were considered previously during the proceedings giving rise to the decision of 10 July 1997. Indeed, the Trial Chamber reached the following conclusion:
"As regards the application of Rule 70 of the Rules to this case, the Trial Chamber considers that [.. ] the Prosecution provided the proof that the information which the two witnesses had supplied to it were confidential at the time it was provided. It notes, moreover, that, pursuant to Sub-rule 70(B) of the Rules, the information was used solely for the purpose of generating new evidence. "-
13. As regards the consent of the entity which provided the information governed by Sub-rule 70(B), that is the humanitarian organisation, in that same decision, the Trial Chamber noted that consent had been given. In fact, the humanitarian organisation gave its consent further to the adoption of several particularly stringent witness protective measures. The Trial Chamber, out of concern not to prejudice the mission of the humanitarian organisation in any way, granted the requested measures. In so doing, it duly noted the unequivocal consent of the humanitarian organisation to the use of the said information as evidence.-
14. It appears from Sub-rule 70(B) that once the humanitarian organisation has clearly consented to the use of the statements of its representatives as evidence, the accused, pursuant to Sub-rule 66(A) of the Rules, has the right to the discovery of the said statements. According to the Trial Chamber, once its consent has been given, the humanitarian organisation cannot determine if, and if necessary, when it is appropriate to the disclose the prior statements.
Therefore, on the subject of documents provided in accordance with Sub-rule 70(B), the Trial Chamber noted in its decision of 11 November 1997 that:
"where a person or entity having information has consented to its total or partial disclosure, [he/it] must be subject to a comprehensive and full cross- examination by the Defence [...]. '&
The Trial Chamber, in the framework of its general supervision of the respect of the rights of the Defence, and pursuant to Sub-rule 70(G) of the Rules, deems that the principle of the consent of the entity providing the confidential information does not extend to the right to prior disclosure, which constitutes the "core" which will preserve the principle of an inter partes trial and the rights of the accused which derive therefrom.
In this spirit, the Trial Chamber notes that, further to its Decision of 10 July 1997, all the conditions required to apply Rule 70 to the statements of the witnesses from the humanitarian organisation were satisfied, and consequently, the aforementioned statements should have been disclosed to the Defence without delay.
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15. The Trial Chamber therefore rejects the Prosecution's interpretation. It is convinced that the requested measure cannot legally constitute an exception to the obligation to disclose the prior witness statements to the Defence on the basis of Rule 70 of the Rules. However, the Trial Chamber notes that the measure requested by the Prosecutor is designed to provided increased protection to the witnesses through the disclosure of statements they made previously. It is therefore appropriate to consider this measure in light of Rule 75 of the Rules.
B. The requested measure is however appropriate for the protection of
witnesses from the humanitarian organisation.
16. First, the Trial Chamber recalls that the protection of witnesses who may be called to testify before it at trial remains a constant priority.2 The principle of witness protection is sanctioned by Articles 20 and 22 of the Statute of the Tribunal, which stipulate that the Rules shall provide for the organisation of such protection. More specifically, the relevant provisions of Sub-rule 75(A) provide that:
"A Judge or a 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. "
In this regard, the case-law of the Tribunal has underscored the sovereign power of the Judges to evaluate the measures which they deem appropriate, the list of measures proposed in Rule 75 of the Rules not being exhaustive.— In so doing, the Judges are the guarantors of the fundamental balance between witness protection and respect for the rights of the accused, in accordance with Article 20(1) of the Statute of the Tribunal.
17. The Trial Chamber wishes to stress the particular nature of the humanitarian organisation in question as well as its responsibilities. It is well known that the representatives ofthat organisation must carry out their missions in difficult circumstances, including armed conflicts, and that they provide vital support to the civilian populations most affected.
The exceptional nature of this mission justifies, even demands, certain specific protective measures for the representatives concerned. Before the Tribunal, this may involve limiting the rights of the accused, as shown in the Trial Chamber Decision of 10 July 1997 which grants six particularly stringent protective measures to the staff members of this humanitarian organisation, including their in camera testimony, the redaction of the names and identifying information from all public documents of the Tribunal, as well as the prohibition against divulging any information about the witnesses and their testimonies imposed on the parties, subject to authorisation being given to the Defence to do so by the Trial Chamber, further to an ex parte request.
To be sure, the Trial Chamber is aware that any decisions it may render will permit the representatives of the humanitarian organisation to come to testify without risk to themselves or to their organisation.
18. Conversely, the Trial Chamber notes that the requested measure might be prejudicial to the accused and, more particularly, to the rights of the Defence to prepare a proper cross- examination, in accordance with Articles 21(2) and 21(4)(e) of the Statute. The Judges therefore must offer the accused the possibility of exercising his rights. http://www.un.org/ictv/blaskic/trialcl/decisions-e/80506DEl 13452.htm Page 6 of 8 ICC-01/04-01/07-176-AnxA 01-02-2008 31/196 SL PT OA2
19. To this end, the Trial Chamber grants the Prosecutor's request but also grants the Defence the possibility to have one or more of the witnesses concerned appear again during the time allotted to the Prosecution for the presentation of its evidence.— The sole limitation the Trial Chamber places on this right is that the Defence be obliged to justify specifically why it allegedly did not have the necessary time to prepare for its cross-examination.
III. DISPOSITION
FOR THE FOREGOING REASONS
Trial Chamber I,
Ruling inter partes and unanimously,
STATES that, pursuant to Rule 75 of the Rules, the Prosecutor may disclose to the Defence the statements of the witnesses referred to in her request only seven days before the date of their scheduled appearance,
STATES that the Defence shall be responsible for submitting a reasoned request for the possibility to have the said witnesses appear again during the time of the Prosecution's presentation of evidence.
Done in French and English, the French version being authoritative.
Done this sixth day of May 1998 At The Hague, The Netherlands
(signed)
Claude Jorda Presiding Judge Trial Chamber I
(Seal of the Tribunal)
1. Trial Chamber I Decision on Prosecutor requests of 5 and 11 June [sic] 1997 on the protection of witnesses, Prosecutor v. Tihomir Blaskic, 10 July 1997 2. Response, p. 4 3. Aforementioned Trial Chamber Decision of 10 July 1997. 4. Trial Chamber I Decision on motion to compel the production of discovery materials, Prosecutor v Blaskic, 27 January 1997, para. 37 and 38. 5. These conditions were specified by Trial Chamber I in its Decision on the Prosecutor motion to allow certain witnesses to give testimony by means of video-link conference and for protective measures, Prosecutor v Tihomir Blaskic, 11 November 1997. 6. Aforementioned Trial Chamber Decision of 10 July 1997, para. 8. 7. Aforementioned Trial Chamber Decision of 10 July 1997, para. 8 and disposition. 8. Aforementioned Trial Chamber Decision of 11 November 1997, para. 36. 9 See the Trial Chamber Decisions on the subject of witness protection of 6 June 1997 and 10 July 1997, http://www.un.org/ictv^askic/trialcl/decisions-e/805Q6DEl 13452.htm Page 7 of 8 ICC-01/04-01/07-176-AnxA 01-02-2008 32/196 SL PT OA2
The Prosecutor v Tihomir Blaskic, paras 10 and 9 respectively 10. Trial Chamber II Decision on the Prosecutor's Preliminary Motion for protective measures for victims and witnesses, Prosecutor v. Dusko Tadic, 10 August 1995. 11. Trial Chamber I Decision on the length of the proceedings and the time allocated to the parties to present their evidence. The Prosecutor v. Tihomir Blaskic, 17 December 1997.
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IN THE TRIAL CHAMBER
Before: Judge Richard May Judge Mohamed Bennouna Judge Patrick Robinson
Registrar: Mrs. Dorothée de Sampayo Garrido-Nijgh
Order of: 26 February 1999
PROSECUTOR
v.
DARIO KORDIC MARIO CERKEZ
ORDER ON MOTION TO COMPEL COMPLIANCE BY THE PROSECUTOR WITH RULES 66 (A) AND 68
The Office of the Prosecutor;
Mr. Geoffrey Nice Ms. Susan Somers Mr. Patrick Lopez-Terres Mr. Kenneth Scott
Counsel for the Accused;
Mr. Mitko Naumovski, Mr. Leo Andreis, Mr. Turner Smith, Mr. David Geneson and Mr. Ksenija Durkovic, for Dario Kordic Mr. Bozidar Kovacic, for Mario Cerkez
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THIS TRIAL CHAMBER of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("International Tribunal"),
BEING SEISED of the Defence "Notice of motion to compel compliance by the Prosecutor with Rules 66 (A) and 68", filed by the Defence for Dario Kordic on 2 July 1998 ("the Motion") and subsequently joined by the Defence for Mario Cerkez (together "Defence") on 8 July 1998, together with the Response to the Motion ("the Prosecution Response") filed by the Office of the Prosecutor ("Prosecution") on 27 July 1998,
HAVING HEARD the oral arguments of the parties on 16 February 1999,
NOTING that, as confirmed in oral argument, the Defence is now seeking production of four categories of material, namely: (a) copies of the supporting material which accompanied the indictment when confirmation was sought; (b) all prior statements of the accused; (c) statements of all witnesses whom the Prosecution intends to call at trial; and (d) exculpatory material,
NOTING that the Prosecution asserts that: (a) all supporting material has been provided but that the entitlement to "supporting material" does not include other documents submitted to the confirming Judge by way of a pleading or motion; (b) there are no prior statements of the accused to be disclosed as the Prosecution has not interviewed either of the accused in this case; (c) witness statements need only be disclosed once the Prosecution has determined that it will call a particular witness: this decision will be made at the time of submission of the Prosecution list of witnesses, to be submitted on 11 March 1999, at which time the relevant witness statements will be provided; and (d) all material that the Prosecution deems in its judgement to be exculpatory has been disclosed, noting meanwhile that this is an ongoing and continuing obligation,
NOTING that the indictment against the two co-accused was first confirmed on 9 November 1995 and the initial appearance of the accused took place on 8 October 1997, while the amended indictment was confirmed on 30 September 1998 and the further appearance was held on 14 October 1998,
NOTING that the date for commencement of the trial in this matter has been set for 12 April 1999,
CONSIDERING that Rule 66 (A) of the Rules of Procedure and Evidence of the International Tribunal1 provides as follows:
(A) Subject to the provisions of Rules 53 and 69, the Prosecutor shall make available to the defence in a language which the accused understands
(i) within thirty days of the initial appearance of the accused, copies of the supporting material which accompanied the indictment when confirmation was sought as well as all prior statements obtained by the Prosecutor from the accused, and
(ii) within the time-limit prescribed by the Trial Chamber or by the pre-trial Judge appointed pursuant to Rule 65 ter, copies of the statements of all witnesses whom the Prosecutor intends
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to call to testify at trial; copies of the statements of additional prosecution witnesses shall be made available to the defence when a decision is made to call those witnesses.
CONSIDERING that "supporting material" means the material upon which the charges are based and does not include other material that may be submitted to the confirming Judge, such as a brief of argument or statement of facts,
CONSIDERING and approving of the Decisions of 27 January 1997 ("Discovery Decision") and 15 July 1998 issued by Trial Chamber I in the case of Prosecutor v. Tihomir Blaskic- on the issue of disclosure of the prior statements of the accused, stating that prior statements include "all the previous statements of the accused which appear in the Prosecutor's file, whether collected by the Prosecution or originating from any other source"-, as further elaborated by the Trial Chamber in its Decision of 1 5 July 1998 to refer to "all statements made by the accused during questioning in any type of judicial proceeding which may be in the possession of the Prosecutor, but only such statements"1, save for any material not subject to disclosure pursuant to Rule 70 (A),
CONSIDERING that, pursuant to Rule 66 (A)(i), all material supporting the amended indictment, together with all prior statements of the accused as defined above, should therefore have been disclosed to the Defence no later than 13 November 1998, and that the material in respect of the original indictment should have been disclosed significantly prior to that date,
CONSIDERING that provisions for the disclosure of witness statements or for provision of a list of the names of witnesses can be found in Rule 66 (A)(ii), Rule 67 (A)(i) and Rule 73 bis
CONSIDERING that, in the view of this Trial Chamber,
(i) the obligation to disclose witness statements to the Defence under Rule 66 (A)(ii) is independent of and does not rely upon finalisation of either
(a) the witness list referred to in Rule 67, which as noted in the Discovery Decision, requires the names of all Prosecution witnesses to be disclosed at the same time in a comprehensive document which "thus permits the Defence to have a clear and cohesive view of the Prosecution's strategy and to make the appropriate preparations "-or
(b) the witness list and other details to be provided pursuant to Rule 73 bis (B)(iv), which list is provided nearer to the time for trial for the information of both the Trial Chamber and the Defence;
(ii) the obligation to provide witness statements pursuant to Rule 66 (A)(ii) is intended to assist the Defence in its understanding of the case against the accused in accordance with his rights under Article 21 of the Statute of the International Tribunal and should thus be provided to the Defence as far in advance of the trial as is possible, even if this means that statements are disclosed sequentially and that statements are disclosed of witnesses who eventually are not called to testify in the matter,
CONSIDERING and approving of the finding in the Discovery Decision that, once the names of Prosecution witnesses have been disclosed, additions or supplements shall be limited to any
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possible new developments in the investigation and "must never result in the rights of the Defence being circumvented"-,
CONSIDERING that the Prosecution has indicated that, in addition to the statements already disclosed, a "significant" number of witness statements remain to be disclosed to the Defence, which statements will be disclosed by 11 March 1999, i.e., one month before the trial is due to commence and nearly eighteen months after the accused surrendered voluntarily to the International Tribunal,
CONSIDERING that Rule 73 bis permits the Trial Chamber to call upon the Prosecution to reduce the number of witnesses to be called if it considers that an excessive number of witnesses are being called to prove the same facts,
CONSIDERING that Rule 68 requires the Prosecution to disclose to the defence all exculpatory material known to the Prosecutor and that this duty is a continuing obligation, in view of the fact that the relevance of certain material in the possession of the Prosecutor may only become clear during trial,
CONSIDERING the rights of the accused as set forth in Article 21 of the Statute and, in particular, the right of the accused to have adequate time and facilities for the preparation of his defence,
PURSUANT TO Rules 66 and 68 of the Rules
HEREBY ORDERS as follows:
1. the Prosecution shall by Friday 5 March 1999 disclose any undisclosed supporting material to both the original indictment and the amended indictment and shall confirm to the Trial Chamber that full disclosure of such material has been made; 2. the Prosecution shall by Friday 5 March 1999 disclose any undisclosed prior statements of the accused in the possession of the Prosecution, made during questioning in any type of judicial proceeding and whether collected by the Prosecution or originating from any other source, save for any material not subject to disclosure pursuant to Rule 70 (A), and shall confirm to the Trial Chamber that full disclosure of such material has been made; 3. the Prosecution shall by Friday 5 March 1999 disclose to the Defence statements of all witnesses that the Prosecution intends to call at trial save for any material not subject to disclosure pursuant to Rule 70 (A) and shall confirm to the Trial Chamber that full disclosure of such material has been made.
The Trial Chamber notes that the Prosecution remains under a continuing duty to disclose exculpatory material to the Defence throughout these proceedings.
Done in French and English, the English text being authoritative.
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Richard May Presiding
Dated this twenty-sixth day of February 1999 At The Hague The Netherlands
[The seal of the Tribunal]
1. IT/32/Rev. 14. The current text of this Rule was adopted on 12 November 1997, shortly after the accused surrendered voluntarily, and has remained unchanged since then. 2. Decision on the production of discovery materials, Prosecutor v Tihomir Blaskic, Case No. IT-95-14, T. Ch. I, 27 Jan. 1997 ("'Discovery Decision"); Decision on the Defence motion for sanctions for the Prosecutor's failure to comply with Sub-rule 66 (A) of the Rules and the Decision of 27 January 1997 compelling the production of all statements of the accused, Prosecutor v Tihomir Blaskic, Case No. IT-95-14, T. Ch. I, 15 July 1998 ("Decision of 15 July 1998"). 3. Discovery Decision, supra n 2, para. 37. 4 Decision of 15 July 1998, supra n.2, p.3. 5. Discovery Decision, supra n 2, para. 22. 6 Ibid
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IN TRIAL CHAMBER II
Before: Judge David Hunt, Presiding Judge Florence Ndepele Mwachande Mumba Judge Fausto Pocar
Registrar: Mrs Dorothée de Sampayo Garrido-Nijgh
Decision of: 3 July 2000
PROSECUTOR
Radoslav BRDANIN & Momir TALIC
DECISION ON MOTION BY PROSECUTION FOR PROTECTIVE MEASURES
The Office of the Prosecutor:
Ms Joanna Korner Mr Michael Keegan Ms Ann Sutherland
Counsel for Accused;
Mr John Ackerman for Radoslav Brdanin Maître Xavier de Roux and Maître Michel Pitron for Momir Talic
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1 The application
1. On 10 January 2000, the Prosecutor filed a motion seeking orders directed to the two accused (Radoslav Brdanin and Momir Talic) and their legal teams - collectively described as the "Brdanin and Talic Defence" - in the following terms:
(1) The Brdanin and Talic Defence shall not disclose to the media any confidential or non- public materials provided by the Prosecutor.
(2) Save as is directly and specifically necessary for the preparation and presentation of this case, the Brdanin and Talic Defence shall not disclose to the public:
(a) the names, identifying information or whereabouts of any witness or potential witness identified to them by the Prosecutor;
(b) any evidence (including documentary, physical or other evidence) or any written statement of a witness or potential witness, or the substance, in whole or part, of any such non-public evidence, statement or prior testimony;
(3) If the Brdanin and Talic Defence find it directly and specifically necessary to disclose such information for the preparation and presentation of this case, they shall inform each person among the public to whom non-public material or information (such as witness statements, prior testimony, or videos, or the contents thereof), is shown or disclosed, that such a person is not to copy, reproduce or publicise such statement or evidence, and is not to show or disclose it to any other person . If provided with the original or any copy or duplicate of such material, such person shall return it to the Brdanin and Talic Defence when such material is no longer necessary for the preparation and presentation of this case;
(4) With regard to (3) above, the Brdanin and Talic Defence shall maintain a log indicating the name, address and position of each person or entity receiving such information and the date of disclosure. If there is a perceived violation of the orders described herein, the Prosecutor shall notify the Trial Chamber which may either review the alleged violations or may refer the matter to a désignée, such as a duty Judge. If the Trial Chamber refers the matter to a duty Judge, the duty Judge shall review the disclosure log, make factual determinations, and report back to the Trial Chamber with a recommendation as to whatever action seems appropriate .
(5) If a member of the Brdanin and Talic Defence team withdraws from the case, all material in his or her possession shall be returned to the lead defence counsel. The Brdanin and Talic Defence shall return to the Registry, at the conclusion of the proceedings in this case, all disclosed materials and copies thereof, which have not become part of the public record.
(6) The Prosecutor may make limited redactions to witness statements or prior testimony concerning the identity and whereabouts of vulnerable victims or witnesses. The identities of such persons shall be disclosed to the Brdanin and Talic Defence within a reasonable period before commencement of trial, unless otherwise ordered.(l)
Paragraph 2 of the Motion defines, in wide terms, the expressions "the Prosecutor ", "Brdanin and Talic Defence", "the public" and "the media".(2) The Motion was filed on a confidential basis.
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2. The orders sought numbered (1), (2) and (3) were not opposed. The others were opposed.
2 The Statute and the Rules
3. There are three provisions of the Tribunal's Statute which are relevant to this application. Article 20 ("Commencement and conduct of trial proceedings") provides , so far as is here relevant:
1 . The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence , with full respect for the rights of the accused and due regard for the protection of victims and witnesses.
4. The hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with its rules of procedure and evidence.
Article 21.2 ("Rights of the accused") provides:
2. In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute.
Article 22 ("Protection of victims and witnesses") provides:
The International Tribunal shall provide in its rules of procedure and evidence for the protection of victims and witnesses. Such protection measures shall include , but shall not be limited to, the conduct of in camera proceedings and the protection of the victim's identity.
4. There are also a number of the Rules of Procedure and Evidence ("Rules") which are relevant to the application. Rule 66(A)(i) ("Disclosure by the Prosecutor") is in the following terms:
Subject to the provisions of Rules 53 and 69, the Prosecutor shall make available to the defence in a language which the accused understands
(i) within thirty days of the initial appearance of the accused, copies of the supporting material which accompanied the indictment when confirmation was sought as well as all prior statements obtained by the Prosecutor from the accused; [. . .]
Rule 53(A) ("Non-disclosure") provides:
In exceptional circumstances, a Judge or a Trial Chamber may, in the interests of justice, order the non-disclosure to the public of any documents or information until further order.
Rule 69 ("Protection of Victims and Witnesses") provides:
(A) In exceptional circumstances, the Prosecutor may apply to a 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.
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(B) In the determination of protective measures for victims and witnesses, the Trial Chamber may consult the Victims and Witnesses Section.
(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.
Rule 75(A) ("Measures for the Protection of Victims and Witnesses") provides:
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 witnesses, provided that the measures are consistent with the rights of the accused.
3 The redactions made by the prosecution
5. On 11 January, the prosecution purported to comply with its obligation under Rule 66(A)(i) by serving on counsel for the two accused copies of the supporting material which had accompanied the indictment when confirmation was sought. Every statement served had been redacted to remove the name and any other material which would identify either the persons who had made the statements or their whereabouts , notwithstanding the references in par (6) of the orders presently sought to "limited redactions" and "vulnerable victims or witnesses". The documents were accompanied by a letter which requested counsel to respect the protective measures sought in the Motion until such time as the Trial Chamber had ruled upon it. (3)
6. It was conceded by the prosecution that this redaction had been effected without having first obtained an order pursuant to Rule 69, but it was said that the redaction had been carried out in advance of such an order "for safety's sake".(4) The first issue to be determined in the Motion is, therefore, whether pursuant to Rule 69(A) the prosecution is entitled to the redaction of the name and identifying features of every person who has made a statement until "a reasonable period before [the] commencement of [the] trial", as sought by the Motion.(5)
7. In relation to the power to provide appropriate protection for victims and witnesses in the Statute and Rules, it was held by the Trial Chamber in the Prosecutor v Tadic(Q that:
[...] in the fulfilling of its affirmative obligation to provide such protection, [the Tribunal] has to interpret the provisions within the context of its own unique legal framework in determining where the balance lies between the accused's right to a fair and public trial, the right of the public to access of information and the protection of victims and witnesses. How the balance is struck will depend on the facts of each case. (7)
The balance between the right of the accused to a fair and public trial and the protection of victims and witnesses within its unique legal framework had also been referred to in earlier decisions in the same case.(8)
8. The prosecution, however, relies not only upon the facts of this particular case but also upon "the facts and circumstances concerning Tribunal cases generally" to justify the redaction of all identification of every person who had made the relevant statements and their whereabouts. It says that Bosnia and Herzegovina continues to be a dangerous place, where each ethnic or political group is viewed as the enemy of another, and where -
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[...] much of the war is still being fought, with indictees [sic] or suspects and their supporters (as well as supporters of those detained in The Hague) still at large and where witnesses against them are considered "the enemy".(9)
The Motion proceeds:
10. In the past two years, there have been increasing instances involving interference with and intimidation of Tribunal witnesses, including breaches and violations of witness protection orders (including non-disclosure orders) and other security measures . The situations range from witnesses having their lives threatened, to repeated instances of witness statements that have been disclosed to accused and their counsel being published in the media or otherwise made public (despite the existence of non-disclosure orders), to numerous threatening telephone calls, to loss of jobs or job opportunities, to witnesses' general fear and apprehension that they or their families will be harmed or harassed or otherwise suffer if they testify or co-operate with the Tribunal.
11. In light of these past breaches of confidentiality and other serious problems , and their effect on victims and witnesses, the Prosecutor has grave concerns that the safety of witnesses, their willingness to testify and the integrity of these proceedings will be substantially jeopardised if witnesses' identities, whereabouts and statements are prematurely disclosed in circumstances where they cannot be protected . The Prosecutor submits that the requested protective measures greatly assist in minimising these concerns.
9. The prosecution submits that the future of this and all other Tribunal cases depends upon the ability and willingness of witnesses to give evidence. Absent evidence, there will be no trials, or no trials which accomplish justice. It says :(10)
If witnesses will not come forward or if witnesses refuse or are otherwise unwilling to testify, there is little evidence to present. Threats, harassment, violence, bribery and other intimidation, interference and obstruction of justice are serious problems, for both the individual witnesses and the Tribunal's ability to accomplish its mission.
10. It was frankly conceded by the prosecution that the basic argument underlying its submissions was that the requirements of Rule 69(A) - that "exceptional circumstances " must be shown before protective measures will be ordered by the Trial Chamber - are satisfied in relation to every witness in every case "at this stage" (that is, at the time for service on the accused of the supporting material which accompanied the indictment when confirmation was sought).(1 0 It was also frankly conceded by the prosecution that it is difficult to argue that every witness must be vulnerable.(12)
11. In the opinion of the Trial Chamber, the prevailing circumstances within the former Yugoslavia cannot by themselves amount to exceptional circumstances . This Tribunal has always been concerned solely with the former Yugoslavia, and Rule 69(A) was adopted by the judges against a background of ethnic and political enmities which existed in the former Yugoslavia at that time. The Tribunal was able to frame its Rules to fit the task at hand; the judges who framed them feared even at that time that many victims and witnesses of atrocities would be deterred from testifying about those crimes or would be concerned about the possible negative consequences which their testimony could have for themselves or their relatives.(13) Accordingly, the use by those judges of the adjective "exceptional" in Rule 69(A ) was not an accidental one. To be exceptional, the circumstances must therefore
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go beyond what has been, since before the Tribunal was established, the rule - or the prevailing (or normal) circumstances - in the former Yugoslavia. As was made clear by the Second Tadic Protective Measures Decision, the circumstances of each case must be examined.
12. The prosecution submits that the Second Tadic Protective Measures Decision should no longer be followed, as it was the Tribunal's first case, and that there had been numerous documented instances of interference since that time.04) Even if the situation has changed since the Second Tadic Protective Measures Decision - and the Trial Chamber is not satisfied that there has been any significant change - the wording of Rule 69(A) has nevertheless remained the same, and the phrase "exceptional circumstances" in its ordinary usage does not permit any interpretation which equates it with what is now said to be the rule in the former Yugoslavia.
13. The action of the prosecution in redacting the name and identifying features in every statement, although no doubt administratively convenient, was both unauthorised and unjustified on the basis which the prosecution has now put forward .
4 An alternative procedure?
14. During the course of the oral hearing of the Motion, on 24 March 2000, there was discussion as to whether a procedure could be devised which would avoid the need for a witness-by-witness application by the prosecution to the Trial Chamber for protective measures before complying with its obligation under Rule 66(A)(i) to serve copies of its supporting material upon the accused.
15. The prosecution proposed a procedure whereby -
(i) it would take it upon itself to redact the identity of every witness who has asked for his or her identity not to be revealed and who, in its judgment, is a vulnerable witness,
(ii) the accused could make a "reasonable" request to it for the identity of particular victims and witnesses to be revealed, giving reasons why their identity was required at an earlier stage than (say) thirty days before the commencement of the trial, and
(iii) if that request were refused, the accused could then seek relief from the Trial Chamber.(15)
Should the accused require the name of a witness because there are, for example, features directly implicating the accused, the name would be supplied unless there is a very good reason why the prosecution wished to withhold it.(16)
16. Such a proposal, however, has two basic defects. First, it continues to assume that every witness (or at least those who ask for their identity not to be disclosed) is in fact "in danger or at risk" (as Rule 69(A) describes them), or "vulnerable" (as the Motion describes them). As already decided, that is not so . Secondly, the proposal completely reverses the appropriate onus. Rule 69(A) places the onus upon the prosecution to demonstrate the exceptional circumstances justifying an order for non-disclosure, whereas this proposal places the onus upon the accused to justify disclosure.
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17. There is another problem. The prosecution asserted that, as it has a responsibility to ensure that the accused is given a fair trial, it should be trusted in effect to perform the role which the Rules give to the Trial Chamber in determining which victims and witnesses are vulnerable.(17) It asks the accused "to accept that there are very good reasons why the identity is not being provided".(18) This does not even begin to discharge the onus which the prosecution bears under Rule 69(A ). One of the supporting documents served on the accused in the present case consists of the transcript of evidence which a proposed witness gave in open session in another case before the Tribunal, with all material identifying the witness redacted. As it would be a simple thing for the accused to find the relevant transcript and thus to identify the witness in question, there could be no exceptional circumstances warranting a redaction ofthat witness's name. This example suggests a perhaps less than dispassionate approach by the prosecution to its task.(19)
18. The proposal was opposed by both accused, and the Trial Chamber accepts that its implementation would be contrary to both the Statute and the Rules.
5 A conflict between the Rules?
19. The prosecution claims that there is a conflict which needs to be resolved between the obligation placed upon it by Rule 66(A)(i) to disclose the supporting material to the accused within thirty days of his initial appearance and the protection afforded to victims and witnesses provided by Rule 69(A).(20)
20. The Trial Chamber does not accept that there is any such conflict. As already decided, Rule 69(A) does not provide the blanket protection asserted by the prosecution. Before protective measures will be granted, Rule 69(A) requires the prosecution first to establish exceptional circumstances. This is in accordance with the balance carefully expressed in Article 20.1 : that "proceedings are conducted [...] with full respect for the rights of the accused and due regard for the protection of victims and witnesses". As the prosecution correctly concedes, the rights of the accused are made the first consideration, and the need to protect victims and witnesses is a secondary one.(21) The reference to "proceedings" in Article 20 is not limited to the actual trial; it includes every phase of the litigation which affects the determination of the matter in issue.(22)
21. If the prosecution is able to demonstrate exceptional circumstances justifying the non- disclosure of the identity of any particular victims or witnesses at this early stage of the proceedings, then its obligations of disclosure under Rule 66 (A)(i) will be complied with if it produces copies of the statements with the names and other identifying features of only those witnesses redacted.
6 Rule 69(A)
22. It is necessary initially to say one thing about Rule 69(A) if only for the purpose of putting it on one side. The Rule expresses the power to make a non-disclosure order in relation to a victim or witness who may be in danger or at risk "until such person is brought under the protection of the Tribunal". This rather curious wording appears to assume that the Tribunal has a witness protection program or scheme which will render the non-disclosure order no longer necessary once it comes into operation. In fact, the Tribunal does not have any such program or scheme.(23) The Rule has always been interpreted as including the power to make non-disclosure orders which continue throughout the proceedings and thereafter. If necessary,
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such a power is justified by Rule 53(A), which permits a non-disclosure order (so far as the public is concerned) to be made in relation to any document or information until further order - but, again, only "[ijn exceptional circumstances". So far as the accused is concerned, Rule 69(C) requires the identity of the victim or witness to be disclosed to him "in sufficient time prior to the trial to allow adequate time for preparation of the defence".(24)
23. There is therefore clear power to make what may be described as the usual non -disclosure orders in relation to particular victims and witnesses once exceptional circumstances have been shown. That, however, is not what is sought by the prosecution in the present motion. In substance, the present motion seeks only to justify the prosecution's right to make the blanket redactions already made. In that endeavour, the prosecution has been unsuccessful, and it will be necessary to file a fresh motion in which it seeks to justify a non-disclosure order in relation to particular victims and witnesses.(25) As some of the issues which will arise in relation to such a fresh motion have been debated in relation to the present motion, it is appropriate to express the views of the Trial Chamber in relation to those issues at this stage.
24. The first issue concerns the likelihood that prosecution witnesses will be interfered with or intimidated once their identity is made known to the accused and his counsel, but not to the public. The prosecution says, and the Trial Chamber accepts, that the greater the length of time between the disclosure of the identity of a witness and the time when the witness is to give evidence, the greater the potential for interference with that witness.(26) Paragraph 10 of the Motion makes the general allegation that there has been an increasing number of instances in which there have been breaches and violations of witness protection orders, thus justifying grave concerns that such instances will increase further if the identity of the witnesses is disclosed earlier than is necessary.
25. The prosecution subsequently gave four examples of these instances.(27) In the first, counsel for an accused was charged (with his client) with contempt arising from alleged interference with a prospective witness for that client. The charge of contempt has been dismissed upon the basis that the Trial Chamber was not satisfied beyond reasonable doubt that the interference had occurred.(28) In the second example, counsel in one case named in open session a person as having been a witness in an associated case who had been granted protective measures in that other case. When charged with contempt, Counsel claimed that he had drawn the inference that that person had given evidence in the associated case from the fact that it was known that he had been in The Hague at the time. The prosecution did not assert that this knowledge had been gained as a result of a breach by anyone bound by the protective measures order in the associated case.(29) In the third example, a witness list was published in a newspaper in Sarajevo. In the fourth example, a witness statement was published in a newspaper in Croatia . The prosecution asserted that:(30)
As a result of these actions, Prosecution witnesses who had previously agreed to appear before the Tribunal refused to testify.
The reference to "these actions" appears to be limited to the third and fourth examples .
26. It is, however, important to recall the terms of the rule under which the prosecution seeks a non-disclosure order. Rule 69(A) applies only to "the non-disclosure of the identity of a victim or witness who may be in danger or at risk". Any fears expressed by potential witnesses themselves that they may be in danger or at risk are not in themselves sufficient to establish any real likelihood that they may be in danger or at risk. Something more than that
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must be demonstrated to warrant an interference with the rights of the accused which these redactions represent. Most judges can identify cases in which it is obvious that witnesses have been interfered with, but it is by no means so obvious that this has resulted from breaches by defence team members of witness protection orders. The examples of violations in the four cases following (in a temporal sense only) the disclosure of the identity of the witnesses to the defence are accompanied by the prosecution's assertion that they show "a history of violations in virtually every case that has been brought before this Tribunal".(31) This piece of hyperbole does not assist.
27. Counsel for the accused have, with some justification, complained that their integrity has been impugned by these assertions. Such an intention has been denied by the prosecution, which has attempted to explain the relevance of its assertions in this way:(32)
It is submitted that if, before an order is to be made, the Prosecutor is required to demonstrate that there are grounds for believing that a particular defence counsel would behave improperly and/or until interference with witnesses or improper disclosure of confidential material has taken place, then the purpose of the order (which does no more than comply with the statutory obligation to protect victims and witnesses ), has been negated.
This was expanded at the oral hearing:(33)
We're suggesting that the interference may and has in the past come from persons who have a vested interest in, whether actively sought by the accused or no, helping them. And one of the foolish ways which they see help being given is by interference with witnesses.
These explanations do not entirely eradicate the suggestion by the prosecution that there is a presumption that impropriety will occur, particularly when the terms of Order (4) are considered.(34)
28. The Trial Chamber accepts that, once the defence commences (quite properly) to investigate the background of the witnesses whose identity has been disclosed to them, there is a risk that those to whom the defence has spoken may reveal to others the identity of those witnesses, with the consequential risk that the witnesses will be interfered with. But it does not accept that, absent specific evidence of such a risk relating to particular witnesses, the likelihood that the interference will eventuate in this way is sufficiently great as to justify the extraordinary measures which the prosecution seeks in this case in relation to every witness.
29. A second issue which arose relates to the extent to which the power to make protective orders can be used not only to protect individual victims and witnesses in the particular case but also to assist the task of the prosecution to bring other cases against other persons in the future. This issue arises from the prosecution's assertion quoted earlier:(35)
If witnesses will not come forward or if witnesses refuse or are otherwise unwilling to testify, there is little evidence to present. Threats, harassment, violence, bribery and other intimidation, interference and obstruction of justice are serious problems, for both the individual witnesses and the Tribunal's ability to accomplish its mission.
That is a statement which could easily be misunderstood. In the view of the Trial Chamber, when the required balancing exercise is undertaken before protective measures are ordered, a clear distinction must be drawn between measures to protect individual victims and witnesses
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in the particular trial and measures which simply make it easier for the prosecution to present its other cases against other persons.
30. Whilst the Tribunal must make it clear to prospective victims and witnesses in other cases that it will exercise its powers to protect them from, inter alia , interference or intimidation where it is possible to do so, the rights of the accused in the case in which the order is sought remain the first consideration . It is not easy to see how those rights can properly be reduced to any significant extent because of a fear that the prosecution may have difficulties in finding witnesses who are willing to testify in other cases.
31. The Trial Chamber accepts that the need to carry out any balancing exercise which limits the rights of the accused necessarily results in a less than perfect trial. On the other hand, it also accepts that such a result does not necessarily mean that the trial will not be a fair one. Those propositions were stated by the majority of the Trial Chamber in the First Tadic Protective Measures Decision ,(36) and they have never been disputed . The question here is whether the extent to which it is necessary to deny the rights of the accused in order to assist the prosecution to have indeterminate victims and witnesses testify on its behalf in future cases tilts the balance too far. The right to a fair trial holds so prominent a place in a democratic society that it cannot be sacrificed to expediency.(37)
32. That said, however, the Trial Chamber accepts that, where the likelihood that a particular victim or witness may be in danger or at risk has in fact been established, it would be reasonable, for the reasons already given, to order non -disclosure of the identity ofthat victim or witness until such time that there is still left, in the words of Rule 69(C), "adequate time for preparation of the defence" before the trial. Counsel for Brdanin in the end realistically accepted that the real issue was "when".(38) Counsel for Talic did not accept the right of the prosecution to have any documents redacted,(39j although his co-counsel emphasised the requirement of Rule 69(A) that redaction be allowed only in exceptional circumstances.(40)
33. A third issue which arose relates to the length ofthat time before the trial at which the identity of the victims and witnesses must be disclosed to the accused. The prosecution accepts that, although the greater the length of time between the disclosure and the time when the witness is to give evidence, the greater the potential for interference with that witness, the time to be allowed for preparation must be time before the trial commences rather than before the witness gives evidence .(41)
34. The prosecution has also very realistically conceded that what is a reasonable time will depend upon the particular category in which the witness in question falls .(42) For example, where (as in the present matter) the case against the accused does not suggest that either of the accused personally did the acts in question, the witnesses who are to prove the basic facts for which the accused is said to be responsible (either as a superior or by way of aiding and abetting) do not themselves directly implicate the accused , and knowledge of their identity would do little to assist the defence in its preparation for the trial.(43) The witnesses whose identity is of much greater importance to the accused in the preparation of the defence are those who directly implicate the accused as having superior authority or as aiding and abetting.(44) The distinction is a valid one, but the problem is that it is in relation to the witnesses who fall into the second category that the prosecution has the greater concerns and whom it seeks to keep anonymous until the last moment.
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35. All three of these issues will be relevant to the determination of the fresh motion which the prosecution must now file in which it seeks to justify a non-disclosure order in relation to particular witnesses.
36. The prosecution has suggested that a disclosure of its witnesses' identity thirty days before the trial would be sufficient to allow the accused to be ready for trial. The prosecution asserts that the name of the witness is -
[...] normally only relevant to issues of credit and is, therefore, generally only a small part of any case preparation that the Defence may undertake. (45)
The prosecution asked rhetorically:(46)
[E]ven if [the defence] have the name of a witness, how would this assist them preparing the defence of either of the two accused?
These statements are quite unrealistic when applied to those witnesses who fall within the category of giving evidence which directly implicates the accused. There can be no assumption by counsel for the accused that these witnesses will be telling the truth.(47) There are well documented cases where, upon a careful investigation, witnesses called by the prosecution have turned out not to have been where they say they were,(48) or have subsequently retracted their evidence.(49) The Appeals Chamber has placed a firm obligation upon those representing an accused person to make proper inquiries as to what evidence is available in that person's de fence. (50) Some of the prosecution witnesses are likely to be of such importance that it will be necessary for at least the final stage of the investigation into those witnesses to be done by counsel who is to appear for the accused at the trial. That is obvious to anyone with experience of criminal trials. The earlier stages can be conducted by the investigator(s) retained for the accused in the field. Many more than one person may well need to be spoken to before appropriate information becomes available.
37. One difficulty which is said by both accused to have arisen in the present case results from the fact that the indictment was sealed, and has remained sealed except in relation to these two accused. Persons whom the defence teams wish to interview have declined to co-operate for fear that they are also named in that indictment, or perhaps in another sealed indictment. This difficulty was said to arise in relation to prospective witnesses for the defence whom the defence teams wish to interview, which is hardly relevant to the present issue, which concerns prosecution witnesses.(51) However , the Trial Chamber recognises that such a difficulty may well arise also in relation to those from whom the defence teams seek information in relation to the prosecution witnesses.
38. The Trial Chamber does not believe that it is possible to lay down in advance any particular period which would be applicable to all cases. Everything will depend upon the number of witnesses to be investigated, and the circumstances under which that investigation will have to take place. Some accused may have better resources of their own than others, depending upon their position prior to their arrest. That period can only be determined after the protective measures are in place. However, from evidence given in other cases,(52) the Trial Chamber accepts that the pre-trial investigation process in which any defence team is involved is a difficult one, and that (unless very few witnesses have been made the subject of protection orders) a period somewhat longer than thirty days before the trial is likely to be necessary in most cases if the accused is to be properly ready for trial.
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7 Return of documents
39. Order (5), if made, would oblige counsel for the accused to return all statements of witnesses to the Registry "at the conclusion of the proceedings". It is said that, as the statements were provided to the accused only to enable him to prepare for the trial, they should be returned to the Registry - thus ensuring that what may be described as the non- public information which the statements contain can never be disclosed to the public.(53) The prosecution would not have access to the documents when they are returned.(54)
40. It was argued on behalf of Talic that the documents became the property of the accused as soon as they are provided to him, and that he should be entitled to keep them "so that he could use them properly in the future".(55) The prosecution replied that property in the documents does not pass to the accused .(56) The Trial Chamber does not find it necessary to determine this issue, as it accepts the alternative submission made on behalf of Brdanin, that the "work product" of counsel (being the notations inevitably made by counsel on those documents during the preparation and the course of the trial) does become the property of the accused and that it is of a confidential nature.(57) It is unnecessary to determine whether that confidentiality stems from the legal professional privilege which arises (at least in the common law systems) between attorney and client; it is sufficient to say that the "work product" is confidential, and that the accused should not ordinarily be required to divulge it. The issue therefore becomes whether the risk of disclosure is of such a nature that the documents ought nevertheless be returned .
41. When pressed as to how realistic the risk was that the non-public material in these statements would be disseminated if the documents were kept by counsel after the case has been concluded (when the protective measures still operate), the prosecution first referred to the refusal by one defence counsel in another case to return his papers at the conclusion of the trial, and then suggested that:(58)
One keeps papers in one's office, people wander in and out of the office, or one leaves papers somewhere, and unless they're returned and accounted for, [...] there's always that risk. That's the difficulty.
If there is a deliberate refusal by counsel to return the documents when ordered to do so, he or she would be subject to punishment for contempt. Such a refusal does not lead inevitably to a deliberate disclosure of the documents; however, even punishment for contempt would not cure the damage should there be a deliberate disclosure. But what realistically is the likelihood of a repeat of an event such as this? And what realistically is the likelihood that counsel who has kept the statements after the conclusion of the case would leave them in a situation where there would be an unintentional disclosure to somebody who has wandered into his or her office? All but one of the documented disclosures to which the prosecution has referred in the Motion occurred either during the pre-trial phase or during the trial itself. The exception occurred when counsel in one completed case provided an unredacted statement of a witness to counsel in an associated case who had at that time received from the prosecution only a redacted statement ofthat witness .(59)
42. The Trial Chamber does not accept that the risk is of such significance as to warrant the concern which the prosecution has expressed. There is in any event some difficulty in determining the exact time when the proceedings have concluded , which the prosecution has proposed as the time for the statements to be returned . It was agreed at the oral hearing that,
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if such documents were to be returned to the Registry at the conclusion of the trial, they would for practical reasons be destroyed, rather then stored.(60) Whether an appeal is to be lodged would be known fairly quickly, and counsel could perhaps be permitted to keep the statements until the time for filing an appeal has expired and, if an appeal is filed, until the appeal is disposed of. But what if, at some later stage, an application is made for a review pursuant to Rule 119 ? Counsel retained for the accused in that procedure would have lost a very valuable resource if the work product on the statements has been destroyed. This would be unfair to the accused. It was suggested by the prosecution that the answer would be for defence counsel to keep his or her work product separately from the statements supplied. The Trial Chamber regards that submission as quite impractical.
43. The Trial Chamber does not accept that the likely risk of either deliberate or unintentional disclosure after the conclusion of the case is of such significance as to justify the unwieldy and possibly unfair consequences of an order that the documents be returned in every case. The fact that orders for the return of statements have been made in similarly general terms in other cases does not impress the Trial Chamber,(61 ) as the present case appears to be the first in which objection has been taken to orders of the nature sought in this case, and the first in which there has been any examination of what is involved in those orders.
44. The Trial Chamber is prepared to make an order in the terms of the first part of Order (5) - that, if a member of the Brdanin and Talic Defence team withdraws from the case, all the material in his or her possession shall be returned to the lead defence counsel. Such an order is justified as that member of the team no longer has any need for the documents. But the Trial Chamber is not prepared at this stage to make any further order in relation to the return of documents. It accepts that such orders may be warranted in a particular case. Counsel for Brdanin suggested that an order may be warranted where a document was "akin to a national security document",(62) but the Trial Chamber would not limit the occasions when an order may be appropriate to that class of case. Such orders are better considered at the end of the trial, when the risk involved may more easily be identified. The risk has not been identified in the present case at this stage. The order is therefore otherwise refused, without prejudice to any further application at a later stage.
8 Maintaining a log
45. The accused have not objected to Order (3), which obliges their Defence team (as defined) to inform each person among the public to whom they find it directly and specifically necessary to disclose confidential or non-public materials that such person is not to copy, reproduce or publicise the information disclosed, is not to show or disclose that information to any other person, and is to return the original or any copy of such material provided to that person. Order (4), if made , would oblige counsel to maintain a log indicating the names, addresses and position of each person or entity receiving any of the non-public information in the materials provided by the prosecution. The prosecution points out that similar statutory requirements exist in relation to statements, photographs and medical reports in sexual cases in the United Kingdom.(63) Such a regime was said to be necessary in Tribunal cases as the "only way of tracing these things".(64) An expanded explanation was given in these terms:(65)
[...] if there is a leak of confidential material, and the Trial Chamber has to conduct an investigation, the only way they can properly do so is by a log being kept. And that's the reason that we are asking for that [...]
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The procedure laid down by Order (4) is that, if a "perceived violation" of the non-disclosure order occurs, the Trial Chamber, or a désignée [sic] such as a duty judge, may review the disclosure log so that "appropriate" action may be taken. The prosecution asserts that the log will not be disclosed to it..(66)
46. The accused Talic objects to such an order upon the basis that it infringes the confidentiality of his defence team's investigations^?) in that (a) it will permit both the prosecution and the Tribunal to know those whom his defence team is meeting in order to organise his defence,(68) and (b) it will permit the prosecution to prosecute those persons "secretly".(69) The prosecution denies that legal professional privilege applies to that information . Again, it is unnecessary for the Trial Chamber to determine whether the confidentiality as to the identity of persons to whom the defence team have spoken in the preparation of the case for the accused stems from legal professional privilege, as it is sufficient to say that such information is confidential, and the accused should not ordinarily be requested to divulge it.
47. It is significant, in the view of the Trial Chamber, that the review of this log is contemplated only in the event of a "perceived violation" of the non-disclosure order. As that order is binding only upon the Brdanin and Talic Defence (which term is limited by its definition to the accused themselves, their counsel and all staff assigned to them by the Tribunal), Order (4) appears to be intended specifically to provide the basis for "appropriate" action against only those persons responsible for maintaining the log. The "appropriate" action could well include prosecution for contempt of the Tribunal.
48. If, however, any member of the defence team is to be prosecuted for contempt, it is perhaps disingenuous of the prosecution to assert that the log will not be disclosed to it, as it would be the prosecution to which the Trial Chamber would necessarily have to turn for assistance in proceedings for contempt pursuant to Rule 77. Again, if any member of the defence team is to be prosecuted for contempt, he or she is entitled to the same presumption of innocence and right to silence which any other accused person has. The obligation to keep the log upon which such a prosecution is to be based would require that accused person to provide evidence against him or herself, contrary to Article 21 of the Tribunal's Statute. Such a procedure could be justified only where the situation were so grave that substantial damage was being caused by improper disclosures.(70) The Trial Chamber is not satisfied that such a situation exists here.
49. A requirement that such a log be kept so that any improper disclosure could be traced to a person to whom the defence team has quite properly disclosed the identity of the witness (in its investigation into the background ofthat witness ) would not give rise to these problems, but the non-disclosure order is not binding upon those other persons, and the Tribunal is powerless to take any action against them if such a disclosure by them does occur. The Trial Chamber does not accept that it is appropriate to require such a log to be maintained by the defence team for the purpose contemplated by Order (4). The order is refused.
9 Confidential filings
50. An issue was also raised by the Trial Chamber itself as to the action of the prosecution in filing its Motion on a confidential basis. At the time when the Motion was filed, a Scheduling Order was made which, inter alia, lifted its confidentiality.^ 1 ) An informal request was made by the prosecution to rescind that order,(7_2) but the order was merely stayed until further
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order, so that both the confidentiality of this document and the right of a party without leave to file a document on a confidential basis simply by labelling it "Confidential" could be argued at the oral hearing.(73) The Registrar was also invited to make representations pursuant to Rule 33(B) upon the second of those issues, as well as upon the issue as to whether there should be a requirement that any party wishing to file a document on a confidential basis (other than one seeking protective orders for specific persons) must first, on an ex parte basis and before filing it, seek leave from the Pre-Trial Judge to do so on such a basis .(74) A submission of the Registrar was filed. (75)
51. The purported basis for filing the Motion as a confidential document was the fear that, if the material contained in par 10 of the Motion - which is quoted in par 8 of this Decision - could be read by anyone, including those who are potential witnesses and those who have an interest in preventing such witnesses from giving evidence, it could well lead to those witnesses refusing to co-operate,(76) and to the possibility of interference with witnesses being planted in the minds of those who have a vested interest in ensuring that evidence which implicates these two accused is not given. (77)
52. The Trial Chamber repeats what it said earlier,(78) that the issue is the likelihood that prosecution witnesses may be interfered with or intimidated, and that any fears expressed (or held) by potential witnesses themselves that they may be approached are not in themselves sufficient to establish the likelihood that they may be interfered with or intimidated. The Trial Chamber regards the suggestion that those already minded to prevent evidence being given against these two accused would, by reading a publicly filed document such as this Motion, be incited to interfere with or intimidate witnesses as merely fanciful.(79) The reality is that there have already been serious allegations made publicly that witnesses in other cases have been interfered with. In one case, the allegations were upheld in proceedings for contempt against the counsel concerned.(80) In another case, the allegations against other counsel and the accused for whom he appeared were dismissed.(81) Both judgments are public documents, and may be read by anyone. The second was given only recently, but no-one has suggested that there has been an upsurge of interference with witnesses in the period since the first of those judgments was given. Nor could they.
53. There was no justification for filing the Motion on a confidential basis. Article 20.4 of the Tribunal's Statute provides:
The hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with its rules of procedure and evidence.
Pursuant to that Article, Rule 79 provides that a Trial Chamber may exclude the press and the public from the proceedings only for one of three specified reasons (one being the safety, security or non-disclosure of the identity of a victim or witness as provided by Rule 75). Both these provisions make it clear that the proceedings must be in public unless good cause is shown to the contrary.(82)
54. The prosecution has submitted that these provisions relate only to hearings, and not to the filing of motions. That is strictly true, but they indicate a intention that everything to do with proceedings before the Tribunal should be done in public unless good cause is shown to the contrary. As a matter of general policy , this must be so. A necessary consequence of the filing of this Motion on a confidential basis has been that the oral argument upon the Motion - which dealt with matters of great importance - took place in closed session, although it was
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subsequently conceded by the prosecution that nothing said during that oral hearing other than the references to par 10 of the Motion was confidential in nature.[83) If par 10 of the Motion did not justify it being filed on a confidential basis, then the public has been denied its right of access to a hearing, a right which both the prosecution and the Tribunal should have been anxious to enforce.
55. The prosecution also asked rhetorically:(84)
[W]hat interest can the public have in [...] unnecessarily knowing that there's an application for protection of witnesses and/or that there have been successful attempts in the past?
The answer is that there is a public interest in the workings of courts generally (including this Tribunal) - not just in the hearings, but in everything to do with their working - which should only be excluded if good cause is shown to the contrary . The attitude displayed by the prosecution in the present case appears to be part of an unfortunately increasing trend in proceedings before the Tribunal for matters to be dealt with behind closed doors. When the prosecution seeks to have anything dealt with confidentially, the accused does not usually object because it is in his interest that the less that is made public concerning his case the better.{85} This trend is a dangerous one for the public perception of the Tribunal, and it should be stopped.
56. The stay on the order lifting the confidentiality of the Motion is removed, and the filings by the parties in relation to the Motion, and the transcript and video-recording of the oral hearing on the Motion, will also be made public.
57. The remaining issues concerning confidentiality were the right of a party without leave to file a document on a confidential basis simply by labelling it "Confidential ", and whether there should be a requirement that any party wishing to file a document on a confidential basis (other than one seeking protective orders for specific persons ) must first, on an ex parte basis and before filing it, seek leave from the Pre-Trial Judge to do so on such a basis.
58. The parties made no specific submissions in relation to these issues, although the prosecution did identify some convenient categories into which its "confidential " filings fall, to which reference will be made later.
59. The Registrar has identified as being relevant to this issue Article 12.1 of the Directive for the Registry-Judicial Department-Court Management and Support Services ("Directive"'),(86s) which provides :
Documents which are confidential in whole or in part, or which include words or phrases which should not be disclosed to the public, are filed and classified in accordance with the procedure described in Article 11 herein. These documents remain a part of the relevant case file, but they are placed in a distinct folder which is not accessible to the public.
The classification of documents described in Article 11 of the Directive makes no reference to the classification of documents as confidential. The Registrar has submitted that, as it is her view that "her Office is not in a position to make decisions that affect the judicial rights of the parties".(87) and "in accordance with the current practice of the Registry", the parties do have the right to file a document without leave on a confidential basis simply by labelling it "Confidential".{88) Such a practice, she says(89) -
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[...] is the most appropriate mechanism for satisfying the dual objectives of maintaining the security of each party's documents, and maintaining a transparent and impartial filing system.
60. The Trial Chamber respectfully takes issues with a number of these assertions . First, Article 12 makes it clear that the documents to which it relates are those which are in fact confidential, not those which are merely claimed to be so, and to documents which "should" not be disclosed to the public. On the face of it, the Article does require the Registry staff to make a determination . Secondly, it is by no means the universal practice of the Registry to leave it to the parties to nominate whether they wish to have the documents filed on a confidential basis, and decisions are made by Registry staff on occasions as to whether a document should be filed on a confidential basis.(90) Thirdly, the Directive cannot be interpreted according to the ability of the Registrar to provide staff who are able to apply it. And, lastly, the argument that, by making a determination as to whether a document should be filed on a confidential basis , the Registry staff will no longer be seen as impartial is illogical. The Trial Chamber does not accept the Registrar's conclusion that the parties have the right to file a document without leave on a confidential basis simply by labelling it "Confidential".
61. In relation to the suggested requirement that a party seeking to file a document on a confidential basis must first obtain leave to do so, the Registrar asserts that it would be contrary to the Directive, which can only be amended by the Registrar after consultation with the judges and the Prosecutor.(91) As the parties require documents to be filed on a continuous basis throughout the day, and in some cases after hours, she also asserts that any requirement of leave could potentially result in delays because of the unavailability of the Pre- Trial Judge or the Trial Chamber.(92}
62. Once again, the Trial Chamber respectfully takes issue with these assertions . The contents of the Directive are irrelevant to the suggested requirement of leave. The Directive does not impinge upon the power of a Trial Chamber to control the particular proceedings before it. The Trial Chamber may direct the parties to file certain documents, without infringing the Directive. It may equally direct the parties not to file certain documents without first obtaining leave, again without infringing the Directive. The suggested requirement of leave does not require the Registry staff to act in any particular way. If a party seeks to file a document merely labelled "Confidential" on such a basis without leave to do so, and if the Registry staff does not draw the party's attention to that requirement, then the Trial Chamber will exercise its power to order that its confidentiality be lifted, a power which the Registrar recognises.(93) The requirement that leave be obtained in advance will merely ensure that usually this power will not have to be exercised after the filing has been accepted.
63. In relation to the argument of inconvenience, the prosecution informed the Trial Chamber that its confidential filings fell into the following categories:(94)
(i) witness protection measures,
(ii) ongoing investigations, pending indictments and sealed indictments, and
(iii) responses to confidential motions filed by the defence and to Trial Chamber decisions which relate to confidential hearings or motions.
Filings in the second category are almost inevitably ex parte in nature and so are almost inevitably also confidential in nature. Filings in the third category would also appear to be
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necessarily confidential in nature. It is therefore with filings in the first category that the issue of inconvenience principally arises , although the Trial Chamber recognises that there may well be other categories in which it would be appropriate to file a document on a confidential basis.
64. If the requirement that leave be sought prior to filing were couched in terms which excluded -
(a) all exporte applications, whatever their nature,
(b) all inter partes applications for witness protection which relate to specific persons, and
(c) all applications which fall within the second and third of the prosecution's categories, there are few documents which would require leave. The prosecution was unable to supply figures,(95) but it was not suggested that there were many such documents. There would be no significant inconvenience ; rather, there will be an opening up of the proceedings to public scrutiny in every case except where confidentiality is really warranted. The Trial Chamber proposes to give such a system a trial in particular cases.
10 Disposition
65. For the foregoing reasons, Trial Chamber II makes the following orders:
1. For the purposes of these orders:
(a) "the Prosecutor" means the Prosecutor of the Tribunal and her staff;
(b) "Brdanin and Talic Defence" means only the accused Radoslav Brdanin and Momir Talic and such defence counsel and their immediate legal assistants and staff, and others specifically assigned by the Tribunal to Radoslav Brdanin and Momir Talic's trial defence teams and specifically identified in a list to be maintained by each lead counsel and filed with the Trial Chamber ex parte and under seal within ten days of the entry of this order. Any and all additions and deletions to the initial list in respect of any of the above categories of persons who are necessarily and properly involved in the preparation of the defence shall be notified to the Trial Chamber in similar fashion within seven days of such additions or deletions ;
(c) "the public" means all persons, governments, organisations, entities, clients , associations and groups, other than the judges of the Tribunal and the staff of the Registry (assigned to either Chambers or the Registry), and the Prosecutor, and the Brdanin and Talic Defence, as defined above. "The public" specifically includes, without limitation, family, friends and associates of the accused, the co-accused, the accused in other cases or proceedings before the Tribunal and defence counsel in other cases or proceedings before the Tribunal; and
(d) "the media" means all video, audio and print media personnel, including journalists , authors, television and radio personnel, their agents and representatives.
2. The Prosecutor is to comply, on or before 24 July 2000 at 4.00 pm, with her obligation under Rule 66(A)(i) of the Rules of Procedure and Evidence to supply to each of the accused
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copies in unredacted form of the supporting material which accompanied the indictment when confirmation was sought as well as all prior statements obtained by her from that accused; provided that, in the event that the Prosecutor files a motion within that period for protective measures in relation to particular statements or other material or particular victims or witnesses (which shall be identified in such motion by a number or pseudonym), she need not supply unredacted copies of those statements or that other material identified in that motion until that motion has been disposed of by the Trial Chamber, and subject to the terms of any order made upon that motion .
3. The Brdanin and Talic Defence shall not disclose to the media any confidential or non- public materials provided by the Prosecutor.
4. Save as is directly and specifically necessary for the preparation and presentation of this case, the Brdanin and Talic Defence shall not disclose to the public:
(a) the names, identifying information or whereabouts of any witness or potential witness identified to them by the Prosecutor; or
(b) any evidence (including documentary, physical or other evidence) or any written statement of a witness or potential witness, or the substance, in whole or part, of any such non-public evidence, statement or prior testimony.
5. If the Brdanin and Talic Defence find it directly and specifically necessary to disclose such information for the preparation and presentation of this case, they shall inform each person among the public to whom non-public material or information (such as witness statements, prior testimony, or videos, or the contents thereof), is shown or disclosed, that such a person is not to copy, reproduce or publicise such statement or evidence, and is not to show or disclose it to any other person . If provided with the original or any copy or duplicate of such material, such person shall return it to the Brdanin and Talic Defence when such material is no longer necessary for the preparation and presentation of this case.
6. If a member of the Brdanin and Talic Defence team withdraws from the case, all material in his or her possession shall be returned to the lead defence counsel.
7. The stay imposed by the Variation of Scheduling Order of 27 January 2000 dated 2 February 2000, which lifted the "confidentiality" of the Motion for Protective Measures dated 10 January 2000, is removed.
8. The "confidentiality" of the filings in response to the Motion for Protective Measures dated 10 January 2000, of the filings in reply to those responses and of the oral hearing of the Motion on 24 March 2000 is lifted.
9. The remaining orders sought by the Motion for Protective Measures dated 10 January 2000 are refused.
10. Nothing herein shall preclude any party or person from seeking such other or additional protective orders or measures as may be viewed as appropriate concerning a particular witness or other evidence.
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Done in English and French, the English text being authoritative.
Dated this 3rd day of July 2000, At The Hague, The Netherlands.
Judge David Hunt (Presiding Judge
[Seal of the Tribunal]
1. Motion for Protective Measures, 10 Jan 2000 ("Motion"), par 14.
2. Those definitions formed the general basis for the definitions given in par 65.1 of this Decision. The prosecution also seeks to preserve the right of the parties and any other person to seek such other or additional protective orders or measures as may be appropriate concerning a particular witness or other evidence.
3. Transcript, 11 Jan 2000, p 40.
4. Transcript, 24 Mar 2000, p 77.
5. Motion, par 14(6).
6. Case IT-94-1-T, Decision on the Prosecution's Motion Requesting Protective Measures for Witness R, 31 July 1996 ("Second Tadic Protective Measures Decision"), at 4.
7. The emphasis has been added.
8. Prosecutor v Tadic, Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, (1995) 1JRICTY 123 ("First Tadic Protective Measures Decision"), at 151 (par 30). See also Prosecutor v Tadic, Decision on the Prosecutor's Motion Requesting Protective Measures for Witness L, (1995) I JR ICTY 307 at 318-319 (par 11).
9. Motion, par 9
10 Ibid, par 4.
11. Transcript, p 78
12. Ibid, p 88.
13. First Tadic Protective Measures Decision, at 145-147 (par 23).
14. Transcript, p 135.
15. Ibid, p 84, 87-88,92.
16 Ibid, p 86.
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17. Ibid, p 86-87, 93-94.
18. Ibid, p 140.
19. Whatever fears that witness may have in being identified as one who is going to give evidence in this trial, it is difficult to see how the prosecution, having used the transcript as supporting material when the indictment was confirmed, could argue that there were exceptional circumstances justifying a non-disclosure in relation to that witness.
20. Transcript, p 140.
21. Further and Better Particulars of "Motion for Protective Measures", 8 Feb 2000 ("Further Particulars"), par 4; Transcript, p 83. See also First Tadic Protective Measures Decision, at 215.
22. First Tadic Protective Measures Decision, at 157 (par 38), citing Axen v Federal Republic of Germany, ECHR decision of 8 Dec 1983, Series A, no 72 (see at par 27).
23. First Tadic Protective Measures Decision, at 175 (par 65), 201.
24. This is subject to Rule 75, which permits appropriate measures to be ordered for the privacy and protection of witnesses unlimited in time, but only if the measures are "consistent with the rights of the accused". No issue arises in the present motion in relation to that power, which is discussed in the First Tadic Protective Measures Decision, by the majority at 169-175,179 (pars 53-66, 71) and by Judge Stephen, dissenting, at 221, 225-235.
25. It was submitted by the prosecution that such a motions should proceed ex parte (Transcript, p 86). That would be appropriate only if the identity of the particular witnesses would otherwise be identified: Prosecutor v Simic, Case 1T-95-9-PT, Decision on (1) Application by Stevan Todorovic to Re-open the Decision of 27 July 1999, (2) Motion by ICRC to Re-open Scheduling Order of 18 Movember 1999, and (3) Conditions for Access to Material, 28 Feb 2000, pars 40-41. Whether ex parte or inter partes, it would nevertheless be appropriate for the application to be made on a confidential basis.
26 Further Particulars, par 12; Transcript, pp 78-79.
27. Further Particulars, par 8.
28. Prosecutor v Simic, Case IT-95-9-R77, Oral Judgment, 29 Mar 2000, Transcript, pp 904-905.
29. Prosecutor v Zlatko Aleksovski, Case IT-95-14/1-T, Finding of Contempt of the Tribunal, 11 Dec 1998.
30. Further Particulars, par 8
31. Ibid, par 9.
32. Ibid, par 10.
33. Transcript, p 90.
34. This provides for a log to be maintained by counsel of those to whom they have disclosed the non-public information in the material provided by the prosecution, and which may be reviewed by the Trial Chamber in the event of a "perceived violation" by counsel or others within the defence team. See Section 8 of this Decision.
35. Paragraph 9 of this Decision.
36 At 179 (par 72). It is perhaps instructive that the authority upon which the majority relied - a decision of the Appellate Division of the Supreme Court of Victoria (Australia), in Jarvie v Magistrates Court of Victoria [1994] VR 84 at 90, delivered by Mr Justice Brooking on behalf of the Court - involved a witness who had been
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well known to the accused, although only by a pseudonym and not his real name (he was an undercover police officer)1 First Tadic Protective Measures Decision, per Judge Stephen, at 233.
37. Kostovski v Netherlands, ECHR decision of 20 Nov 1989, Series A, no 166, at 21 (par 44).
38. Transcript, p 115.
39. Transcript, p 123.
40. Transcript, pp 126-128, This is more consistent with the written response filed on behalf of Talic: Response of General Talic to the Further Particulars Provided by the Prosecutor Relating to the Motion for Protective Measures, 10 Feb 2000, par 5.
41. Transcript, p 81.
42. Ibid, p 80.
43. Ibid, pp 83-84. In other words, it is unlikely that there will be any real dispute about their evidence: Prosecutor v Krnojelac, Case IT-97-25-PT, Decision on Preliminary Motion on Form of Amended Indictment, 11 Feb 2000, par 18(A).
44. Transcript, p 89.
45. Further Particulars, par 13.
46. Transcript, p 84.
47. Counsel for Brdanin quoted Lord Owen: "Never before in over thirty years of public life have I had to operate in such a climate of dishonour, propaganda and dissembling. Many of the people with whom I have had to deal in the former Yugoslavia were literally strangers to the truth." (Balkan Odyssey, David Owen, 1996, Indigo Edition, pi.)
48. See, for example, Prosecutor v Tadic, Case IT-94-1-T, Decision on Prosecution Motion to Withdraw Protective Measures for Witness L, 5 Dec 1996, par 4; Prosecutor v Tadic, Case IT-94-1-A, Judgment, 15 July 1999, pp 26-28 (pars 57-65).
49. See, for example, Prosecutor v Tadic, Case IT-94-1-A-R77, Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 Jan 2000, pars 46, 136.
50. Prosecutor v Aleksovski, Case IT-95-14/1-AR73, Decision on Prosecutor's Appeal on Admissibility of Evidence, 16 Feb 1999, par 18.
51. So far as defence witnesses are concerned, the attention of defence counsel is directed to the provisions of Article 29 of the Tribunal's Statute.
52 See, for example, Prosecutor v Tadic, Case IT-94-1-A-R77, Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 Jan 2000.
53. Motion, par 13.
54. Transcript, p 134.
55 Ibid, p 120.
56. Ibid, p 142.
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57. Ibid, pp 131,133-134.
58. Ibid, p 97.
59. Further Particulars, par 15
60. Transcript, p 94-95.
61. Further Particulars, par 16.
62. Ibid, p 133. See also a reference by the prosecution to such documents, at Transcript, pp 99-100.
63. Sexual Offences (Protected Materials) Act 1997, which contains elaborate provisions to prevent disclosure of such material to any person (including the accused person, even if unrepresented) in such a way which permits that person to retain possession of it at any time or to make a copy of it: Further Particulars, par 18.
64. Transcript, p 97.
65. Ibid, p 134.
66. Ibid, p 134
67. Response [by Talic] to Prosecutor's Motion, 31 Jan 2000, par 3.
68. Transcript, p 130.
69. Ibid, p 130-132.
70. Such a situation has been justified in some domestic jurisdictions - for example, where lorry drivers are required to keep log books as to their working hours and rest periods.
71. Scheduling Order, 27 Jan 2000, p 3.
72. Letter from James Stewart, Chief of Prosecutions, to the Pre-Trial Judge, 31 Jan 2000 ("Stewart letter"). The prosecution was subsequently required to file the letter: Variation of Scheduling Order of 27 January 2000, 2 Feb 2000, p 2.
73. Variation of Scheduling Order of 27 January 2000, 2 Feb 2000, p 2.
74. Scheduling Order, 29 Feb 2000, p 4.
75. Submission of the Registrar on the Confidential Filing Issue in Accordance with Rule 33(B), 7 Mar 2000 ("Registrar's Submission").
76. Stewart letter, par (a).
77. Ibid, par (b), Transcript, p 102.
78. Paragraph 26 of this Decision.
79. The Trial Chamber has not overlooked that publicity may be given to such documents when publicly filed, although none was in fact given to this Motion notwithstanding its public release when its confidentiality was lifted. In any event, so far as the point made by the Trial Chamber is concerned, it does not matter how the allegations in the filed document might become known to those persons already minded to prevent evidence being given against these two accused
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80. Prosecutor v Tadic, Case IT-94-1-A-R77, Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 Jan 2000, a judgment of the Appeals Chamber.
81. Prosecutor v Simic, Case IT-95-9-R77, Judgment in the Matter of Contempt Allegations Against an Accused and his Counsel, 30 June 2000.
82. See also Article 21.2 of the Tribunal's Statute.
83. Transcript, p 148.
84. Ibid, p 104.
85. One example of the approach of the parties to hearing matters in closed session may be seen in Prosecutor v Tadic, Case IT-94-1-A-R77, Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 Jan 2000, at par 11. In Prosecutor v Kunarac, Case IT-96-23-T, Order on Defence Motion Pursuant to Rule 79, 22 March 2000, the defence has sought a closed hearing for the evidence of all the prosecution witnesses who had accused the defendant of rape. The application was refused.
86. IT/121, 1 March 1997, as approved by the Judges sitting in Plenary Session on 25 June 1996.
87. Registrar's Submission, par 3.
88. Ibid, par 4.
89. Ibid, par 4.
90. A recent example was the wise decision within the Registry to file a document on a confidential basis, notwithstanding the absence of any label of confidentiality, because it included references to the transcript of evidence given in closed session: Prosecutor v Delalic, Case IT-96-21-A, Order Relating to Appeal Brief Filed on Behalf of Zegnil Delalic, 26 May 2000. There have been many other such occasions.
91. Registrar's Submission, par 5.
92. Ibid, par 6.
93. Ibid, par 4.
94. Ibid, p 100.
95. Transcript, p 99.
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IN TRIAL CHAMBER II
Before: Judge David Hunt, Presiding Judge Florence Ndepele Mwachande Mumba Judge Liu Daqun
Registrar: Mrs Dorothée de Sampayo Garrido-Nijgh
Decision of: 27 October 2000
PROSECUTOR
Radoslav BRDANIN & Momir TALIC
DECISION ON SECOND MOTION BY PROSECUTION FOR PROTECTIVE MEASURES
The Office of the Prosecutor;
Ms Joanna Korner Ms Anna Richterova Ms Ann Sutherland
Counsel for Accused:
Mr John Ackerman for Radoslav Brdanin Maître Xavier de Roux and Maître Michel Pitron for Momir Talic
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1 Introduction
1. On 3 July 2000, the Trial Chamber gave its decision on the prosecution's Motion for Protective Measures,- by which the Prosecutor was ordered to comply, on or before a set date-
[...] with her obligation under Rule 66(A)(i) of the Rules of Procedure and Evidence to supply to each of the accused copies in unredacted form of the supporting material which accompanied the indictment when confirmation was sought as well as all prior statements obtained by her from that accused; provided that, in the event that the Prosecutor files a motion within that period for protective measures in relation to particular statements or other material or particular victims or witnesses (which shall be identified in such motion by a number or pseudonym), she need not supply unredacted copies of those statements or that other material identified in that motion until that motion has been disposed of by the Trial Chamber, and subject to the terms of any order made upon that motion ."
2. In accordance with that proviso, the prosecution filed a number of further motions seeking protective measures.- This Decision is concerned only with the Second Motion for Protective Measures, in which the prosecution seeks the following relief:-
(a) Leave to retain the redaction of the witness '[seil witness's] current whereabouts in respect of witness numbered 7.18 and the previous address to which the witness may be returning in respect of witness numbered 7.2.
(b) Leave for disclosure of the identity of the witnesses to be delayed until a period closer to trial in respect of the witness numbered 7.10, and as per the ex parte Attachment to this Motion in respect of witnesses numbered 7.4, 7.9 , 7.26, 7.30 and 7.42.
(c) Requests until 31 August 2000 (the date for further disclosure of witness statements ) to contact these witnesses to ascertain their security concerns, in respect of witnesses numbered 7.1, 7.15, 7.19, 7.24, 7.28 and 7.47.
(d) Leave to withhold from the accused the identity of the witnesses numbered 7. 14, 7.17, 7.20, 7.31 and 7.34, whom the prosecution does not intend to call at trial.
2 The basis of the application
3. Rule 66 ("Disclosure by the Prosecutor") of the Rules of Procedure and Evidence ("Rules"), so far as it is here relevant, provides:
(A) Subject to the provisions of Rules 53 and 69, the Prosecutor shall make available to the defence in a language which the accused understands
(i) within thirty days of the initial appearance of the accused, copies of the supporting material which accompanied the indictment when confirmation was sought as well as all prior statements obtained by the Prosecutor from the accused, and
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4. The obligation imposed by Rule 69(A)(i) is thus made subject to only two exceptions , Rules 53 and 69. Rule 53 ("Non-disclosure"), so far as it is here relevant, provides :
(A) In exceptional circumstances, a Judge or a Trial Chamber may, in the interests of justice, order the non-disclosure to the public of any documents or information until further order.
(C) A Judge or Trial Chamber may, in consultation with the Prosecutor, also order that there be no disclosure of an indictment, or part thereof, or of all or any part of any particular document or information, if satisfied that the making of such an order is required to give effect to a provision of the Rules, to protect confidential information obtained by the Prosecutor, or is otherwise in the interests of justice.
Rule 69 ("Protection of Victims and Witnesses"), so far as it is here relevant, provides:
(A) In exceptional circumstances, the Prosecutor may apply to a 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.
Rule 75 ("Measures for the Protection of Victims and Witnesses"), so far as it is here relevant, provides:
(A) 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.
5. The prosecution does not, by the present Second Motion, seek protective measures in relation to the disclosure to the public of the identity of the witnesses whose statements had been part of the supporting material which accompanied the indictment when confirmation was sought pursuant to Rule 47 ("Submission of Indictment by the Prosecutor").- The Second Motion is concerned only with the disclosure of the identity of those witnesses to the two accused and their defence teams. However, in the event that the prosecution does not succeed, so that that identity must be disclosed to the accused and their defence teams, that identity is clearly "confidential or non-public materials provided by the Prosecutor". Pursuant to the Protective Measures Decision, they are already under the obligation not to disclose that material to the public ("save as is directly and specifically necessary for the preparation and presentation of this case") or to the media under any circumstances. -
3 The relief sought in par (a)
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6. The prosecution sought to retain the redactions made to two of the statements which were part of the supporting material which accompanied the indictment when confirmation was sought insofar as the redacted material discloses the current whereabouts of witness 7.18 and the previous address to which witness 7.2 may be returning.
7. The accused Momir Talie ("Talie") does not object to the relief sought.- The accused Radoslav Brdanin ("Brdanin") made no submissions in relation to this issue. That relief will therefore be granted.
4 Ex parte material
8. Before turning to the relief sought in par (b), it is necessary to deal with the complaint made by Talic concerning the prosecution's use of ex parte communications to the Trial Chamber in relation to that relief." Brdanin did not file any response to the Second Motion, but his counsel indicated orally to the Trial Chamber that he relied upon the same issues which he had raised in his responses to the Third and Fourth Motions.- The issues raised in those responses are stated in the most general of terms but, in the light of previous concerns expressed on behalf of Brdanin in relation to exporte communications,— the Trial Chamber is prepared to interpret those responses as adopting the complaint by Talic.
9. As indicated in the relief sought, the ex parte material in the present case relates to five witnesses (7.4, 7.9, 7.26, 7.30 and 7.42) whose identity the prosecution seeks to disclose only at a time closer to the trial.— Talic submitted that none of the provisions upon which the prosecution relies to obtain the relief sought provided for exporte proceedings.— He relied upon a decision in Prosecutor v Blaskic as supporting his argument,— in which it was said:—
[...] although it is true that Rule 66 (C)— in fine does provide for ex parte disclosure by the Prosecutor to the Trial Chamber of the information for which confidentiality is sought, it in no manner authorises the holding of ex parte hearings on all the measures to be taken to ensure the protection of the witnesses as part of proceedings before the Tribunal.
Talic went on to submit that, in general, ex parte proceedings should be used only in exceptional or limited circumstances as they infringe upon the accused's right to a fair trial which he is guaranteed by Article 21.2 of the Tribunal's Statute .—
10. The prosecution replied, by leave,— that an application for protective measures was appropriately dealt with on an ex parte basis where the persons to be protected would otherwise be identified , relying upon the decision in Prosecutor v Simic,—in which it was said;—
As a matter of practice, and in accordance with common sense, applications by either party for protective orders are determined on an ex parte basis where the persons to be protected would otherwise be identified.
11. The possible conflict between those two decisions (Blaskic appearing to state that protective measures can never be sought exporte, and Simic permitting such applications when the person to be protected would otherwise be identified) is somewhat reduced by the subsequent decision in the Blaskic case permitting such applications on an exporte basis in certain circumstances.— The Trial Chamber accepts the statement in the Simic Decision as the correct one, but it emphasises that that statement does not authorise ex parte applications, as
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opposed to confidential applications, for protective measures in every case .— The statement must be understood in the light of the general principle stated in that case:—
The fundamental principle in every case is that ex parte proceedings should be entertained only where it is thought to be necessary in the interests of justice to do so - that is, justice to everyone concerned - in the circumstances already stated: where the disclosure to the other party or parties in the proceedings of the information conveyed by the application, or of the fact [of] the application itself, would be likely to prejudice unfairly either the party making the application or some person or persons involved in or related to that application.
It was also made clear in the Simic Decision that the party seeking relief on an ex parte basis must identify with some care why the disclosure of the detail of the application to the other party to proceedings would cause such unfair prejudice.—
5 The relief sought in par (b)
12. The prosecution seeks to delay until a time closer to the trial the disclosure to the accused and the defence teams the identity of certain of the witnesses whose statements had been part of the supporting material which accompanied the indictment when confirmation was sought. The justification for that relief has been disclosed in the Second Motion in relation only to one of those witnesses, witness 7.10. The only material tendered in justification for the relief sought in relation to the remaining witnesses was filed on an exporte basis. It is convenient to deal first with that part of the relief sought in par (b) of the present application which was sought on an exporte basis.
13. There are two discrete issues to be determined in relation to that relief:
(1) whether the application for protective measures in relation to each particular witness on a completely exporte basis was warranted; and
(2) whether the non-disclosure to the accused and the defence teams of the identification of each witness is warranted - either because the witness "may be in danger or at risk" within the meaning of Rule 69(A), or because of one or more of the provisions of Rules 53(A) or 53(B).
If protective measures are granted in favour of the prosecution, the time when disclosure would have to be made in accordance with Rule 69(C) (to allow adequate time for the preparation of the defence) is best determined when the protective measures are in place.—
14. As Talic has submitted, any exporte proceedings infringe upon the accused's right to a fair trial,— and - particularly where the application is to deny the accused at this stage the identity of these witnesses - the accused must be given sufficient information to enable him to decide whether or not to oppose that application. The arguments advanced to justify the protective measures sought should therefore be set out in such a way that the basis for the application is disclosed as far as possible without revealing the identity of the particular witness for whom the protection is sought.— The procedure adopted by the prosecution in this case of producing all the material tendered as justifying the relief sought on an exporte basis in relation to all the witnesses other than 7.10 deprives the accused of any opportunity of making a decision as to whether to oppose the application.
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15. The Trial Chamber is not satisfied that the extent to which this ex parte procedure was adopted by the prosecution in this case was warranted. The Trial Chamber does not accept that all of the material filed on an ex parte basis was of such a nature that its disclosure would be likely to reveal the identity of those witnesses. The prosecution is accordingly directed to file, on a confidential basis only and without revealing the identity of the witnesses, its justification for non-disclosure to the accused in such a way that the accused are given sufficient information to enable them to determine whether to oppose the relief sought. When this has been done, the Trial Chamber will also take into consideration any material already filed on an ex parte basis which does not appear in the new filing, but only if the Trial Chamber is satisfied that it was appropriate for that material not to have been disclosed to the accused. The prosecution should accordingly use its best endeavours to reveal as much as possible in that new filing .
16. The Trial Chamber's further consideration of the relief sought in par (b) on an ex parte basis must await that further information. The prosecution should also prepare for filing later at the appropriate time, also on a confidential basis , a clear identification of the nature of the evidence which each of these witnesses is to give. This is information which both accused presently have but which the Trial Chamber does not have, and which the Protective Measures Decision said was relevant to the determination of the time when disclosure must be made to the accused and the defence.— The various categories into which witnesses fall in relation to that issue are discussed in the Protective Measures Decision, in par 34. The material in the exporte document certainly does not make clear into which of those categories of witnesses the relevant witnesses fall.—
17. In relation to witness 7.10, the whole of the material upon which the prosecution relies for the non-disclosure of this witness's identity to the accused and their defence teams is revealed in the Second Motion. Reliance is placed upon Rule 69 (A) - that the witness "may be in danger or at risk" and that exceptional circumstances warrant the non-disclosure until a time closer to the trial.
18. It is obvious that what would usually be sufficient to show that a witness may be in danger or at risk if that witness's identity is directly disclosed to the public would not usually be sufficient to show that the witness may also be in danger or at risk if that witness's identity is disclosed only to the accused and the defence team - where obligations are also imposed upon the accused and the defence team in relation to further disclosure by them.— As in the Protective Measures Decision, the Trial Chamber accepts that the greater the length of time between the disclosure of the identity of a witness and the time when the witness is to give evidence, the greater the potential for interference with that witness,— and that, once the defence commences (quite properly) to investigate the background of the witnesses whose identity has been disclosed to them, there is a risk that those to whom the defence has spoken may reveal to others the identity of those witnesses, with the consequential risk that the witnesses will be interfered with.— However, the Trial Chamber in that Decision went on to :^
But it does not accept that, absent specific evidence of such a risk relating to particular witnesses, the likelihood that the interference will eventuate in this way is sufficiently great as to justify the extraordinary measures which the prosecution seeks in this case in relation to every witness.
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It must be demonstrated in relation to the particular witness for whom protective measures are sought that there is sufficient possibility that he or she may be threatened or interfered with as to warrant the conclusion that, despite the obligations imposed upon the accused and their defence teams, there should be no disclosure even to them at this stage. The prosecution has rightly accepted that Article 20.1 of the Tribunal's Statute makes the rights of the accused the first consideration, and the need to protect victims and witnesses the secondary consideration.— A balancing exercise is required in each case.—
19. The material upon which the prosecution relies in relation to witness 7.10 is stated in this way:
This witness was recently spoken to by an OTP investigator. This witness has concerns for her safety and security and that of her family. The witness is a 69 year old woman in ill- health, living alone in a town in the Federation [of Bosnia and Herzegovina ]. Her daughter- in-law lives alone in a village in the Federation to which many Serbs who have houses therein plan to return. The witness intends returning to her house in the same village as her daughter- in-law.
Talic submits that Rule 69(A) has not been satisfied in this case.— He points out that, in the Protective Measures Decision, the Trial Chamber has already held that "fears of potential witnesses themselves that they may be in danger or at risk are not in themselves sufficient to establish any real likelihood that they may be in danger or at risk".— The Trial Chamber went on to say in that Decision:—
Something more than that must be demonstrated to warrant an interference with the rights of the accused which these redactions represent.
What is required is that there be some objective foundation for those fears, as well as exceptional circumstances. There is no such foundation demonstrated in the passage quoted, as the mere fact that there will be some Serbs also living in the area to which the presumably Bosnian Muslim witness will be returning hardly takes the situation out of the prevailing (or normal) circumstances so as to render the circumstances exceptional.—
20. The prosecution argues that such a foundation does exist when the witness's fears are considered— -
[...]in the context of the present circumstances existing in:
(a) The municipality in which the witnesses and their relatives resided and to which they wish to return; and/or
(b) The municipality in which the witnesses presently reside; and,
(c) The circumstances existing within Bosnia and Herzegovina as a whole.
In order to demonstrate those circumstances, the prosecution has provided a number of reports by international and non-governmental organisations which discuss the changing position within the Federation of Bosnia and Herzegovina ("Federation")— and its specific municipalities.—
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21. The UNHCR reports demonstrate that, insofar as the risk to persons returning to live in the Federation is concerned, the situation has changed over recent times for the better. The earlier UNHCR report made the assessment that persons originating from areas where they would no longer be in the majority upon return - where the region is administered by an ethnic group other than their own - were per se at risk.— The more recent UNHCR report states :-
Due to the overall improved situation in BiH, it can no longer be upheld that belonging to a numerical minority group upon return per se renders a person in need of international protection. It is therefore necessary to assess the situation in the return municipality and to determine whether s/he can return there in safety .
The recent report does identify as needing continued international protection various categories of persons particularly at risk, including— -
[pjersons originating from areas where they would no longer be in the majority upon return, unless it can reasonably be assessed that they can return in safety and dignity [...]. and "humanitarian cases", including witnesses testifying before the Tribunal. The emphasis, however, is upon the circumstances in the particular areas or municipalities to which the witnesses are to return. The other reports submitted by the prosecution also emphasise that the particular risk faced by a person testifying against a person of another ethnic group will depend on the particular municipality to which that witness is returning and the ethnicities of the witness and the accused.— In one particular report concerning, inter alia, the risks to Bosnian Muslims testifying against Serbs when they returned or went to municipalities in the Federation , such risks arising in every one of the municipalities within the Federation referred to in the report are described as "minimal".— All reports do disclose that there are real risks to witnesses testifying in the Tribunal in particular areas, but they also acknowledge that the existence of those risks depends on the specific circumstances of the particular individual, generally requiring a consideration at least of local or regional factors (as opposed to a broad overview of the situation in the Federation).
22. Despite the prosecution's earlier references to the context of the present circumstances in the area in which the witnesses live or to which they are to return,— it has not revealed anything of the circumstances in the town to which witness 7.10 intends to return, or of the circumstances in the municipality in which that town is situated. The identity of the town itself has not been revealed to the Trial Chamber (even on an exporte basis). The assessments of various municipalities provided in the reports filed by the prosecution are therefore of no assistance to the Trial Chamber in relation to this witness. It may well be that, when those circumstances are revealed, witness 7.10 will be entitled to protective measures to prevent her identification being disclosed to the public, but nothing has been demonstrated which suggests that the disclosure at this stage of her identity to the accused and their defence teams, may put her in danger or at risk, or which is of such an exceptional nature as to warrant the interference with the rights of the accused which the non-disclosure produces.
23. The balancing operation which must be carried out in each case requires this particular application for protective measures for witness 7.10 to be refused, but a fresh application may be made if desired in relation to the disclosure of her identity to the public.
6 The relief sought in par (c)
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24. During the extensive period it has taken for the filings to be completed in relation to the Second Motion, the nature of the relief sought in par (c) has changed . Talic initially did not object to the extension of time until 31 August sought.— Brdanin also made no submissions in relation to this issue. The prosecution then sought further and differing extensions of time in relation to the witnesses nominated in par (c).— Talic objected to the further extensions sought upon the basis that the prosecution had had sufficient time to contact the witnesses,— but an extension until 10 October in relation to all those witnesses was nevertheless granted by the Trial Chamber.—
25. The situation changed again when the prosecution filed its further motions, in which it updated the information contained in the Second Motion concerning the witnesses nominated in par (c) as follows:
(i) The only protective measures sought in relation to witness 7.1 is the redaction of information revealing his present whereabouts.—
(ii) Leave is sought to delay the disclosure of the identity of witness 7.15 until a time closer to the trial.-
(iii) Witnesses 7.19, 7.24, 7.28 and 7.47 have decided that they do not wish to testify, and the prosecution seeks leave to withhold their identity from the accused completely.—
The Fourth and Fifth Motions have therefore completely replaced the application made in par (c) of the present Second Motion. The relief sought in these further motions will be considered in separate decisions directed to those motions.
7 The relief sought in par (d)
26. The prosecution seeks leave to withhold completely from the accused and their defence teams the identity of five persons whose statements were part of the supporting material which accompanied the indictment when confirmation was sought, on the basis that it does not intend to call those witnesses at the trial.
27. Rule 66(A)(i) requires the disclosure of the material which was before the confirming judge (which necessarily includes all ofthat material), subject only to Rules 53 and 69. Rule 66(A)(i) may for present purposes relevantly be contrasted with Rule 66(A)(ii), which requires the prosecution, subject again to Rules 53 and 69, to disclose to the accused the statements of all witnesses whom it proposes to call at the trial.— The implicit exclusion from the obligation imposed by Rule 66(A)(ii) of statements from witnesses whom the prosecution does not intend to call is not made applicable to the obligation imposed by Rule 66(A)(i). The fact that the prosecution does not intend to call these five persons as witnesses does not by itself justify the non-disclosure of their identity as required by Rule 66(A)(i). It is therefore necessary for the prosecution to justify the relief which it seeks under either Rule 53 or Rule 69 .M
28. From its context in the Rules of Procedure and Evidence, Rule 53 is primarily concerned with protective measures needed prior to the initial appearance of the accused. This is particularly so of Rule 53(C), which speaks of consultation with the Prosecutor. But Rule 66(A) is expressly made subject to Rule 53. The general power to order protective measures in Rule 53(A) relates only to disclosure to the public, and it is in any event
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dependent upon the existence of exceptional circumstances andiho. requirements of justice. The power in Rule 53(C) is dependent upon the need to give effect to a provision of the Rules, to protect confidential information obtained by the Prosecutor or the requirements of justice. The power to order protective measures in Rule 69 has already been discussed in this Decision . It relates only to protective measures for victims or witnesses. These five persons are no longer to be witnesses. It has not been suggested that they would be entitled to protective measures as victims. Indeed, the prosecution has made no attempt to rely upon any of these provisions in order to justify the relief which it seeks.
29. Without assistance from the prosecution, the Trial Chamber has nevertheless considered whether the fact that the prosecution will not be calling the five persons at the trial because they are not willing to give evidence against these accused justifies non-disclosure of their identity to the accused in the interests of justice . Article 19 of the Tribunal's Statute requires the judge confirming the indictment to be satisfied that a prima facie case has been established. Rule 47(B) requires the Prosecutor to forward to the Registrar the indictment "together with supporting material" for this purpose, which is then examined by the confirming judge.— In determining whether a prima facie case has been established (as Article 19 requires), the confirming judge will necessarily assume that the supporting material forwarded by the Prosecutor contains the evidence (although not necessarily in admissible form) which the prosecution has available to be called at the trial of the indictment to be confirmed.
30. The prosecution now concedes that no such assumption was appropriate in the present case. It says that the persons whose statements were utilised in the confirmation process in this case had not been asked previously whether "they would be prepared to testify in this case" and "against these Accused", and that they were asked this only after the accused had been taken into custody.— This is a surprising state of affairs.— The apparent failure of the prosecution to act appropriately when seeking confirmation does not, in the circumstances of this case as disclosed to the Trial Chamber, mean that it is in the interests of justice to deny the rights of the accused given by Rule 66(A)(i) to have the identity of those persons disclosed - absent any other basis for protective measures.
31. The unwillingness of these five persons to give evidence is directly related to their identification to the accused as persons willing to give evidence against them, the implication being that they feared retaliation as a consequence of their willingness to do so. However, once the prosecution says that it will not call them, and concedes that it used their statements prepared for other purposes in this case without their authority, the suggested justification for their continuing fear of retaliation disappears. No other justification for a continuing fear has been suggested. On the material provided by the prosecution, it cannot be said that these five persons "may be in danger or at risk", even if Rule 69 did apply to them.— The prosecution says that, as the accused already have the substance of the statements and therefore know what facts contributed to the confirmation of the indictment, they suffer no prejudice .— Whether or not that is so, it is not a question of whether the accused can show that they would be prejudiced by the denial of their rights to have the identity of those persons disclosed.— The question is whether the prosecution has established that the interests of justice require that denial of those rights of the accused.
32. The Trial Chamber is not satisfied that the relief sought by the prosecution is justified, and the application is refused. The identity of the five persons will, however, be revealed on a
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confidential basis, so that the obligations imposed upon the accused and their defence teams by the Protective Measures Decision will apply to that material.—
8 Disposition
33. For the foregoing reasons, Trial Chamber II makes the following orders:
1. In relation to the statement of witness 7.18, and until further order, the prosecution is not obliged to disclose to the accused or their defence teams those parts which reveal the witness's present whereabouts.
2. In relation to the statement of witness 7.2, and until further order, the prosecution is not obliged to disclose to the accused or their defence teams those parts which reveal the previous address to which the witness may be returning.
3. In relation to the witnesses for whom protective measures have been sought on an ex parte basis, the prosecution is directed to file, on a confidential basis only and without revealing the identity of the witnesses, its justification for non-disclosure of their identity to the accused in such a way that the accused are given sufficient information to enable them to determine whether to oppose the relief sought.
4. The application for protective measures in relation to witness 7.10 is refused .
5. Leave to withhold from the accused the identity of witnesses 7.14, 7.17, 7.20 , 7.31 and 7.34 is refused.
Done in English and French, the English text being authoritative.
Dated this 27th day of October 2000, At The Hague, The Netherlands.
Judge David Hunt Presiding Judge
[Seal of the Tribunal]
1- Decision on Motion by Prosecution for Protective Measures, 3 July 2000 ("Protective Measures Decision"). 2- Protective Measures Decision, par 65.2. 3- Second Motion for Protective Measures for Victims and Witnesses, 31 July 2000 ("Second Motion"), Prosecution's Fourth Motion for Protective Measures for Victims and Witnesses, 21 Sept 2000 ("Fourth Motion"), and Prosecution's Fifth Motion for Protective Measures for Victims and Witnesses, 10 Oct 2000 ("Fifth Motion"). A Third Motion for Protective Measure for Victims and Witnesses, filed on 31 August 2000 ("Third Motion"), concerns the witnesses whose unredacted statements would otherwise have to be disclosed pursuant to Rule 66(A)(ii), and not with the supporting material which must be disclosed pursuant to Rule 66(A)(i). 4- Second Motion, par 14. 5- The prosecution has reserved its right to seek such measures at a later time: each of the draft orders attached to the Second, Third, Fourth and Fifth Motions expressly reserves the right of anyone to seek "such other or
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additional protective orders or measures as may be viewed as appropriate concerning a particular witness or other evidence". 6- Protective Measures Decision, pars 65(3) and 65(4). 7- Response to the Prosecution Motion for Protective Measures dated 31 July 2000, 30 Aug 2000 ("Talic Response"), par 2. 8- Talic Response, par 3.2. An ex parte application is one made by one party without notice to the other parties. 9- Response to the Prosecutor's Confidential Third Motion for Protective Measures and Request for Leave Not to Disclose the Identity of Certain Individuals, 6 Sept 2000; Response to Prosecutor's Fourth Confidential Motion for Protective Measures, 22 Sept 2000 10- Response to Prosecutor's Confidential Further and Better Particulars of "Motion for Protective Measures", 14 Feb 2000, pars 4-6; Transcript of Oral Hearing, 24 Mar 2000, pp 120-122. 11- The material relating to witness 7.10 is revealed in the Second Motion. 12- Talic Response, par 3.2. 13- Case IT-95-14-T, Decision Rejecting the Request of the Prosecutor for Ex parte Proceedings, 18 Sept 1996. 14-Ibid, p 3. 15- Rule 66(C) at that time provided: "Where information is in the possession of the Prosecutor, the disclosure of which may prejudice further or ongoing investigations, or for any other reasons may be contrary to the public interest or affect the security interests of any State, the Prosecutor may apply to the Trial Chamber sitting in camera to be relieved from the obligation to disclose pursuant to Sub-rule(B). When making such application the Prosecutor shall provide the Trial Chamber (but only the Trial Chamber) with the information that is sought to be kept confidential." 16- Talic Response, par 3.2. 17- Prosecution's Reply to "Response to the Prosecution Motion for Protective Measures Dated 31 July 2000", 12 Sept 2000 ("Prosecution Reply"), par 2. 18- Case IT-95-9-PT, Decision on (1) Application by Stevan Todorovic to Re-Open the Decision of 27 July 1999, (2) Motion by ICRC to Re-Open Scheduling Order of 18 November 1999, and (3) Conditions for Access to Material, 28 Feb 2000 ("Simic Decision"). 19-Ibid, par 40. 20- Prosecutor v Blaäkic, Case IT-95-14-T, Decision on the Defence Motion for Protective Measures for Witnesses D/H and D/I, 25 Sept 1998, p 2 It was an application by the accused. 21- A confidential application in one made on notice to the other parties but without disclosure to the public 22- Simic Decision, par 41. 23-Ibid, pars 42-43. 24- Protective Measures Decision, par 38. 25- See also the Protective Measures Decision, pars 26-31. 26- Talic Response, par 3.2. 27- Paragraph 35. 28- The only express indication given to the evidence to be given relates to witness 7.42, when it is said that he "will give direct evidence against both of the accused". Even that is insufficient for the purposes of the Trial Chamber's decision on the third issue. 29- Supra, par 5. 30- Protective Measures Decision, par 24. 31-Ibid, par 28. 32-Ibid, par 28 33-Ibid, par 20. 34- Prosecutor v Tadic, Case IT-94-1-T, Decision on the Prosecution's Motion Requesting Protective Measures for Witness R, 31 July 1996, at 4; Protective Measures Decision, par 7. 35- Talic Response, par 3.1 Brdanin's counsel indicated orally to the Trial Chamber that he relies upon the same issues which he has raised in his responses to the Third and Fourth Motions (see footnote 9, supra). In his Response to the Fourth Motion, Brdanin objects to similar protective measures sought by the prosecution, on the basis that the prosecution relies upon a presumption that defence counsel will violate the obligations placed upon them: pars 2-3. 36- Protective Measures Decision, par 26. 37-Ibid, par 26. 38-Ibid, par 11. 39- Second Motion, par 6. 40- The State is called Bosnia and Herzegovina, and it consists of two entities: Republika Srpska (which is predominantly Bosnian Serbian) and the Federation of Bosnia and Herzegovina (which is predominantly Bosnian Muslim and Bosnian Croat). 41- All but one of these reports were provided confidentially to both the Tribunal and the defence, as the
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organisations which provided the reports have personnel working in the relevant areas. The one public report was a report by the United Nations High Commissioner for Refugees ("UNHCR"). A version of this Report dated May 1999 was provided with the Second Motion with the promise of an updated version. The updated version of the Report, dated August 2000, was annexed to the Fourth Motion. 42- Update of UNHCR's Position on Categories of Persons from Bosnia and Herzegovina who are in Continued Need of International Protection, May 1999, pars 1.10, 2.1 and 2.2. 43- Update of UNHCR's Position on Categories of Persons from Bosnia and Herzegovina in Need of International Protection, August 2000, p 2. 44-Ibid, p 2. 45- For example, the risk for a Bosnian Muslim testifying against a Serb was assessed as slight in a particular municipality in the Federation, but the risk for a Serb testifying against a Bosnian Muslim in that same municipality would be greater: Confidential letter, Appendix B to the Second Motion, first unnumbered page. 46- Confidential letter, Appendix B to the Second Motion, second, third, fifth, sixth and seventh unnumbered pages. 47- Second Motion, par 6, quoted in par 18, supra. 48- Talic Response, par 2. 49- Prosecution's Request for Leave Not to Disclose the Identity of Certain Individuals, 31 Aug 2000, pars 2 and 3. 50- Response to the Prosecution's Request for Leave Not to Disclose the Identity of Certain Individuals Dated 31 Aug 2000, 8 Sept 2000, par 2. 51-Order, 19 Sept 2000, p 4. 52-Fifth Motion, par 3. 53- Fourth Motion, par 10(c). 54- Ibid, par I0(d); Fifth Motion, par 4. 55- Rule 66(A)(ii) provides. "Subject to the provisions of Rules 53 and 69, the Prosecutor shall make available to the defence in a language which the accused understands [...] (ii) within the time-limit prescribed by the Trial Chamber or by the pre-trial Judge appointed pursuant to Rule 65ter, copies of the statements of all witnesses whom the Prosecutor intends to call to testify at trial, and copies of all affidavits and formal statements referred to in Rule 94ter; copies of the statements of additional prosecution witnesses shall be made available to the defence when a decision is made to call those witnesses." 56- The text of both Rules, so far as they are relevant, is quoted in par 4, supra. 57- Rule 47(E). 58- Prosecution Reply, pars 6-7. The emphasis is in the original. 59- Talic has responded that each of the persons signed a declaration when giving their statements "that they might be called to testify in public at the Tribunal": Response to the Reply of the Prosecutor Dated 12 September 2000, 20 Sept 2000, par 4.b. The Trial Chamber does not have these statements, and is unaware of the context in which such a declaration would have been made. It is unnecessary to resolve this issue. 60- Protective Measures Decision, par 26. See also par 19, supra. 61- Prosecution Reply, par 5. 62- Under Rule 68 ("Disclosure of Exculpatory Evidence"), the prosecution is obliged to disclose to the defence the existence of any material known to it which "in any way tends to suggest the innocence or mitigate the guilt of the accused or [which] may affect the credibility of prosecution evidence". Both accused have the statements in question, but with all references to the identity of the persons who made them redacted. If any of those statements fall within the description quoted, the prosecution is obliged by Rule 68 to reveal to the accused the identity of the person who made it. The Talic Response could be interpreted, in par 4, as asserting that at least one of the statements does fall within that description. The prosecution has conceded that the name and current whereabouts of the person who made that statement will be disclosed upon application to it: Prosecution Reply, par 9. The parties have not raised any issue before the Trial Chamber as to whether this concession would make available to the accused all of the material presently redacted in that person's statement. 63- See par 5, supra
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IN TRIAL CHAMBER II
Before: Judge David Hunt, Presiding Judge Judge Florence Ndepele Mwachande Mumba Judge Liu Daqun
Registrar: Mrs Dorothée de Sampayo Garrido-Nijgh
Decision of: 15 November 2000
PROSECUTOR
Radoslav BRDANIN & Momir TALIC
DECISION ON FIFTH MOTION BY PROSECUTION FOR PROTECTIVE MEASURES
The Office of the Prosecutor;
Ms Joanna Korner Ms Anna Richterova Ms Ann Sutherland
Counsel for Accused:
Mr John Ackerman for Radoslav Brdanin Maître Xavier de Roux and Maître Michel Pitron for Momir Talic
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1. This Fifth Motion by the prosecution for protective measures seeks relief in relation to those persons for whom protective measures were sought in its Second Motion but in relation to whom the Trial Chamber has not already dealt with in some substantive way in its Second Protective Measures Decision, its Third Protective Measures Decision or its Fourth Protective Measures Decision.
2. The relief sought by the prosecution in its Fifth Motion is as follows:
(a) Leave to redact from the statement of witness 7.1 any information concerning the witness's current whereabouts.
(b) Leave to withhold from the accused the identity of witness 7.24, whom the prosecution does not intend to call at trial.
3. In its Third Protective Measures Decision, the Trial Chamber has already granted leave to redact any information relating to the current whereabouts of all the prosecution's witnesses whom it intends to call at trial, leaving to a later date the resolution of the issue (if it arises) of when, if at all, those current whereabouts must be disclosed. Witness 7.1 was initially the subject of an application for protective measures as one of the persons whose statements were part of the supporting material accompanying the indictment when confirmation was sought, and he or she has now also been identified by the prosecution as a witness whom it intends to call at trial.
4. The accused Momir Talie ("Talic") suggests that Rule 69(A) ("Protection of Victims and Witnesses") does not assist the prosecution, because it is directed only to victims and witnesses and witness 7.1 is neither. This is clearly wrong in the light of the stated intention of the prosecution that he or she will be giving evidence at trial. Notwithstanding the issue raised, however, Talic does not object to the relief sought. The accused Radoslav Brdanin ("Brdanin") has not filed any response to this application. The first relief sought will be granted.
5. The second relief sought is leave to withhold completely from the accused and their defence teams the identity of a person whose statement was part of the supporting material which accompanied the indictment when confirmation was sought, on the basis that the prosecution does not intend to call this witness at the trial. The application is opposed by Talic. It has not been suggested that this person would be entitled to protective measures as a victim, and the prosecution has made no attempt to rely upon any other basis for the protective measures sought.
6. Such an application was discussed in the Second Protective Measures Decision, when the Trial Chamber said that it was not satisfied that the relief sought was justified, and the application there was refused. An identical application was also refused in the Fourth Protective Measures Decision. It was not sought to draw any distinction, nor could one be drawn, between those two applications and the present one. For the reasons expressed in the Second Protective Measures Decision, this application, too, must be refused. The identity of this person will, however, be revealed on a confidential basis, so that the obligations imposed upon the accused and their defence teams by the Protective Measures Decision will apply to that material.
7. For the foregoing reasons, the following orders are made:
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1. In relation to the statement of witness 7.1, and until further order, the prosecution is not obliged to disclose to the accused or their defence teams those parts which reveal the witness's present whereabouts.
2. Leave to withhold from the accused the identity of witness 7.24 is refused.
Done in English and French, the English text being authoritative.
Dated this 15th day of November 2000, At The Hague, The Netherlands.
Judge David Hunt Presiding Judge
[Seal of the Tribunal]
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IN TRIAL CHAMBER II
Before: Judge David Hunt, Presiding Judge Florence Ndepele Mwachande Mumba Judge Liu Daqun
Registrar: Mrs Dorothée de Sampayo Garrido-Nijgh
Decision of: 29 November 2000
PROSECUTOR
Radoslav BRDANIN & Momir TALIC
DECISION ON PROSECUTION'S REQUEST FOR VARIATION OF THIRD PROTECTIVE MEASURES DECISION
The Office of the Prosecutor:
Ms Joanna Korner Mr Nicholas Koumjian Ms Anna Richterova Ms Ann Sutherland
Counsel for Accused;
Mr John Ackerman for Radoslav Brdanin Maître Xavier de Roux and Maître Michel Pitron for Momir Talic
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1. On 8 November 2000, the Trial Chamber gave its decision in relation to the Prosecution's Third Motion for Protective Measures for Victims and Witnesses ("Third Motion"), which was concerned with the prosecution's obligations of disclosure under Rule 66(A)(ii) of the Rules of Procedure and Evidence ("Rules"). The Trial Chamber ordered that -
The prosecution is granted leave to redact from the statements of all witnesses whom it proposes to call to give evidence in this case any information concerning the current whereabouts of each witness.1
Such an order had not been opposed by the two accused, Radoslav Brdanin ("Brdanin") and Momir Talie ('Talie"), subject only to a reservation by Brdanin that this information should be disclosed no later than sixty days before trial. That issue was left for resolution at a later date."
2. The prosecution has now requested a variation ofthat order.- It points out that what it had intended to seek in its Third Motion was leave to redact from the statements of all witnesses the current whereabouts not only of each witness who gave the statement but also of each "witness" who is mentioned in such statement even though such "witness" may not have made a statement in the case.- The word "individual" was subsequently substituted for "witness".- The prosecution concedes that perhaps this had not been made as sufficiently clear as it might have been in the Third Motion.-
3. The relief now sought by the prosecution in its Request relates to its obligations of disclosure not only under Rule 66(A)(ii) but also now under Rule 66(A)(i). The Request seeks:2
[...] a blanket order that it may, with respect to the disclosure of witnesses, redact from the statements/proffers :
(a) any information which discloses the current whereabouts of the maker of the statement/proffer and/or his family;
(b) any information contained within that statement/proffer which discloses the current whereabouts of other persons named within the said statement/proffer who have made witness statements which the Prosecution has already or intends to disclose;
(c) any information contained within statements/proffers which discloses the current whereabouts of other individuals who were present at the events described but who have either not been contacted by the Prosecution or who have been contacted and [have] declined to assist.
(d) the personal identification number given to citizens of the former Yugoslavia which appears on statements taken by the Bosnian authorities.
It was explained that the reference to a "proffer" was intended to be a reference to an unsigned statement which formed part of the supporting material which accompanied the indictment when confirmation was sought.- Because the document is unsigned, the prosecution apparently prefers to call such a statement a "proffer of testimony".
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4. Both Talic and Brdanin have responded that they do not object to the "blanket" orders sought in pars (a), (b) and (d), but each objects to the order sought in par (c)- - the redaction of any information which discloses the current whereabouts of those individuals who are described in the statements to be disclosed as having been present at an event described in those statements but who either have not been contacted by the prosecution or have been contacted by the prosecution but have declined to assist.
5. The only material upon which the prosecution relies in support of the relief it seeks is stated in these terms;—
[...] many witnesses and persons whose assistance has been sought by the Office of the Prosecutor, have expressed concerns for their security or that of their families. In respect of people named in statements, they were not consulted before those names and current whereabouts were provided by the maker of the statement and were not given an opportunity to agree to or object to such disclosure. The relief sought is not that their names be redacted, but merely information indicating their current whereabouts.
The Defence may apply to the Prosecution for that information if, in their judgement, they require to interview the person named.
6. The prosecution does not identify any provision in the Rules which would justify the relief it seeks in par (c), notwithstanding its earlier recognition of the Trial Chamber's dissatisfaction with the degree of assistance which it was receiving from the prosecution in relation to these many applications for protective measures.— The prosecution has an obligation to put forward its arguments to the Trial Chamber in support of its application. If the prosecution does not do so, it should not expect to be permitted it to do before the Appeals Chamber what it failed to do before the Trial Chamber. These applications, particularly where (as here) they may involve a substantial denial of the rights of the accused, require a consideration of many difficult and conflicting interests. They cannot be granted simply because the prosecution asks for them. The prosecution's failure to give to the Trial Chamber the assistance to which it is entitled in these protective measures applications is unfortunate, and its continuing failure to do so can only be regarded now as deliberate.
7. Subject to the provisions of Rule 53 and 69, Rule 66(A)(ii) requires the prosecution to disclose to the accused the statements of all witnesses whom it intends to call to testify at the trial.
8. Rule 69 ("Protection of Victims and Witnesses") is, as its title suggests, concerned only with the protection of victims and witnesses. The individuals in issue here may fairly be said to have witnessed the events described in the statements, but they could not be said to be "witnesses" within the meaning of Rule 69 unless it is intended that they are to be called as such in the trial, or (at the very least) unless they have given a statement to the prosecution with the intention of giving evidence in this trial. Necessarily, none of the individuals in issue here falls within either category. It has not been suggested that they are victims.
9. Rule 53 ("Non-Disclosure") appears, from its context in the Rules of Procedure and Evidence, to be primarily concerned with protective measures needed prior to the initial appearance of the accused, particularly Rule 53(C) which speaks of consultation with the Prosecutor.—But Rule 66(A) is nevertheless expressly made subject to Rule 53. Rule 53(A) relates only to the non-disclosure of information to the public, not to the accused and their
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defence teams. Rule 53(B) has no application in the present case. Rule 53(C) is in the following terms:
A Judge or Trial Chamber may, in consultation with the Prosecutor, also order that there be no disclosure of an indictment, or part thereof, or of all or any part of any particular document or information, if satisfied that the making of such an order is required to give effect to a provision of the Rules, to protect confidential information obtained by the Prosecutor, or is otherwise in the interests of justice.
No provision of the Rules has been pointed to which would assist the prosecution here.
10. Although the prosecution does not expressly in its Request raise any issue in relation to confidentiality, there may be included in some witness statements information which the maker of the statement had received on a confidential basis, a fact which may not have been realised at the time when the witness statement was taken. Such information could fall within the terms of Rule 53(C), but it would be necessary for the prosecution to establish that fact when seeking an order under that rule, and it has not sought to do so here. It may be that confidential information has been recorded in the statement deliberately with knowledge of its confidential quality. The prosecution would not have much difficulty in obtaining an order under Rule 53(C) that such information not be disclosed to the public. However, a witness statement on the face of it is a document which is intended to be disclosed to the accused and his defence teams, and the prosecution may have some difficulty in obtaining an order that the confidential information not be disclosed to the very persons to whom the statement was intended to be disclosed. Again, the prosecution has not sought to establish such a confidential basis here.
11. The phrase "otherwise in the interests of justice" in Rule 53(C) was discussed in a somewhat different context in the Second Protective Measures Decision.— There, the prosecution had sought to withhold completely from the accused and their defence teams the identity of a number of witnesses whose statements had wrongly been put forward to the judge confirming the indictment as evidence which the prosecution had available to be called at the trial ofthat indictment. That discussion does not assist in the resolution of the present issue.
12. One situation in which it may be in the interests of justice to make an order under Rule 53(C) for the non-disclosure of either the identity or the current whereabouts of individuals merely named in a witness statement is one which commonly arises in statements taken by the Office of the Prosecutor ("OTP"). It is recognised by everyone with experience of criminal trials in this Tribunal and of the investigation which precedes them that, at the time when statements are first taken by OTP investigators, there is not always a particular offender or particular crime in contemplation. The statements may cover a wide range of events, many of which ultimately have no relevance at all to the trial in which the witnesses who gave the statements are called to give evidence.
13. Where a witness statement to be disclosed in a particular trial identifies an individual who was present at an event which is described in the statement but which could not be relevant to that particular trial, it would usually be easy to conclude that, where the individuals named have played no part in making the statement and have had no knowledge that they have been
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named, it is in the interests of justice that either their identity or current whereabouts should not be disclosed even to the accused, who does not need the information.
14. But the Trial Chamber does not see how - other than in extraordinary circumstances - it could be in the interests of justice to deny the accused access to individuals who witnessed the very events which are or which may be the subject of the trial. The suggestion in the prosecution's Request that the accused may apply to the prosecution for the current whereabouts is very carefully worded so as not to suggest that the information will always be supplied. Although the prosecution has not repeated the proviso which it had sought to impose in a similar situation, that the information would be disclosed to the accused "upon a reasonable showing",— its statement in the Request that such individuals were "not given an opportunity to agree to or object to such disclosure" suggests that the information will not always be supplied. The prosecution has no property in these individuals, and it is not for it to have the final say as to whether or not the accused and their defence teams should have access to them. The prosecution has had every opportunity to decide whether it wishes to call these individuals as witnesses, and it will not be doing so. As those individuals are not to be witnesses for the prosecution, or of any assistance in some other way to the prosecution, there is nothing before the Trial Chamber to suggest that they are in need of any particular form of protection. If any of those individuals do not wish to speak to the legal teams of the accused, it is for those individuals (not the prosecution) to say so. The accused must be given the opportunity of attempting to determine whether those individuals can assist them.
15. It is surprising that the prosecution should seek to argue otherwise. In another case before this Trial Chamber, the prosecution was very insistent that it was not intending to put such an argument.— That is not to suggest that the attitude of the prosecution in one case necessarily binds it to take the same attitude in every case, although in matters such a protective measures it would be preferable for the prosecution to have a uniform approach. However, it does suggest that a proper sense of proportion exists in some sections of the OTP in relation to the issue of protective measures.
16. The Trial Chamber does not propose to grant the relief sought in par (c) in the prosecution's Request in the terms of universal application in which it is expressed. The Trial Chamber is in no position itself to determine whether the current whereabouts of any particular individual named in the statements should be disclosed. It does not have those statements before it. Nor does it really know, in part because of the rather inadequately pleaded indictment, which events are or may be relevant to the issues in the trial. It will therefore be for the prosecution to determine which events in the statements to be disclosed are or may be relevant to the issues in the trial. The prosecution has a very real interest in ensuring that every event which is or may be relevant will be the subject of evidence at the trial. It will therefore realise that, if it does not identify the events correctly at this stage, there may well be adverse consequences to its case at the trial if it seeks to lead evidence in relation to an event where the current whereabouts of such individuals have not been disclosed.
17. The name and current whereabouts of any individuals described as being present at those events identified as relevant or possibly relevant to the charges against the accused must therefore be disclosed, whether or not those individuals have already been contacted by the prosecution.
Disposition
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18. Accordingly, the Trial Chamber makes a "blanket" order that the prosecution may, with respect to its obligations of disclosure under Rules 66(A)(i) and 66(A)(ii), redact from the supporting material which accompanied the indictment when confirmation was sought, and from the statements, affidavits and formal statements of the witnesses whom it intends to call to testify at trial:
(a) any information which discloses the current whereabouts of the maker of any such document and/or his or her family;
(b) any information contained within such documents which discloses the current whereabouts of other individuals named within them who have made witness statements which the prosecution has already disclosed or which it intends to disclose;
(c) any information contained within such documents which discloses the current whereabouts of other individuals who are named in such documents, other than those individuals who are described in any document as having been present at any of those events referred to in the documents which are or which may be relevant to the issues in the trial; and
(d) the personal identification number given to citizens of the former Yugoslavia which appears on statements taken by the Bosnian authorities.
Done in English and French, the English text being authoritative.
Dated this 29th day of November 2000, At The Hague, The Netherlands.
Judge David Hunt Presiding Judge
[Seal of the Tribunal]
1. Decision on Third Motion by Prosecution for Protective Measures ("Third Protective Measures Decision"), par 23.1. 2. Ibid, par 4. 3. Prosecution's Request for a Variation of the Blanket Order Given in the Decision on Third Motion by Prosecution for Protective Measures, 17 Nov 2000 ("Request"). 4. Status Conference, 17 Nov 2000, Transcript p 196. 5. Ibid, Transcript p 209. 6. Ibid, Transcript pp 196, 210. 7. Request, par 3. 8. Status Conference, 17 Nov 2000, Transcript pp 196-198. 9. Response to Prosecutor's Request for a Variation of the Blanket Order Given in the Decision on Third Motion by Prosecution for Protective Measures, 22 Nov 2000, pars 2-3; Réponse à la Requête du Procureur aux Fins de Modification d'une Décision en Date du 17 Novembre 2000, 27 Nov 2000, pars 2-3. The response by Talie appears to have interpreted what is sought under par (a) as relating to the current whereabouts of the maker of the statement, but nevertheless does not oppose the relief sought. The concession is sufficient to cover also the current whereabouts of the maker's family.
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10. Request, pars 4-5. 11. Status Conference, 17 Nov 2000, Transcript p 204. 12. Decision on Second Motion by Prosecution for Protective Measures, 27 Oct 2000 ("Second Protective Measures Decision"), par 28. 13. Paragraphs 26-32. 14. Third Motion, par 3. 15. Prosecutor v Nikolic, Case IT-94-2-PT, Status Conference, 24 Nov 2000, Transcript pp 21-23.
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IN THE TRIAL CHAMBER
Before: Judge Richard May, Presiding Judge Patrick Robinson Judge O-Gon Kwon
Registrar: Mr. Hans Holthuis
Order of: 19 February 2002
PROSECUTOR v. SLOBODAN MILOSEVIC PARTLY CONFIDENTIAL AND EX PARTE
DECISION ON PROSECUTION MOTION FOR PROVISIONAL PROTECTIVE MEASURES PURSUANT TO RULE 69
The Office of the Prosecutor
Ms. Carla Del Ponte Ms. Hildegard Uertz-Retzlaff Mr. Geoffrey Nice Mr. Dermot Groome
The Accused
Slobodan Milosevic
Amici Curiae
Mr. Steven Kay, QC Mr. Branislav Tapuskovic Prof. Mischa Wladimiroff
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I. BACKGROUND
1. The Office of the Prosecutor ("Prosecution") filed a confidential and exporte motion entitled "Prosecution Motion for Provisional Protective Measures Pursuant to Rule 69" on 4 January 2002 ("First Motion"). The Motion concerning Indictment IT-01-51 ("Bosnia Indictment") sought orders that (a) the Prosecution be permitted to redact identifying information from statements and documents disclosed pursuant to Rule 66 (A)(i), and (b) the accused be prohibited from making public any of the material received from the Prosecution pursuant to the same Rule. The measures sought were said to be necessary to safeguard the safety and privacy of the victims and witnesses and the integrity of the evidence and these proceedings.
2. On 17 January 2002, the Trial Chamber issued an "Order for Further Submissions" ("Provisional Order"), in which it ordered the Prosecution to address the following issues:
(a) the impact of non-disclosure of the redacted information at this stage of the proceedings upon the right of the accused to a fair and public trial pursuant to Articles 20 and 21 of the Statute;
(b) the number of witnesses for whom such protection is sought;
(c) the time at which it is proposed that disclosure of the identity of the witnesses would be made to the accused; and
(d) the nature of the protective measures granted by other Trial Chambers, in particular, whether any such measures were granted in relation to disclosure pursuant to Rule 66 (A)(i).
3. On 23 January 2002, the Prosecution filed the "Prosecution Motion for Provisional Protective Measures Pursuant to Rule 69: Prosecution Response to Order for Further Submissions" ("Second Motion"), in which it responded to the questions posed by the Trial Chamber in its Provisional Order and reasserted the orders sought in the First Motion.
4. On 31 January 2002, the Prosecution filed a "Corrigendum to Prosecution Motion for Provisional Protective Measures Pursuant to Rule 69: Prosecution Response to Order for Further Submissions" ("First Corrigendum"), dealing with the interpretation of a threat allegedly made by an SPS party member on Belgrade television to people considering testifying for the Prosecution in these proceedings.
5. On 6 February 2002, the Prosecution filed a "Second Corrigendum to Prosecution Motion for Provisional Protective Measures Pursuant to Rule 69" ("Second Corrigendum"), dealing with a misquotation by the Prosecution of a Decision in another Trial Chamber .-
II. THE LAW
6. The Prosecution relies upon Articles 20, 21 and 22 of the Statute of the Tribunal ("Statute") and Rules 53, 54, 69, 73 and 75 of the Rules of the Tribunal ("Rules "). The relevant provisions of the Statute which the Trial Chamber must consider in dealing with this Motion are Article 20 dealing with the commencement and conduct of proceedings-; Article 21.2 dealing with the rights of the accused-, and Article 22 dealing with the protection of victims and witnesses-.
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7. Furthermore, Rules 66 (A)(i)5, 53 ( A)e and 69 (A)2 of the Rules are relevant to the determination of this matter by the Trial Chamber . Rules 69 (C) and 75 are not relevant to the determination of this particular application , although they will be relevant to a consideration of future motions for protective measures for particular witnesses in these proceedings. The disclosure requirements under Rule 66 (A)(i) are expressly subject to Rules 53 and 69 of the Rules. Rule 53 (A) provides that in "exceptional circumstances" and where the interests of justice require, non-disclosure to the public may be ordered with respect to any documents or information. Rule 69 (A) provides that non-disclosure of the identity of a victim or witness who may be in danger or at risk may in "exceptional circumstances" be ordered until such person is brought under the protection of the Tribunal. Important aspects of the interpretation of these provisions are discussed below.
III. DISCUSSION OF THE PROSECUTION'S APPLICATION
8. The Prosecution seeks the following orders:
(a) that the Prosecution be permitted to redact identifying information from statements and documents disclosed pursuant to Rule 66 (A)(i); and
(b) that the accused be prohibited from making public any of the material received from the Prosecution pursuant to the same Rule.
The first order sought concerns a consideration of the proper construction of Rule 69 (A) and the Trial Chamber will deal with this matter first.
(A) Redaction of witness statements
9. The Trial Chamber, in its Provisional Order, required the Prosecution to address four matters to assist in determining the application made. We will now deal with each of these four matters.
(i) The impact of non-disclosure of the redacted information at this stage of the proceedings upon the right of the accused to a fair and public trial pursuant to Articles 20 and 21 of the Statute.
10. The Prosecution submits that delayed disclosure of the identities of Prosecution witnesses in need of protection does not adversely effect the rights of the accused to a fair and public trial. The accused would still have access to all of the events and facts provided by the witnesses and would be in a position to prepare his defence . It is also submitted that he will have the identifying information of the witnesses in ample time to investigate their backgrounds enabling him to prepare for cross -examination.
(ii) The number of witnesses for whom such protection is sought
11. The Prosecution attaches an appendix to its Second Motion setting out a list of all witnesses whose statements were tendered in support of the Bosnia Indictment. It is stated that the Prosecution is seeking to redact identifying information from 203 of the 252 statements.-
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12. The Trial Chamber notes that this amounts to some four-fifths of the witnesses identified in the supporting material. Of the 203 witnesses for whom redactions have been made , 51 of these are witnesses already granted protective measures in other proceedings before the Tribunal.
(Hi) The time at which it is proposed that disclosure of the identity of the witnesses would be made to the accused
13. The Prosecution proposes that the provisional protective measures sought should remain in effect until it has had the opportunity to interview each witness and investigate their need for protective measures and to file a motion for protective measures based upon that need. The Prosecution does indicate that in the case of some witnesses, it will be seeking that his or her identity not be disclosed to the accused until as few as ten days prior to the witness' testimony.
(iv) The nature of the protective measures granted by other Trial Chambers, in particular, whether any such measures were granted in relation to disclosure pursuant to Rule 66 (A)(i)
14. The Prosecution refers to the practice in a number of other cases before the Tribunal. It refers to a confidential Decision in the Nikolic case, in which the Trial Chamber permitted the Prosecution to fulfil its obligation under Rule 66 ( A)(i) by providing redacted statements of some witnesses.- The Trial Chamber would note with respect to this Decision that the witnesses for whom such practice was accepted by that Chamber were sexual assault victims. Furthermore , the order of the Trial Chamber was that the Prosecutor would be "granted leave not to disclose to the accused the identities of the... witnesses until a time determined by this Trial Chamber closer to the commencement oftriar. Whether the Trial Chamber was indicating that it would make its decision closer to the commencement of trial or that disclosure would be required closer to the commencement of trial is not clear. However, the same Trial Chamber in the Brdanin Decision stated that the time in which unredacted disclosure is to be made "must be a time before the trial commences rather than before the witness gives evidence".—
15. The Prosecution also makes reference to a decision made in these proceedings concerning the Kosovo indictment.11 The Prosecution asserts that this decision affirms the appropriateness of the redaction of materials discoverable under Rule 66 (A)(i) of the Rules. However, the Kosovo Decision concerned exclusively non-disclosure by the accused to the public of material, not the non-disclosure of material by the Prosecution to the accused. The Decision, and indeed the initial Prosecution Motion in that matter, also recognised that an order of non-disclosure to the public was limited and that the accused could disclose the material to members of the public to the direct and specific extent necessary for the preparation and presentation of the accused's case. The Decision is, whilst relevant to the Prosecution's application under Rule 53 (A), not relevant to this aspect of the Trial Chamber's consideration.
16. In fact, the only highly relevant decision referred to by the Prosecution was the Brdanin Decision. In that Decision, the Trial Chamber dealt, inter alia, with an application by the Prosecution for a blanket redaction of identifying information for all witnesses whose statements formed part of the supporting material. The Prosecution relies heavily upon this Decision in asserting that:
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(a) once the Prosecution has demonstrated to the Trial Chamber that exceptional circumstances exist to justify the delayed disclosure of the identity of particular victims or witnesses, then its obligations under Rule 66 (A)(i) will have been discharged by providing statements of those victims or witnesses with identifying information redacted;—
(b) in assessing the balance between the rights of the accused and the risks faced by witnesses, the Trial Chamber must examine the likelihood that Prosecution witnesses will be interfered with once their identity is known to the accused and his counsel, but not to the public;—
(c) the Trial Chamber in that Decision accepted the Prosecution assertion that the greater the length of time between the disclosure of a witness's identity and the time when he or she is called to give evidence at trial, the greater the potential that the witness will be interfered with;— and
(d) the relief sought by the Prosecution in this case is consistent with an order made in the Brdanin Decision to the effect that the obligation upon the Prosecution to disclose all witness statements under Rule 66 (A)(i) does not have to be met so long as it files protective measures with respect to particular statements or particular victims and witnesses motions within a "reasonable period".—
17. In fact, the Trial Chamber notes that with respect to each of these assertions, the Brdanin Decision has somewhat more to say. The Trial Chamber in that Decision held that what is required under Rule 69 (A) is a showing of "exceptional circumstances " with respect to each witness for whom the Prosecution seeks non-disclosure of identifying information, and that this be done at the time that service of the supporting material is required.— Crucially, that Trial Chamber noted quite correctly that "Rule 69 (A) does not provide SaC blanket protection".—
18. Concerns regarding interference with witnesses was also expressly dealt with by the Trial Chamber in the Brdanin Decision. Unfortunately, the Prosecution in the Second Motion has misrepresented the conclusions made by that Chamber. Whilst the assertions contained in paragraphs 16 (b) and (c) above are strictly speaking correct, in fact the Trial Chamber went on to state clearly that it did not accept that, absent specific evidence of the risk that persons to whom the Defence speaks in the course of its investigations may reveal the identity of particular witnesses , the likelihood that interference will eventuate is not sufficiently great to justify the extraordinary measures sought by the Prosecution under Rule 69 (A).— Furthermore, that Chamber did not accept the proposition that the prevailing circumstances in the former Yugoslavia in general, and Bosnia and Herzegovina in particular, would justify blanket redactions of the sort requested by the Prosecution.— That view is shared by this Trial Chamber.
19. Finally, something must be said with respect to the assertion in its Second Motion that relief sought by the Prosecution in this case is consistent with an order made in the Brdanin Decision. The Trial Chamber notes that the Prosecution misquoted an order made in that Decision to an effect that rather profoundly misrepresents the position stated by that Trial Chamber. The Prosecution asserted in the Second Motion that the obligation upon the Prosecution in the Brdanin Decision to disclose all witness statements under Rule 66 (A)(i) did not have to be met so long as it files protective measures with respect to particular statements or particular victims and witnesses motions within a "reasonable period". In fact, what the Trial Chamber ordered was that the Prosecution was to disclose to the defence within
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21 days all the witness statements pursuant to Rule 66 (A)(i) in unredacted form, unless within that time (i.e. within 21 days) it filed a motion for protective measures with respect to particular statements or other material or particular victims and witnesses.— The Prosecution subsequently filed its Second Corrigendum, in which it apologised for the error. The Trial Chamber accepts the assurances from the Prosecution that the misquotation was unintentional and was not intended to mislead the Trial Chamber .
20. The Prosecution also argues that there are several factors particular to this case justifying the ordering of the protective measures sought. First, the accused has repeatedly stated that he does not recognise the authority of the Tribunal. The Prosecution refers to an allegation that an SPS party member made threatening remarks about persons considering testifying for the Prosecution in these proceedings. The Prosecution therefore argues that until such time as the accused does recognise the Tribunal and agrees to be bound by its orders, the Prosecution should not be compelled to provide information that could be used to intimidate or harm witnesses . Secondly, it is argued that many of the witnesses whose statements were tendered in support of the indictment have already been granted protective measures in other proceedings before the Tribunal. Finally, it is argued that it would be impracticable at this stage of the case for the Prosecution to re-interview all of the witnesses whose statements must be disclosed pursuant to Rule 66 (A)(i) by the time required under that Rule in order to determine what, if any, protective they request and the basis for such a request. These matters will be dealt with below.
(B) Request that the accused be ordered not to make public any material disclosed pursuant to Rule 66 (A)(i)
21. The Prosecution has requested also that the accused be prohibited from making public any of the material received from the Prosecution pursuant to Rule 66 (A)(i). Although the Prosecution does not offer any real argumentation in support of its request, it is noted by the Trial Chamber that such orders are routinely made, subject to the limitation that the accused may disclose the material to members of the public to the direct and specific extent necessary for the preparation and presentation of his case. This Trial Chamber made such an order in the Kosovo Decision.
III. DECISION
22. It should first be noted that, whilst the Prosecution has framed its request in terms of seeking permission to redact identifying information from the 203 of 252 witness statements contained in its supporting material, it has in fact already redacted those statements. Therefore, correctly stated the application is one for permission to be relieved of its obligation to provide the witness statements to the accused in unredacted form.
23. The Prosecution asserts that the duty to provide for the protection and privacy of the witnesses is an affirmative one.— The measures which are appropriate should be determined after balancing the right of the accused to a fair and public trial and the protection of victims and witnesses .— These propositions are uncontroversial. What is clear from the Statute and Rules of the Tribunal is that the rights of the accused are given primary consideration, with the need to protect victims and witnesses being an important but secondary one. Article 20.1 of the Statute states that Trial Chambers shall ensure that trials are conducted "with full respect for the rights of the accused and due regard for the protection of victims and witnesses.— The case law of the Tribunal bears out this proposition.— It is noted, however,
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30. The Trial Chamber therefore rejects the request of the Prosecution to simply redact all identifying information from the 203 witnesses identified in its Appendix A. What is required of the Prosecution is that it brings motions for protective measures for individual witnesses on the basis of the criteria set out above. It should in fact have done so prior to the time it was required to make disclosure to the accused under Rule 66 (A)(i). For these reasons, the Prosecution is required to comply with its obligation under Rule 66 (A)(i) to supply to the accused statements and documents in unredacted form within 14 days of the filing of this Decision. If, however, within that time, the Prosecution files a motion for protective measures for particular witnesses, it need not provide copies of those statements or documents relevant to that witness in unredacted form until such time as the Trial Chamber has disposed of such motion, and subject to the terms of any order made on that motion.
31. The Trial Chamber, however, accepts that where witnesses have already been granted protective measures in other proceedings before the Tribunal, those protections should continue and the Trial Chamber will have to consider appropriate orders with respect to those witnesses when entertaining other such future motions from the Prosecution.
32. Finally, on the second order sought by the Prosecution for limited non-disclosure by the accused to the public of material received from the Prosecution pursuant to Rule 66 (A)(i), the Trial Chamber notes that this was its practice in the Kosovo Decision and that it has been the practice of other Trial Chambers of the Tribunal. The considerations which attach to such an application are that, whilst an application under Rule 69 (A) goes to the heart of an accused's ability to prepare his defence , applications under Rule 53 (A) do not materially impede the preparation of an accused's defence so long as he is expressly allowed to make public such material for this strict purpose. Furthermore, applications under Rule 53 (A) go directly to concerns regarding the safety of victims and witnesses in proceedings before the Tribunal. It has been noted above that the correct balance must be achieved between the interests of the accused and the protection of victims and witnesses . The Trial Chamber is of the view that whilst the balance dictates clearly in favour of an accused's right to the identity of witnesses which the Prosecution intends to rely upon (subject to protective measures granted), it dictates against making public supporting material where such disclosure might lead to witness identification and therefore endanger such victims or witnesses. The reason for this distinction is primarily because the former goes to the ability of the accused to prepare his defence, whilst the latter does not. The Trial Chamber will make the order sought subject to limitations set out below in the disposition.
DISPOSITION
33. For the foregoing reasons, the Trial Chamber ORDERS as follows:
(1) Those witnesses granted protective measures in other cases before the Tribunal shall continue to be protected in accordance with those measures. The names of these witnesses are set out in the confidential and exporte Schedule A attached to this Decision;
(2) With respect to the remaining 167 of the 202 witnesses for whom protective measures are sought, the Prosecution shall by 5 March 2002, being 14 days from date of this Order, supply to the accused copies of all statements or documents in unredacted form, provided that, in the event that the Prosecution files a motion within that period for protective measures in relation to particular witness statements or documents , it need not supply unredacted copies of those statements or documents identified in that motion until such time as the Trial Chamber has
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disposed of the motion, and subject to any orders made upon that motion. The names of these witnesses are set out in the confidential and exporte Schedule B attached to this Decision . The names of the remaining witnesses for whom no provisional protective measures are sought are set out in Schedule C attached to this Decision;
(3) The accused shall not disclose to the public:
(a) the supporting material disclosed to the accused pursuant to Rule 66 (A)(i) of the Rules, except to the limited extent that such disclosure to members of the public is directly and specifically necessary for the preparation and presentation of the accused's case;
(b) the knowledge of the accused or his counsel or representatives with regard to the identities and whereabouts of the witnesses mentioned in the supporting material ; or
(c) any evidence or any written statement of a witness or potential witness, or the substance, in whole or part, of any such non-public evidence, statement or prior testimony disclosed to the accused pursuant to Rule 66 (A)(i) of the Rules.
For the purposes of this Order, "the public" means all persons, governments, organisations , entities, clients, associations and groups, other than the judges of the Tribunal and the staff of the Registry (assigned to either Chambers or the Registry), and the Prosecutor, and the accused. "The public" specifically includes, without limitation , family, friends and associates of the accused, accused in other cases or proceedings before the Tribunal and defence counsel in other cases or proceedings before the Tribunal.
Schedules are attached to this Decision.
Done in English and French, the English text being authoritative.
Richard May
Presiding
Dated this nineteenth day of February 2002
At The Hague
The Netherlands
[Seal of the Tribunal]
1 - The Prosecution in this filing take the opportunity to make further arguments with respect to the number of witnesses concerned in this case compared with the Brdanin case. Whilst this is not an appropriate manner in which to seek to assert further arguments not contained in the initial filings, the Chamber has considered what the Prosecution had to say.
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2 - "l. The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses[...]" 3 - "In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute." 4 - "The International Tribunal shall provide in its rules of procedure and evidence for the protection of victims and witnesses. Such protection measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim's identity." 5 - "(A) Subject to the provisions of Rules 53 and 69, the Prosecutor shall make available to the defence in a language which the accused understands (i) within thirty days of the initial appearance of the accused, copies of the supporting material which accompanied the indictment when confirmation was sought as well as all prior statements obtained by the Prosecutor from the accused..." 6 - "(A) In exceptional circumstances, a Judge or a Trial Chamber may, in the interests of justice, order the non- disclosure to the public of any documents or information until further order." 7 - "(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." 8 - The Prosecution notes it is not seeking redaction of any information from any of the documents. Appendix A in the Second Motion is an amended version of the same appendix in the First Motion and is the document upon which the Prosecution relies. Second Motion, paras. 8-9. 9 - Prosecutor v. Nikolic, "Confidential Decision on Second Motion by Prosecution for Protective Measures", Case No. IT-94-2-PT, 29 November 2000. 10 - Brdanin Decision, para. 33. 11 - Prosecutor v Milosevic, "Decision on Prosecution's Motion for Order of Non-Disclosure", Case No. IT-99- 37-PT, 19 July 2001 ("Kosovo Decision") 12 - First Motion, para. 5. 13 - First Motion, para. 6. 14 - First Motion, para. 6. 15 - Second Motion, para. 15. There is an error in this interpretation and a misquotation of the Brdanin Decision in the Second Motion and the Prosecution have subsequently filed a "Second Corrigendum to Prosecution Motion for Provisional Protective Measures Pursuant to Rule 69", 6 February 2002 ("Second Corrigendum"). This matter is dealt with below. 16 - Brdanin Decision, para. 10. 17 -Ibid, para. 19. 18 - Brdanin Decision, para. 28. 19 -Ibid., paras. 8 and 11 20 - Brdanin Decision, para. 65.2. 21 - First Motion, para. 4, referring to Prosecutor v Tadic, "Decision on Motion by Prosecution for Protective Measures for Witness R", Case IT-94-1-T, 31 July 1996, p.4. 22 - Ibid. 23 - Emphasis added. 24 - See, for example, Prosecutor v Tadic, "Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses", Case No. IT-94-1-T, 10 August 1995 ("Tadic Decision"), para. 215; Prosecutor v. Brdanin and Talic, "Decision on Motion by Prosecution for Protective Measures", Case No IT- 99-36-PT ("Brdanin Decision"), 3 July 2000, para. 20. 25 - Brdanin Decision, para. 10. 26 - Ibid, para. 19. 27 - Ibid., paras. 11, and 28. In the Brdanin Decision, the Prosecution sought an order that it was permissible for it to redact identifying information with respect to every witness in its Rule 66 (A)(i) material. This case, in which the Prosecution seeks such an order with respect to 203 of 252 witnesses, is analogous in this respect. The Chamber in Brdanin did not accept the proposition that the prevailing circumstances in the former Yugoslavia would justify blanket redactions of the sort requested by the Prosecution. That is also the view of this Trial Chamber. 28 - Article 21.4(b) of the Statute requires as a minimum guarantee that the accused is "to have adequate time and facilities for the preparation of his defence..." 29 - Tadic Decision. 30 - Prosecutor v. Blaskic, "Decision on the Application of the Prosecutor dated 17 October 1996 Requesting Protective Measures for Victims and Witnesses", Case No. IT-95-14, 5 November 1996. 31 - Prosecutor v Tadic, "Decision on the Prosecutor's Motion Requesting Protective Measures for Witness L", Case No. IT-94-1-T, 14 November 1995, para. 21. Emphasis added.
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redacted version of the Decision.
The Decision
The Trial Chamber dismissed the Motion of Radoslav Brdjanin and the submissions of MomirTalic.
The Reasoning
The Trial Chamber referred to the Decision of Trial Chamber I on the Prosecutor's Motion for Video Deposition and Protective Measures dated 11 November 1997 in the case The Prosecutor v. Tihomir Blaskic2 and compared "[t]he function of Rule 70 in proceedings before the Tribunal [...] to the concept of public interest immunity available in some systems of law" which was "used to protect the identity of informers for their own safety as well as to ensure that the authorities have a continuous supply of information from these sources." The Trial Chamber added that "such immunity is regularly extended when disclosing certain information to the defence might jeopardise the security of police or military operations." It expressed the belief that "only such measures restricting the rights of the accused, which are strictly necessary, ought to be adopted." The Trial Chamber emphasised that "the exception to disclose found in paragraphs 70(B) to (E) applies only to information provided on a confidential basis which has been used solely for the purpose of generating new evidence and, in any event, does not relieve the Prosecution of the obligation, pursuant to Rule 68, to disclose to the Defence 'the existence of material known to the Prosecutor which in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence'."3. It noted that "[p]ursuant to Rule 70(C) and (D), a party to proceedings may seek to introduce the initial information in evidence during trial." The Trial Chamber stated that "[u]nder those circumstances, Rule 70(B) requires the party seeking to introduce the initial information in evidence to disclose it."
In addition, it considered that "the initial information may have generated new evidence" and found that such new evidence "does not come within the purview of Rule 70." It underscored that "[n]ew evidence so obtained does not enjoy confidential treatment pursuant to Rule 70(B)", that "the party in its possession must comply with the obligation to disclose contained in Rules 664 and 675" and that "[t]he limitations posed by Rule 70(B) to (E) on the powers of the Trial Chamber do not apply in the case of such new evidence." Consequently, the Trial Chamber held (1) that "if the Prosecution seeks to introduce the initial information into evidence, it will need to disclose it"; and that (2) "[i]f the Prosecutor does not seek to present it as evidence, given that Rule 70 does not affect the Prosecution's duty to disclose material that is subject of Rule 68, the Prosecution will have to disclose to the Defence such exculpatory material if it exists within the initial information obtained pursuant to Rule 70."
The Trial Chamber considered it "important and inherent in the concept of equality of arms that each party be afforded a reasonable opportunity to present his or her case under conditions that do not place him at an appreciable disadvantage vis-à-vis his opponent." It specified that "the concept of equality of arms could be exemplified having regard to the right to call witnesses as between the Prosecution and the Defence, as well as the duty of the Prosecution to disclose relevant material to the Defence." However the Trial Chamber noted that the principle that the admissibility of evidence is a matter for the courts to assess themselves generally limits this duty. It concluded that "the overall 'fairness' test applies keeping in mind the very special and unique nature of the provisions of Rule 70 and the ultimate remedy that is always at the disposal of the Trial Chamber pursuant to paragraph G of the Rule." As a result, the Trial Chamber, basing itself on the internationally accepted application of the principle of equality of arms did "not perceive any conflict between what is contained in Rule 70(B) to (E) and the said http://www.un.org/ictv/SuppIetnent/supp33-e/brdjanin.htm Page 2 of 5 ICC-01/04-01/07-176-AnxA 01-02-2008 95/196 SL PT OA2
principle." It stated that "[gjiven the special need for a provision like that of Rule 70 in the context of the unique situation of this Tribunal and the type of entities that there may be, apart from the equal applicability of Rule 70(C) between the parties, Rule 70(G) provides the ultimate remedy should the need arise for its application."
In view of the above, the Trial Chamber concluded that "it would appear that the only difference in treatment stems from the requirement in Rule 70(F) that the accused is required to apply to the Trial Chamber to obtain confidential treatment pursuant to Rule 70 of specific information, whilst the Prosecution need not apply." It did "not find that this disparity of treatment amounts to an infringement of the equality of arms principle" since the Trial Chamber considered that "it logically corresponds to the different roles of the Prosecution and of the Defence and their respective duties to disclose material to the opposing party." The Trial Chamber held that the Office of the Prosecutor must "be able to guarantee confidentiality pursuant to Rule 70 of information provided to it as a matter of course, as part and parcel of the mandate bestowed upon it6, and so as to enable it to properly carry out its mandate." It reiterated "the exceptional and limited type of information Rule 70(B) applies to, which makes more sense considering the special investigative role of the Prosecutor than that of the accused, who in addition does not have the same duty to disclose material to the Prosecution except in the case contemplated under Rule 67(C)." Moreover, the Trial Chamber found that the requirement that the Defence apply to it "does not place the Defence at a 'distinct disadvantage1." It specified that "[t]he application to the Trial Chamber can be made confidentially and ex parte, to ensure that there is no prejudice to the Defence." Last, it held that "the requirement that the information must already be 'in the possession of the accused' is not to be interpreted literally, but should allow the Defence to make an application in advance of material that they may seek to receive confidentially pursuant to Rule 70(B)."
The Trial Chamber stated that it "retains control of proceedings" pursuant to Rule 70(G) and can "exercise its role as final arbiter between the parties."? It added that "[t]he public interest served in ensuring that information given in confidence to one of the parties remains confidential finds its limitation in the obligation imposed on this Tribunal by Articles 208 and 219 of the Statute to ensure a fair trial." It specified that the decision on whether relevant evidence should nevertheless not be permitted rests on the Trial Chamber and "is part of its power to control its proceedings in such a way as to ensure that a trial is conducted fairly." It emphasised that "[t]he Trial Chamber has the ultimate responsibility to undertake a balancing exercise" and "the power under Rule 89(0)10 read in conjunction with Rule 70(G) to exclude evidence if its finds that its probative value is substantially outweighed by the need to ensure a fair trial."Ü The Trial Chamber concluded that it "is empowered under Rule 70(G) to examine a piece of evidence also ex post, possibly in the ensemble of the case looking at the proceedings as a whole to determining fairness."
l."(A) Notwithstanding the provisions of Rules 66 and 67, reports, memoranda, or other internal documents prepared by a party, its assistants or representatives in connection with the investigation or preparation of the case, are not subject to disclosure or notification under those Rules. (B) If the Prosecutor is in possession of information which has been provided to the Prosecutor on a confidential basis and which has been used solely for the purpose of generating new evidence, that initial information and its origin shall not be disclosed by the Prosecutor without the consent of the person or entity providing the initial information and shall in any event not be given in evidence without prior disclosure to the accused. (C) If, after obtaining the consent of the person or entity providing information under this Rule, the Prosecutor elects to present as evidence any testimony, document or other material so provided, the Trial Chamber, notwithstanding Rule 98, may not order either party to produce additional evidence received from the person or entity providing the initial information, nor may the Trial Chamber for the purpose of obtaining such additional evidence itself summon that person or a representative ofthat entity as a witness or order their attendance. A httpV/uww.un.org/icty/Supplement/suppSS-e/brdianin.htm Page 3 of 5 ICC-01/04-01/07-176-AnxA 01-02-2008 96/196 SL PT OA2
Trial Chamber may not use its power to order the attendance of witnesses or to require production of documents in order to compel the production of such additional evidence. (D) If the Prosecutor calls a witness to introduce in evidence any information provided under this Rule, the Trial Chamber may not compel that witness to answer any question relating to the information or its origin, if the witness declines to answer on grounds of confidentiality. (E) The right of the accused to challenge the evidence presented by the Prosecution shall remain unaffected subject only to the limitations contained in Sub-rules (C) and (D) (F) The Trial Chamber may order upon an application by the accused or defence counsel that, in the interests of justice, the provisions of this Rule shall apply mutatis mutandis to specific information in the possession of the accused. Nothing in Sub-rule (C) or (D) above shall affect a Trial Chamber's power under Rule 89(D) to exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial " 2. The Prosecutor v Tihomir Blaskic ("Lasva River Valley"), Case No. IT-95-14-T, Trial Chamber I, Decision of Trial Chamber I on the Prosecutor's Motion for Video Deposition and Protective Measures, 11 November 1997, in which the Trial Chamber found that "the exceptions to the obligation to disclose contained in Sub-rules 70(B) to (E) were introduced into the Rules to permit the use, as and when appropriate, of certain information which, in the absence of explicit provisions, would either not have been provided to the Prosecutor or have been unusuable on account of its confidential nature or its origin." It referred to the exception to the obligation to disclose in terms of an "exceptional but strictly delineated right" which had "moreover been recognised mutatis mutandis for the accused by Sub-rule 70(F) when it was amended in July 1997" (para. 10). 3. See The Prosecutor v. Tihomir Blaskic ("Lasva River Valley"), Case No IT-95-14-T, Trial Chamber I, Decision on the Prosecution and Defence Motions dated 25 January 1999 and 25 March 1999 respectively, 22 April 1999 (summarised in Judicial Suppleme?it No. 4). 4. "(A) Subject to the provisions of Rules 53 and 69, the Prosecutor shall make available to the defence in a language which the accused understands
(i) within thirty days of the initial appearance of the accused, copies of the supporting material which accompanied the indictment when confirmation was sought as well as all prior statements obtained by the Prosecutor from the accused; and (ii) within the time-limit prescribed by the Trial Chamber or by the pre-trial Judge appointed pursuant to Rule 65 ter, copies of the statements of all witnesses whom the Prosecutor intends to call to testify at trial, and copies of all written statements taken in accordance with Rule 92 bis; copies of the statements of additional prosecution witnesses shall be made available to the defence when a decision is made to call those witnesses.
(B) The Prosecutor shall, on request, permit the defence to inspect any books, documents, photographs and tangible objects in the Prosecutor's custody or control, which are material to the preparation of the defence, or are intended for use by the Prosecutor as evidence at trial or were obtained from or belonged to the accused. (C) Where information is in the possession of the Prosecutor, the disclosure of which may prejudice further or ongoing investigations, or for any other reasons may be contrary to the public interest or affect the security interests of any State, the Prosecutor may apply to the Trial Chamber sitting in camera to be relieved from an obligation under the Rules to disclose that information. When making such application the Prosecutor shall provide the Trial Chamber (but only the Trial Chamber) with the information that is sought to be kept confidential."
5. "(A) As early as reasonably practicable and in any event prior to the commencement of the trial: (i) the Prosecutor shall notify the defence of the names of the witnesses that the Prosecutor intends to call in proof of the guilt of the accused and in rebuttal of any defence plea of which the Prosecutor has received notice in accordance with paragraph (ii) below; (ii) the defence shall notify the Prosecutor of its intent to offer: (a) the defence of alibi; in which case the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi; (b) any special defence, including that of diminished or lack of mental responsibility; in which case the notification shall specify the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the special defence. (B) Failure of the defence to provide notice under this Rule shall not limit the right of the accused to testify on the above defences. (C) If the defence makes a request pursuant to Rule 66(B), the Prosecutor shall be entitled to inspect any books, documents, photographs and tangible objects which are within the custody or control of the defence and which it http://www.un.org/icty/Sapplement/supp33-e/brdjanin.htm Page 4 of 5 ICC-01/04-01/07-176-AnxA 01-02-2008 97/196 SL PT OA2
intends to use as evidence at the trial. (D) If either party discovers additional evidence or material which should have been disclosed earlier pursuant to the Rules, that parry shall immediately disclose that evidence or material to the other party and the Trial Chamber." 6. Article 16(1) of the Statute provides that "[t]he Prosecutor shall be responsible for the investigation and prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991." 7 See The Prosecutor v Zejnil Delalic et al. ("Celebici Camp"), Case No. 1T-96-21-A, Appeals Chamber, Judgement, 20 February 2001 (summarised in Judicial Supplement No. 23), in which the Appeals Chamber characterised itself "as the final arbiter of the law of the Tribunal" in respect of errors of law (para. 35). 8. Article 20(1) of the Statute reads as follows: "The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses." See The Prosecutor v Dusko Tadic ("Prijedor"), Case No. IT-94-1-A, Appeals Chamber, Judgement, 15 July 1999 (summarised in Judicial Supplement No. 6). 9. Article 21 (2) of the Statute provides inter aha: "In the determination of charges against him, the accused shall be entitled to a fair and public hearing". 10. "A Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial." 11. See The Prosecutor v. Tihomir Blaskic ("Lasva River Valley"), Case No. IT-95-14-T, Trial Chamber I, Decision of Trial Chamber I on Protective Measures for General Philippe Morillon, Witness of the Trial Chamber, 12 May 1999 (summarised in Judicial Supplement No. 5).
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UNITED -Z> 636? NATIONS W MAj
International Tribunal for the Case No.: IT-02-54-T Prosecution of Persons Responsible for Serious Violations Date: 29 May 2002 of International Humanitarian Law Committed in the Territory of the Original: English Former Yugoslavia since 1991
IN THE TRIAL CHAMBER
Before; Judge Richard May, Presiding Judge Patrick Robinson Judge O-Gon Kwon
Registrar: Mr. Hans Holthuis
Decision of: 29 May 2002
PROSECUTOR
v.
SLOBODAN MILOSEVIC
DECISION ON PROSECUTION MOTION TO UTILIZE REDACTED STATEMENT AND ORDER OF NON-DISCLOSURE
The Office of the Prosecutor
Ms. Caria De) Ponte Mr. Geoffrey Nice Mr. Dirk Ryneveid
The Accused
Slobodan Milosevic'
Amtcus Curiae
Mr. Steven Kay Mr. Branlslav TapuSko? id Mr. Michail Wladimiroff
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THIS TRIAL CHAMBER of the Internationa] Tribunal for the Prosecution of Persons Responsible for Serious Violations of Internationa] Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("International Tribunal"),
BEING SEISED of the confidential exporte "Prosecution's Motion to Utilize Redacted Version of 11 March 1999 Statement of Fred Abrahams and for Order of Non-Disclosure" filed by the Prosecution on 24 May 2002 ("the Motion"), in which the Prosecution seeks permission to use a redacted version of the statement of the witness "in order to protect the safety and security of the sources of information provided to" the witness, together with an order for non-disclosure of the unredacted version of the statement,
NOTING that the witness has provided two statements to the Prosecution, the first dated 11 March 1999 ("the March 1999 statement") and the second dated 24 January- 2002 ("the January 2002 statement"),
NOTING that the March 1999 statement, which formed part of the supporting material that accompanied the indictment on confirmation, was disclosed to the accused in redacted form in July 2001, but that it is not clear from the Motion whether the January 2002 statement has yet been disclosed to the accused,
NOTING the Order of the Trial Chamber of 11 January 2002 which provides that any witness whose statement has not been disclosed to the accused prior to the commencement of trial may only be called with leave of the Trial Chamber and that no witness may be called until at least 30 days after disclosure of the statement of the witness,
NOTING the confidential Order of the Trial Chamber of 30 January 2002, addressing the potential testimony of this witness,
NOTING the assertion of the Prosecution that such relief is justified pursuant to Article 20, paragraph 1, Article 21, paragraph 2, and Article 22 of the Statute of the International Tribunal ("Statute") and Rules 69, 70 and 75 of the Rules of Procedure and Evidence of the International Tribunal ("Rules") and, in particular, Rule 70 (B) of the Rules,
CONSIDERING that Rule 70 provides for an exception to the general rule mandating disclosure to the defence,
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6S& CONSIDERING that such relief is s tried y limited to situations within the scope of Rule 70 (B), that is, where information has been provided to the Prosecution on a confidential basis and has been used solely for the purpose of generating new evidence,
CONSIDERING that there is nothing in the Motion indicating that the information provided has been used solely for the purpose of generating new evidence and that the evidence the witness is expected to give is, in effect, a summary or overview of the evidence itself,
CONSIDERING that the Prosecution has neither satisfied the Trial Chamber that exceptional circumstances exist to order non-disclosure under Rule 69 of the Rules, nor that the measures requested as appropriate pursuant to Rule 75,
CONSIDERING that the Prosecution has advanced no other basis for redaction and non-disclosure of this information,
FOR THE FOREGOING REASONS
PURSUANT TO Rule 70 of the Rules of Procedure and Evidence of the International Tribunal,
HEREBY DENIES the Motion.
Done in English and French, the English text being authoritative.
Richard May Presiding Dated this twenty-ninth day of May 2002 At The Hague The Netherlands [Seal of the Tribunal]
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Case No. IT-95-13/1 -PT
IN TRIAL CHAMBER II
Before: Judge Wolfgang Schomburg, Presiding Judge Florence Ndpele Mwachande Mumba Judge Carmel Agius
Registrar: Mr. Hans Holthuis
Decision of: 7 May 2003
PROSECUTOR v. MILE MRKSIC
DECISION ON DEFENCE MOTION REQUESTING THE DETERMINATION OF RULES FOR COMMUNICATING WITH POTENTIAL WITNESSES OF THE OPPOSING PARTY
The Office of the Prosecutor:
Mr. Jan Wubben Mr. Mark J. McKeon
Counsel for the Accused:
Mr. Miroslav Vasic
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TRIAL CHAMBER II ("Trial Chamber") of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("Tribunal"):
BEING SEISED OF the "Defence Motion Requesting the Determination of Rules of Communicating with Potential Witnesses of the Opposite Party" and Confidential Annex thereto ("Motion"), filed on 31 March 2003 by counsel for Mile Mrksic ("Defence");
NOTING that in the Motion the Defence requests that the Pre-Trial Judge " establish an unambiguous and precise method of communication between each of the opposing parties to these proceedings and the respective potential witnesses of the opposite side", requiring that:
1) if a potential witness decides to testify for one of the parties and to that effect gives a statement to that party, he or she may not be forced by the opposing party to give an interview toit,
2) the opposing party may only interview the said potential witness with his or her explicit and written consent and
3) should the said potential witness refuse in written form, the requesting party may not serve another request for interview on the said witness in any way whatsoever;1
NOTING the "Prosecution's Opposition to Defence Motion Requesting the Determination of Rules of Communication with Potential Witnesses of the Opposite Party" and Confidential Annexes A, B, C and D thereto ("Response"), filed on 11 April 2003 by the Office of the Prosecutor ("Prosecution");
NOTING that in its Response the Prosecution submits that the Motion:
1) finds no support in the Statute of the Tribunal ("Statute"), the Rules of Procedure and Evidence ("Rules") or the Tribunal's jurisprudence and
2) would, if granted, impair the Prosecution's ability to perform the duties assigned to it under the Statute and the Rules and would also impair the ability of Defence counsel to fully investigate the evidence against an accused;-
NOTING the request by the Defence to file a reply,- and the decision granting the Defence leave to do so;-
NOTING the Defence Reply, filed on 22 April 2003,- and the concern expressed therein at the serious difficulties the Defence could encounter in terms of meeting and interviewing potential witnesses if the Prosecution were to insist on interviewing them in the face of their refusal to do so and notwithstanding that they may have already given a statement to the Defence;a
RECALLING that, at this stage of pre-trial proceedings, there are only potential witnesses and further that these are not attached to either party;2
RECALLING further that, also because the Tribunal hears cases against accused from all ethnic groups in the former Yugoslavia allegedly having committed crimes falling under its
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jurisdiction, a witness may be called to testify by the Defence in one case and by the Prosecution in another;5
EMPHASISING that the fact that a potential witness has given a statement to a party to proceedings does not preclude the other party from seeking to interview him or her at this stage of pre-trial proceedings;
CONSIDERING the Prosecution's responsibility under Article 16 of the Statute for the investigation and prosecution of persons responsible of serious violations of international humanitarian law and its power pursuant to Article 18 of the Statute to question suspects, victims and witnesses, and, pursuant to Rule 39, to summon and question suspects, victims and witnesses;
CONSIDERING that if a potential witness refuses to grant an interview to the Defence, or refuses to respond to a Prosecution summons, that party's relief lies with the Trial Chamber's power pursuant to Rule 54;
FINDING that the Defence has failed to show how it would be disadvantaged, in view of the fact that its concern applies equally to the Prosecution;
CONSIDERING that prior decisions of the Tribunal placing restrictions upon the ability of a party to contact witnesses were rendered in the context of the witnesses' protection pursuant to Rule 75 and were for the most part limited to those witnesses whose identity had been disclosed by the opposing party through its witnesses' lists, and thus have no application to the present case at this stage of pre-trial proceedings;-
CONSIDERING further that at the appropriate stage and should this be necessary, the Trial Chamber will see to it that the appropriate guidelines are in place;
EMPHASISING that nothing in this Decision is intended to impinge on the Trial Chamber's power to order appropriate measures for the privacy and protection of victims and witnesses pursuant to Article 22 of the Statute and to Rule 75;
FOR THE FOREGOING REASONS
PURSUANT TO Rule 73 of the Rules;
HEREBY dismisses the Motion.
Done in French and English, the English version being authoritative.
Dated this seventh day of May 2003, At The Hague The Netherlands
Wolfgang Schomburg Presiding Judge
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[Seal of the Tribunal]
1 - Motion, pars? and 15. 2 - Response, pars 1, 6, 9 and 17. 3 - Defence Motion Requesting Leave to Reply to the "Prosecution's Opposition to Defence Motion Requesting the Determination of Rules of Communication with Potential Witnesses of the Opposite Party", 14 Apr 2003. 4 - Decision on Defence Request for Leave to File a Reply, 15 Apr 2003 ("Decision to Grant Leave"). 5 - Defence Reply to "Prosecution's Opposition to Defence Motion Requesting the Determination of Rules of Communication with Potential Witnesses of the Opposite Party", 22 Apr 2003 ("Reply"). The Reply was received within the time-limit set by the Pre-Trial Judge in the Decision to Grant Leave. 6 - Reply, pars 4 and 5. 7 - No list of proposed witnesses has been filed pursuant to Rule 65 ter, since the Trial Chamber remains seised of a preliminary motion pursuant to Rule 72. See also transcript of the Status Conference of 5 March 2003, page 47. 8 - See eg Prosecutor v MiloradStakic, Case IT-97-24, trial transcript of 20 Feb 2003, page 12475. 9 - Prosecutor v Zejnil Delalic, Zdravko Mucic, Hazim Delia and Esad Landzo, Case IT-96-21-T, Decision on the Defence Motion to Compel the Discovery of Identity and Location of Witnesses, 18 Mar 1997; Prosecutor v Milan Kovacevic, Case IT-97-24-PT, Decision on Prosecution Motion to Protect Victims and Witnesses, 12 May 1998; Prosecutor v Darko Mrdja, Case IT-02-59-PT, Order on Prosecution's Motion for Protective Measures, 8 July 2002; Prosecutor v Vidoje Blagojevic, Dragan Obrenovic, Dragon Jokic and Momir Nikolic, Case IT-02-60-T, Order for Protective Measures and Non-Disclosure to the Public, 18 Feb 2003. Furthermore, and according to the Prosecution, the witnesses whom it sought to interview, thus giving rise to the Defence Motion, were not first identified in any communication by the Defence, but were in fact independently identified by the Prosecution as potential witnesses. Response, footnotes 19 and 23.
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International Criminal Tribunal for Rwanda Tribunal pénal international pour le Rwanda
OR: ENG
TRIAL CHAMBER II
Before: Judge William H. Sekule, Presiding Judge Winston C. Matanzima Maqutu Judge Ariette Ramaroson
Registrar: Adama Dieng
Date: 28 April 2003
The PROSECUTOR v. Juvenal KAJELIJELI
Case No. ICTR-98-44A-T
DECISION ON THE MOTIONS OF THE PARTIES CONCERNING THE INSPECTION AND DISCLOSURE OF A VIDEOTAPE
Office of the Prosecutor Ms. Ifeoma Ojemeni Ms. Dorothée Marotine
Counsel for the Accused Professor Lennox S. Hinds Professor Nkeyi M. Bompaka
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THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA (the "Tribunal"),
SITTING as Trial Chamber II, composed of Judge William H. Sekule, Presiding, Judge Winston C. Matanzima Maqutu and Judge Ariette Ramaroson (the "Chamber");
BEING SEIZED of:
i. The "Prosecutor's ex-parte Motion Pursuant to Rules 66(C) and 70(A) of the Rules of Procedure and Evidence", filed on 10 February 2003 (the "Prosecution Motion");
ii. The Defence "Motion to Compel the Prosecutor to Produce a Copy of the Videotape for Defence", filed on 17 February 2003 (the "Defence Motion");
iii. The "Defence's Response in Opposition to Prosecutor's ex-parte Motion Pursuant to Rules 66(C) and 70(A) of the Rules of Procedure and Evidence", filed on 24 February 2003 (the "Defence Response to the Prosecution Motion");
iv. The "Prosecutor's Reply to a Notice of Motion to Compel the Prosecutor to Produce a Copy of Video Tape for the Defence", filed on 25 February 2003 (the "Prosecution Response to the Defence Motion");
v. The "Corrigendum to the Prosecutor's Reply to a Notice of Motion to Compel the Prosecutor to Produce a Copy of Video Tape for the Defence", filed on 26 February 2003 (the "Prosecution Corrigendum");
vi. The "Prosecutor's Reply to Defence's Response to Prosecutor's ex-parte Motion Pursuant to Rules 66(C) and 70(A) of the Rules of Procedure and Evidence", filed on 3 March 2003 (the "Prosecution Reply to the Defence Response");
RECALLING the Chamber's "Decision on Kajelijeli's Motion for the Disclosure of Video Tapes of Defence Witness MEM" of 4 December 2002 (the "Chamber's Decision of 4 December 2002");
CONSIDERING the Statute of the Tribunal (the "Statute") and the Rules of Procedure and EvidenceJT]_, particularly Rules 66(B), 66(C), 68 and 70(A);
NOW CONSIDERS the matter on the basis of the written briefs of the Parties, pursuant to Rule 73(A) of the Rules, and on the submission of the parties given during the oral hearing of 24 April 2003;
PRELIMINARY MATTER
1. The Chamber, seized of a Prosecution Motion, filed as an exporte Motion, decided that it was in the interest of justice to hear the Motion inter partes. The Court Management Section was instructed to this effect on 14 February 2003 by way of written memorandum. On 17 February 2003 the Court Management Section communicated this instruction to the Parties.
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2. This Chamber has decided to deal with both the Prosecution Motion and the Defence Motion together, as the real subject matter of both Motions, the issue of access by the Defence to the videotape, is essentially the same.
SUBMISSIONS OF THE PARTIES
The Prosecution Motion
3. The Prosecution brings an application pursuant to Rules 66(C) and 70(A) requesting the Chamber to declare that it need not make disclosure of a videotape, which was the subject of the Chamber's Decision of 4 December 2002, and subsequently the subject of inspection on 12 December 2002. It attaches a copy of a letter from the Defence, dated 30 January 2002, in which the Defence requests disclosure of a copy of this videotape.
4. In support of its Motion, the Prosecution submits that this videotape, supplied confidentially to the Judges pursuant to the requirements of Rule 66(C)_[2]_, along with its own inventory of the contents, need not be disclosed to the Defence pursuant to Rules 66(C) and 70(A). It claims inter alia that the information contained in the videotape would, if disclosed, reveal to the Defence the identities of members of the Rwandan Authorities assisting it in the course of its work, and that this would have an adverse effect on the Prosecutor's relationship with the Rwandan Authorities. The submission of the Prosecution is that such a situation would prejudice further or ongoing investigations of the Prosecution, and therefore the Chamber should rule pursuant to Rule 66(C) that it need not disclose the videotape to the Defence.
5. The Prosecution further claims that the videotape reveals the identities of Prosecution Witnesses who are the subject of protection orders of the court, the identities of members of the Prosecution team participating in the exercise, their internal comments, and material relating to issues that are outside the temporal jurisdiction of the Tribunal.
6. The Defence objects to the Prosecution Motion. The Defence, having viewed the videotape on 12 December 2002, claims that the tape contains information that is important to the preparation of its case, and therefore it should be disclosed to the Defence, as requested in its Motion. Specifically, it reveals that:
a) MEM's interview on the tape corroborates his testimony in court and raises serious questions regarding the Prosecution motive to "terminate abruptly" the interview;
b) that the videotape reveals prior inconsistent statements of Prosecution witnesses GAP and GAO;
c) the videotape shows potential Prosecution witnesses for impeachment at trial.
7. The Defence claims that Prosecution has not fully complied with the Chamber's Decision of 4 December 2002 because the Accused himself was not able to inspect the videotape, thus breaching his rights under Article 20 of the Statute. It also feels that not enough time was given for inspection. The Prosecution's position remains that it
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has fully complied with the Chamber's Decision of 4 December 2002, with inspection of the videotape by Defence Counsel facilitated on 12 December 2002.
The Defence Motion
8. The Defence files a Motion pursuant to Rule 66(B) requesting the Chamber to compel the Prosecutor to provide the Defence with a copy of the videotape, which was the subject of the Chamber's Decision of 4 December 2002.
9. The Defence states that, having viewed the videotape on 12 December 2002, it intends to use the videotape of the testimony of MEM in the Defence case.
10. The Defence submits that the Accused has not had an opportunity to view the tape, and the Defence needs to consult with him prior to making a final decision concerning the use of the videotape.
11. The Prosecution submit that determination of the Prosecution Motion on the question of the videotape will bring to an end the issue, and that the Defence Motion introduces no new issue.
DELIBERATIONS
12. The Prosecution Motion is an application pursuant to Rules 66(C) and 70(A) to be relieved from any disclosure obligation regarding the videotape, which was the subject of the Chamber's Decision of 4 December 2002. The Defence Motion is an application to be provided with a copy of the videotape, as it intends to use the footage of Witness MEM contained therein at trial.
13. The submissions of both Parties also reveal that there exists disagreement as to whether or not the Chamber's Decision of 4 December 2002 has been properly complied with. As it may prove important, the Chamber will also consider this matter.
The Prosecution Application under Rule 66(C)
14. Having viewed the videotape, which was presented to the Chamber by the Prosecution pursuant to the requirements of Rule 66(C), and having heard the arguments of the Parties, the Chamber finds that the Prosecution has not adequately demonstrated that should it be possible for the Defence to identify officials of the Government of Rwanda from the videotape who were assisting or facilitating the Prosecution in its investigations, further or ongoing investigations would be prejudiced. The Parties should bear in mind that all states have a legal duty to cooperate with the investigation and prosecution of persons accused of committing serious violations of international humanitarian law, pursuant to Article 28 of the Statute. Thus, the Prosecution's application under Rule 66(C) with regard to the videotape is denied.
The Prosecution Application under Rule 70(A')
15. Having viewed the videotape in camera, and having given the Parties an opportunity to argue the matter in court, the Chamber finds that the comments or observations of the officials of the Prosecution do not amount to "reports, memoranda, or other
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internal documents prepared by a party its assistants or representatives in connection with the investigation or preparation of the case", as envisaged under Rule 70(A). Thus, the Prosecution application under Rule 70(A) is denied.
The Defence Request for Disclosure or Further Inspection
16. In the Chamber's Decision of 4 December 2002, the Tribunal "ORDERS the Prosecutor to permit the Defence to inspect the video tape(s) of the interview of Defence Witness MEM pursuant to Rule 66(B) of the Rules". The Chamber does not agree with the Defence submission that under Article 20 of the Statute, it is always necessary for the Accused to be given an opportunity to inspect materials, when Counsel has already done so. Nevertheless, the Chamber is of the view that inspection entails giving the other party adequate opportunity to acquaint itself with the materials in question. In this particular situation, the materials in question consist of a videotape which, when played, may reveal information at a speed too fast to provide Counsel with adequate opportunity to take cognisance of the information.
17. Furthermore, in its Decision of 16 February 2000 [31 , the Chamber observed that:
although Rule 66(C) [sic] of the Rules provides that the Prosecutor shall permit the Defence to inspect any books, documents, photographs and tangible objects in her custody, the Prosecutor should not only permit the Defence to inspect them, but should also, as much as possible, provide the Defence with certified copies thereof. The Chamber points out in this respect that said Rule 66(C) refers to "the obligation to disclose pursuant to Sub-Rules (A) and (B) \4] .
18. The Prosecution Motion currently before the Chamber is essentially a request to determine whether or not it can be relieved of any obligation to disclose the videotape pursuant to Rules 66(C) and 70(A). The Chamber agrees with the Prosecution position that in the interests of judicial economy, determination of their Motion should also determine the outcome of the Defence Motion. Having determined that it cannot be relieved of such obligation, and fully aware that the Defence has made several requests to the Prosecution for this tape, the Chamber finds it in the interests of justice to require the Prosecution to disclose a copy of the videotape to the Defence without delay. 19. The Chamber reminds the Defence of its Decision of 6 July 2000, the "Decision on the Prosecutor's Motion for Protective Measures for Witnesses" [5] . The Defence should particularly note the order:
Prohibiting the Defence and the accused from sharing, revealing or discussing, directly or indirectly, any documents or any information contained in any documents, or any information which could reveal or lead to the identification of any individuals so designated to any person or entity other than the accused, assigned counsel or other persons working on the immediate Defence team;
For the sake of clarity, this Order also covers the videotape.
20. In this particular circumstance, information and identities are revealed on the videotape, which may affect the safety of protected witnesses in this and other cases. Thus, the Chamber orders that the videotape should remain only in the custody of Defence Counsel as an Officer of the Court, whilst of course fully respecting the Accused's right to view such material when in the presence of his Counsel. The videotape must not be reproduced, in whole or in part. Beyond this limited circulation, the contents of the videotape must not be discussed except between members of the
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Defence team and the Accused or in front of this Chamber, and must not form part of any public Motion.
FOR THE ABOVE REASONS, THE TRIBUNAL
DENIES the Prosecution Motion in its entirety;
GRANTS the Defence Motion, subject to the Chamber's Decision on 6 July 2000, in the following terms:
ORDERS the Prosecution to immediately disclose to the Defence the videotape in its entirety.
ORDERS the Defence and the Accused, once they have received a copy of the videotape:
(i) not to reproduce the videotape in whole or in part;
(ii) not to discuss the contents of the videotape except between themselves or in front of this Chamber;
(iii) not to reveal information contained in the videotape in any public Motion;
(iv) that the sole copy of the videotape must remain only in the custody of Defence Counsel.
Arusha, 28 April 2003
William H. Sekule Winston C. Matanzima Maqutu Ariette Ramaroson
Presiding Judge Judge Judge
[Seal of the Tribunal]
ULLUnless otherwise stated, all references to Rules are to be construed as references to the Rules of Procedure and Evidence.
[2]_The recording was actually supplied in the format of a computer file, recorded on compact disc. For the sake of clarity, we continue to use the terminology of videotape in this Decision.
[3J_Decision on the Defence Motion for Disclosure of All Materials the Prosecution intends to use at Trial, Prosecutor v Sylvain Nsabimana, 16 February 2000 (certified English Translation, original filed in French).
[41_This quote should be interpreted as reading "although Rule 66(B) of the Rules provides that..." The mistake originates in the official translation and not the original Decision of the Chamber, which was issued in French.
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£5J_Decision on the Prosecutor's Motion for Protective Measures for Witnesses, Prosecutor v Juvenal Kajelijeh, 6 July 2000
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International Criminal Tribunal for Rwanda Tribunal pénal international pour le Rwanda
TRIAL CHAMBER I
Before: Judge Erik M0se, presiding Judge Jai Ram Reddy Judge Sergei Alekseevich Egorov
Registrar: AdamaDieng
Date: 24 May 2006
THE PROSECUTOR v. Théoneste BAGOSORA Gratiën KABILIGI Aloys NTABAKUZE Anatole NSENGIYUMVA
Case No. : ICTR-98-41-T
DECISION ON DISCLOSURE OF IDENTITY OF PROSECUTION INFORMANT
The Prosecution Barbara Mulvaney Drew White Christine Graham Rashid Rashid
The Defence Raphaël Constant Allison Turner Paul Skolnik Frédéric Hivon Peter Erlinder André Tremblay Kennedy Ogetto Gershom Otachi Bw'Omanwa
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THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA,
SITTING as Trial Chamber I, composed of Judge Erik M0se, presiding, Judge Jai Ram Reddy, and Judge Sergei Alekseevich Egorov;
BEING SEIZED OF the "Requête Confidentielle", etc., filed by the Bagosora Defence on 19 December 2005;
CONSIDERING the Prosecution Preliminary Response, and its Further Response, filed on 23 December 2005 and 12 January 2006, respectively;
HEREBY DECIDES the Motion.
INTRODUCTION
1. On 23 September 2005, the Prosecution disclosed to the Defence a statement entitled "Witness AIU". The attached cover letter explained that the person had never been listed as a witness in the present case, and was not otherwise the subject of any protective order. Nevertheless, portions of the statement were redacted to conceal the witness's identity, even though "[g]iven the nature of the statement, Colonel Bagosora will undoubtedly have personal knowledge of the identity of witness AIU". The cover letter indicated that Prosecution counsel in the present case had become aware of the statement within the previous twenty- four hours.[1]
2. The Defence asks the Chamber to order the Prosecution to disclose the statement in its entirety, arguing that there is no justification for withholding Witness AIU's identity, which is itself exculpatory. The Defence also asks for a subpoena requiring Witness AIU to meet with the Defence.
DELIBERATIONS
(i) The Exculpatory Nature of Witness AIU's Identity
3. Rule 68 (A) of the Rules of Procedure and Evidence ("the Rules") requires the disclosure of any material in the actual knowledge of the Prosecutor which "may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence". The Prosecution implicitly acknowledges that the statement itself was disclosed pursuant to this provision. For example, the Prosecution argues that disclosing Witness AIU's identity would not "make the information in the statement more exculpatory", and that it is under no obligation to "disclose the entire document from which exculpatory evidence is extracted".£2] The Chamber infers, therefore, that the Prosecution has disclosed the content of the statement pursuant to Rule 68 (A).
4. The Prosecution argues that this obligation requires disclosure of only the content of the statement, and that no prima facie showing has been made that Witness AIU's identity is itself exculpatory. A previous decision of this Trial Chamber, which did require such disclosure, is said to be distinguishable from the present situation.[3J In that decision, the Chamber required the identification of three individuals, formerly listed as Prosecution witnesses, who had made statements concerning the same events as a witness who was still scheduled to appear before the Chamber. The Prosecution relies on the Chamber's comment
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that "[t]he importance of any discrepancies in the statements may depend, for example, on the nature of the relationships between the different witnesses to the events".[4J As this element is not present in respect of Witness AIU, argues the Prosecution, his identity need not be disclosed.
5. The Chamber is of the view that Witness AIU's identity is "inextricably connected with the substance of the statements".[5} The statement cannot be properly understood without knowing the author's ability to observe the events he describes; his possible biases or point of view; or the consistency of his account with any other statements he may have given. Providing the author's identity does not merely assist the Defence to carry out further investigations, but is essential to the content of the statement itself. Accordingly, the identity of Witness AIU, and any portions of the statement redacted to protect the witness's identity, must be considered to be exculpatory within the meaning of Rule 68 (A). [6]
6. Witness AIU's present location does not assist in understanding the content of the statement. Accordingly, any indications in the statement of the witness's present location is not exculpatory and need not be disclosed to the Defence. The Prosecution may make redactions for that purpose.
(ii) Non-Disclosure of Exculpatory Information
1. The Prosecution asserts that it is empowered to withhold Witness AIU's identity on the basis of Rule 39 (ii) of the Rules, which authorizes the Prosecution to "take all measures necessary for the purpose of the investigation and to support the prosecution at trial, including the taking of special measures to provide for the safety of potential witnesses and informants".
8. Rule 39 (ii) is a general provision appearing in Part 4 of the Rules, "Investigations and Rights of Suspects". By contrast, Rule 68 itself contains a specific provision which offers the Prosecution a mechanism to be relieved of the obligation to disclose exculpatory material. Sub-part (D) provides:
The Prosecutor shall apply to the Chamber sitting in camera to be relieved from an obligation under the Rules to disclose information in the possession of the Prosecutor, if its disclosure may prejudice further or ongoing investigations, or for any reasons may be contrary to the public interest or affect the security interests of any State, and when making such application, the Prosecutor shall provide the Trial Chamber (but only the Trial Chamber) with the information that is sought to be kept confidential.
Rule 68 (D), as the specific provision governing this particular type of material, is applicable to the present situation, not Rule 39 (ii). The Appeals Chamber has referred to the obligation to disclose exculpatory material as "fundamental to the fairness of proceedings before the Tribunal".[7] Exceptions to that obligation must be subject to the specific, judicially- controlled provisions of Rule 68 (D). An independent power of the Prosecution to withhold information on unenumerated grounds could undermine the scope of Rule 68 (A).
9. The Prosecution has made no application to the Chamber under Rule 68 (D). Rather than arguing that any of the three conditions for non-disclosure are present, the Prosecution relies on a general concern that the security and trust of informants can only be maintained by non-disclosure of their identities.
10. Whatever force this argument may have in other circumstances, it is not relevant here, in light of the Prosecution concession that the Accused must already know Witness AIU's
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identity, given the content of his statement. In the absence of any submissions showing that any of the conditions of Rule 68 (D) are satisfied, the Prosecution cannot be relieved of its obligation to disclose exculpatory information.
(in) Subpoena for Purpose of Meeting With Witness AIU
11. The Prosecution indicates in a letter to the Defence that Witness AIU "was informed about [the Defence's] probable request" for a meeting, and that the witness has refused the request on the ground that any meeting near his place of residence would reveal his present whereabouts and jeopardize his security.[8} As an alternative, the Prosecution proposes that the Defence submit questions in writing, which would then be conveyed to the witness with a recommendation that he cooperate. In essence, the Prosecution argues that this would constitute a form of cooperation which would obviate the need for a subpoena. The Defence argues that the method proposed by the Prosecution is impractical, as written questions and answers could lead to many rounds of further questions and clarifications.
12. Rule 54 of the Rules authorizes a Trial Chamber to "issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial". This authority includes the power to require "a prospective witness to attend at a nominated place and time in order to be interviewed by the Defence where that attendance is necessary for the preparation or conduct of the trial".[9] The first condition for such a subpoena is that there is a reasonable basis to believe that the prospective witness may be able to provide information of material importance.[10] Having reviewed the witness's statement, the Chamber finds this condition to be satisfied.
13. A second condition for the issuance of a subpoena is that the applicant has "made reasonable attempts to obtain the voluntary cooperation of the parties involved and has been unsuccessful".^!] At present, those efforts must be channelled through the Prosecution, which legitimately wishes to keep the current location of its informant secret. Based on the submissions now before the Chamber, it is not clear that the Prosecution has communicated an actual, pending Defence request for an interview. A subpoena cannot be issued until those efforts have been exhausted.
FOR THE ABOVE REASONS, THE CHAMBER
GRANTS the motion for disclosure of portions of the statement of Witness AIU which have been redacted by the Prosecution to safeguard his identity;
DECLARES that the Prosecution may continue to make redactions to protect Witness AIU's current location;
DENIES the request for a subpoena.
Arusha, 24 May 2006
Erik M0se Jai Ram Reddy Sergei Alekseevich Egorov Presiding Judge Judge Judge
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[Seal of the Tribunal]
[I] The statement appears to have been taken by representatives of the Office of the Prosecution on 17 and 26 April 2003, and 28 May 2003.
J21 Preliminary Response, paras. 7-8; Further Response, paras. 19-20.
[3] Bagosora et al., Decision on Motion for Disclosure Under Rule 68 (TC), 1 March 2004.
[4] Id. çara. 6.
[51 W-
[6] See Bizimungu et al., Decision on Prosper Mugiraneza's Motion to Compel Disclosure of Exculpatory Evidence Pursuant to Rule 68 (TC), 10 December 2003, para. 21.
[T] Krstic, Judgement (AC), 19 April 2004, para. 180.
[8] Defence Motion, Annex C; Prosecution Further Response, para. 14.
[9] Halilovic, Decision on the Issuance of Subpoenas (AC), 21 June 2004, para. 5. See also Knstic, Decision of Application for Subpoena (AC), 1 July 2003, para. 10 ("Such a power [referring to Rule 54] clearly includes the possibility of a subpoena being issued requiring a prospective witness to attend at a nominated place and time in order to be interviewed by the defence where that attendance is necessary for the preparation or conduct of the trial"); Bagosora et al., Decision on Request for Subpoena of General Yaache and Cooperation of The Republic of Ghana (TC), 23 June 2004, para. 4 ("[T]he Chamber has incidental and ancillary jurisdiction over persons other than an accused, that may assist the Tribunal in its pursuit of criminal justice".); Bagosora et al., Decision on Bagosora Defence's Request for a Subpoena Regarding Mamadou Kane (TC), 22 October 2004, para. 2 (quoting the Trial Chamber's 23 June 2004 decision); Bizimungu et al., Decision on Prosper Mugiraneza's Motion to Compel Disclosure of Exculpatory Evidence Pursuant to Rule 68 (TC), 10 December 2003, para. 23.
HOI Halilovic, Decision on the Issuance of Subpoenas (AC), 21 June 2004, para. 6.
II1] Bagosora et al., Decision on Request for Subpoena of General Yaache and Cooperation of The Republic of Ghana (TC), 23 June 2004, para. 4.
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International Criminal Tribunal for Rwanda pénal international pour le Rwanda
nited Nahgns tion« Urnes
IN THE APPEALS CHAMBER
Before: Judge Fausto Pocar, Presiding Judge Mehmet Güney Judge Liu Daqun Judge Theodor Meron Judge Wolfgang Schomburg
Registrar: Mr. Adama Dieng
Decision of: 25 September 2006
THE PROSECUTOR v. Théoneste BAGOSORA Gratiën KABILIGI Aloys NTABAKUZE Anatole NSENGIYUMVA
Case No. ICTR-98-41-AR73
DECISION ON INTERLOCUTORY APPEAL RELATING TO DISCLOSURE UNDER RULE 66(B) OF THE TRIBUNAL'S RULES OF PROCEDURE AND EVIDENCE
Office of the Prosecutor: Mr. Hassan Bubacar Jallow Ms. Barbara Mulvaney Mr. Neville Weston Mr. Drew White Ms. Christine Graham Mr. Rashid Rashid Counsel for the Defence: Mr. Raphaël Constant and Ms. Allison Turner for Théoneste Bagosora Mr. Paul Skolnik and Mr. Frédéric Hivon for Gratiën Kabiligi Mr. Peter Erlinder and Mr. André Tremblay for Aloys Ntabakuze Mr. Kennedy Ogetto and Mr. Gershom Otachi Bw'Omanwa for Anatole Nsengiyumva
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1. The Appeals Chamber of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Serious Violations Committed in the Territory of Neighboring States, between 1 January and 31 December 1994 ("Appeals Chamber" and "Tribunal", respectively) is seized of an interlocutory appeal1^1 filed jointly by Anatole Nsengiyumva and Gratiën Kabiligi ("Appellants") against a decision of Trial Chamber 1,^ ("Impugned Decision") dismissing Mr. Nsengiyumva's request for the disclosure of documents pursuant to Rule 66(B) of the Tribunal's Rules of Procedure and Evidence ("Rules").
BACKGROUND
2. In April 2005, soon after the defence cases in this case commenced, the Prosecution disclosed that it had documents related to the immigration, refugee, and asylum status of certain defence witnesses that it intended to use during cross-examination for impeachment purposes.1^ On 16 May 2005, one of the Appellants, Mr. Nsengiyumva, requested the disclosure of this material,[4J in part, based on Rule 66(B) of the Rules.1^ On 27 September 2005, the Trial Chamber denied this request and held that the Prosecution would make such documents available at the time of cross-examination in conformity with the normal practice in the case.^1
3. The Appellants sought certification to appeal the Impugned Decision, which the Trial Chamber granted on 22 May 2006.^ The Appellants filed their joint appeal brief on 29 May 2006. The Prosecution responded on 8 June 2006,[8] and the Appellants replied on 12 June 2006.191
4. The Appellants argue that in reaching the Impugned Decision the Trial Chamber erred in its interpretation of Rule 66(B) and took account of extraneous considerations, such as the ability of the Appellants to obtain the documents themselves. [10] They submit that the immigration documents are essential in assisting them to assess the potential credibility of their case.JJJJ Consequently, the Appellants contend that they are being denied the right to make a full answer and defence to the charges against them without the requested disclosure.[12] The Appellants seek an order compelling the Prosecution to disclose the documents in question. [13]
5. The Prosecution responds that the Appellants cite no legal authority in support of their reading of Rule 66(B).[14] The Prosecution further refers to domestic legal provisions and national case law in support of the Trial Chamber's approach.[15] The Prosecution disputes that the Trial Chamber relied on any extraneous considerations in interpreting Rule 66(B), such as the ability of the defence to obtain the documents, and notes that this observation referred simply to the lack of prejudice in the present case.[16] In their Reply, the Appellants primarily attempt to distinguish the national case law referred to by the Prosecution.[17]
DISCUSSION
6. In this decision, the Appeals Chamber considers whether the Trial Chamber erred in denying the request for disclosure under Rule 66(B) of the Rules. [18] As the Impugned Decision relates to the general conduct of trial proceedings, this is a matter that falls within the discretion of the Trial Chamber.^ A Trial Chamber's exercise of discretion will be
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reversed only if the challenged decision was based on an incorrect interpretation of governing law, was based on a patently incorrect conclusion of fact, or was so unfair or unreasonable as to constitute an abuse of the Trial Chamber's discretion.^
7. Rule 66(B) of the Rules provides for the inspection of certain items which are: (1) "material to the preparation of the defence case", or (2) "intended for use by the Prosecution as evidence at trial".^11 The Trial Chamber ruled that the immigration documents did not fall into either of these categories. [22] It reasoned that the immigration documents were not "material to the preparation of the defence case" because they did not counter the Prosecution's evidence presented during its case-in-chief, but rather concerned the credibility of defence evidence. [23] In addition, for the Trial Chamber, the immigration documents did not constitute material intended for use by the Prosecution at trial because, in its view, this category refers only to evidence for use during the Prosecution's case-in-chief, which is closed.[24]
8. The Appellants contend that, in reaching this conclusion, the Trial Chamber adopted an unduly restrictive interpretation of Rule 66(B) of the Rules contrary to its plain meaning. [25] The Appeals Chamber agrees. The language of Rule 66(B) does not support the Trial Chamber's restrictive approach. The Prosecution refers extensively to domestic legal provisions, in particular United States Federal Rule of Criminal Procedure 16(a)(l)(E),L^ in support of the Trial Chamber's approach. [27] However, the Appeals Chamber considers the meaning of Rule 66(B) to be sufficiently clear so as not to require resort to domestic legal provisions in determining its scope.[28] The Appeals Chamber routinely construes the Prosecution's disclosure obligations under the Rules broadly in accord with their plain meaning. [29] Nothing in Rule 66(B) limits an accused's right to inspection only of material related to the Prosecution's case-in-chief.^ Rather, this Rule uses much broader language: "material to the preparation of the defence case" and "intended for use ... at trial".
9. The Appellants seek material potentially falling under both categories.[31] In accord with the plain meaning of Rule 66(B) of the Rules, the test for materiality under the first category is the relevance of the documents to the preparation of the defence case. Preparation is a broad concept and does not necessarily require that the material itself counter the Prosecution evidence.[32] Indeed, for the Appellants, the immigration documents are material to the preparation of their defence because these documents may improve their assessment of the potential credibility of their witnesses before making a final selection of whom to call in their defence.[33] The Appeals Chamber cannot exclude that this is an appropriate basis for authorizing the inspection of documents if the requisite showing is made by the defence. There are few tasks more relevant to the preparation of the defence case than selecting witnesses.^ The Trial Chamber is the appropriate authority to make this case-specific assessment in the first instance under the appropriate standard. Moreover, the use of the phrase "at trial" in the second category of Rule 66(B) signals its applicability throughout the proceedings.[35] As such, at least some of the immigration documents sought are equally subject to inspection to the extent that they are intended as exhibits at trial.
10. The Appeals Chamber observes that this plain reading of Rule 66(B) of the Rules does not create a broad affirmative obligation on the Prosecution to disclose any and all documents which may be relevant to its cross-examination, as suggested by the Trial Chamber.[36] Rule 66(B) is only triggered by a sufficiently specific request by the defence.[37] which in turn engages reciprocal disclosure obligations on the defence's part under Rule 67(C). In this case,
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as the Trial Chamber recognized, the defence sought a precise category of documents, namely immigration-related material, admittedly in the possession of the Prosecution.[38]
11. In addition, the Trial Chamber observed in the Impugned Decision that the defence was aware of the identity and residence of its witnesses and thus was capable of undertaking its own investigations for the material.[39] The Appellants contend that this is an irrelevant consideration and an error of law. [40] The Prosecution responds that the decision was not based on this observation. [41] The Appeals Chamber, for its part, cannot discern whether the Trial Chamber's observation was a basis for denying the motion. Nonetheless, in the Appeals Chamber's view, there is no requirement for the defence to make independent efforts to obtain material prior to receiving requested disclosure under the Rules. A request under Rule 66(B) is one of the methods available to the defence for carrying out investigations.
12. Finally, the Appeals Chamber notes that the Impugned Decision in fact provided for the disclosure of at least some of the requested material, the documents intended as exhibits, at the time of cross-examination. [42] This framework may be appropriate in some circumstances for certain material. The Appeals Chamber affirms that the Trial Chamber is best placed to determine both the modalities for disclosure and also what time is sufficient for an accused to prepare his defence based on the timing of such disclosure. [43] It is evident, however, that disclosure at the time of cross-examination is insufficient to the extent, as in this case, that the requested materials are intended to assist the defence select its witnesses.
CONCLUSION
13. Accordingly, the Appeals Chamber finds that the Trial Chamber erred by narrowly construing the Prosecution's disclosure obligations under Rule 66(B) of the Rules in a manner inconsistent with the plain language of the provision.
DISPOSITION
14. For the foregoing reasons, the Appeal is GRANTED, and the Impugned Decision is REVERSED. The Prosecution is ORDERED to permit inspection by the defence of all the requested immigration documents that it intends to use as exhibits during cross-examination. Furthermore, with respect to the other immigration documents not intended for use as exhibits, the Appeals Chamber REMITS this matter to the Trial Chamber for reconsideration consistent with this decision on whether they are material to the preparation of the defence.
Done in English and French, the English version being authoritative.
Done this 25th day of September 2006,
At The Hague,
The Netherlands
Judge Fausto Pocar Presiding
[Seal of the Tribunal]
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[IJ Kabiligi and Nsengiyumva Joint Appeal under Rule 73(B) of Trial Chamber I's "Decision on Disclosure of Materials Relating to Immigration Statements of Defence Witnesses", 29 May 2006 ("Appeal").
[2] The Prosecutor v Théoneste Bagosora et al, Case No. ICTR-98-41-T, Decision on Disclosure of Materials Relating to Immigration Statements of Defence Witnesses, 27 September 2005 ("Impugned Decision").
[3J Impugned Decision, para. 1; Appeal, paras. 4, 5.
[4] Based on Nsengiyumva's request, the Trial Chamber described this material as follows: "The Defence motion describes the requested materials as materials, documents, correspondence and any papers in Fthe Prosecution'sg possession, control and/or custody that relate to immigration status and/or records of (i) Witness LIG-2; (ii) Defence Witness LT-1 ; (iii) any other Defence witnesses on the Nsengiyumva defence list in respect of whom inquiries into immigration, asylum and or refugee status may have been made; and (iv) any potential defence witnesses. According to the motion, such materials include, but are not limited to, any enquiry or correspondence from the Prosecution to any host country; any response from a host country thereto; documents forwarded in such correspondence; and documents relating to immigration, refugee status or record of proceedings relating thereto as disclosed by the host country, UNHCR or any other organization." See Impugned Decision, para 3, footnote 4.
15] Impugned Decision, para. 2. In addition, Mr. Nsengiyumva requested disclosure on the basis of Rule 68, which the Chamber denied. Id, paras. 2, 9, 10. See also Appeal, para. 6.
[6] Impugned Decision, para. 12.
[7] The Prosecutor v Théoneste Bagosora et al, Case No. ICTR-98-41 -T, Decision on Certification of Interlocutory Appeal Concerning Prosecution Disclosure of Defence Witness Statements, 22 May 2006 ("Certification Decision"). The Trial Chamber did not certify the Appellants' appeal on the basis of Rule 68 Id, para. 7.
[8] Prosecutor's Response to "Kabiligi and Nsengiyumva Joint Appeal under Rule 73(B) of Trial Chamber I's 'Decision on Disclosure of Materials Relating to Immigration Statements of Defence Witnesses'", 8 June 2006 ("Prosecution Response").
[9] Joint Kabiligi and Nsengiyumva Reply to "Prosecutor's Response to Kabiligi and Nsengiyumva Joint Appeal under Rule 73(B) of Trial Chamber I's 'Decision on Disclosure of Materials Relating to Immigration Statements of Defence Witnesses'", 12 June 2006 ("Appellants Reply").
[10] Appeal, paras. 14-41.
[Ill Appeal, paras. 15, 16.
[121 Appeal, paras. 34-41. At trial, Mr. Nsengiyumva's fair trial claims also included allegations related to witness intimidation and endangerment. Appeal, para. 6. The Appellants do not address these arguments on appeal and instead focus on their ability to assess the potential credibility of their case.
[13] Appeal, para. 42.
[14] Prosecution Response, para. 6.
[15] Prosecution Response, paras. 10-15.
[16] Prosecution Response, paras. 22, 23.
[17] Appellants Reply, paras. 5-24.
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[181 Rule 66(B) refers to permitting "inspection". Nonetheless, the provision imposes a disclosure obligation on the Prosecution in the sense of making information available to the Defence. That it is a disclosure obligation in this general sense is reflected in the title of Rule 66, "Disclosure of Materials by the Prosecutor" as well as the language of Rule 66(C) which refers to Prosecution ability to apply to a Trial Chamber in certain circumstances to be relieved from the obligation "to disclose pursuant to Sub-Rules (A) and (B)". The use of the term "inspection" in Sub-Rule (B) simply relieves the Prosecution from providing copies of requested items to the Defence, though a Trial Chamber may nonetheless issue an order this end.
[191 Tharcisse Muvunyi v. The Prosecutor, Case No. ICTR-00-55A-AR73(C), Decision on Interlocutory Appeal, 29 May 2006, para. 5 ("Muvunyi Appeal Decision").
[20] Muvunyi Appeal Decision, para. 5. See also The Prosecutor v Théoneste Bagosora et al, Case Nos. ICTR- 98-41-AR73, ICTR-98-41-AR73(B), Decision on Interlocutory Appeals of Decisions on Witness Protection Orders, 6 October 2005, para. 3 ("Bagosora Appeal Decision").
[211 Rule 66(B) states in full: "At the request of the Defence, the Prosecutor shall, subject to Sub-Rule (C), permit the Defence to inspect any books, documents, photographs and tangible objects in his custody or control, which are material to the preparation of the defence, or are intended for use by the Prosecutor as evidence at trial or were obtained from or belonged to the accused."
[221 Impugned Decision, para. 6.
[23] Impugned Decision, paras. 5, 6.
[24] Impugned Decision, paras. 5, 6.
[25] Appeal, paras. 14-25.
[26] This provision reads: "Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and. (i) the item is material to preparing the defense; (ii) the government intends to use the item in its case-in- chief at trial; or (iii) the item was obtained from or belongs to the defendant." This rule was amended in 2002, and what was previously sub-part (C) - which is the reference cited by the Prosecution and the Trial Chamber (Impugned Decision paras. 6, 7; Prosecution Response, para. 12) - was moved with minor amendments to sub- part (E).
[27] Prosecution Response, paras. 10-16.
[28] This was the same approach taken by the ICTY Appeals Chamber in interpreting the scope of Rule 68. See The Prosecutor v Radislav Krsli}, Case No. IT-98-33-A, Judgement, 19 April 2004, para. 179 ("Krstij Appeal Judgement").
[29] The Prosecutor v. Edouard Karemera et al, Case No. ICTR, 98-44-A73.7, Decision on Interlocutory Appeal Regarding the Role of the Prosecutor's Electronic Disclosure Suite in Discharging Disclosure Obligations, 30 June 2006, paras. 9-13 ("Karemera Appeal Decision"). See also Krsii} Appeal Judgement, para. 180; The Prosecutor v Tihomir Blaski}, Case No. IT-95-14-A, Judgement, 20 July 2004, paras. 265, 266 ("Blaskij Appeal Judgement").
[30] In contrast, United States Federal Rule of Criminal Procedure 16(a)(l)(E) expressly states that the government's disclosure obligation is limited to items to be used in its "case-in-chief'. The United States Supreme Court in turn seized on this language to similarly restrict the category "material to preparing the defense" as well to preparations to counter the government's case-in-chief. See United States v Armstrong, 517 U.S 456, 462 (1996) It is significant that the Tribunal's Rules omit this reference in favour of a more broad formulation.
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[311 In addition to prior statements, which could be used for impeachment purposes and possibly tendered as exhibits, the Appellants seek disclosure of a broader category of material, extending to correspondence between the Prosecution and state authorities. See Impugned Decision, para. 3, footnote 4 (quoted supra).
[321 Indeed, even under United States Federal Rule of Criminal Procedure 16, which is limited to disclosure on matters material to the preparation of the defence against the prosecutor's case-in-chief, evidence is material "as long as there is a strong indication that it will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal." See United States v Marshall, 132 F.3d 63, 68 (DC. Cir. 1998) (emphasis added). Further, it also extends to some extent to information which might dissuade a defendant from pursuing an unmeritorious defence. Id
[33] Appeal, para. 16.
[341 The Prosecution counters that providing possible impeachment material to the defence obviates the purpose of cross-examination and will only result in contrived and perjured testimony. Prosecution Response, para. 9. The Appeals Chamber disagrees. In the present case, the Appellants appear to be seeking disclosure precisely to avoid putting questionable witnesses on the stand. Moreover, the Prosecution still retains the ability to raise questions during cross-examination concerning the witness's preparation in light of the disclosure and make relevant arguments in its final submissions.
[351 The Appeals Chamber has held that Rule 66(B) is applicable on appeal as well if the material sought was not available at trial. See Georges Rutaganda v. The Prosecutor, Case No. ICTR 96-3-A, Decision on the Prosecution's Urgent Request for Clarification in Relation to the Applicability of Rule 66(B) to Appellate Proceedings and Request for Extension of the Page Limit Applicable to Motions, 28 June 2002, p. 2.
[361 See, eg, Impugned Decision, para. 6 ("Rule 66(B) cannot be interpreted as laying down a blanket obligation for the Prosecutor to disclose documents pertinent to its cross-examination of defence witnesses.").
[371 The Prosecutor v Tihomir Blaski}, Case No. IT-95-14-A, Decision on the Appellant's Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, 26 September 2000, para. 40.
[381 Impugned Decision, para. 3.
[391 See Impugned Decision, para. 6 ("In relation to the requested immigration documents, the Chamber observes that the Defence is aware of the identify and country of residence of its witnesses and may make inquires as to whether they have been interviewed by immigration authorities. The Defence is therefore in a position to carry out the necessary investigations to prepare its case and, on this basis, select its witnesses."); Prosecution Appeal, para. 8.
[40] Appeal, paras. 26-29.
[41] Prosecution Response, para. 22.
[42] Impugned Decision, para. 12.
[43] The Prosecutor v Edouard Karemera et al, Case No. ICTR, 98-44-A73.6, Decision on Joseph Nzirorera's Interlocutory Appeal, 28 April 2006, paras. 7, 8.
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* * CONSEIL ** ** COUNCIL DE L'EUROPE * ^ * OF EUROPE
COUR EUROPÉENNE DES DROITS DE L'HOMME EUROPEAN COURT OF HUMAN RIGHTS
FOURTH SECTION1
CASE OF AL-NASHIF v. BULGARIA
(Application no. 50963/99)
JUDGMENT
STRASBOURG
20 June 2002
FINAL
20/09/2002
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
1 In its composition before 1 November 2001. ICC-01/04-01/07-176-AnxA 01-02-2008 125/196 SL PT OA2
AL-NASHIFv BULGARIA JUDGMENT 1
In the case of Al-Nashif v. Bulgaria, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Mr G. RESS, President, Mr L. CAFLISCH, Mr J. MAKARCZYK, Mr I. CABRAL BARRETO, Mr V. BUTKEVYCH, Mr J. HEDIGAN, Mrs S. BOTOUCHAROVA, judges, and Mr V. BERGER, Section Registrar, Having deliberated in private on 25 January 2001 and 30 May 2002, Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case originated in an application (no. 50963/99) against the Republic of Bulgaria lodged with the Court on 15 September 1999 under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). The application was initially submitted by five applicants. Following the partial decision of 16 December 1999 rejecting the complaints of two of the applicants, the remaining applicants are Mr Daruish Al-Nashif, a stateless person born in 1967 ("the first applicant"), and Abrar and Auni Al-Nashif, the first applicant's children, who were born in 1993 and 1994 respectively and have Bulgarian nationality ("the second and the third applicants"). The second and third applicants applied to the Court through their mother, Mrs Hetam Ahmed Rashid Saleh, the wife of Mr Al-Nashif. 2. The applicants were represented by Mr Y. Grozev and Mrs K.Yaneva, lawyers practising in Sofia. The Bulgarian Government ("the Government") were represented by their Agent, Mrs G. Samaras, Ministry of Justice. 3. The applicants alleged that the first applicant did not have the right to appeal to a court against his detention and that he had been detained incommunicado (Article 5 § 4), that his deportation had infringed the right of all three applicants to respect for their family life (Article 8), that they did not have an effective remedy in this respect (Article 13), that the measures against the first applicant were in breach of his right to freedom of religion and that he had not had an effective remedy in this respect (Articles 9 and 3). In the initial application the applicants also raised complaints under Articles 5 § 1, 6 and Article 1 of Protocol No. 1 to the Convention. ICC-01/04-01/07-176-AnxA 01-02-2008 126/196 SL PT OA2
2 AL-NASHIFv BULGARIA JUDGMENT
4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court. 5. A hearing on admissibility and merits (Rule 54 § 4) took place in public in the Human Rights Building, Strasbourg, on 25 January 2001.
There appeared before the Court:
(a) for the Government Mrs G. SAMARAS, Ministry of Justice, Agent,
(b) for the applicants Mr Y. GROZEV, Lawyer, Counsel, Mrs K. YANEVA, Lawyer, Counsel
The Court heard addresses by them. 6. By a decision of 25 January 2001 the Court declared the remainder of the application partly admissible and partly inadmissible. The applicant and the Government each filed observations on the merits (Rule 59 § 1). The parties replied in writing to each other's observations. 7. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1), but this case remained with the Chamber constituted within former Section IV. 8. Subsequently, Mr I. Cabrai Barreto, substitute judge, replaced Mr A. Pastor Ridruejo who was unable to take part in the further consideration of the case.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
9. The first applicant, Mr Daruish Auni Al-Nashif, a stateless person of Palestinian origin, was born in 1967 in Kuwait. He resided in Bulgaria between September 1992 and July 1999, when he was deported. He now lives in Syria. The second and third applicants, Abrar and Auni Al-Nashif, are the first applicant's children. They were born in Bulgaria in 1993 and 1994 respectively. They are of Bulgarian nationality and lived in the town of Smolyan, Bulgaria, with their mother, Mrs Hetam Ahmed Rashid Saleh, ICC-01/04-01/07-176-AnxA 01-02-2008 127/196 SL PT OA2
4 AL-NASHIFv BULGARIA JUDGMENT
16. In February 1995 the first applicant contracted a Muslim religious marriage with a Ms M., a Bulgarian citizen. Under Bulgarian law that marriage has no legal effect. Ms M. lived in Sofia with her mother. During an unspecified period of time Mr Al-Nashif supported them financially. It is undisputed that after the religious marriage with Ms M. the first applicant continued living with Mrs Saleh and their children in Sofia. 17. At the end of 1995 he and Mrs Saleh, together with their children, moved to Smolyan, a town of about 34,000 inhabitants in Southern Bulgaria, some 300 km away from Sofia. There the first applicant ran a butcher's shop and beverages production unit until his deportation in July 1999. Between November 1998 and April 1999 he also taught Islamic classes. 18. At the beginning of 1996 Ms M. followed the first applicant to Smolyan, where she stayed several months in an apartment rented by him. She often joined Mr Al-Nashif during his business trips to towns in Bulgaria. The first applicant stated that while in Smolyan he had continued living "on a permanent basis" with his wife Hetam Saleh and their two children, the second and the third applicants. He submitted copies of two affidavits, made in June 2000 by his wife, Mrs Saleh, and by his sister-in-law, the wife of his brother, who had resided in Bulgaria since 1998, both confirming that Mr Al-Nashif lived in Smolyan with Mrs Saleh. In a statement made on 19 January 2001 at the request of the Government for the purposes of the hearing in the present case, Ms M. stated that the first applicant had lived with her in Smolyan. 19. Ms M. apparently suffered from a mental disturbance. In December 1996 she was hospitalised in a psychiatric clinic. Thereafter she did not return to Smolyan and stayed in Sofia. 20. Throughout 1997 the first applicant visited Ms M. in Sofia. Their relationship ended in early 1998.
B. The revocation of the first applicant's residence permit 21. On 14 January 1999 a police officer in Smolyan reported to his superiors (see paragraph 63 below) on Mr Al-Nashif s religious activities. On an unspecified date in 1999 the Regional Prosecutor's Office (oKptHCHa npOKypaxypa) in Smolyan opened file no. 18/99 which was later transmitted to the police. The local police in Smolyan, by a report of 18 March 1999 to the Identity Papers and Passport Regime Department (HanpaBjieHHe "floicyMeHTH sa caMOJiHHHOCT H nacnopTBH pe>KHM") of the National Police Directorate at the Ministry of the Interior ("the Passport Department"), proposed that the first applicant's residence permit be revoked. ICC-01/04-01/07-176-AnxA 01-02-2008 128/196 SL PT OA2
AL-NASHIF v BULGARIA JUDGMENT 5
22. On 19 April 1999 the Passport Department issued an order ("Order no. 63552") revoking the first applicant's permanent residence permit. The order stated that it was based on Section 40 (1)(2) and Section 10 (1)(1) of the Aliens Act (3aKOH sa Hy^c^eHunre), which provide for the revocation of the residence permit of a foreigner who poses a threat to "the security or the interests of the Bulgarian State" (see paragraph 68 below). No further details were mentioned. The order was transmitted to the Smolyan police with the instruction to inform the first applicant and to allow him 15 days to leave the country. Order no. 63552 was served on the first applicant on 27 April 1999. He was not given any additional information. 23. On 30 April 1999 two national newspapers, Duma and Monitor, published articles explaining that the first applicant did not have permission to teach the Muslim religion, that he had taken part in an unauthorised religious seminar in 1997 and that he was linked to "Muslim Brothers", a fundamentalist organisation. 24. In May and June 1999 the local Muslim religious leader in Smolyan and the Chief Mufti of the Bulgarian Muslims filed with the Ministry of the Interior and with other institutions letters supporting the first applicant. They confirmed that Mr Al-Nashif had been teaching with their authorisation, and in full conformity with Article 21 § 5 of the Statute of the Muslim religious denomination, which in turn had been approved by the Council of Ministers. The Chief Mufti also stated that the police in Smolyan had made defamatory statements to the press, falsely portraying Mr Al-Nashif as a dangerous terrorist connected with a fundamentalist organisation. The local Muslim religious leader in Smolyan stated, inter alia, that the measures against Mr Al-Nashif constituted "a demonstration of, and incitement to, anti-Islamic and xenophobic tendencies". 25. In May 1999 the first applicant requested and obtained a certificate that he had never been convicted of a criminal offence. He needed the certificate in order to apply for Bulgarian citizenship.
C. The first applicant's detention and deportation; subsequent developments
26. On 9 June 1999 the National Police Directorate issued Orders nos. 503 and 504 for the first applicant's deportation, his detention and his exclusion from Bulgarian territory. 27. Order no. 504 provided that the first applicant was to be deported based on Section 42 of the Aliens Act. It was further ordered that, in accordance with Section 44 (4) of the Aliens Act, the first applicant was to be placed at the Adults' Temporary Placement Centre (floM sa BpeMCHHO HacraHHBaHe Ha ntnHoneTHH Jiima) in Sofia. Order no. 504 finally stated that pursuant to Section 47 (1) of the Aliens Act the decision was not ICC-01/04-01/07-176-AnxA 01-02-2008 129/196 SL PT OA2
6 AL-NASHIFv BULGARIA JUDGMENT subject to appeal. Order no. 503 prohibited the first applicant's re-entry on Bulgarian territory. The two orders did not state any reasons. 28. They were served on the first applicant on 10 June 1999 in Smolyan, at the local police station, in the presence of his lawyer. He was not given further details of the reasons underlying the measures against him. He was immediately arrested and transferred to the detention centre in Sofia. 29. On the same day the Ministry of the Interior issued a press release announcing the orders for the first applicant's deportation and exclusion. It stated, inter alia: "In 1995 Mr Al-Nashif undertook steps ... with a view to opening an Islamic religious study centre. That provoked a significant negative public reaction, reflected in the media, and the interference of the .. State organs prevented the realisation of the project.
In 1997 an Islamic study seminar was held in Narechenski Ban! with Mr Al-Nashif s active participation. Those activities of the organisers, including Mr AI Nahsif, were considered unlawful and were therefore terminated by the police. [The organisers and Mr Al-Nashif] were warned that they could not engage in such activities without permission and licence as required by law.
In the end of 1998 and the beginning of 1999 it became known that Mr Al-Nashif was teaching the Koran to ... minors, organised in groups of 10-15 children, with the financial assistance of the company ...[illegible]. An inquiry was undertaken, which disclosed that Mr Al-Nashif engaged in activities for which he had no permission or qualification. Therefore, and under ... the Aliens Act, his residence permit was withdrawn ... Orders for his deportation and exclusion were issued ... [and] served on 10 June 1999 ... Al-Nashif was transferred to the [detention centre] in Sofia and will be deported..." 30. The conditions at the detention centre, which is located in the proximity of the Sofia airport, were equivalent to prison conditions. Inmates were held permanently behind bars and could leave their cells for a daily one-hour walk and also for the time necessary to use the toilet, every morning and evening. 31. Mr Al-Nashif was detained there for 26 days in complete isolation. Despite numerous requests from his lawyer, human rights groups and representatives of the Muslim community, no visitor was allowed to meet him. 32. Following the first applicant's arrest on 10 June 1999 the competent authorities observed that he was not in possession of a document valid for international travel. On 14 June 1999 the Passport Department wrote to the Bulgarian Foreign Ministry requesting its assistance in obtaining of a laissez-passer from the Syrian Embassy in Sofia. The Syrian Embassy issued that document on 28 June 1999. On 1 July 1999 the Passport Department contacted Balkan Bulgarian Airlines. ICC-01/04-01/07-176-AnxA 01-02-2008 130/196 SL PT OA2
AL-NASHIFv BULGARIA JUDGMENT 7
On 4 July 1999 the first applicant was deported from Bulgaria. He was brought to the airport and put on the first available direct flight to Damascus. 33. His wife, Mrs Saleh, and their children initially remained in Bulgaria. In May 2000 the second applicant, who was then seven years' old, completed first grade in the elementary school in Smolyan. The third applicant, who was six years old at that time, attended preparatory school. 34. As Mrs Saleh had no income in Bulgaria and the first applicant was unable to provide financial support from Syria, on 29 June 2000 Mrs Saleh and the second and third applicants left Bulgaria. They went initially to Syria where they stayed for a month with Mr Al-Nashif. As there was allegedly no room for the family there, Mrs Saleh and the children went to Jordan, to the home of Mrs Saleh's parents. Mr Al-Nashif travelled to Jordan on a one-month visa and on 5 September 2000 returned to Syria as he had allegedly no legal right of remaining in Jordan.
D. The attempts of the first applicant to challenge the measures against him
/. Appeal against Order no. 63552 35. On 4 May 1999 counsel for Mr Al-Nashif submitted appeals against Order no. 63552 (the revocation of residence order) to the Supreme Administrative Court (BtpxoBeH aaMHHHCTpaTHBCH ctfl) and to the Ministry of the Interior. 36. The latter appeal was rejected on 1 June 1999 by the National Police Directorate at the Ministry of the Interior. The decision stated that in accordance with Section 47 (1) of the Aliens Act an order concerning a matter of national security was not subject to review. 37. The appeal to the Supreme Administrative Court was transmitted by decision of the court to the Ministry of the Interior with instructions to complete the case-file. Thereafter it was transmitted to the Sofia City Court (Co 8 AL-NASHlFv BULGARIA JUDGMENT 39. On 30 June 1999 the Passport Department filed an objection with the Sofia City Court against its ruling of 28 June 1999 and submitted "certificate" no. 2701/30.6.99 which stated that Mr Al-Nashif "had committed acts against the national security and the interests of the Republic of Bulgaria, consisting in unlawful religious activity on the territory of the country encroaching on the national interests and the rights of the religious, ethnic and minority groups in the conservation of the national and cultural values and traditions". 40. On 1 July 1999 the Sofia City Court, sitting in camera, reversed its ruling of 28 June 1999 and rejected the first applicant's appeal against Order no. 63552. The court noted that the Passport Department had certified that Mr Al-Nashif had committed acts against national security. The court also noted that the Passport Department had classified these acts as falling with the scope of Section 10 (1)(1) of the Aliens Act. It followed that Order no. 63552 concerned issues of national security and was not subject to judicial review. 41. Counsel for the first applicant learned about the rejection of Mr Al-Nashif s appeal on 26 July 1999. On 28 July 1999 she appealed to the Supreme Administrative Court. These proceedings ended by judgment of the Supreme Administrative Court of 4 April 2000, which found that orders issued under Section 40 (1)(2) in conjunction with Section 10 (1)(1) of the Aliens' Act were not subject to appeal and need not be reasoned. They should merely state the legal provision on which they were based. 2. Appeals against detention 42. On 17 June 1999 the first applicant's lawyer appealed to the Sofia City Court against his detention. She relied on Article 5 § 4 of the Convention. On an unspecified date the President of the Sofia City Court ruled that the appeal was inadmissible. 43. On 19 June 1999 counsel for the first applicant complained to the competent prosecution authorities against the detention of Mr Al-Nashif and stated that she had been refused access to her client. On 27 July 1999 the competent prosecution authority dismissed the appeal. It found that the police had acted within their powers. 3. Appeals against Order no. 504 44. On 18 June 1999 counsel for the first applicant appealed to the Sofia City Court against Order no. 504 (the deportation and detention order). Counsel stated, inter alia, that the first applicant's appeal against the revocation of his residence permit (against Order no. 63552) was still pending, that he had never sought to abscond and that he had reported voluntarily to the Smolyan police station when summoned. She again relied on Article 5 § 4 of the Convention and Article 13 of the International ICC-01/04-01/07-176-AnxA 01-02-2008 132/196 SL PT OA2 AL-NASHIFv BULGARIA JUDGMENT 9 Covenant on Civil and Political Rights (1CCPR) and also requested a stay of execution. 45. These proceedings have not resulted in any decision. On 7 September 1999 the Passport Department filed an answer requesting the rejection of the appeal. There has been no hearing in the case. 4. Other appeals 46. On 11 June 1999 the first applicant's lawyer complained to the Ministry of the Interior, the Chief Public Prosecutor (FjiaBen npoKypop) and other institutions. She alleged violations of, inter alia, Article 8 of the Convention and Article 13 of the ICCPR. E. Mr Al-Nashifs religious activities 1. Undisputed facts 47. In August 1997 Mr Al-Nashif took part in a religious seminar in Narechenski Bani. The seminar was attended by several Bulgarian Muslim religious leaders of national and regional level, including the person who in November 1997 was elected to the post of, and then registered by the competent Governmental agency as, Chief Mufti of the Bulgarian Muslims. At a certain point during the seminar the police arrived, and took away printed material and videotapes used at the seminar. No relevant criminal proceedings against any participant at the seminar have ever been brought. 48. In November 1998 the first applicant started teaching religious classes. They took place every Saturday and Sunday between 4 p.m. and 6 p.m. in the building of the District Muslim Organisation in Smolyan, and were attended by Muslim children and occasionally by their parents. The classes were organised together with the board of the Muslim religious community in Smolyan. On 15 September 1998 the board had invited Mr Al-Nashif to teach a course in the Islamic religion to children and their parents. Its decision stated that the first applicant was suitable for the job as he knew the Bulgarian language and had a good reputation. On 5 November 1998 the District Mufti Office (panoHHO MKXJ)THHCTBO) issued to the first applicant a certificate stating that he was authorised to preach on the territory of the Smolyan district in accordance, inter alia, with the Statute of the Muslim religious denomination in Bulgaria and the decisions of the Supreme Muslim Council (Bucm MiociojiMaHCKH ctBCT). The certificate was later confirmed by the Chief Mufti of the Bulgarian Muslims. ICC-01/04-01/07-176-AnxA 01-02-2008 133/196 SL PT OA2 10 AL-NASHIF v. BULGARIA JUDGMENT 2. Allegations of the respondent Government (a) Alleged project for the opening of an Islamic study centre in 1995 49. The Government asserted that shortly after his arrival in Smolyan in 1995 the first applicant, together with local Muslims, had sought to organise an Islamic study centre, that he had rented a house for that purpose, that his plans had provoked a negative public reaction and that after having established through an inquiry that the requirements of the Religious Denominations Act had not been met, the competent authorities had prevented the realisation of the project. There had been allegedly a danger that the Islamic centre would propagate extremist views. Mr Al-Nashif had been orally warned against engaging in unlawful religious activities. 50. In support of the above statement the Government submitted copies of several newspaper articles and four declarations, one of which was signed by 65 inhabitants of Smolyan protesting against the opening of an Islamic centre in town. The Court notes that the names on the list of those who signed the protest suggest that it was supported exclusively by persons of Bulgarian ethnic origin. 51. The Government have not submitted any information pertaining to the alleged inquiry undertaken by the competent authorities or the requirements of the Religious Denominations Act that had not allegedly been met. 52. The first applicant submitted that he had intended to open a computer training centre, but had abandoned his plans after meeting a hostile reaction from people who considered that the computer centre would be a front for religious courses. (b) Alleged aggressive fundamentalist proselytism 53. The Government alleged that the first applicant had sought to impose fundamentalist Islam on others through the use of force and threats. 54. In support of that allegation the Government submitted two statements by Ms M., the person whom the first applicant had married through a Muslim religious ceremony. The first statement was written by her on 2 September 1996. On that day Mr Al-Nashif had locked her up in her room in a hotel where they had been staying during a trip to Pleven. Ms M. had called the police. She and the first applicant had been brought to the police station where they had submitted written statements and had been released. No charges had been brought against Mr Al-Nashif on that occasion. He submitted that he had locked the door as Ms M. had been in a depressed state and could have hurt herself. ICC-01/04-01/07-176-AnxA 01-02-2008 134/196 SL PT OA2 AL-NASHIFv BULGARIA JUDGMENT 11 55. In her statement to the police Ms M. wrote that the first applicant had told her that she should believe in Mohamed or burn in Hell, but she had replied that she loved Jesus Christ. The first applicant had also told her to dress as a Muslim woman. She further stated that she had read in the local press about the threat of fundamentalism in Smolyan. She knew that people with "black briefcases full of 100 dollar notes" were entering Bulgaria with the purpose of spreading Islam, brainwashing Bulgarians and waging "Jihad - death to Christians". She knew that they were using "bombs, guns, sedatives and other inadmissible means in order to smuggle into the country illegal [copies of the] Koran, drugs, and more". 56. The Government submitted a second written statement by Ms M., which was made on 19 January 2001 and addressed to the Court, for the purposes of these proceedings. That statement repeated Ms M.'s earlier allegations and added that the first applicant had operated with large amounts of cash, had given charity for the building of mosques and religious schools and had distributed food and clothes. He had allegedly made video tapes recording the results of his activities and had sent them to his benefactors "in the Islamic states". (c) Alleged links with fundamentalist organisations 57. The Government stated (in submissions to the Court and through the "information note" described below) that Mr Al-Nashif had been a representative of the Islamic foundation Tayba, which had allegedly continued the activities of the "banned" foundations Irshad and Al WakfAl Islami. Further, Mr Al-Nashif had registered several commercial firms in Bulgaria and his partners in these firms had included persons who had been co-ordinators of fundamentalist organisations such as Tayba, Irshad and El-Manar. Finally, there existed information that Mr Al-Nashif had performed management and co-ordination functions in the "illegitimate" Union of Islamic Organisations, Bulgarian branch. The Government did not provide further details about those organisations. 58. The first applicant replied that he had never been a representative for the Tayba foundation which, in any event, as of 2001, was still functioning lawfully in Bulgaria. It had been registered in Bulgaria in 1995. By Decision no. 325 of 7 July 1998 the Council of Ministers had authorised the foundation to engage in religious activities. The Irshad foundation was not a fundamentalist organisation either. It had been registered in Bulgaria in 1991 and as recently as 2001 the competent court had certified that its registration had not been terminated. The former Chief Mufti, whose election to that post had been registered by the Government in 1997, was a member of its managing board. ICC-01/04-01/07-176-AnxA 01-02-2008 135/196 SL PT OA2 12 AL-NASHIF v. BULGARIA JUDGMENT The El-Manar foundation had indeed been dissolved on 15 February 1996 on the ground that its goals were unlawful. However, its representative had not been among the persons named by the Government as Mr Al-Nashif s business partners. The applicants submitted copies of certificates issued by the legal persons' register at the competent court. (d) Alleged fundamentalist activities at the Narechenski Bani seminar 59. The Government stated that the seminar had been organised under the auspices of the Irshad foundation, which was allegedly known as one of the disguised creatures of the Muslim Brothers, a fundamentalist organisation. The police had considered the seminar unlawful and dangerous for national security. The printed and video material that had been confiscated had disclosed preaching of "religious and ethnic extremism". The police had put an end to the seminar. Two of the instructors who had participated had been deported from Bulgaria. Mr Al-Nashif had allegedly been one of the organisers. He and all other participants had received oral warnings. 60. In support of these allegations the Government submitted copies of newspaper articles. 61. The applicants submitted a declaration by the Chief Mufti of the Bulgarian Muslims, dated 1 August 2000, apparently prepared for the purposes of the present case, stating that the only sponsor of the 1997 seminar had been the International Youth Assembly Nedua, registered in Saudi Arabia and in many other countries, including Bulgaria. The Chief Mufti further stated that the seminar had been devoted to traditional religious teaching. The police had gone there, apparently in response to an anonymous call. They had taken away material, part of which they had then returned. As the police had not established any wrongdoing, the seminar had continued after an interruption. (e) Alleged danger stemming from the Islamic lessons given by the first applicant from November 1998 to April 1999 62. The Government stated that against the background of the first applicant's religious activities between 1995 and 1998 the authorities had justifiably feared that the classes given by him to children could be dangerous. 63. In support of this allegation the Government submitted copies of newspaper articles and a copy of a one-page report by a police officer in Smolyan, addressed to his superiors. The report, dated 14 January 1999, stated as follows: "I report hereby that I received the following information through a third person: ICC-01/04-01/07-176-AnxA 01-02-2008 136/196 SL PT OA2 AL-NASHIFv BULGARIA JUDGMENT 13 ...[A] Mr Daruish Auni, Syrian national, preaches to some of the inhabitants in [a] neighbourhood [in Smolyan]. He disseminates Arab literature and offers aid: money, as well as [sacrificial] meat, Kurban. There exist indications that audio cassettes with religious content are being distributed and that people listen to them in their homes." 64. The first applicant categorically denied the allegation that he had offered money or any other incentive to encourage attendance at his religious courses. (0 The "information note" of the National Security Service 65. After the hearing on the admissibility and merits of the case the Government submitted an "information note" issued on 19 January 2001 by the National Security Service, apparently for the purposes of the proceedings in the present case. The note reiterated the allegations submitted by the Government as regards Mr Al-Nashif s religious activities, including Ms M.'s contention that he had been receiving money from abroad "in suitcases full of USD 100 bills". II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Constitution 66. Article 120 provides: "(1) The courts shall review the lawfulness of the administration's acts and decisions. (2) Physical and legal persons shall have the right to appeal against all administrative acts and decisions that affect them, save in the cases expressly specified by Act of Parliament." B. The Administrative Procedure Act 67. This law establishes general rules concerning the delivery of, and appeals against, administrative decisions. According to Sections 33-35 and 37, all administrative decisions are subject to judicial review except, inter alia, those "directly concerning national security and defence". ICC-01/04-01/07-176-AnxA 01-02-2008 137/196 SL PT OA2 14 AL-NASI HF v. BULGARIA JUDGMENT C. The Aliens Act of December 1998 and developments in its application and interpretation 1. The Aliens Act at the relevant time 68. Section 40 (1)(2) in conjunction with Section 10 (1)(1) provides that the Minister of the Interior or other officials authorised by him may revoke a foreigner's residence permit "where by his acts he has endangered the security or the interests of the Bulgarian State or where there exists information that he acts against the security of the country". Section 42 provides that the Minister of the Interior or other officials authorised by him may order a foreigner's deportation where "his presence in the country poses a serious threat to national security or public order". 69. Section 44 (4), insofar as relevant, provides as follows: "Until [his] ... deportation ... the foreigner may be placed in a specialised centre at the discretion of the Minister of the Interior or other officers authorised by him." 70. Section 47 provided, as in force at the relevant time: "(1) Orders issued under Chapter V Part 1 imposing administrative measures which directly concern national security shall not be subject to appeal. (2) These orders shall state only their legal ground." 2. Application and interpretation 11. The Bulgarian courts have differed on the question whether a mere reference to national security in the grounds of an order under the Aliens Act is sufficient to declare an appeal against such an order inadmissible or whether some proof that national security is indeed at stake should be required (see paragraphs 38-41 above and the Supreme Administrative Court's judgment of 26 July 2000 in case 5155-1-2000). 72. In December 2000 Parliament adopted a law on interpretation of Section 47 of the Aliens Act, clarifying that a court examining the admissibility of an appeal against an administrative decision citing as a legal basis Section 10 (1)(1) of the Aliens Act ("directly related to national security") should automatically declare the appeal inadmissible without collecting evidence. A motion by 56 members of Parliament and by judges of the Supreme Administrative Court to declare that interpretative law, insofar as relevant here, unconstitutional was rejected by the Constitutional Court on 29 May 2001 on formal grounds. ICC-01/04-01/07-176-AnxA 01-02-2008 138/196 SL PT OA2 AL-NASHIFv BULGARIA JUDGMENT 15 3. The Constitutional Court's judgment of 23 February 2001 73. On 23 February 2001 the Constitutional Court delivered its judgment in a case brought by 55 members of Parliament who considered that Section 47(1) of the Aliens Act should be repealed as being unconstitutional and in contravention of the Convention. 74. The Constitutional Court could not reach a majority, an equal number of judges having voted in favour of the application and against it. According to the Constitutional Court's practice, in such a situation the request for a legal provision to be struck down is considered as dismissed by default. 75. The judges who found that Section 47 (1) was not unconstitutional and did not contravene the Convention considered that the Constitution authorised Parliament to exclude the right to seek judicial review of certain categories of administrative decision provided that a constitutionally guaranteed legitimate aim overrode the interests of the protection of fundamental rights and freedoms. National security was such a legitimate aim. Its protection had priority over the protection of individual rights and freedoms. Section 47 (1) of the Aliens Act took account of the fact that confidential information was at stake in deportation decisions based on national security. The wishes of a foreigner who had imperilled the security or the interests of the Bulgarian State could not prevail over national security considerations. Furthermore, there existed a possibility of filing an administrative appeal to the Minister of the Interior or to the Council of Ministers, which was a sufficient remedy. As to the Convention, its provisions permitted restrictions on human rights on grounds of national security and did not enshrine a right to a judicial appeal against deportation decisions. 76. The judges who held that Section 47 (1) was unconstitutional considered that the principle of proportionality inherent in the Constitution required that limitations on constitutional rights could not go beyond what was strictly necessary for the achievement of the legitimate aim pursued and that regard should be had to the fundamental importance of the right to judicial remedies enshrined in Article 120 of the Constitution. Depriving aliens of any possibility of obtaining judicial review of a deportation decision was disproportionate. The interests of national security were sufficiently protected as the administration could order immediate execution of a deportation order notwithstanding a pending application for judicial review. Furthermore, it was not true that an administrative appeal was possible. 77. This second group of judges also considered that the impugned provision was incompatible with the Convention as interpreted in the case- law of the European Court of Human Rights. ICC-01/04-01/07-176-AnxA 01-02-2008 139/196 SL PT OA2 16 AL-NASHIFv BULGARIA JUDGMENT The unavailability of judicial review could lead to violations of Article 3 of the Convention if an alien was deported to a country where he or she risked inhuman treatment. The judges further stated, inter alia: "The Aliens Act allows the confinement [of an alien pending deportation] at the discretion of the Ministry of the Interior, without limitation in time ... Neither that Act nor any other law provides for any possibility of review ... [However,] the Convention, in its Article 5 § 4, requires a remedy ... Deportation ... may constitute an interference with family life [under Article 8 of the Convention] Therefore, an assessment must be made as to whether such a measure is necessary in a democratic society in the interests of national security ... National security is one of the values of a democratic society, as much as fundamental rights and freedoms are. A domestic legal provision would be contrary to the Convention if there were no guarantees against administrative abuse and arbitrariness. These guarantees must be provided for by law. The balance between fundamental rights and the public interest must be assessed in every case by a court or another body independent from the executive." 4. The amendments to the Aliens Act of April 2001 78. In April 2001 the Aliens Act was amended. The possibility of filing an administrative appeal to the Minister of the Interior was introduced (Section 46, as amended). A new Section 44 a stated that an alien should not be expelled to a country where his life, liberty or physical integrity were endangered. The rule providing that decisions citing national security as grounds need not state any reasons and are not amenable to judicial review remains in force (Section 46 (2) and (3)). The law does not require any consideration of the question whether a deportation decision would interfere with the alien's right to family life and, if so, whether a fair balance has been struck between the public interest and the rights of the individual concerned. D. The Religious Denominations Act of 1949 and the Statute of the Muslim Religious Denomination in Bulgaria 79. Sections 6 and 30 of the Religious Denominations Act provide, inter alia, that the statute and rules of a religious denomination shall be submitted for approval to the Council of Ministers or to one of the Deputy Prime Ministers. Where they contain provisions which are contrary to the law, public order, or morals, the Council of Ministers may require their amendment, or refuse to approve them. 80. Section 30 also provides that the statute and rules of the religious denomination must regulate all matters related to its finances and internal self-regulation, insofar as these matters are not regulated by the Religious ICC-01/04-01/07-176-AnxA 01-02-2008 140/196 SL PT OA2 AL-NASIIIFv BULGARIA JUDGMENT 17 Denominations Act. The Religious Denominations Act does not contain provisions regulating religious classes, except for Section 14 which concerns the opening of high schools and institutions of higher education for the training of religious ministers. 81. The Statute of the Muslim religious organisation in Bulgaria, in force at the relevant time, was adopted at a national conference of the Muslim believers held on 23 October 1997. On 28 October 1997 it was approved by a Deputy Prime Minister. 82. Sections 13 and 21 of the Statute provide for local Muslim boards (HacTOflxejicTBa) and District Muslim Councils (paftoHHH MiociojiMaHCKH C^BCTH) who are competent, inter alia, to organise classes for the study of the Koran. E. The Framework National Security Concept 83. The Government relied in their submissions on the Framework National Security Concept, a declaration adopted by Parliament in April 1998. They referred to the passages in which national security was defined so as to include the following: "... protection of the fundamental rights and freedoms of Bulgarian citizens, defence of the national borders, territorial integrity and independence, ... and the democratic functioning of public and private institutions so as to ensure that society and the nation shall preserve and enhance their well-being." The Framework Concept further pointed to the possible threats to national security and stated, inter alia: "Economic and social differences in Europe have deepened and new insecurity and risks have thus appeared. Conflicts on an ethnic, religious and social basis have emerged ... Religious and ethnic communities, some of which are in conflict, co-exist in south-eastern Europe. Since the creation of new States certain communities have displayed a tendency towards insularity. That has sharply increased the regional threats to our national security.... Religious and ethnic extremism influences local communities that lack strong democratic traditions.. " THE LAW I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS 84. The Government objected that domestic remedies had not been exhausted as no appeal had been submitted against Order no. 503, the second and third applicants had not instituted any proceedings and the first applicant had not raised before the domestic courts the grievances ICC-01/04-01/07-176-AnxA 01-02-2008 141/196 SL PT OA2 18 AL-NASHIFv BULGARIA JUDGMENT concerning his family life or religious freedoms except in an appeal of 21 June 1999 which, however, had been addressed to a court that did not have jurisdiction to deal with it. 85. The applicants described as groundless the Government's objection in respect of the exhaustion of domestic remedies and referred to their complaints under Article 13 of the Convention. 86. The Court observes that the first applicant and his counsel filed numerous appeals to the courts and to other competent authorities. However, since the impugned measures invoked national security as their basis, none of the appeals was examined (see paragraphs 35-46 above). The Government have not explained why they considered that the applicants would have had a better chance of obtaining an examination of their case by filing yet another appeal on behalf of all three of them, by challenging Order no. 503 or by adding emphasis on their family life and religious rights in the text of their submissions. It follows that the objection under Article 35 § 1 of the Convention must fail. 87. Further, in their observations on the merits, the Government raised a new objection alleging that there had been abuse on the part of the applicants as they had not informed the Court promptly of the fact that Mrs Saleh and her children had left Bulgaria on 29 June 2000. 88. Mr Grozev, the applicants' lawyer, explained that although he had been made aware as early as the spring of 2000 of Mrs Saleh's financial difficulties in Smolyan and her tentative idea of leaving Bulgaria, he had not discussed the matter with the first applicant, who had been in Syria. The lawyer had hoped to do so in Strasbourg before the hearing. The French consulate in Damascus had not, however, examined Mr Al-Nashifs application for a visa. At the hearing, not being certain about the exact facts, the lawyer had preferred to clarify them and only then inform the Court. He had done so immediately after the hearing, on his own initiative. 89. The Court, while it considers that an application deliberately grounded on a description of facts omitting events of central importance may in principle constitute an abuse of the right of petition within the meaning of Article 35 § 3 of the Convention, does not find it established that such a situation obtained in the present case, regard being had to the stage of the proceedings, to the fact that the information allegedly withheld only concerned new developments after the deportation complained of and to the explanation by the applicants' lawyer. The Government's objections are therefore dismissed. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 90. The first applicant complained under Article 5 § 4 of the Convention that Bulgarian law did not provide for judicial review against his detention and that he was detained incommunicado and could not see a lawyer. ICC-01/04-01/07-176-AnxA 01-02-2008 142/196 SL PT OA2 AL-NASHIF v. BULGARIA JUDGMENT 19 Article 5 § 4 provides: "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful." 91. The Government submitted that detention pending deportation was intended to be so short that no judicial review would normally be called for and that the Bulgarian authorities had not been responsible for the fact that Mr Al-Nashif could not be deported immediately after his arrest. 92. The Court reiterates that everyone who is deprived of his liberty is entitled to a review of the lawfulness of his detention by a court, regardless of the length of confinement. The Convention requirement that an act of deprivation of liberty be amenable to independent judicial scrutiny is of fundamental importance in the context of the underlying purpose of Article 5 of the Convention to provide safeguards against arbitrariness. What is at stake is both the protection of the physical liberty of individuals as well as their personal security. The person concerned should have access to a court and the opportunity to be heard either in person or through some form of representation (see the De Wilde, Ooms and Versyp v. Belgium judgment of 18 June 1971, Series A no. 12, §§ 73-76, the Winterwerp v. the Netherlands judgment of 24 October 1979, Series A no. 33, §§ 60 and 61, the Kurt v. Turkey judgment of 25 May 1998, Reports of Judgments and Decisions 1998-III, § 123, and Varbanov v. Bulgaria, no. 31365/96, ECHR 2000-X, § 58). 93. In the present case it is undisputed that in Bulgarian law no judicial appeal lies against detention pending deportation in cases where the deportation order is issued on grounds of national security (see paragraphs 67-70, 77 and 78 above). As a result, the first applicant's attempts to obtain judicial review of the lawfulness of his detention were to no avail (see paragraphs 42-45 above). 94. In accordance with the relevant law and practice, the decision whether a deportation and detention order should invoke national security - with the automatic consequence of excluding any judicial review of lawfulness - is fully within the discretion of the Ministry of the Interior. No court is empowered to enquire into the lawfulness of the detention. The detention order itself, as in the present case, states no reasons (see paragraphs 68-72 above). Moreover, Mr Al-Nashif was detained practically incommunicado and was not allowed to meet a lawyer to discuss any possible legal challenge to the measures against him. That is a situation incompatible with Article 5 § 4 of the Convention and its underlying rationale, the protection of individuals against arbitrariness. National authorities cannot do away with effective control of lawfulness of detention by the domestic courts whenever they choose to assert that national security and terrorism are involved (see the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V). ICC-01/04-01/07-176-AnxA 01-02-2008 143/196 SL PT OA2 20 AL-NASHIFv BULGARIA JUDGMENT 95. In the Chahal case, the Court found that even if confidential material concerning national security was used the authorities were not free from effective judicial control of detentions. The Court attached significance to the information that in other countries there were techniques which could be employed which both accommodated legitimate security concerns about the nature and sources of intelligence information and yet accorded the individual a substantial measure of procedural justice. 96. In later cases (see for example Jasper v. the United Kingdom, no. 27052/95, unpublished) the Court noted that following the Chahal judgment and the judgment in the case of Tinnelly v. the United Kingdom (10 July 1998, Reports 1998-IV) the United Kingdom had introduced legislation making provision for the appointment of a "special counsel" in certain cases involving national security (Special Immigration Appeals Commission Act 1997, and the Northern Ireland Act 1998). 97. Without expressing in the present context an opinion on the conformity of the above system with the Convention, the Court notes that, as in the case of Chahal cited above, there are means which can be employed which both accommodate legitimate national security concerns and yet accord the individual a substantial measure of procedural justice. 98. In the present case, however, Mr Al-Nashif was not provided with elementary safeguards and did not enjoy the protection required by Article 5 § 4 of the Convention in cases of deprivation of liberty. There has therefore been a violation of Article 5 § 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 99. All three applicants complained that there had been an arbitrary interference with their right to respect for their family life contrary to Article 8 of the Convention which provides: "1. Everyone has the right to respect for his .. family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." ICC-01/04-01/07-176-AnxA 01-02-2008 144/196 SL PT OA2 22 AL-NASHIFv BULGARIA JUDGMENT deportation economic and legal obstacles had prevented the establishment of a new family home in Syria or in Jordan. International organisations and governments had reported that the human rights situation in Syria was intolerable in particular for foreigners and stateless persons. 104. The applicants alleged that the interference with their family life had been based on legal provisions that lacked the clarity and foreseeability required by the concept of lawfulness as enshrined in the Convention and through arbitrary orders that had not stated any reasons. The Aliens Act authorised the Ministry of the Interior to deport persons who had never been convicted, or at least investigated, on the basis of orders issued without examination of evidence, without possibility of adversarial proceedings, and without giving reasons, while at the same time issuing press releases labelling the individual "a threat to national security". 105. The interference was furthermore disproportionate and unjustified. There was no need to deport the first applicant as he had never committed an offence. Mr Al-Nashif had never engaged in any unlawful or dangerous activity. His religious teaching had by no means posed a threat. Furthermore, the authorities' decisions were flawed as a matter of principle as they had never assessed the balance which needed to be drawn between the aims pursued by the deportation and the applicants' right to respect for their family life, including - as important factors - the interests of the children, the second and the third applicants, and the fact that the first applicant was a stateless person. The applicants finally reiterated that the interference with their family life had caused them serious hardship. 2. The Government a) The disputed facts 106. The Government made a number of allegations concerning the first applicant's religious activities and submitted as evidence statements of Ms M., an Information Note issued by the National Security Service, cuttings from newspaper articles and other documents (see paragraphs 49-65 above). They did not comment on the applicants' objections as to the reliability ofthat evidence. b) Legal arguments 107. The Government considered that there was no family life within the meaning of Article 8 of the Convention between the first applicant and Mrs Saleh and their children as Mr Al-Nashif had not proven that he had been legally married to Mrs Saleh and had often been away from the family home as he had contracted a second marriage. Those facts were allegedly ICC-01/04-01/07-176-AnxA 01-02-2008 145/196 SL PT OA2 AL-NASHIFv BULGARIA JUDGMENT 23 indicative of the lack of an emotional or family link between Mr Al-Nashif and his children. 108. In any event there had been no interference with the applicants' family life. Mr Al-Nashif and Mrs Saleh did not have strong links with Bulgaria where they had arrived as adults and had only spent seven years. Mrs Saleh had not worked in Bulgaria, her contacts had been limited exclusively to persons of Arab origin and she had not made efforts to integrate. The children, the second and the third applicants, were of a young and adaptable age. Despite their Bulgarian citizenship it was obvious that their legal status would be affected by the status of their parents as they were in their parents' custody. Furthermore, the fact that Mrs Saleh and the children had left Bulgaria in June 2000 confirmed that they did not feel attached to Bulgaria. In the Government's submission there was no evidence of any obstacles against the family living in Syria or Jordan. The applicants' allegation that a return to Kuwait was impossible was not proved either. 109. Alternatively, the Government submitted that if the Court considered that there had been an interference any such interference had been lawful and justified. 110. The deportation order had been issued in accordance with the relevant law and had pursued the aim of protecting national security. Although the law itself did not contain a definition of that term, the Framework National Security Concept adopted by Parliament in 1998 (see paragraph 83 above) clarified it. Moreover, Mr Al-Nashif had been warned against continuing his religious activities after his participation in the 1997 seminar and on other occasions. On the basis of the above the Government considered that the law was sufficiently clear and that Mr Al-Nashif had been able to understand the possible consequences of his acts. 111. In the Government's submission the interference was furthermore proportionate to the legitimate aim pursued. They stressed that an important aspect of the present case was the regional context in the Balkans where measures of active protection of religious tolerance were critical. In Bulgaria, in particular, owing to a number of factors - such as disruptions in community traditions caused by decades of totalitarianism - the religious consciousness of the population was currently unstable and unsettled. Communities in general, and the Muslim community in particular, were therefore susceptible to influences. It was necessary to protect them against Islamic fundamentalism. Against that background the authorities had been justified in classifying Mr Al-Nashif s acts as "unlawful religious activity ... encroaching on the national interests and the rights of the religious, ethnic and minority groups ICC-01/04-01/07-176-AnxA 01-02-2008 146/196 SL PT OA2 24 AL-NASHIFv BULGARIA JUDGMENT in the conservation of the national and cultural values and traditions" (see paragraph 39 above). B. The Court's assessment I. Whether there was "family life " within the meaning of Article 8 of the Convention 112. The existence or non-existence of "family life" is essentially a question of fact depending upon the reality in practice of close personal ties (see K. and T. v. Finland [GC], no. 25702/94, ECHR 2001-VII, § 150). Nevertheless, it follows from the concept of family on which Article 8 is based that a child born of a marital union is ipso jure part of that relationship; hence, from the moment of the child's birth and by the very fact of it, there exists between him and his parents a bond amounting to "family life" which subsequent events cannot break save in exceptional circumstances (see the Berrehab v. the Netherlands judgment of 21 June 1988, Series A no. 138, p. 14, § 21, the Hokkanen v. Finland judgment of 23 September 1994, Series A no. 299-A, p. 19, § 54, the Gül v. Switzerland judgment of 19 February 1996, Reports 1996, § 32, and Ciliz v. the Netherlands, no. 29192/95, §§ 59 and 60, ECHR 2000-VIII). Insofar as relations in a couple are concerned, "family life" encompasses families based on marriage and also de facto relationships. When deciding whether a relationship can be said to amount to "family life", a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means (see the Kroon and Others v. the Netherlands judgment of 27 October 1994, Series A no. 297-C, pp. 55-56, § 30, and the X, Y and Zv. the United Kingdom judgment of 22 April 1997, Reports 1997-11, §36). 113. In the present case, in 1992 Mr Al-Nashif and Mrs Saleh came together to Bulgaria from Kuwait as a married couple and have apparently been regarded as such for all purposes. Two children were born to them in 1993 and 1994. Although Mr Al-Nashif contracted a religious marriage with another woman, Ms M., that marriage had no legal effect in Bulgaria. Further, there is no decisive evidence supporting the Government's allegation that Ms M. and the first applicant lived together in Smolyan. In any event, Ms M. stayed in that town less than a year. Mr Al-Nashif continued living in Smolyan with his wife, Mrs Saleh, and their two children until the moment of his arrest in 1999 (see paragraphs 11 and 14-20 above). ICC-01/04-01/07-176-AnxA 01-02-2008 147/196 SL PT OA2 AL-NASHIFv BULGARIA JUDGMENT 25 There were therefore no exceptional circumstances capable of destroying the family link between the first applicant and his children, the second and the third applicants. Further, Mr Al-Nashif and Mrs Saleh did not separate. 2. Whether there was an interference with the applicants'family life 114. The Court observes that no right of an alien to enter or to reside in a particular country is as such guaranteed by the Convention. As a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory (see, among other authorities, Boultif v. Switzerland, no. 54273/00, ECHR 2001-IX, § 39). Where immigration is concerned, Article 8 cannot be considered to impose on a State a general obligation to respect the choice by married couples of the country of their matrimonial residence and to authorise family reunion in its territory (see the above cited Gül judgment, § 38). However, the removal of a person from a country where close members of his family are living may amount to an infringement of the right to respect for family life as guaranteed in Article 8 § 1 of the Convention (see, the above cited Boultif judgment). 115. In the present case it is undisputed that the first applicant was a stateless person and that he and his wife, Mrs Saleh, who apparently was also a stateless person, were lawfully resident in Bulgaria on the strength of permanent residence permits. The couple had moved to Bulgaria in 1992, soon after their marriage, and had lawfully established their home there. Their children, the second and the third applicants, were born in Bulgaria, acquired Bulgarian nationality, and started school there. Therefore, the deportation of Mr Al-Nashif in 1999 interfered with the applicants' family life. 116. Such an interference will infringe the Convention if it does not meet the requirements of paragraph 2 of Article 8. It is therefore necessary to determine whether it was "in accordance with the law", motivated by one or more of the legitimate aims set out in that paragraph, and "necessary in a democratic society". 3 Whether the interference was "in accordance with the law " 117. It was undisputed - and the Court accepts - that Orders nos. 503 and 504 had a basis in the relevant domestic law. 118. The applicants alleged, however, that the applicable law lacked the clarity and foreseeability required by the concept of lawfulness as enshrined in the Convention, since it authorised the Ministry of the Interior to deport persons who had never been convicted or investigated on the basis of orders issued without examination of evidence, without the possibility of adversarial proceedings, and without giving reasons. ICC-01/04-01/07-176-AnxA 01-02-2008 148/196 SL PT OA2 26 AL-NASHIFv BULGARIA JUDGMENT 119. The Court reiterates that the phrase "in accordance with the law" implies that the legal basis must be "accessible" and "foreseeable". A rule's effects are "foreseeable" if it is formulated with sufficient precision to enable any individual - if need be with appropriate advice - to regulate his conduct. In addition, there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by the Convention. It would be contrary to the rule of law for the legal discretion granted to the executive in areas affecting fundamental rights to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference (see Amann v. Switzerland [GC], no. 27798/95, ECHR 2000-11, §§ 55 and 56, Rotaru v. Romania [GC], no. 28341/95, ECHR 2000-V, §§ 55-63, Hasan and Chaush v. Bulgaria [GC], no. 30985/96, ECHR 2000-XI, and the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28). 120. The Government's position was that although the Aliens Act did not circumscribe the cases in which a person might be considered a threat to national security so as to warrant his deportation, the term "national security" was clarified in the Framework National Security Concept (see paragraph 83 above). 121. The Court reiterates that as regards the quality of law criterion, what is required by way of safeguards will depend, to some extent at least, on the nature and extent of the interference in question (see P.O. andJ.H. v. the United Kingdom, no. 44787/98, ECHR 2001-IX, § 46). It considers that the requirement of "foreseeability" of the law does not go so far as to compel States to enact legal provisions listing in detail all conduct that may prompt a decision to deport an individual on national security grounds. By the nature of things, threats to national security may vary in character and may be unanticipated or difficult to define in advance. 122. There must, however, be safeguards to ensure that the discretion left to the executive is exercised in accordance with the law and without abuse. 123. Even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require that measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information (see the judgments cited in paragraph 119 above). ICC-01/04-01/07-176-AnxA 01-02-2008 149/196 SL PT OA2 AL-NASHIF v. BULGARIA JUDGMENT 27 124. The individual must be able to challenge the executive's assertion that national security is at stake. While the executive's assessment of what poses a threat to national security will naturally be of significant weight, the independent authority must be able to react in cases where invoking that concept has no reasonable basis in the facts or reveals an interpretation of "national security" that is unlawful or contrary to common sense and arbitrary. Failing such safeguards, the police or other State authorities would be able to encroach arbitrarily on rights protected by the Convention. 125. In the present case the initial proposal to deport Mr Al-Nashif was made by the police and a prosecutor in Smolyan (see paragraph 21 above). It is true that the prosecution authorities in Bulgaria are separate and structurally independent from the executive. However, the Government have not submitted information of any independent inquiry having been conducted. The prosecutor did not act in accordance with any established procedure and merely transmitted the file to the police. The decision- making authority was the Director of the Passport Department of the Ministry of the Interior (see paragraph 22 above). 126. Furthermore, the decision to deport Mr Al-Nashif was taken without disclosing any reasons to the applicants, to their lawyer or to any independent body competent to examine the matter. Under Bulgarian law the Ministry of the Interior was empowered to issue deportation orders interfering with fundamental human rights without following any form of adversarial procedure, without giving any reasons and without any possibility for appeal to an independent authority. 127. It is highly significant that the above legal regime was the object of challenges in Bulgaria and that the judiciary was divided. The Sofia City Court and the Supreme Administrative Court in some cases refused to accept blank assertions by the executive in unreasoned decisions under the Aliens Act. Some members of Parliament and judges of the Supreme Administrative Court considered that the existing legal regime was unconstitutional (see paragraphs 38, 71 and 72 above). The Constitutional Court, when examining a challenge to the above legal regime, could not reach a majority, half of the judges holding that the unavailability in Bulgarian law of judicial review of deportations in cases where the Ministry of the Interior relied on "national security" was contrary to the Constitution and to the Convention, as such a legal regime left unfettered discretion to the executive and opened the door to possible abuse (see paragraphs 73-77 above). 128. This Court finds that Mr Al-Nashif s deportation was ordered pursuant to a legal regime that does not provide the necessary safeguards against arbitrariness. ICC-01/04-01/07-176-AnxA 01-02-2008 150/196 SL PT OA2 AL-NASHIF v. BULGARIA JUDGMENT 29 133. Quite apart from the general procedural guarantees which Article 1 of Protocol No. 7 to the Convention - not in force in respect of Bulgaria at the relevant time - provides in all cases of expulsion of aliens, where there is an arguable claim that such an expulsion may infringe the foreigner's right to respect for family life, Article 13 in conjunction with Article 8 of the Convention requires that States must make available to the individual concerned the effective possibility of challenging the deportation or refusal-of-residence order and of having the relevant issues examined with sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality (no. 13718/89, Commission's decision of 15 July 1988, unreported, no. 22406/93, Commission's decision of 10 September 1993, unreported, no. 27794/95, Commission's decision of 14. October 1996, unreported, and Shebashov v. Latvia (dec.), 9 November 2000, no. 50065/99, unreported). 134. There is no doubt that the applicants' complaint that the deportation of Mr Al-Nashif infringed their right to respect for their family life was arguable. They were entitled, therefore, to an effective complaints procedure in Bulgarian law. 135. It is undisputed, however, that all appeals filed by the first applicant were rejected without examination on the basis of the Aliens Act, which - as construed by the Ministry of the Interior and the Bulgarian courts in the applicants' case and, later, in an interpretative Act of Parliament (see paragraphs 70, 72 and 78 above) - provides that deportation decisions citing "national security" as their ground need not state reasons and are not subject to appeal. Where an appeal against such an order is submitted to a court, it is not entitled to enquire whether genuine national security concerns are at stake and must reject it. In the applicants' case the same approach was adopted by the Ministry of the Interior, to which Mr Al-Nashif appealed (see paragraph 36 above). 136. It is true that the scope of the obligation under Article 13 varies according to the nature of the applicant's complaint under the Convention (see the above cited Kudla judgment, § 157). Where national security considerations are involved certain limitations on the type of remedies available to the individual may be justified. As regards secret surveillance and the use of secret information for screening job candidates who would have access to sensitive information, Article 13 requires a remedy "as effective as it can be", having regard to the fact that it is inherent in any system of secret surveillance or secret checks that there would be a restricted scope for recourse (see the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, § 69, and the above cited Leander judgment, § 78). Nevertheless, the remedy required by Article 13 must be effective in practice as well as in law. In particular, in the Klass and Leander cases, the applicants had ICC-01/04-01/07-176-AnxA 01-02-2008 151/196 SL PT OA2 30 AL-NASHIFv BULGARIA JUDGMENT possibilities of recourse with certain procedural guarantees and independent review. In the case of Amann v. Switzerland ([GC], no. 27798/95, ECHR 2000-11) the applicant could appeal to a court. In those cases no violation of Article 13 of the Convention was found. No appeal was available to the applicant in Rotaru v. Romania ([GC], no. 28341/95, ECHR 2000-V) - a case that also concerned the storage and use of secret information - and the Court found a violation of Article 13 of the Convention (see also Hewitt and Harman v. the United Kingdom, no. 12175/86, Commission report of 9 May 1989). 137. The Court considers that in cases of the expulsion of aliens on grounds of national security - as here - reconciling the interest of preserving sensitive information with the individual's right to an effective remedy is obviously less difficult than in the above-mentioned cases where the system of secret surveillance or secret checks could only function if the individual remained unaware of the measures affecting him. While procedural restrictions may be necessary to ensure that no leakage detrimental to national security would occur and while any independent authority dealing with an appeal against a deportation decision may need to afford a wide margin of appreciation to the executive in matters of national security, that can by no means justify doing away with remedies altogether whenever the executive has chosen to invoke the term "national security"' (see the above cited Chahal judgment and paragraph 96 above on possible ways of reconciling the relevant interests involved). Even where an allegation of a threat to national security is made, the guarantee of an effective remedy requires as a minimum that the competent independent appeals authority must be informed of the reasons grounding the deportation decision, even if such reasons are not publicly available. The authority must be competent to reject the executive's assertion that there is a threat to national security where it finds it arbitrary or unreasonable. There must be some form of adversarial proceedings, if need be through a special representative after a security clearance. Furthermore, the question whether the impugned measure would interfere with the individual's right to respect for family life and, if so, whether a fair balance is struck between the public interest involved and the individual's rights must be examined. 138. As no remedy affording such guarantees of effectiveness was available to the applicants, the Court finds that there has been a violation of Article 13 of the Convention. V. ALLEGED VIOLATIONS OF ARTICLE 9 AND OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 9 OF THE CONVENTION 139. The first applicant complained that his deportation had been a reaction to and a punishment for his lawful religious activities and had therefore constituted an unjustified interference with his rights under ICC-01/04-01/07-176-AnxA 01-02-2008 152/196 SL PT OA2 AL-NASHIF v. BULGARIA JUDGMENT 31 Article 9 of the Convention. He also complained that in violation of Article 13 in conjunction with Article 9, he had not had an effective remedy in that regard. Article 9 provides: "1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others." 140. The first applicant submitted that his teaching and all his religious activity had been lawful and had never involved any endorsement of violence or extremist views. The allegation that he endangered national security had been absurd and arbitrary. In reality the authorities had sought to put an end to his religious activities. The aim of the deportation, as admitted by the Government, had been precisely to prevent the first applicant from practising his religion in Bulgaria. There had therefore been an interference with his Article 9 rights. Referring to his arguments under Article 8 of the Convention (see paragraphs 104 and 105 above), the first applicant maintained that that interference had been unlawful and not necessary in a democratic society. 141. The Government stated that there had been no interference with the first applicant's right to teach religion. His deportation had not been a reaction against his religious classes - which had been lawful - but had been based on the assessment that his religious activities had constituted a thread to national security. Furthermore, Mr Al-Nashif had voluntarily abandoned teaching after service of the deportation order and would not be able to restart as new instructions issued by the Chief Mufti Office after his deportation prohibited religious instruction by persons lacking appropriate religious education. The Government further stated that religious freedoms in Bulgaria were guaranteed and that the authorities strictly adhered to the principle of non-intervention in the internal affairs of religious communities and regularly allowed visits by foreigners coming to teach religion. 142. Having found that Mr Al-Nashif s deportation constituted a violation of the right of all the applicants to respect for their family life within the meaning of Article 8 of the Convention and that they did not have an effective remedy in that regard contrary to Article 13 of the Convention, the Court considers that it is not necessary to determine whether the same events contravened Article 9 of the Convention taken alone and in conjunction with Article 13. ICC-01/04-01/07-176-AnxA 01-02-2008 153/196 SL PT OA2 32 AL-NASHIFv BULGARIA JUDGMENT VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 143. Article 41 of the Convention provides: "If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party." A. Damage 144. The applicants claimed 60,000 euros ("EUR") in non-pecuniary damages for the distress they suffered as a result of the violations of their Convention rights. The applicants stressed that their family life had been disrupted and Mr Al-Nashif s religious freedoms infringed despite the fact that he had never done anything unlawful. All three applicants had as a result been deprived of normal family life and lived in uncertainty, being unable to find a new common family home. The suffering had been aggravated by the media campaign organised by the authorities. 145. The applicants also stated that they had suffered pecuniary losses as Mr Al-Nashif had had to sell his business in Smolyan and could not find a job in Syria. While assessing the losses at EUR 22,000, the applicants did not claim pecuniary damages, acknowledging that they were unable to provide documentary proof. They asked the Court instead to take their losses into account when determining the amount of non-pecuniary damages. 146. The Government considered these amounts excessive and stated that the economic situation in Bulgaria should be taken into account. 147. The applicants replied that even if the economic situation might need to be taken into account to ensure that applicants in different countries did not receive disproportionately different real values, a reliable criterion, such as a comparative study of the prices of goods and services, and not the minimum monthly wage, should be used. Even so, while common goods were certainly cheaper in Bulgaria than in West European countries, other goods, such as electronic appliances and cars, were more expensive owing to the small size of the market. If it accepted the approach proposed by the Government, the Court might find itself in the awkward position of having to tell victims of violations what to buy with the compensation awarded. The Government's reasoning was further flawed in the particular case as the applicants were now living outside Bulgaria, although they wished to return there. 148. The Court considers that the applicants must have suffered non- pecuniary damage as a result of the violations of the first applicant's rights under Article 5 § 4 of the Convention and the violations of the rights of all ICC-01/04-01/07-176-AnxA 01-02-2008 154/196 SL PT OA2 AL-NASHIFv BULGARIA JUDGMENT 33 three applicants under Articles 8 and 13 of the Convention. Ruling on an equitable basis, the Court awards EUR 7,000 to the first applicant and EUR 5,000 to each of the remaining two applicants (a total of EUR 17,000). B. Costs and expenses 149. The applicants claimed 5,845 US dollars ("USD") for 118 hours of legal work on the proceedings before the Court, at the hourly rate of USD 40, and for 45 hours of work with the domestic institutions, at the hourly rate of USD 25. The applicants submitted a time sheet and an agreement between them and their lawyers and referred to a publication which reported that the leading business law firms in Bulgaria charged between USD 80 and 190 per hour. They also claimed USD 792 airfare for their attorneys Mr Grozev and Mrs Yaneva and 2,650 French francs for hotel bills, local travel and per diem for their appearance at the hearing before the Court. The total amount claimed by the applicants for costs and expenses is the equivalent of approximately EUR 7,750. 150. The Government considered that contingency fee agreements were immoral and that lawyers should provide free legal aid to indigent clients. They submitted that the hourly rates claimed were exorbitant in view of the low minimum wage in Bulgaria. The Government further contested the number of hours allegedly spent by the lawyers on the domestic and Strasbourg proceedings. In particular, Mrs Yaneva could not claim that she had spent ten hours on seven visits to the detention centre at Sofia airport as she had never met Mr Al-Nashif. Further, Mrs Yaneva had not indicated the dates of her purported five visits to the Smolyan Regional Court. Also, seven hours' work for the preparation of appeals to five different bodies had not been required as the text had been identical. 151. The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, 25 March n99, §79). The fact that Mrs Yaneva was unable to meet Mr Al-Nashif at the detention centre - where he spent 26 days in complete isolation - was an aspect of the violation of Article 5 § 4 found in the present case. Her visits to the detention centre, apparently in an effort to obtain a meeting with her client, obviously constituted costs necessarily incurred in the defence of his Convention rights. The Court rejects the Government's submission that the number of hours claimed exceeded the legal work which was actually done and which needed to be done for the representation of the applicants. ICC-01/04-01/07-176-AnxA 01-02-2008 155/196 SL PT OA2 34 AL-NASHIFv BULGARIA JUDGMENT It also finds that the hourly rates of USD 40 and USD 25 were not excessive. 152. A certain reduction must be applied, however, in view of the fact that part of the initial application was declared inadmissible. Converting the sum claimed into euros, and making an overall assessment, the Court awards the applicants EUR 6,500 in respect of costs and expenses. C. Default interest 153. According to the information available to the Court, the statutory rate of interest in Bulgaria applicable to claims expressed in foreign convertible currency at the date of adoption of the present judgment is 13.65% per annum. FOR THESE REASONS, THE COURT 1. Dismisses unanimously the Government's preliminary objections; 2. Holds unanimously that there has been a violation of Article 5 § 4 of the Convention; 3. Holds by four votes to three that there has been a violation of Article 8 of the Convention; 4. Holds by four votes to three that there has been a violation of Article 13 of the Convention; 5. Holds unanimously that it is not necessary to examine the complaints under Article 9 of the Convention taken alone and in conjunction with Article 13; 6. Holds by four votes to three (a) that the respondent State is to pay, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, together with any value added tax that may be chargeable: (i) EUR 7,000 (seven thousand euros) to the first applicant and EUR 5,000 (five thousand euros) to each of the other two applicants in respect of non-pecuniary damage; (ii) EUR 6,500 (six thousand five hundred euros) in respect of costs and expenses, jointly to the three applicants; ICC-01/04-01/07-176-AnxA 01-02-2008 156/196 SL PT OA2 AL-NASHIFv BULGARIA JUDGMENT 35 (b) that both sums are to be converted into the national currency of the respondent State at the rate applicable at the date of settlement; (c) that simple interest at an annual rate of 13.65 % shall be payable from the expiry of the above-mentioned three months until settlement; 7. Dismisses unanimously the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 20 June 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BERGER Georg RESS Registrar President In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint partly dissenting opinion of Mr Makarczyk, Mr Butkevych and Mrs Botoucharova is annexed to this judgment. G.R. V.B. ICC-01/04-01/07-176-AnxA 01-02-2008 157/196 SL PT OA2 36 AL-NASHIFv BULGARIA JUDGMENT JOINT PARTLY DISSENTING OPINION OF JUDGES MAKARCZYK, BUTKEVYCH AND BOTOUCHAROVA 1. We voted against the finding of a violation of Article 8 in the present case. 2. The majority considered that Mr Al-Nashif s deportation was ordered pursuant to a legal regime that did not provide the necessary safeguards against arbitrariness and concluded that the interference with the applicants' family life was not, therefore, based on legal provisions that met the Convention requirement of lawfulness. 3. While the authorities must be criticised for the fact that there were insufficient procedural safeguards in the decision-making process, that was only one aspect - among others - of the question whether the interference with the applicants' family life was proportionate to the legitimate aim pursued by that interference. The Court has on many occasions held that the quality of the decision-making process is a matter going to the question of proportionality (see, mutatis mutandis, T.P. and K.M. v. the United Kingdom, [GC], no. 28945/95, ECHR 2001-V, § 72, and Chapman v. the United Kingdom [GC], no. 27238/95, ECHR 2001-1, § 92). 4. If that approach was adopted, it would become obvious that in the present case despite any procedural deficiencies the principle of proportionality was not infringed. 5. As the majority rightly stated, Article 8 of the Convention cannot be considered to impose on a State a general obligation to respect the choice by married couples of the country of their matrimonial residence and to authorise family reunion in its territory (see paragraph 114 of the judgment). 6. Mr Al-Nashif and Mrs Saleh arrived in Bulgaria as adults, after having married in their home country, and had spent less than seven years in Bulgaria at the time of the impugned deportation. The fact that their children born during that period acquired Bulgarian citizenship should not be seen as an important factor in the proportionality analysis as they are very young, naturally must follow their parents, and apparently speak Arabic. Mrs Saleh left Bulgaria with the children in June 2000, a year after the deportation of her husband, and settled in Jordan, where she has close relatives. Mr Al-Nashif himself has close relatives in Syria, has a Syrian stateless person's identity document and, when entering Bulgaria in 1992, declared Syria as his country of residence. On the basis of the above it can hardly be considered that the family had sufficiently strong links with Bulgaria. It is obvious that the applicants can lawfully establish their family home in Syria or elsewhere. ICC-01/04-01/07-176-AnxA 01-02-2008 158/196 SL PT OA2 AL-NASHIF v BULGARIA - JOINT PARTLY DISSENTING OPINION 37 7. We are of the opinion that, having regard to all relevant factors, the deportation of Mr Al-Nashif from Bulgaria was not disproportionate in the particular circumstances. There was no violation of Article 8 of the Convention. As the complaint under that provision was not arguable, Article 13 did not apply. 8. Consequently, as to just satisfaction, since the only violation of the Convention we found was that of the first applicant's rights under Article 5 § 4, we would award him 2,000 euros and dismiss the remainder of the claim. ICC-01/04-01/07-176-AnxA 01-02-2008 159/196 SL PT OA2 97 F.Supp.2d 1329 United States District Court, S.D. Florida. Mazen Al NAJJAR, Petitioner, v. Janet RENO, Attorney General, United States Department of Justice; Doris Meissner, Commissioner Immigration and Naturalization Service; Paul Schmidt, Chairman, Board of Immigration Appeals; Robert Wallis, District Director, Miami District of the INS; and S. Kent Dodd, Warden, Manatee County Downtown Facility, Respondents. No. 99-3458-CIV. May 31, 2000. Deportable alien filed petition for habeas corpus and complaint for declaratory and injunctive relief, challenging his continued detention without bond pending deportation proceedings. The District Court, Lenard. J., held that: (1) court had jurisdiction over petition; (2) alien's procedural due process rights were violated in bond redetermination proceedings by ex parte presentation and reliance on classified information; and (3) an alien's mere "association" with a known terrorist organization, is not reasonable grounds to conclude that he is a threat to national security and that he should therefore continue to be detained during the pendency of deportation proceedings. Petition granted in part; remanded. West Headnotes HI KevCite Notes '"" - 197 Habeas Corpus .. 197II Grounds for Relief; Illegality of Restraint . 197II(C) Relief Affecting Particular Persons or Proceedings - -197k521 k. Aliens. Most Cited Cases Bond redetermination decision made pending final determination of alien's deportability did not constitute a "final order of deportation," and therefore neither Immigration and Nationality Act, Anti-Terrorism and Effective Death Penalty Act (AEDPA), nor Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) deprived district court of jurisdiction over habeas corpus petition challenging bond redetermination decision pending resolution of deportation proceedings prior to April 1, 1997. 28 U.S.C.A. 5 2241: Immigration and Nationality Act, § 242(a), as amended, 8 U.S.C.A. S 1252fa). F21 KevCite Notes L-" ,- 197 Habeas Corpus - 197II Grounds for Relief; Illegality of Restraint . 197IKC) Relief Affecting Particular Persons or Proceedings - 197k521 k. Aliens. Most Cited Cases Alien Terrorist Removal Court (ATRC) procedures were inapplicable to alien's habeas petition challenging his continued detention pending deportation where alien conceded his deportability at his deportation hearing prior to enactment of Anti-Terrorism and Effective Death Penalty Act (AEDPA); such a concession constituted "clear and convincing evidence" of alien's deportability and therefore rendered his status as a "deportable" alien undisputed. Immigration and Nationality Act, § 504, as amended, 8 U.S.C.A. 5 1534. http //international.\vestlav\.com/find/default.\vl?spa=inthague- 000&rs=WLlN8.01&fn= top&sv=Split&findiuns=00001&cite=97r+suppl2d&utid=%7bl60ABH67-8A96-4305- 91B6-3374A619CK21%7d&vr=20&rp=%2tTind%2fdefaultwl&mt=InternationalLaw Page 1 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 160/196 SL PT OA2 F31 KevCite Notes *-" <.- 24 Aliens, Immigration, and Citizenship ,,- 24V Denial of Admission and Removal ,- -24V(A) In General i- -24k212 Constitutional and Statutory Provisions .- -24k216 k. Retroactive Operation. Most Cited Cases (Formerly 24k40) A case is "pending" on the effective date of Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), and thus subject to its provisions, if the alien is not yet subject to a "final order of deportation." Immigration and Nationality Act, § 101, as amended, 8 U.S.C.A. 5 1101. [41 KevCite Notes ,- -24 Aliens, Immigration, and Citizenship ..- 24V Denial of Admission and Removal , 24V(A) In General .- 24k212 Constitutional and Statutory Provisions .- 24k216 k. Retroactive Operation. Most Cited Cases (Formerly 24k40) Alien was not subject to a final order of deportation until October, 1999, the date on which the Board of Immigration Appeals (BIA) upheld Immigration Judge's deportation order; accordingly, alien was "in proceedings" on effective date of Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), and his case was therefore governed by the general rule that IIRIRA's amendments were inapplicable to him. Immigration and Nationality Act, § 101, as amended, 8 U.S.C.A. 5 1101. F51 KevCite Notes ^ - 24 Aliens, Immigration, and Citizenship ,- 24VI Arrest, Detention, Supervision, and Parole , 24VI(D) Detention, Supervision, and Parole . 24k470 k. Bond or Bail. Most Cited Cases (Formerly 24k54(3.1)) Standard by which the court determines whether Immigration Judge's conduct in connection with bond redetermination hearing pending final determination of deportation proceeding was within statutory authority is distinct from the standard for determining whether that conduct was within constitutional authority. TGI KevCite Notes *-" ,- -24 Aliens, Immigration, and Citizenship .-'241 Aliens in General .- -24kl01 k. Power to Regulate in General. Most Cited Cases (Formerly 24k39) Constitution grants the legislative and executive branches of the federal government broad concurrent authority over immigration matters. U.S.C.A. Const. Art. 1. S 8, cl. ) http'//international westlaw com/find/default.\vl' s>pa=inthague- 000&rs=WLlN8.01&fn=jop&sv=Split&findiuris=00001&cite=97f+suppl.2d&utid=%7bl60ABL67-8A96-4305- 91B6-3374A619CF21 %7d&vr=2 0&rp=%2mnd%2fdefault.wl&mt=InternationalLaw Page 2 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 161/196 SL PT OA2 4. \7\ KevCite Notes *-" t- -24 Aliens, Immigration, and Citizenship .-•241 Aliens in General .- -24kl01 k. Power to Regulate in General. Most Cited Cases (Formerly 24k39) In addition to Congressionally delegated authority, the Executive's plenary authority over foreign relations also provides a source of power for the Executive to act in immigration matters, Immigration and Nationality Act, § 103(a)(l), as amended, 8 U.S.C.A. S 1103fa)m. f81 KevCite Notes L"g 24 Aliens, Immigration, and Citizenship .- 24VI Arrest. Detention, Supervision, and Parole - 24VI(E) Judicial Review or Intervention i- =24k485 k. In General. Most Cited Cases (Formerly 24k54.3(3)) Because release from detention during the pendency of deportation proceedings is a determination within the discretion of the Attorney General, that decision can only be overridden where it is clearly shown that it was without a reasonable foundation, and alien bears a heavy burden to establish that the Attorney General has abused her discretion. f91 KevCite Notes '"" 92 Constitutional Law ,- 92X First Amendment in General ,- 92X(B) Particular Issues and Applications .- -92kll70 k. In General. Most Cited Cases (Formerly 92k82(6.1)) i- 92 Constitutional Law KevCite Notes -- 92XXVII Due Process .- 92XXVII(G) Particular Issues and Applications .- -92XXVIIfG)20 Aliens, Immigration, and Citizenship .- -92k4439 k. Arrest, Detention, Supervision, and Parole. Most Cited Cases (Formerly 92k274.3) First Amendment and the Due Process Clause of the Fifth Amendment place limits on the statutory authority of the Executive to detain an alien during the pendency of deportation proceedings. U.S.C.A. Const. Amends. 1, 5. £10] KevCite Notes . -24 Aliens, Immigration, and Citizenship *.- 2411 Status, Rights, Privileges, Duties, and Disabilities http://international westlaw.com/find/default. wl?spa=mthague- 000&rs=WLlN8.01&fn=Jop&sv=Snlit&findiuns=00001&cite=97r+suppl2d&utid=%7hl60ABF.67-8A96-4305- 91B6-3374A619CF21%7d&vr=20&rp=%2ftind%2fdefault\vl&mt-InternationalLaw Page 3 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 162/196 SL PT OA2 ,- 92XXVII Due Process ,- 92XXVIKB) Protections Provided and Deprivations Prohibited in General .---92k3868 Rights, Interests, Benefits, or Privileges Involved in General - 92k3873 k. Liberties and Liberty Interests. Most Cited Cases (Formerly 92k254.1) ,- -92 Constitutional Law KeyCite Notes .-92XXVII Due Process L- 92XXVIKB) Protections Provided and Deprivations Prohibited in General ,- 92k3868 Rights, Interests, Benefits, or Privileges Involved in General , 92k3874 Property Rights and Interests - 92k3874(3) k. Benefits, Rights, and Interests In. Most Cited Cases (Formerly 92k277(l)) In addition to the "life, liberty, or property" language of the Fifth Amendment, constitutionally protected liberty or property interests may have their source in positive rules of law, enacted by the state or federal government and creating a substantive entitlement to a particular government benefit. U.5.C.A. Const.Amend. 5. ri51 KevCite Notes ^ . 92 Constitutional Law .,- 92XXVII Due Process .- -92XXVma Persons and Entities Protected - 92k3921 k. Non-Citizens; Aliens. Most Cited Cases (Formerly 92k274.3) A constitutionally protected liberty interest will not exist in an immigration context where Attorney General's discretion is "unfettered" or "an act of grace." U.S.C.A. Const.Amend. 5. ri61 KevCite Notes ^ .- -92 Constitutional Law >- 92XXVII Due Process ,- -92XXVIKC) Persons and Entities Protected .- -92k3921 k. Non-Citizens; Aliens. Most Cited Cases (Formerly 92k274.3) Where a statute or regulation circumscribes the Attorney General's discretion in an immigration context, a right protected by the Due Process Clause may arise. U.S.C.A. Const.Amend. 5. F171 KevCite Notes *-" ..- -92 Constitutional Law .--92XXVII Due Process ,---92XXVII(G) Particular Issues and Applications ; 92XXYIKGJ2Q Aliens, Immigration, and Citizenship -• -92k4439 k. Arrest, Detention, Supervision, and Parole. Most Cited Cases (Formerly 92k274.3) blip //international \\estla\v com/find/det'ault.\vT>spa=inthague- 000&rs=WLlN8.01&fn= top&sv=Split&findiuris=00001&cite=97f+suppl 2d&utid=%7bl60ARE67-8A96-430S- 91B6-3374A619CF21%7d&vi=20&rp=%2ffind%2fdefault.wl&mt=InternationalLaw Page 5 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 163/196 SL PT OA2 Deportable alien was entitled to procedural due process m his bond redetermination proceeding pending deportation proceedings. U.S.C.A. Const.Amend. 5. ri81 KevCite Notes ^ .--24 Aliens, Immigration, and Citizenship .---24VI Arrest. Detention, Supervision, and Parole .- -24VI(D) Detention, Supervision, and Parole - 24k470 k. Bond or Bail. Most Cited Cases (Formerly 24k54(3.1)) ....92 Constitutional Law KevCite Notes .---92XXVII Due Process >- 92XXVIKG) Particular Issues and Applications .., -92XXVII(G)20 Aliens, Immigration, and Citizenship ..- -92k4439 k. Arrest, Detention, Supervision, and Parole. Most Cited Cases (Formerly 92k274.3) Deportable alien's procedural due process rights were violated in bond redetermination proceedings by ex parte presentation and reliance on classified information; alien was deprived of his rights to notice of the evidence presented in opposition to his release from detention, an opportunity to confront and rebut that evidence, and a fundamentally fair hearing of his application for redetermination of his custody status. U.S.C.A. Const.Amend. 5. ri91 KevCite Notes ^ .- -24 Aliens, Immigration, and Citizenship ,.-;24VI Arrest, Detention, Supervision, and Parole .- 24VKE) Judicial Review or Intervention .- 24k485 k. In General. Most Cited Cases (Formerly 24k54.3(6)) Appropriate remedy for deprivation of alien's procedural due process rights to fundamentally fair bond redetermination proceeding was to afford alien the opportunity for his application to be considered by Immigration Judge in a fundamentally fair manner on remand. U.S.C.A. Const.Amend. 5. 201 KevCite Notes --24 Aliens, Immigration, and Citizenship - 24VI Arrest, Detention, Supervision, and Parole , -24VKD) Detention, Supervision, and Parole , 24k464 Detention Pending Removal Proceeding ,- 24k465 k. In General. Most Cited Cases (Formerly 24k53.9) Deportable alien's mere "association" with a known terrorist organization, is not reasonable grounds to conclude that he is a threat to national security and that he should therefore continue to be detained during the pendency of deportation proceedings. Immigration and Nationality Act, § 241(a)(6)(C), as amended, 8 U.S.C.(1988 Ed.1 6 1251(aV6KC). httpV/mtcrnational \vcstlav\.com/find/det'ault.ul9spa=inthague- 000&rs=WLIN80l&rn=_top&sv=Split&findiuns=00001&cite=97f+suppl2d&utid=%7bl60ABE67-8A96-4305- 91B6-3374A619Cr21%7d&vt=20&rp==%2ftind%2fdefaultwl&mt=IntemationalLaw Page 6 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 164/196 SL PT OA2 *1332 David Cole, Washington, DC, Martin B. Schwartz, Tampa, FL, Joseph C. Hohenstem. Philadelphia, PA, Nancy Chang. New York City, Andrew H. Kavton. Miami, FL, for petitioner. Michael Lindemann. Ethan Kanter, U.S. Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, Dexter Lee, U.S. Attorney's Office, Miami, FL, for respondents. ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS, DENYING MOTION TO DISMISS, DENYING MOTION TO STRIKE AND CLOSING THIS CASE LENARD. District Judge. THIS CAUSE is before the Court on the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. S 2241, filed December 22, 1999, and Respondents' Answer and Motion to Dismiss the Petition, filed February 1, 2000. The parties appeared before the Court for oral argument on April 18, 2000. Having reviewed the Petition, the Government's Answer and Motion, and the public record in this case,^1 having heard the oral arguments of the parties, and having been otherwise advised in the premises, for the reasons set forth below, the Court denies the Motion to Dismiss and grants the Petition to the extent that: (1) the bond redetermination decisions of the Immigration Judge, dated June 23, 1997, and of the Bureau of Immigration Affairs, dated September 15, 1998, are vacated; and (2) this matter is remanded to the Immigration and Naturalization Service for further proceedings consistent with this Order. FN1. This Court has not reviewed the classified evidence submitted by Respondents. I. Factual Background Petitioner Mäzen AI Najjar is a forty-three year-old Palestinian native of Gaza. He holds an expired Palestinian travel document issued by the Egyptian government. He first entered the United States in 1981 as a non-immigrant graduate student and began studying at North Carolina Agricultural and Technical State University in Greensboro, North Carolina, from which he received a Master's Degree in Industrial Engineering in 1984. He last entered the United States on December 8, 1984, with authorization to remain for the duration of the period of his non-immigrant graduate student status. A. April 1985 Order to Show Cause Petitioner's former spouse, Jan Fairbetter, filed a petition for adjustment of status on his behalf with the Immigration and Naturalization Service ("INS"). ( See Resp. Answer and Motion to Dismiss ("Resp.Answer") Ex. 2 at 3.) ^ That petition was denied, and on April 19, 1985, the INS issued an order to show cause alleging that Petitioner was deportable pursuant to section 241(a)(9) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. S 1251(3^9^ for failure to maintain and comply with the non-immigrant status under which he had been admitted. With the order to show cause, the INS provided: (1) notice to Petitioner that a hearing on his deportability would be held before an IJ *1333 on June 4, 1986; and (2) a warrant for his arrest. On June 4, 1986, Petitioner failed to appear at the hearing, and the Immigration Judge ("IJ") administratively closed Petitioner's case. Petitioner maintains that he did not appear at the hearing because he did not receive notice of the scheduled hearing until June 6, 1986, and that on June 18, 1986 he filed a request to re-open the proceedings, to which the INS did not respond. FN2. The date of filing of this petition is not clear from the record. httpt//international.wcstlavv.com/find/del'ault.\vl?spa=inthague- 000&rs=WUN80l&fn= top&sv=Split&findiuns=00001&cite=97f+suppl 2d&utid^%7bl60ABE67-8A96-4305- 91R6-3374A619CF21 %7d&vr=2 0&rp=%2fTind%2fdefault \vl&mt=lnternationall.a\v Page 7 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 165/196 SL PT OA2 FN3. As the BIA noted, subsequent to the issuance of the order to show cause against Petitioner, this provision was redesignated as INA § 241(a)(l)(C), 8 U.S.C. S 1251(aVlKC). ( See Petition Ex. H. at 1.) On June 21, 1993, World and Islam Studies Enterprise ("WISE"), an organization affiliated with the University of South Florida, submitted to the INS an "Immigrant Petition for Alien Worker" requesting a change of Petitioner's status as an alien worker. ( See Resp. Answer Ex. 2 at 1.) This petition stated that, as Chief Executive Officer of WISE, Petitioner "[o]versees and directs all research, publishing and educational activities of the institution [and] [d]irects all fund-raising and financial aspects of the non-profit corporation," for which he received an annual salary of $ 32,400.00. ( Id. at 2.) In 1993, the INS granted this petition and reclassified Petitioner as a "member of professions with advanced degree or of exceptional ability," pursuant to 8 C.F.R. § 203(b)(2) (1992). ( Id. at 1.) B. February 1996 Deportation Hearing The INS eventually re-calendared Petitioner's case for a deportation hearing on February 8, 1996. At this hearing, Petitioner conceded his deportability on the ground that he had overstayed his non-immigrant student visa in violation of INA § 241(a)(9) and sought discretionary relief from deportation, including suspension of deportation, asylum and withholding of removal. On May 13, 1997, IJ J. Daniel Dowell issued a written decision and order, (the "IJ's Deportation Decision") (Petition Ex. C), finding Petitioner deportable as charged and denying his applications for discretionary relief. At the time, Petitioner maintained that he was stateless, declined to designate a country of deportation, and did not request voluntary departure. The IJ therefore designated United Arab Emirates as Petitioner's country of deportation. Petitioner filed an appeal of the IJ's Deportation Decision with the Board of Immigration Appeals ("BIA"). C. Petitioner Is Taken into INS Custody. On May 19, 1997, pending the appeal to the BIA, the INS District Director took Petitioner into custody and detained him without bond. Petitioner requested a redetermination of his custody status pursuant to 8 C.F.R. § 242.2(d) (1995). On May 28, 1997, the INS served Petitioner with a notice of its intent to present classified information in an in camera proceeding in support of its custody determination. ( See Petition Ex. E at 1.) On May 29, 1997, IJ R. Kevin McHugh held a bond redetermination hearing at which Petitioner presented several witnesses and evidence of his employment history and strong community and family ties. Federal Bureau of Investigations Special Agent West also testified at the hearing that Petitioner was a member of WISE, an organization known to support the Palestinian Islamic Jihad ("PIJ"), fM and that there was an on-going multi-agency investigation into Petitioner's involvement in visa fraud, voter fraud, support to known terrorist organizations, and a sham marriage. On the same day, the IJ held an ex parte in camera hearing to receive classified information from the INS regarding Petitioner's connection with the PIJ. Neither Petitioner nor his counsel were present at this hearing and no record of the in camera proceeding was made. On June 2, 1997, the IJ provided Petitioner with an unclassified summary of the classified information, which stated: "This Court was provided with information as to *1334 the association of [Petitioner] with the Palestinian Islamic Jihad." ( See Petition Ex. F at 1.) FN4. It is undisputed that the PIJ is a "foreign terrorist organization" which the Secretary of State has found "engages in terrorist activity" that "threatens the security of United States national or the national security of the United States." See Designation of Foreign Terrorist Organizations. 62 Fed.Reg. 52,650 (1997). 64 Fed.Rea. 55.112 (19991. On June 6, 1997, the IJ re-opened the public portion of the bond redetermination hearing, and Petitioner presented witnesses in rebuttal to the unclassified summary of httpV/international westla\v com/find/det'ault.\vr?spa=inthaeue- 000&rs=WLlN801&fn=_top&sv=Split&findiuris=00001&cite=97f+supnl2d&utid^%7bl60AnR67-8A96-4305- 91B6-3374A619CF2l%7d&vr=2.0&rp=%2ffind%2fdefault\vl&mt=lnternationall.aw Page 8 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 166/196 SL PT OA2 the classified information. Dr. Louis Cantori testified that he was an advisory editor of a journal for which Petitioner was the managing editor and that he (Dr. Cantori) had attended two conferences sponsored by WISE. Dr. Cantori further testified that he would be "shocked" if he learned that Petitioner was associated with the PIJ. Former United States Attorney General Ramsey Clark also testified on Petitioner's behalf. Based on his experience as Attorney General from 1960 to 1969, Clark expressed concerns about the reliability of classified information and stated that corroboration of such evidence was often difficult. On June 23, 1997, IJ McHugh issued a memorandum decision (the "IJ's Bond Redetermination Decision") (Petition Ex. A), in which he found that Petitioner did not have a history of non-appearance at court proceedings, and that Petitioner was "a well respected man, socially, religiously, and professionally [with] strong community and family ties." ( Id. at 6.) The IJ further found that the classified information was pertinent and reliable on the issue of Petitioner's threat to national security. Based on this classified information, the IJ found that Petitioner was a threat to national security, "[specifically, because of his association with the Palestinian Islamic Jihad terrorist organization." ( Id.} Accordingly, the IJ held that Petitioner would continue to be detained without bond. D. Petitioner Appeals IJ's Bond Redetermination Decision to BIA. Petitioner appealed this decision to the BIA, on the grounds that: (a) the introduction of classified evidence in an ex parte in camera proceeding was not expressly authorized by the INA or regulations; (b) the IJ's reliance on the classified evidence deprived him of his liberty without due process of law in violation of the Fifth Amendment; and (c) the IJ's reliance on the classified evidence in finding him a threat to national security violated his First Amendment right to freedom of association. ( See Petition Ex. B at 4-5.) The INS argued that the IJ's ex parte in camera consideration of the classified evidence was within the IJ's discretion, that the bond proceedings complied with due process, and that the evidence supported the IJ's determination that Petitioner presented a threat to the national security. Addressing the fundamental fairness of the bond proceedings in its September 15, 1998 Decision (the "BIA Bond Redetermination Decision") (Petition Ex. B), the BIA found that "in view of the government's compelling need to shield important, classified national security information bearing on this matter, the Immigration Judge's examination of the ex parte evidence in camera was proper and constitutionally sound," and that the IJ had conducted the bond proceedings in a "fundamentally fair manner." ( Id. at 7, 13.) After examining the classified evidence itself, the BIA further concluded that the record reflected that Petitioner was "associated" with the PIJ and that his release from custody "would pose a threat to both: (1) the national security of this country ... and (2) the safety of other persons or property...." ( Id. at 13.) Therefore, the BIA affirmed the IJ's decision denying Petitioner's request for release on bond. ( Id.) m5 FN5. The BIA declined to address Petitioner's First Amendment challenge to his detention on the grounds that it lacked jurisdiction to consider a purely constitutional claim. ( See BIA Bond Redetermination Decision, at 7.) E. BIA Upholds Deportation Order. On October 26, 1999, a separate panel of the BIA upheld the IJ's Deportation Decision,*1335 (the "BIA's Deportation Decision") ( see Petition Ex. H at 4), thus rendering Petitioner subject to a "final order of deportation." See 8 U.S.C.A. S 1101(a)(47)(B)(i) (providing that order of deportation becomes final on a determination by the BIA affirming such order).fm Petitioner thereafter filed with the Court of Appeals for the Eleventh Circuit a petition for review of the final order of deportation. — To date, that petition remains pending. http //international wesllaw cum/find/clefault \vl9spa=inthague- 000&rs=WL1N801&fn=Jop&sv=Split&findjuris=00001&cite=97F+suppl.2d&utid=%7bl60ABH67-8A96-4305- 91B6-3374A619CF21%7d&vi=20&rp=%2ffind%2fdcfaultvvl&inl=InlernationalLaw Page 9 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 167/196 SL PT OA2 FN6. The BIA noted that it did not consider any classified information in deciding Petitioner's appeal of the IJ's Deportation Decision. ( See Petition Ex. H at 1.) FN7. The petition for review of the final order of deportation is proceeding as Case No. 99-14807-CC (llth Cir.1999). II. Procedural History On December 22, 1999, Petitioner filed the instant Verified Petition for Habeas Corpus and Complaint for Declaratory and Injunctive Relief (the "Petition"), seeking immediate release pending the outcome of the deportation proceedings. Petitioner challenges his detention without bond on statutory and constitutional grounds. Petitioner's statutory arguments are that: (1) the INA precludes his detention based on evidence which he has not had an opportunity to examine or confront; and (2) the INA does not authorize his continued detention based on evidence of his "association" with the PIJ, which is insufficient to establish that he is a threat to national security. On constitutional grounds, Petitioner argues that his detention based on classified information deprived him of his rights under the Due Process Clause of the Fifth Amendment, insofar as: (1) he was denied notice and a meaningful opportunity to defend himself; (2) he was denied meaningful appellate review due to the IJ's failure to maintain a record of the in camera hearing; and (3) the IJ's reliance on hearsay was fundamentally unfair. Petitioner also argues that his detention based on classified evidence of his political association violates his rights under the First Amendment. On January 31, 2000, Respondents filed an Answer and Motion to Dismiss the Petition. Respondents argue that the Fifth Circuit's decision in United States ex rel. Barbour v. District Director, 491 F.2d 573 (5th Cir.1974), cert, denied, 419 U.S. 873. 95 S.Ct. 135. 42 L.Ed.2d 113 (1974^. controls this case.^ Barbour held that it was within the discretion of the Attorney General to consider classified evidence ex parte and in camera in denying release on bond to an alien pending resolution of his deportation proceedings. Id. at 578. As to Petitioner's Due Process claims, Respondents contend that Petitioner lacks a protected liberty interest in release from detention on bond, and that, even assuming the existence of such an interest, he has received due process under the circumstances of this case. Finally, Respondents assert that the denial of discretionary relief, such as release from detention during the pendency of deportation proceedings, to a deportable alien does not violate the First Amendment. FN8. Cases decided by Fifth Circuit prior to close of business on September 30, 1981 are binding precedent on the courts of the Eleventh Circuit. See Bonner v. City of Prichard. 661 F.2d 1206 (llth Cir.1981). Thereafter, Petitioner submitted an Opposition to the Motion to Dismiss and Reply in Support of his Petition, and Respondents filed a Reply in further support of their Motion to Dismiss. On April 18, 2000, the parties appeared before the Court for oral argument on the legal issues set forth in the Petition. Contemporaneous with their Answer, Respondents filed a Notice of Classified Submission, notifying Petitioner that they had provided this Court with the classified information that the IJ and BIA had reviewed in the bond redetermination. Respondents argue that Barbour, in which both the district court and the court of *1336 appeals reviewed the classified evidence, provides "the guideline" for reviewing bond redetermination decisions in the Eleventh Circuit and authorizes, but does not require, this Court to review the classified submission. At oral argument, however, Respondents suggested that the Court, without reviewing the classified information, may sustain the BIA's decision upon a conclusion that the record evidence provides a facially legitimate and bona fide reason for denying Petitioner's release on bond. http://international westlaw com/find/det'ault.wl?spa=inthague- 000&rs=WLlN8.01&fn= top&sv-Split&rindiuris=OQ001&citc=97f+suppl.2J&utid=%7bl60ABL67-8A96-43()5- 91B6-3374A619CF21%7d&vr=20&rp=%2nind%2fdefault^l&mt=InternationalLa\v Page 10 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 168/196 SL PT OA2 Petitioner argues against the Court's review of the classified information and suggests that the Court should review the submission only upon a determination that the Court is "unable to rule in [Petitioner's] favor without looking" at the classified information. The Court has considered the parties' positions, and has concluded that Barbour authorizes the Court to review the classified information, although it does not mandate such review. See Barbour, 491 F.2d at 576. Insofar as the Court has been able to determine the legal issues in this matter without reviewing the submission and is remanding the matter to the INS for further proceedings, the Court finds review of the classified information unnecessary and, accordingly, has not reviewed the classified information submitted by Respondents. III. Jurisdiction [1] The INA was enacted by Congress to govern the immigration and naturalization of aliens. See H.R.Rep. No. 82-1365. reprinted in 1952 U.S.C.C.A.N. 1653 (1952). Since the INS commenced deportation proceedings against Petitioner, Congress has twice amended the INA. After examining the INA and its amendments, the Court must determine: (1) which statute governs this case based on both the date that Petitioner's deportation proceedings commenced and the date on which his bond redetermination hearing occurred; and accordingly, (2) whether this Court has jurisdiction over the Petition notwithstanding the amendments to the INA. Based on its review of the factual and procedural history in this case and the effective dates of the amendments to the INA, the Court finds the INA, as it existed prior to the amendments confers jurisdiction on this Court to hear the Petition. A. INA The INA provided for judicial review of orders of deportation and exclusion as follows: (a) Exclusiveness of procedure The procedure prescribed by, and all the provisions of chapter 158 of Title 28 shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation heretofore or hereafter made against aliens within the United States pursuant to administrative proceedings under section 1252(b) of this title or comparable provisions of any prior Act, except that- *** (10) Habeas corpus any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings. INA § 106a, 8 U.S.C.A. 5 1105a(a) (West 1994). The Supreme Court interpreted this provision to vest exclusive jurisdiction in the federal courts of appeals to hear challenges to all determinations made by an immigration judge during and incident to a deportation hearing and reviewable by the BIA. See Foti v. I.N.S., 375 U.S. 217, 229. 84 S.Ct. 306. 11 L.Ed.2d 281 (1963}. As the Supreme Court and the Eleventh Circuit have recognized, however, the INA did not commit to the exclusive jurisdiction of the court of appeals all challenges to actions of the INS. See Cheng Fan Kwok v. I.N.S.. 392 U.S. 206. 216. 88 S.Ct. 1970. 20 L.Ed.2d 1037 (19681 (holding that "judicial review provisions of § 106(a) embrace *1337 only those determinations made during a proceeding conducted under § 242(b)"); Jean v. Nelson, 727 F.2d F.2d 957, 980 (llth Cir.1984), aff'd, 472 U.S. 846. 105 S.Ct. 2992. 86 L.Ed.2d 664 (19851 htip://international vvestlaw com/find/dcfault.wr?spa=mthague- 000&rs=WUN8 01&fn= top&sv=Split&findiuns=00001 &cite=97f+5uppl 2d&utid=%7b 160ABE67-8A96-4305- 91D6-3374A619CF21%7d&vi^2.0&rp=%2ffind%2fderault.wl&mt=InternationalLa\v Page 11 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 169/196 SL PT OA2 (holding that INA § 106(a) did not preclude district court jurisdiction over constitutional challenges to actions of INS not involving determination of merits of individual deportation proceedings). Therefore, under the INA, an alien could challenge conduct of the INS other than "final orders of deportation" through a petition for habeas corpus pursuant to 28 U.S.C.A. S 2241 (West 1994). See Orozco v. United States, 911 F.2d 539. 540 filth Cir.19901 (holding that alien may challenge immigration proceedings other than "final orders of deportation" in habeas corpus petition). Section 2241 provides the federal courts, including the district courts, with the authority to grant a writ of habeas corpus to a person, inter alia: "(1) in custody under or by color of the authority of the United States ...; (3) in custody in violation of the Constitution or laws or treaties of the United States...." 28 U.S.C.A. 5 2241(c)(l. 3). Therefore, this Court may exercise jurisdiction over the Petitioner's challenge to the IJ's bond redetermination decision, provided that decision does not fall within the definition of a "final order of deportation." See Cheng Fan Kwok, 392 U.S. at 216, 88 S.Ct. 1970 (holding that decision of district director, not made in deportation proceeding, to deny stay of deportation, fell outside scope of exclusive court of appeals jurisdiction under INA § 106(a)). 1. INA Custody and Bond Provisions To determine whether the IJ's bond redetermination decision constituted a "final order of deportation," the Court first looks to the statutory basis for the IJ's decision under the INA. INA § 242(a), codified at 8 U.S.C.A. S 1252(a) (West 1994), governs custody, bond and parole decisions made pending the final determination of an alien's deportability. INA § 242(a)(l) provides: Pending a determination of deportability in the case of any alien as provided in subsection (b) of this section, such alien may, upon warrant of the Attorney General, be arrested and taken into custody.... [A]ny such alien taken into custody may, in the discretion of the Attorney General and pending such final determination of deportability, (A) be continued in custody; or (B) be released under bond in the amount of not less than $ 500 with security approved by the Attorney General, containing such conditions as the Attorney General may prescribe; or (C) be released on conditional parole.... INA § 242(a)(l), 8 U.S.C.A. S 1252(aim. The procedures for determining deportability were set out separately in INA § 242(b), codified at 8 U.S.C.A. § 1252fb). Under the INA, a non-criminal alien was not ordinarily detained unless he posed a risk of flight or a threat to the national security of the United States. See Reno v. Flores. 507 U.S. 292. 295. 113 S.Ct. 1439. 123 L.Ed.2d l C1993) ("An alien generally ... should not be detained or required to post bond except on a finding that he is a threat to the national security ... or that he is a poor bail risk.") ( quoting Matter of Patel, 15 I & N Dec. 666. 667 (BIA 1976^: Carlson v. Landon. 342 U.S. 524. 540-42. 72 S.Ct. 525, 96 L.Ed. 547 (19521 (affirming detention without bond upon "reasonable apprehension of hurt from aliens charged with a philosophy of violence against this Government"); Doherty v. Thornburgh, 943 F.2d 204, 210 (2d Cir.19911 (finding detention of deportable alien without bond based on "general threat to national security" was proper); Matter of Ellis. 20 I & N Dec. 641, 642 (BIA 1993) ("An alien, whom the Service in its discretion has arrested and taken into custody generally should not be detained or required to post bond pending the determination of deportability except on a finding *1338 that he is a threat to national security or is a poor bail risk."). The regulations applicable at the time Petitioner's deportation proceedings commenced permitted the INS, acting through the District Director or other designated official, to arrest an alien and take him into custody pursuant to a warrant blip //international \vestlavv.corn/find/default.nPspa=inthaeue- 000&rs=WLlN801&fn=_top&sv=Split&rindjuns=00001&cite=97f+suppl2d&utid=%7bl60ABFJ67-8A96-4305- 91li6-3374A619Cr21%7d&vr=2.0&rp=%2ffind%2fdefault.wl&mt=lnternationalLaw Page 12 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 170/196 SL PT OA2 of arrest upon the issuance of the order to show cause or at any time thereafter until the alien was subject to a warrant of deportation. See 8 C.F.R. § 242.2(c)(l) (1995). The INS notified the alien of this initial custody determination-by checking a box to indicate whether the alien would be detained, released on recognizance, or released under bond-in the same documentation informing him of the commencement of deportation proceedings and the scheduled deportation hearing date and location. See generally Flores, 507 U.S. at 307, 113 S.Ct. 1439 (detailing INS procedures for detaining aliens pursuant to INA § 242(a), 8 U.S.C.A. S 1252fa)). Thereafter, the alien could apply to an IJ for redetermination of his custody status or the terms and conditions of his release. See 8 C.F.R. SS 3.19(a). 242.2(d) (1995). Although the IJ's redetermination decision could "be based upon any information that is available to the Immigration Judge or that is presented to him or her by the alien or the Service," the IJ's consideration of an alien's request regarding custody or bond was to "be separate and apart from, and ... form no part of, any deportation or removal hearing or proceeding." 8 C.F.R. 5 3.19(d) (1995): see also Matter of Chirinos, 16 I & N Dec. 276. 277 (BIA 1977) (holding that bond redetermination must be conducted separately from deportation hearings because "[t]he requirement of a separate bond procedure and record is part of the effort to divorce, so far as possible, the bond matter from the deportation hearing"). An alien was entitled to appeal the IJ's redetermination to the BIA. See 8 C.F.R. 55 3.1(b)(7). 3.38 (1995). Neither the INA nor the regulations expressly discuss the use of classified information m a bond redetermination proceeding. 2. Judicial Review of Bond Redetermination Decisions Although the Eleventh Circuit has not addressed the question of whether INA § 106 barred district court jurisdiction over a habeas corpus petition challenging a bond redetermination decision, the court has recognized that, in some circumstances, challenges to INS detention are cognizable under section 2241 habeas corpus petitions. See Orozco, 911 F.2d at 541 ( citing Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484. 498. 93 S.Ct. 1123. 35 L.Ed.2d 443 (1973^. In addition, the Seventh Circuit has held that bond determinations were not "final orders of deportation" committed to the exclusive jurisdiction of the court of appeals under INA § 106(a). See Gornicka v. I.N.S., 681 F.2d 501. 505 (7th Cir.1982^. As with the regulations governing Petitioner's bond redetermination, the regulations applicable in Gornicka required bond or custody proceedings to be conducted separately from all deportation proceedings. See id. ( citing 8 C.F.R. § 242.2(b) (1982)).^ In view of this regulation, the court held that it was FN9. This regulation provided: "Consideration under this paragraph by the immigration judge of an application or request of an alien regarding custody or bond shall be separate and apart from any deportation hearing or proceeding, and shall form no part of such hearing or proceeding or of the record thereof." 8 C.F.R. § 242.2 (1982). clear that bond hearings are separate and apart from deportation hearings. The considerations taken into account in a bond hearing do not form a part of the record in the deportation proceeding. Whether or not bond is required has no bearing on whether a final order of deportation will be entered. A bond determination is not a final order of deportation, is not made during an administrative proceeding under 1252(b), and *1339 does not effect the deportation proceeding. 681 F.2d at 505. The court therefore concluded that it did not have jurisdiction over the petition pursuant to INA § 106(a), and noted that habeas corpus proceedings in the district court would permit "more immediate review" than appeals under INA § 106(a). Id. at 506. Here, IJ McHugh held proceedings to determine Petitioner's custody status on May 29, 1997 and June 6, 1997, which, pursuant to INA § 242, were separate from http //international \\cstla\v com/find/default.\vl?spa=inthaguc- 000&rs=WLIN8.0l&fn= top&sv=Split&findiuris=00001&cile=97f+suppl 2d&utid=%7bl6QABE67-8A()6-4305- 91R6-3374A619CF21%7d&vr=20&rp=%2frmd%2fdefaultwl&mt=lnternationalLaw Page 13 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 171/196 SL PT OA2 Petitioner's deportation hearing before IJ Dowell on February 8, 1996. ( See Petition Ex. A, C.) A panel of the BIA affirmed the IJ's Bond Redetermination Decision on September 15, 1998. On October 26, 1999, a separate panel of the BIA upheld the IJ's Deportation Order. ( See Petition Ex. B, H.) Therefore, the Court finds that Petitioner's bond redetermination proceedings occurred separately from and formed no part of Petitioner's deportation proceedings. Accordingly, the Court finds that the IJ's Bond Redetermination Decision was not a "final order of deportation" and therefore, INA § 106, 8 U.S.C.A. 5 llOSa, does not bar this Court's jurisdiction over the petition for writ of habeas corpus under section 2241(c). See Gornicka, 681 F.2d at 506. B. AEDPA The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996). was enacted as an amendment to the INA on April 24, 1996. Among the changes to the INA, AEDPA amended the scope of the federal courts' habeas corpus jurisdiction in the immigration context and established the Alien Terrorist Removal Court. The Court next analyzes what effect, if any, these amendments have on Petitioner's status or his bond redetermination procedures, and concludes that it retains jurisdiction over the Petition. 1. Habeas Corpus Jurisdiction AEDPA § 401(e) and (f) deleted the INA's provision for habeas corpus review, previously set forth in INA § 106(a)(10), 8 U.S.C.A. S 1105a(a)(10). and replaced it with AEDPA § 440(a), to read: Any final order of deportation against an alien who is deportable by reason of having committed a criminal offense covered in section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section 241(a)(2)(A)(i), shall not be be subject to review by any court. INA § 106(a)(10), 8 U.S.C.A. S 1105a(aïïl01 (West Supp.1997). Effective April 24, 1996, AEDPA applied to "all aliens without regard to the date of entry or attempted entry into the United States." AEDPA § 401(f), reprinted at note following 8 U.S.C.A. S llOSa: see Boston-Boilers v. I.N.S.. 106 F.3d 352. 354 filth Cir.1997^ (finding that because AEDPA § 440 did not contain an effective date, it became effective on the date signed into law by President Clinton). Six months later, Congress amended AEDPA to retain the original language of INA § 106(a)(10) and merely inserted the new language of AEDPA § 440(a) after the grant of habeas review. See Omnibus Consolidated Appropriations Act of 1997 ("OCAA"), Pub.L. No. 104-208 S 671(cïï4). 110 Stat. 3009-1859 (1996). This amendment became effective on April 1, 1997. See Ramirez-Centeno v. Wallis, 957 F.Supp. 1267. 1269 (S.D.Fla.1997). By their terms, however, AEDPA's amendments to habeas corpus jurisdiction (as subsequently corrected by OCAA) do not bar this Court's jurisdiction over the petition in this case. First, AEDPA § 440(a) referred only to final orders of deportation as a result of criminal activity. See Ramirez-Centeno, 957 F.Supp. at 1270 (finding that amended language of INA § 106(a)(10) referred only to deportation as result of criminal activity). Petitioner's deportabihty arises from his failure to maintain and comply with the non-immigrant status under which he had been *1340 admitted. ( See IJ's Deporation Decision at 1; BIA's Deportation Decision at 1.) Second, AEDPA § 440(a) refers only to habeas corpus review of final orders of deportation. As explained above, the IJ's Bond Redetermination Decision is not a "final order of deportation" and therefore INA § 106(a)(10), as amended by AEDPA, does not bar this Court's jurisdiction over the petition. Finally, the Supreme Court has expressed its disfavor for repeal of habeas corpus jurisdiction by implication, and has declined to read AEDPA as repealing by implication original habeas corpus jurisdiction under section 2241. See Felker v. Turoin. 518 U.S. 651. 116 S.Ct. 2333. 135 L.Ed.2d 827 (19961. Thus, the http://intcrnational. \vestla\\. com/find/det'ault.\vl?5pa=inthaguc- 000&rs=WI.lN8()l&rn=jop&sv=Snlit&rindiuns=00001&cite=97r+supnl2d&utid=%7bl60ABK67-8A96-4305- 91H6-3374A619CF2 l%7d&vr=2 0&rp=%2ffind%2fdefault wl&mt=IntemationalLa\\ Page 14 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 172/196 SL PT OA2 Court finds that AEDPA § 440(a) does not remove this Court's jurisdiction over the petition challenging the bond redetermination decision. 2. Alien Terrorist Removal Court Among the provisions designed to implement Congress' stated purpose to "deter terrorism, provide justice for victims, and provide for an effective death penalty ...," AEDPA established the "Alien Terrorist Removal Procedures," and the "Alien Terrorist Removal Court" ("ATRC"), to determine the deportability of suspected "alien terrorists." AEDPA § 401 et seq., 8 U.S.C.A. S 1531 et seq. (West 1999) (emphasis added). These procedures authorized the Attorney General, inter alia, to use classified evidence in deportation proceedings involving an alien terrorist. See 8 U.S.C.A. S 1534. [2] The ATRC procedures are inapplicable here, however, because Petitioner conceded his deportability at his deportation hearing before the IJ on February 8, 1996, prior to AEDPA's enactment. Such a concession constituted "clear and convincing evidence" of Petitioner's deportability and therefore rendered his status as a "deportable" alien undisputed. See Matter of H-M, 20 I & N Dec. 683. 685. 1993 WL 315990 (BIA 1993) (finding alien's concession of deportability conclusive such that INS need not present additional evidence); Matter ofAbellana and Donovan, 14 I & N Dec. 262. 265 (BIA 1973) (same); see generally Woodby v. Immigration and Naturalization Service, 385 U.S. 276. 286. 87 S.Ct. 483. 17 L.Ed.2d 362 (19661 (finding that INS must establish deportabihty by "clear, unequivocal and convincing evidence"). With Petitioner's deportability established, Respondents had no need to invoke the ATRC provisions in this case. See 8 U.S.C.A. 5 1534 (establishing hearing "for the purpose of determining whether the alien ... should be removed from the United States on the grounds that the alien is an alien terrorist"). FN10. The Court notes that at least as of the date this Petition was filed, the INS apparently had yet to invoke the ATRC procedures against any alien. See Susan M. Akram, Scheherezade Meets Kafka: Two Dozen Sordid Tales of Ideological Exclusion, 14 Geo.Imm.L.J. 51, 70 (1999). C. IIRIRA [3] £4J The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208. 100 Stat. 30Q9-546 (1996), enacted September 30, 1996, effected further amendments to the INA and AEDPA. Section 309 of IIRIRA sets forth the general rule of applicability that the revised procedures for removing aliens,0111 including judicial review procedures,*1341 do not apply to aliens who were already in either exclusion or deportation proceedings on IIRIRA's effective date, April 1, 1997. See Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936. 940. 142 L.Ed.2d 940 (1999): note following 8 U.S.C.A. S 1101 (West 1999). IIRIRA § 309(c)(l) provides: FN11. Prior to IIRIRA, the INA separated the concepts of exclusion and deportation, applying different procedural rules for each. Compare 8 U.S.C.A. S 1226 (West 1994) with 8 U.S.C.A. 5 1252b (West 1994). IIRIRA then created a unified set of "removal" proceedings, see INA § 240, 8 U.S.C.A. S 1229afaïïn (West 1999), defining "removable" to include either "deportable" or "inadmissible" (formerly known as "excludable") aliens, see INA § 240(e)(2), 8 U.S.C.A. S 1229a(eïï2) (West 1999), and making the "removal" proceeding the sole and exclusive procedure for determining whether an alien would be admitted to or removed from the United States. See INA § 240(a)(3), 8 U.S.C.A. S 1229a(al(3) (West 1999). See generally Richardson v. Reno. 162 F.3d 1338. 1346 (llth Cir.19981. vacated on jurisdictional grounds, 526 U.S. http://international.\vcstla\v.com/Cnid/det'ault wl?5pa=inthague- 000&r5=WLIN80l&fti=_top&sv=Split&findiuns=00001&cite=97f+suppl2d&utid=%7bl60ABE67-8A96-4305- 91D6-3374A619CF21%7d&vr=20&rp=%2ffind%2fdefault.wl&mt=InternationalLaw Page 15 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 173/196 SL PT OA2 1142. 119 S.Ct. 2016. 143 L.Ed.2d 1029 f1999"). on remand, 180 F.3d 1311 filth Cir.1999). (c) Transition for Aliens in Proceedings. (1) General rule that new rules do not apply.-Subject to the preceding provisions of this subsection, in the case of an alien who is in exclusion or deportation proceedings before the title III-A effective date [April 1, 1997]-(A) the amendments made by this subtitle shall not apply, and (B) the proceedings (including judicial review thereof) shall continue to be conducted without regard to such amendments. IIRIRA § 309(c)(l), reprinted at note following 8 U.S.C.A. 5 1101. The Supreme Court has interpreted this section to apply to those cases "pending on the effective date of IIRIRA." American-Arab. 525 U.S. at 481. 119 S.Ct. at 943. A case is "pending" if the alien is not yet subject to a "final order of deportation." See Zadvvdas v. Underdown, 185 F.3d 279, 286 f 5th Cir.1999) (finding alien subject to final order of deportation was no longer "in proceedings"). An order of deportation becomes final on the earlier of "(i) a determination by the Board of Immigration Appeals affirming such order; or (li) the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals." 8 U.S.C.A. S 1101(a)(47)(B). As set forth above, Petitioner was not subject to a final order of deportation until October 26, 1999, the date on which the BIA upheld the IJ's Deportation Order. Accordingly, he was "in proceedings" on April 1, 1997, and his case is governed by the general rule that IIRIRA's amendments are inapplicable to him. The exception to the general rule that IIRIRA's amendments are inapplicable to aliens "in proceedings" on April 1, 1997, however, is IIRIRA's judicial review provision, IIRIRA § 306(a), amending INA § 242, codified at 8 U.S.C.A. 5 1252fq) (West 1999). Section 1252(g) provides: (g) Exclusive Jurisdiction Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter. 8 U.S.C.A. 5 1252fq). This section applies "without limitation to claims arising from all past, pending, or future exclusion, deportation or removal proceedings." IIRIRA § 306(c)(l), 110 Stat. 3009-1675, reprinted at note following 8 U.S.C.A. S 1252: see American-Arab, 525 U.S. at 477. 119 S.Ct. at 941. The enactment of this section, however, did not generally prohibit judicial review, but rather limited the availability of judicial review of a narrow class of discretionary executive actions. See id., at 481, 119 S.Ct. at 943 (interpreting section 1252fg) to apply "only to three discrete actions that the Attorney General may take"); Zadvvdas, 185 F.3d at 285. Thus, section 1252(0) does not remove jurisdiction to review habeas corpus petitions challenging the detention of aliens because "detention, while intimately related to efforts to deport, is not itself a decision to 'execute removal orders' and thus does not implicate section 1252fg) under Reno." Zadvydas, 185 F.3d at 285-86: see also Parra v. Perrvman, 172 F.3d 954. 957 f7th Cir.1999) (finding that section 1252fg) did not foreclose district court's *1342 jurisdiction under section 2241 to hear alien's challenge to detention during deportation proceedings); Kamara v. Farquharson, 2 F.Supp.2d 81. 87 fD.Mass.1998) (asserting jurisdiction over habeas corpus petition challenging detention during deportation proceedings). The Court finds that neither the INA, AEDPA, nor IIRIRA preclude this Court's jurisdiction over a habeas corpus petition challenging a bond redetermmation decision as to a deportable alien in deportation proceedings prior to April 1, 1997. Accordingly, this Court has jurisdiction to entertain Petitioner's challenge to his continued detention without bond pending resolution of his deportation proceedings. See American-Arab, http //international westlaw com/find/dcl'ault \vl9spa=inthaeue- 000&r.s=WLIN801&fn=_top&sv=Split&findjuris=00001&cite=97f+suppl2d&utid=%7bl60ABK67-8A96-4305- 91 B6-3374A619Cr21%7d&vr=2 0&rp=%2ffînd%2fdefault wl&mt=IntemationalLaw Page 16 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 174/196 SL PT OA2 525 U.S. at 481. 119 S.Ct. at 943 (holding that, as to cases pending on IIRIRA's effective date, section 1252(g) only limited judicial review of Attorney General's decision or action to commence proceedings, adjudicate cases or execute removal orders); Tefel v. Reno, 180 F.3d 1286. 1296 (llth Qr.19991 (holding that district court had jurisdiction over claims that pre-IIRIRA INA did not exclusively commit to court of appeals' jurisdiction); Orozco, 911 F.2d at 540 (holding that INA did not preclude court's jurisdiction over alien's habeas corpus challenge to detention during deportation proceedings); Haitian Refugee Center v. Smith, 676 F.2d 1023. 1033 (5th Cir. Unit B 1982) (holding that INA did not preclude district court's jurisdiction over procedural due process challenge to asylum procedures). IV. Standard of Review The issue before this Court is whether Petitioner has been denied the right to a fundamentally fair bond redetermination hearing pending the final determination of his deportation proceeding. The nature of the habeas corpus petition subjudice requires the Court to inquire whether Petitioner "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C.A. S 2241(cl(31. Therefore, the Court must assess whether the IJ acted within his statutory and constitutional authority: (1) in introducing and relying on classified information in Petitioner's bond redetermination; and (2) in determining that Petitioner was a threat to national security based on his "association" with the PIJ. IKC] [5] The standard by which the Court determines whether the IJ's conduct was within statutory authority is distinct from the standard for determining whether that conduct was within constitutional authority. See Heikkila v. Barber, 345 U.S. 229. 236. 73 S.Ct. 603. 97 L.Ed. 972 (19531 (differentiating constitutional and statutory standards of review). Thus, the Court shall delineate separately the standards governing review of Petitioner's statutory and constitutional claims. A. Statutory Claims [61 £7] It is well-settled that the Constitution grants the legislative and executive branches of the federal government broad concurrent authority over immigration matters. See Fona Yue Tina v. United States, 149 U.S. 698. 713. 13 S.Ct. 1016. 37 L.Ed. 905 (18931: Jean v. Nelson, 727 F.2d at 965. Pursuant to the authority granted by Article I. 5 8 of the Constitution. "[t]o establish a uniform Rule of Naturalization," Congress enacted the INA, under which Congress delegated authority to the Executive to administer and enforce all laws "relating to the immigration and naturalization of aliens." INA § 103, 8 U.S.C.A. S 1103(al(ll (West 1994). In addition to this delegated authority, the Executive's plenary authority over foreign relations also provides a source of power for the Executive to act in immigration matters. See United States ex rel. Knauffv. Shauahnessv. 338 U.S. 537. 542. 70 S.Ct. 309f 94 L.Ed. 317 (19501 (explaining that "executive power to control the foreign affairs of the nation" is additional source of authority in immigration matters); U.S. Const, art. II, § 2. The Attorney General retains primary responsibility for immigration matters in the Executive branch, INA *1343 § 103, 8 U.S.C.A. 6 1103 (West 1994), and "is the beneficiary of broad grants of discretion under the statute. "Jean v. Nelson, 727 F.2d at 965. Under the INA, the Attorney General may delegate her authority to the INS or other United States officials. INA § 103(a), 8 U.S.C.A. S 1103(a). Several principles govern the courts' review of the Attorney General's authority on this issue. First, deportation is not punishment. See American-Arab, 525 U.S. at 490. 119 S.Ct. at 947 (noting that "deportation is necessary in order to bring an end to an ongoing violation of United States law"); I.N.S. v. Looez-Mendoza, 468 U.S. 1032. 1038. 104 S.Ct. 3479. 82 L.Ed.2d 778 (19841 ("The purpose of deportation is not to punish past transgressions, but rather to put an end to a continuing violation of the http //international.\vestla\v com/find/default \vl?spa=mthaaue- 000&rs=WLlN801&fn=_top&sv=Split&rmdjuris=00001&cite=97f+sunpl2d&utid=%7bl60ABE67-8A96-4305- 91B6-3374A619Cr21%7u&vr=20&rp=%2fl1nd%2fdefault.\\l&nit=lnternationalLa\v Page 17 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 175/196 SL PT OA2 immigration laws."). Second, detention is "necessarily part of deportation procedure" to prevent aliens arrested for deportation from hurting the United States during the pendency of their deportation proceedings. Carlson, 342 U.S. at 537-38. 72 S.Ct. 525. Third, since, "[o]f course purpose to injure could not be imputed generally to all aliens subject to deportation," Congress has vested the Attorney General with the discretion to release an alien from detention on bond or other terms and conditions. Id. ( citing United States ex rel. Zapp v. District Director. 120 F.2d 762. 765 (2d Cir.1941) ("The natural interpretation of the language used, that the alien 'may be released under a bond,' would indicate that the release is discretionary with the Attorney General.")). Because the Attorney General possesses such discretion to grant or deny bail, the Supreme Court has interpreted the INA "not [to] grant bail as a matter of right." Carlson. 342 U.S. at 540. 72 S.Ct. 525. [KCJ [8] Because release from detention during the pendency of deportation proceedings is a determination within the discretion of the Attorney General, that decision "can only be overridden where it is clearly shown that it 'was without a reasonable foundation.' " Id. at 540-41, 72 S.Ct. 525 (interpreting INA legislative history as "emphatic in explaining Congress' intention to make the Attorney General's exercise of discretion presumptively correct and unassailable except for abuse."). The alien bears "a heavy burden to establish that the Attorney General has abused [her] discretion." Barbour. 491 F.2d at 578. B. Constitutional Review F9] The Constitution, in particular the First Amendment and the Due Process Clause of the Fifth Amendment, places limits on the statutory authority of the Executive to detain an alien during the pendency of deportation proceedings. See Mathews v. Diaz. 426 U.S. 67. 77. 96 S.Ct. 1883. 48 L.Ed.2d 478 (1976) (finding that procedural due process protections extend even to aliens "whose presence in this country is unlawful"); Kwona Hai Chew v. Colding. 344 U.S. 590, 596 n. 5. 73 S.Ct. 472. 97 L.Ed. 576 (1953) (finding that First Amendment protections of freedom of speech and association extend to resident aliens). Although "determination and ruling by the Attorney General with respect to all questions of law [under the INA] shall be controlling," the Attorney General's authority and discretion remain "subject to judicial intervention 'under the paramount law of the Constitution.' " Carlson, 342 U.S. at 537. 72 S.Ct. 525 ( citing Fong Yue Tina, 149 U.S. at 713-15. 13 S.Ct. 1016). While the BIA refrained from addressing the purely constitutional issues Petitioner raised in his appeal of the IJ's Bond Predetermination Decision, ( see BIA Bond Redetermination Decision at 7), this Court may consider these issues on Petitioner's challenge to the bond redetermination decision by means of a habeas corpus petition filed pursuant to 28 U.S.C.A. 5 2241(c)(3). The Court may also review whether the bond redetermination decision was made in violation of the Due Process Clause. See *1344 Carlson. 342 U.S. at 542. 72 S.Ct. 525: Orozco, 911 F.2d at 541 (finding that deportable alien in custody may make statutory and constitutional challenges to detention pursuant to section 2241). V. Analysis The Court now analyzes the pivotal issue of Petitioner's claim: whether, under the INA and the Constitution, Petitioner has been denied the right to a fundamentally fair bond redetermination hearing pending the resolution of his deportation proceedings. The Supreme Court has established a framework for determining the degree of protection the Constitution affords an alien based on: (1) the legal status of the alien; and (2) the context of the challenged government action. See Landon v. Plasencia. 459 U.S. 21. 32-37. 103 S.Ct. 321. 74 L.Ed.2d 21 (1982): Plvler v. Doe, 457 U.S. 202. 210-16. 102 S.Ct. 2382, 72 LEd.2d 786 (1982): see also Jean v. Nelson, 727 F.2d at 972 ("[T]hose with the status of deportable aliens are constitutionally entitled http //international westla\v com/find/default \vl?spaHnthaeue- 000&rs=WLIN8.01&fn=_top&sv=Split&findiuris=00001&cite=97f+suppl 2d&utid=%7bl60ABR67-8A96-4305- 9m6-3374A619CF21%7d&vr=20&rp=%2fTind%2fdefaultwl&mt=InternationalLa\\ Page 18 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 176/196 SL PT OA2 to rights in the deportation context that are inapplicable to exclusion proceedings."). Because this framework also provides clarity to the analysis of Petitioner's statutory claims, the Court will first analyze Petitioner's legal status and the nature of the immigration proceeding involved. The Court will then evaluate whether: (1) the INA provides explicit or implicit authority for Petitioner's continued detention without bond based on the introduction and reliance on classified information; (2) the use of classified information violated Petitioner's procedural due process rights; and (3) Petitioner's detention based on his "association" with the PIJ violates either the INA or the First Amendment. A. Petitioner's Legal Status and the Nature of the Immigration Proceedings (KCJ [10] At the time of his bond redetermmation proceedings, Petitioner was "deportable," having conceded his deportability for having failed to maintain the conditions of his student visa. His constitutional status, in the immigration context, is greater than that of an "excludable" alien, see e.g., Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576. 33 L.Ed.2d 683 (1972), and that of an alien subject to a "final order of removal," see, e.g., Zadvvdas, 185 F.3d at 289, but less than that of a "lawful permanent resident." See, e.g., Kwona Hai Chew, 344 U.S. at 592. 73 S.Ct. 472. Cf. Wona Wina v. United States. 163 U.S. 228. 237. 16 S.Ct. 977. 41 L.Ed. 140 (1896) (noting that powers of federal government with regard to aliens are more limited outside the context of regulating exclusion of persons from the United States). Second, Petitioner challenges not the initial decision to detain him on the issuance of the order to show cause, but rather the IJ's use, subsequently sanctioned by the BIA, of the classified information in redetermming his custody without bond. ( See Pet.Mem. in Opp'n at 11-12 (asking Court "to assess the legality of the process that has been accorded to [Petitioner]").) Petitioner does not allege, nor has the Court seen any evidence, that the initial decision by the INS to detain Petitioner was based on classified information. Accordingly, the Court directs its inquiry and the fashioning of any remedy toward the bond redetermination proceedings before the IJ and the BIA. Third, Petitioner's challenges arise in the context of bond redetermination proceedings, which are entirely separate from deportation proceedings. Compare 8 U.S.C.A. 5 1252(a) (providing for arrest and custody and review of determination) with 8 U.S.C.A. S 1252(b) (explaining proceedings to determine deportability); see 8 C.F.R. 5 3.19(d) (1995) ("Consideration by the Immigration Judge of an application or request of [an alien] regarding custody or bond under this section shall be separate and apart from, and shall form no part of, an deportation hearing or proceeding."); see also Gornicka, 681 F.2d at 505: Part *1345 III.A.I, supra. Accordingly, the Court does not base its ruling on the deportation hearing transcripts submitted by either party. It is in this landscape that the Court shall determine whether, under the INA prior to AEDPA and IIRIRA and under the Constitution, the IJ and the BIA may determine that a deportable alien shall not be released from custody during the pendency of his deportation proceedings on the basis of classified information relating to his "association" with a foreign terrorist organization. B. Petitioner's Continued Detention without Bond Based on Review of Classified Information Does Not Violate the INA. Petitioner first argues that the IJ lacked statutory authority to consider classified evidence at his redetermination hearing and consequently to continue to detain him in reliance on that evidence. ( See Pet.Mem. in Support at 10.) Petitioner does not challenge the Attorney General's discretion, m general, under the INA to continue an alien's custody during deportation proceedings on a properly-made determination that http //international webtla\v.com/find/delault wl?spa=mthague- 000&rs=WLlN8.01&fn= top&sv=Split&rindiuns=00001&cite-97f+suppl.2d&utid^%7bl60ABE67-8A96-4305- 9IR6-3374A619CF21%7d&vr=20&rp=%2ffind%2fdefaultwl&ml=InternationalLa\v Page 19 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 177/196 SL PT OA2 his release would pose a threat to the national security of the United States. See Carlson, 342 U.S. at 541-42. 72 S.Ct. 525. Petitioner does challenge, however, the manner in which the IJ made that determination with respect to his custody. ( See Pet.Mem. in Opp'n at 11.) Specifically, Petitioner argues that the INA provides neither express nor implied authority for the use of classified information in a bond redetermination hearing. 1. Express Statutory Authority As set forth above, INA § 242(a), 8 U.S.C.A. 5 1252(a), governs Petitioner's detention and vests the IJ and the BIA, acting on behalf of the Attorney General, with discretion to review an initial custody decision and to determine whether to continue custody or release the alien on bond or conditional parole. See INA § 103(a), 8 U.S.C.A. 5 1103(a): 8 C.F.R. 5 3.1(d) (1995). Congress did not provide in the INA specific statutory standards governing bond determination and did not restrict the considerations which may be relied upon or the procedure by which the discretion should be exercised. Cf. Jav v. Bovd, 351 U.S. 345. 354. 76 S.Ct. 919. 100 L.Ed. 1242 (1956) (finding that "Congress did not provide statutory standards for determining who, among qualified applicants for suspension [from deportation], should receive the ultimate relief" but left decision to "sound discretion of the Attorney General"). Notwithstanding this lack of congressional guidance, however, INA § 242(a) has not been interpreted to require detention of all deportable aliens during deportation proceedings, but rather only those deemed to be a threat to national security or a poor bail risk. See Patel, 15 I & N Dec, at 667: see also Flores, 507 U.S. at 295. 113 S.Ct. 1439 ( citing Patel, 15 I & N Dec, at 667. as limiting Attorney General's discretion to detain aliens during deportation proceedings); Carlson, 342 U.S. at 542, 72 S.Ct. 525 (finding refusal of bail not arbitrary or capricious "where there is reasonable apprehension of hurt from aliens charged with a philosophy of violence against this Government"); Matter of Andrade, 19 I & N Dec. 276. 277 f BIA 1977) ( citing Patel, 15 I & N Dec, at 667). When considering a request for redetermination of custody status, the IJ may, pursuant to regulations, base his or her determination on "any information that is available" or that the alien or the INS has presented to him. 8 C.F.R. 5 3.19 (1995). Neither the statute nor the regulations, however, mention the use of classified information in making this redetermination. Compare 8 C.F.R. § 3.19 (1995) with 8 C.F.R. S 244.3 (1952) (providing that BIA may use confidential information in ruling on applications for suspension of deportation upon determination that "disclosure of such information would be prejudicial to the public interest, safety or security") *1346 ( cited in Jav v. Bovd. 351 U.S. at 347-48. 76 S.Ct. 919). Therefore, the Court finds that INA § 242(a) does not provide express authority for an IJ to introduce and rely on classified information in a bond redetermination proceeding involving a deportable alien. 2. Implied Statutory Authority [11] In the absence of express authority in the INA for the introduction and use of classified information in Petitioner's bond redetermination proceeding, the Court must determine whether the INA provides implied authority for such use. To make this determination, the Court will: (1) examine the Fifth Circuit's decision in Barbour, 491 F.2d 573. which addressed the use of classified information in bond redetermination proceedings; (2) consider Petitioner's statutory construction arguments; and (3) assess whether, if the INA provides implied authority, Respondents acted within the scope of this implied authority with respect to Petitioner's bond redetermination proceedings. a. The Barbour Decision httpV/mtcrnational westlavv.com/find/det'ault wl?spa=mthaeue- 000&rs=WLlN8.01&fn=_top&sv=Split&findjuris=00001&cite=97f+suppl.2d&utid=%7bl60ABE67-8A96-43()5- 91B6-3374A619CF21%7d&vr=2.0&rp=%2ffind%2fdefaultwl&mt=lnternationalLa\v Page 20 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 178/196 SL PT OA2 The Fifth Circuit addressed whether the INA provides statutory authority to use classified information in a bond redetermination hearing in Barbour 491 F.2d at 577- 7EL a decision which operates as binding authority on this Court. fm2 The INS took Barbour, a deportable alien in proceedings but not yet subject to a final order of deportation, into custody and detained him without bond on the grounds that he was a poor bail risk. Id. at 575. Barbour appealed this determination to a Special Inquiry Officer, who denied release on bond. Id. A second Special Inquiry Officer reconsidered and affirmed Barbour's detention. Id. Barbour thereafter appealed to the BIA, and, while the case was under advisement, the INS provided the BIA with correspondence, including classified information, from the State Department recommending that he not be released on bond. Id. After reviewing this new information, including the classified information, the BIA held that Barbour's release from custody would endanger the national security of the United States. Id. FN12. See supra note 8. In his habeas corpus petition, Barbour challenged the BIA's statutory authority to consider classified information in determining custody as well as the constitutional authority to consider classified information ex parte without his having an opportunity to refute it. Id. at 578. The Barbour court reached only the statutory argument, interpreting INA § 242(a) as permitting the Attorney General to grant or deny release on bail "on the basis of confidential information, the disclosure of which would be prejudicial to the public interest, safety or security, if the use of such information is sanctioned by regulations." Id. at 578. The regulation applicable to Barbour's bond redetermination provided that the determination of custody status "may be based upon any information" available or presented by the alien or the INS. Id. ( quoting 8 C.F.R. § 242.2(b) (1973)). The court interpreted this regulation to permit the special inquiry officer and the BIA to base the decision as to bond on any information available, including classified information. See Barbour, 491 F.2d at 578. After reviewing the classified information itself//? camera, the Fifth Circuit held that the BIA's review of and reliance on the classified information in making the bond determination was within the statutory authority granted by the INA. Id. Therefore, the court concluded that the BIA's determination that Barbour should remain in INS custody on the grounds that he was a national security risk was not an abuse of discretion. Id. at 577. The Barbour court thus interpreted INA § 242(a) to provide implied statutory authority for the introduction and use of classified information in a bond redetermination*1347 proceeding, predicated on a two-part finding that: (1) the disclosure of the classified information would be "prejudicial to the public interest;" and (2) the regulations "sanction" the use of such information. Id. at 578; cf. Jay v. Bovd. 351 U.S. at 358. 76 S.Ct. 919 (interpreting INA to permit suspension of deportation decisions based on classified information where regulations limited use of such information to instances where disclosure "would be prejudicial to the public interest, safety, or security"). b. Petitioner's Statutory Construction Arguments Petitioner argues against finding an implied authority in the INA to use classified information in bond redetermination proceedings, first citing the " 'settled doctrine that deportation statutes must be construed in favor of the alien.' " (Pet.Mem. in Support at 14 n. 7 (citing, inter alia, I.N.S. v. Cardoza-Fonseca. 480 U.S. 421. 449. 107 S.Ct. 1207. 94 L.Ed.2d 434 (19871. and Lennon v. I.N.S., 527 F.2d 187. 193 (2d Cir.l975)).1 In Jay v. Boyd, however, the Supreme Court found this argument did not require the Court to depart from the "clear meaning" of the INA to permit the use of classified information in the context of suspension from deportation. 351 U.S. at 357- 58 & n. 21. 76 S.Ct. 919. Similarly here, this Court will not depart from the language of the INA and the regulations permitting the IJ to rely on "any information" in a bond redetermination proceeding, subject to the limitations on that authority explained in Barbour. See Barbour, 491 F.2d at 578: see also Jay v. Bovd, 351 U.S. at 357-58, 76 httn //international vvestlau com/find/deFault.wl?spa=inthaeue- 000&rs=WLlN801&fn=,top&sv=Split&findiuris=00001&cite=97f+suppl2d&utid=%7bl60ABE67-8A96-4305- 91R6-3374A619CF2 l%7d&vr=2 0&rp=%21'tlnd%2fuefault vvl&mt=InternationalLavv Page 21 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 179/196 SL PT OA2 S.Ct. 919 (construing INA and regulations to permit decision as to suspension of deportation on the basis of classified information "at least when such action would be reasonable"). Petitioner argues further that the absence of express statutory language permitting the use of classified information should be interpreted to preclude such use in a bond redetermination hearing. ( See Pet.Mem. in Support at 13 (citing Cardoza-Fonseca, 480 U.S. at 432. 107 S.Ct. 1207).) This argument, however, is also foreclosed by Jay v. Boyd, 351 U.S. at 359. 76 S.Ct. 919. There, the Supreme Court ruled that although an alien in deportation proceedings enjoys constitutional protections that "may militate against construing an ambiguous statute as authorizing the use of confidential information in deportation proceedings," this rule of construction does not apply to a deportable alien seeking relief that the Attorney General has discretion to grant. See Jav v. Boyd. 351 U.S. at 359, 76 S.Ct. 919. Petitioner is also a deportable alien who, although entitled to certain constitutional protections, see Part V.C, infra, is not entitled to release on bond pending resolution of his deportation proceedings as a matter of right. See Carlson. 342 U.S. at 540. 72 S.Ct. 525. Here, the classified information was introduced and relied upon solely at the bond redetermination proceeding. Therefore, the Court finds that the absence of express language in the INA or the regulations did not preclude the introduction of or reliance on classified information. See Jav v. Bovd. 351 U.S. at 359, 76 S.Ct. 919 (distinguishing constitutional protections afforded to deportable resident alien from statutory constraints on Attorney General's authority to use classified information). Finally, Petitioner argues that because other provisions of the INA permit the use of classified evidence in immigration proceedings, the Court should interpret INA § 242(a) to preclude introduction of classified information in bond redetermination proceedings. Petitioner points to: (1) section 1225(c), providing for the use of classified evidence to exclude entering aliens; (2) section 1229a, providing for the use of classified evidence to oppose an alien's application for discretionary relief from a final order of removal; and (3) sections 1531 et seq., providing for the use of and establishing procedures for introducing *1348 classified evidence to determine the deportability of alien terrorists. ( See Pet.Mem. in Support at 11-12.) Both section 1225(c) and section 1229a, however, were enacted pursuant to IIRIRA and therefore, as explained above, do not apply to Petitioner's bond redetermination. See Part III.C., supra. In addition, Congress created the ATRC as part of AEDPA, with the purpose of establishing procedures "to permit the use of classified information in appropriate cases to establish the deportability of an alien terrorist." H.Rep. No. 104- 518, reprinted in 142 Cong.Rec. H3305-01, H3334 (daily ed. Apr. 15, 1996). These procedures became effective on April 24, 1996, see AEDPA § 401(f), after Petitioner conceded his deportability at a hearing before the IJ on February 8, 1996. Petitioner's concession obviated the need for the INS to seek a determination that Petitioner was deportable or subsequently invoke the ATRC procedures as to him. Since the ATRC procedures did not govern Petitioner's deportation proceedings, the Court declines to draw any inference that they effect the interpretation of the statute and regulations governing his bond redetermination. See Part III.B.2, supra. Accordingly, the Court finds that the theories of statutory construction advanced by Petitioner do not preclude an interpretation of INA § 242(a) to provide implied authority for the introduction of and reliance on classified information in a bond redetermination proceeding. See Jav v. Bovd, 351 U.S. at 358-59. 76 S.Ct. 919 (interpreting INA § 242(a) to permit decisions based on classified information "at least when such action would be reasonable"); Barbour, 491 F.2d at 578 (holding that Attorney General may base bond redetermination decision on classified information where disclosure of such information "would be prejudicial to the public interest, safety, or security" and use is "sanctioned by regulations"). c. Compliance with Implied Statutory Authority Under INA § 242(a) httn //international.wcstlaw com/find/det'ault \vl';spa=mthague- 000&rs=WLIN8.01&fn=_top&sv=Split&findiuns=00001&cite=97f+suppl.2d&utid=%7bl60AUK67-8A96-4305- 91K6-3374A619CF21 %7d&vr=2 0&rp=%2ffind%2fdefault wl&mt=lnternationall,a\v Page 22 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 180/196 SL PT OA2 KCJ [12] Having determined that the INA contains implied authority for the use of classified information in bond redetermination proceedings, the Court must now analyze the facts subjudice. Here, Respondents have represented to the Court that disclosure of the classified information reviewed by the IJ and BIA in connection with Petitioner's bond redetermination would compromise national security in that the information: (1) would reveal the FBI's investigative interests in certain individuals, organizations or countries; (2) would permit an intelligence or suspected intelligence or terrorist organization, group or individual to avoid detection measures; or (3) would otherwise reveal intelligence agency sources and the methods by which such information is obtained. ( See Declaration of Michael E. Rolince, dated Feb. 10, 2000 at 3.) Based on this representation as to the classified information, the Court finds that disclosure of the classified information would be "prejudicial to the public interest, safety, or security." Jay v. Bovd. 351 U.S. at 358, 76 S.Ct. 919: Barbour, 491 F.2d at 578 (interpreting INA and regulations to permit denial of release on bond based on classified information "the disclosure of which would be prejudicial to the public interest, safety, or security"). In addition, the regulation applicable to Petitioner's bond redetermination proceedings, 8 C.F.R. 5 3.19(d) (1995), contains language similar to that of the regulation applicable in Barbour. Compare 8 C.F.R. § 3.19(d) (1995) ("The determination of the [IJ] as to custody status or bond may be based upon any information that is available to the [IJ] or that is presented to him by the alien or the [INS].") with 8 C.F.R. § 242.2(b) (1973) ("The determination of the special inquiry officer as to custody status or bond may be based upon any information which is available to the special inquiry officer, or which is presented to him by the alien or the [INS]."). Based *1349 on the language of the applicable regulations, this Court finds that the IJ's use of classified information in Petitioner's bond redetermination hearing was "sanctioned by regulations." Barbour, 491 F.2d at 578. Accordingly, the Court concludes that the introduction of and reliance on classified information in Petitioner's bond redetermination proceedings was within the implied statutory authority granted by INA § 242(a) and 8 C.F.R. S 3.19(d).mi3 See Barbour. 491 F.2d at 578. FN13. Although the parties have agreed that pre-IIRIRA law applies to this Petition, the Court notes that the language of the rule governing the IJ's redetermination of custody on the date of Petitioner's bond redetermination hearing is identical to the quoted IIRIRA language here. See 8 C.F.R. S 3.19(d) (1998) (permitting IJ to rely on "any information"). Therefore, even if the IJ applied the latter regulations, the Court finds the IJ's decision was within the implied authority granted by the INA. C. The Use of Classified Evidence in Bond Redetermination Proceeding Violated Petitioner's Procedural Due Process Rights. Petitioner argues that the IJ's use of classified evidence at his bond redetermination hearing violated his procedural due process rights in that: (1) he has been denied notice of the charges and a meaningful opportunity to defend himself; and (2) he has been deprived of meaningful appellate review and the possibility of declassification due to the IJ's failure to maintain a record of the in camera proceeding. ( See Pet.Mem. in Support at 18.) To analyze Petitioner's procedural due process claim, the Court must first determine whether a constitutionally protected interest exists in the context of a bond redetermination hearing. See Tefel, 180 F.3d at 1299 ("The necessary first step in evaluating any procedural due-process claim is determining whether a constitutionally protected interest has been implicated."). Following a finding of a protected liberty interest, the Court must assess the extent of process due. See Haitian Refugee Center. 676 F.2d at 1037 ("Once we find that a protected interest is implicated, 'the question remains what process is due.' ") ( quoting Morrissev v. Brewer, 408 U.S. 471. 481. 92 S.Ct. 2593. 33 LEd.2d 484 (19721). Finally, the Court must fashion an appropriate remedy for any violation of procedural due process under the circumstances. See Haitian Refugee Center, 676 F.2d at 1041 http //international.\\cstlaw com/find/dct'ault.wl?spa=inthaeue- 000&rs=Wl.lN801&fn=_top&sv=Split&findmns=00001&cite=97f+suppl.2d&utid=%7hl60ABF.67-8A96-4305- 91 B6-3374A619CF21%7u&vi=2 0&rp=%2ffind%2fdefault \vl&mt=lnternationalLaw Page 23 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 181/196 SL PT OA2 (affirming district court's order requiring government to submit "procedurally fair plan for the orderly reprocessing" of aliens' asylum applications). 1. Constitutionally Protected Liberty Interest [13] The procedural component of the Due Process Clause of the Fifth Amendment protects against the deprivation of life liberty or property without "due process of law." U.S. Const, amend. V. Although the question of procedural due process protections afforded to a deportable alien in a bond redetermination proceeding is apparently one of first impression in the Eleventh Circuit, it is well- settled that aliens present in the United States, even those present illegally and subsequently determined to be deportable, are entitled to the protections of the Due Process Clause. See Plyler, 457 U.S. at 210. 102 S.Ct. 2382: Haitian Refugee Center. 676 F.2d at 1036. Notwithstanding the applicability of the Due Process Clause protections generally, the status of an alien as well as his circumstances impact the nature and extent of those protections. See Jean v. Nelson, 727 F.2d at 972; Zadvvdas, 185 F.3d at 289 ("alien status can affect our analysis of constitutional rights"). Therefore, "certain classifications and restrictions that would be intolerable if applied to citizens are allowable when applied to resident aliens." Zadvvdas, 185 F.3d at 289. [14] [15] The concept of procedural due process "is not itself an independent right, but merely the condition precedent to the *1350 deprivation of a life, liberty or property interest." Haitian Refugee Center, 676 F.2d at 1037. Thus, the Court must first examine whether a "constitutionally protected liberty interest" triggering due process protections exists in the context of a bond redetermination proceeding. Id.; see also Tefel, 180 F.3d at 1299 (evaluating whether INS' denial of suspension of deportation gave rise to protectable liberty or property interest). In addition to the "life, liberty, or property" language of the Fifth Amendment, "constitutionally protected liberty or property interests may have their source in positive rules of law, enacted by the state or federal government and creating a substantive entitlement to a particular government benefit." Haitian Refugee Center. 676 F.2d at 1038. These liberty interests are inherently tied to the scope of the Executive's authority under the statute or regulation at issue. See, e.g., Garcia-Mir v. Meese. 788 F.2d 1446. 1453 (llth Cir.19861 (observing that absent rules or limitations constraining official discretion alien "merely has an expectancy reinforced by a system capable of granting or withholding that liberty"). Thus, a constitutionally protected liberty interest will not exist where the Attorney General's discretion is "unfettered" or "an act of grace." See, e.g., I.N.S. v. Yueh-Shaio Yana. 519 U.S. 26. 30. 117 S.Ct. 350. 136 L.Ed.2d 288 (19961 (noting Attorney General's "unfettered discretion" to award suspension of deportation); 7efe/, 180 F.3d at 1301 (finding that, in the absence of any limits on Attorney General's discretion to grant or deny applications, suspension of deportation was an "act of grace"). IKCJ F161 Where a statute or regulation circumscribes the Attorney General's discretion, however, a right protected by the Due Process Clause may arise. For example, in Haitian Refugee Center, a class of Haitian nationals challenged expedited administrative procedures implemented by the INS to process their applications for political asylum. See Haitian Refugee Center, 676 F.2d at 1026. The plaintiffs' complaint did not seek " 'to litigate the merits of any single decision by INS or a particular immigration judge,' " but rather alleged that the INS had " 'instituted a program "to achieve expedited mass deportation of Haitian nationals." ' " Id. (quoting Haitian Refugee Center v. Civiletti. 503 F.SuDD. 442. 457 (S.D.Fla.198011. http://intcrnational.westla\v com/t'ind/dct'ault.wl?spa=inthague- 000&rs=WLIN801&fn= top&sv=Split&findiuris=00001&cite=97r+suppl 2d&utid=%7hl60ABE67-8A96-4305- 91B6-3374A619CF21%7d&vr=20&rD=%2frmd%2fdefault.\vl&mt=InternationalLaw Page 24 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 182/196 SL PT OA2 The Fifth Circuit concluded that the statute and the INS regulations establishing an asylum procedure evidenced "a clear intent to grant aliens the right to submit and the opportunity to substantiate their claim for asylum." Haitian Refugee Center, 676 F.2d at 1038. The Haitian Refugee Center court reached this conclusion notwithstanding the fact that "[t]here is no constitutionally protected right to political asylum itself," and emphasized the "valuable" right to petition and have the petition adjudicated fairly Id. at 1039 (citing Logan v. Zimmerman Brush Co., 455 U.S. 422. 433, 102 S.Ct. 1148. 71 L.Ed.2d 265 (1982)) ("[T]he Due Process Clause grants the aggrieved party the opportunity to present his case and have its merits fairly judged."); see also Haitian Refugee Center, 676 F.2d at 1039 n. 37 (comparing right to apply for asylum to "the right of the people to petition the government for redress of grievances. U.S. Const, amend. I. This right likewise carries with it no guarantee of securing the substantive relief sought"). Therefore, the Fifth Circuit held, this right was "sufficient to invoke the guarantee of due process." Id. A similar right, arising out of "positive rules of law," Haitian Refugee Center, 676 F.2d at 1038, to apply for redetermination of bond and to have that application fairly judged exists in the context of detention during deportation proceedings. See INA § 242(a), 8 U.S.C.A. S 1252(a): 8 C.F.R. 65 3.19. 242.2(d) (1995). As described in Part III.A.I, supra, Congress created in the INA a procedural mechanism by which an alien could seek redetermination of his or her custody status pending the final determination of deportability. See INA § 242(a)(l), 8 U.S.C.A. S 1252(a)(l). Pursuant*1351 to this statutory mandate, the INS, in turn, promulgated regulations delineating the bond redetermination procedures, which permitted aliens to apply to an IJ for redetermination and to appeal the IJ's decision to the BIA. See 8 C.F.R. 55 3.1(b)(7). 3.19. 242.2(d) (1995). In addition to these statutory and regulatory procedures, the Supreme Court has recognized the inherent limitations on the Attorney General's discretion to continue to detain an alien during deportation proceedings. See Flores. 507 U.S. at 295. 113 S.Ct. 1439 (citing Patel, 15 I & IM Dec. 666). These limitations circumscribe the Attorney General's discretion to continue to detain an alien who is neither a threat to national security nor a risk of flight. See Patel. 15 I & N Dec, at 667 (the " Patel factors"). The Patel factors, although not expressly stated in the INA or regulations, arose from the agency's own interpretation of the statute and regulations and have continued to govern the federal courts' and the BIA's review of bond redetermination decisions. See Haddam v. Reno, 54 F.5upp.2d 602. 610 (E.D.Va.19991 (finding that excludable alien who posed national security threat and risk of flight was properly detained during asylum proceedings); Kamara v. Farauharson, 2 F.Supp.2d 81. 88 (P.Mass.1998) (finding deportable alien properly detained on basis of Patel factors); Moskalev v. District Director. No. 95-11218-RGS. 1996 WL 622475 at *3 (P.Mass.. Jan.24, 1996) (finding deportable alien properly detained on basis of Patel factors); Matter of Andrade, 19 I & N Pec. 488 (1987) (citing Patel factors). F171 Thus, while a deportable alien may not have a right to release on bond or other conditions during his deportation proceedings, see Carlson, 342 U.S. at 540. 72 S.Ct. 525. the circumscriptions on the Attorney General's authority to continue to detain an alien establish a constitutionally protected interest in applying for redetermination and distinguish the type of discretion involved here from situations in which the Attorney General's discretion is "unfettered" or a "matter of grace." See Haitian Refugee Center, 676 F.2d at 1039 (finding that, although aliens did not have constitutionally protected right to political asylum itself, right to petition for asylum was "sufficient to invoke the guarantee of due process"); see also Board of Pardons v. Allen, 482 U.S. 369. 380-81. 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987) (finding that prisoners did not have right to release on parole, but did have constitutionally protected interest where state parole system contains specific criteria giving rise to expectation of parole); Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1. 14-16. 99 S.Ct. 2100. 60 L.Ed.2d 668 (1979) (evaluating http //international wustlaw.com/find/default \vl9spa=inthaguc- 000&rs=WLIN801&fn= top&sv=Split&findiuns=00001&cite=97f+supnl.2d&utid=%7bl60ABF.67-8A96-4305- 91 B6-3374A619CF21%7d&vr=2 0&rp=%2fllnd%2fdefault wl&nit=lntcrnalionall.aw Page 25 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 183/196 SL PT OA2 whether state parole system, which afforded prisoners opportunity to be heard and notice of reasons for parole denial, comported with due process). Examples of such unfettered discretion-which the courts have held not to give rise to protected liberty interests-include the Attorney General's decision to grant or deny suspension from deportation, see, e.g., Yueh-Shaio Yana, 519 U.S. at 30. 117 S.Ct. 350: Tefel. 180 F.3d at 1301. revoke parole of excludable aliens, see, e.g., Carcia-Mir, 788 F.2d at 1450, and grant or deny a motion to re-open deportation proceedings, see, e.g., Olim v. Wakinekona. 461 U.S. 238. 248-51. 103 S.Ct. 1741. 75 L.Ed.2d 813 (1983): Meiia Rodriguez v. Reno. 178 F.3d 1139. 1145-46 filth Cir.1999): Achacoso-Sanchez v. I.N.S.. 779 F.2d 1260. 1264 (7th Cir.1985). Therefore, on the basis of the statutory and regulatory procedures governing bond redetermination proceedings, and the limitations on the Attorney General's discretion to continue an alien in custody, the Court finds that Petitioner possesses a constitutionally protected right to apply for the redetermination of his custody status and have that application judged in a fundamentally fair manner, and that this entitlement "is sufficient to invoke the guarantee of due process." Haitian Refugee Center, 676 F.2d at 1039. *1352 2. What Process Is Due? [18] Having determined that Petitioner is entitled to procedural due process in his bond redetermination proceedings, the Court must now "define the particulars of what the government may or may not do in making a decision on that petition." Haitian Refugee Center, 676 F.2d at 1039. The cases, on which Respondents rely in support of their use of classified information, sustained the use of such information on statutory grounds and did not specifically address the constitutional limits imposed on that use or the fundamental fairness of the procedures provided in the regulations. See Jav v. Bovd. 351 U.S. at 358. 76 S.Ct. 919 (noting that the alien made no constitutional challenge to INA and regulations); Barbour, 491 F.2d at 578: see a/so Kiareldeen v. Reno. 71 F.Supp.2d 402, 411 (D. N.J. 1999) (noting that Jay v. Boyd and Barbour did not involve constitutional challenges to the statute and regulations). Although the Court must refrain from imposing constitutional restraints that might impede the government's ability to conduct immigration policy and protect national security, the Court must also ensure that the executive branch conducts bond redetermination proceedings in a fundamentally fair manner. See Mathews v. Diaz, 426 U.S. at 81. 96 S.Ct. 1883: see also Marburv v. Madison. 1 Cranch 137. 5 U.S. 137, 163. 2 L.Ed. 60 (1803) (explaining federal courts' obligation to enforce the right of individuals to claim protection of the laws). The Court will next evaluate the constitutional adequacy of Petitioner's bond redetermination proceedings in consideration of the individual and governmental interests at stake. See Mathews v. Eldridae. 424 U.S. 319. 96 S.Ct. 893. 47 L.Ed.2d 18 (1976). In Mathews v. Eldridge, the Supreme Court explained the analysis courts must apply in identifying the extent of procedural due process required in a given situation: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. Id. at 335, 96 S.Ct. 893. In order to strike the proper balance between these interests, the government should "adopt[ ] procedures that reduce the risk of erroneous deprivation without imposing an undue burden on the government." Walters v. Reno. 145 F.3d 1032. 1043-44 (9th Cir.1998). The Mathews v. Eldridge analysis applies with equal force to aliens in deportation proceedings. See Haitian http://intcrnational.wcstla\v.com/find/detault.wl?spa=inthague- 000&rs=WLIN8.01&fn=_top&sv=Split&findmris-00001&cite=97f+sunnl2d&utid=%7bl60ABE67-8A96-4305- 9 1 B6-3374A6 1 9CF2 l%7d&vi=2.0&rp=%2mnd%2fdefault.wl&mt=lnternationalLaw Page 26 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 184/196 SL PT OA2 Refugee Center, 676 F.2d at 1040 (applying Mathews v. Eldridge to deportable aliens' challenge to asylum application procedures); Talamantes-Penalver v. I.N.S., 51 F.3d 133 (8th Cir.1995) (applying Mathews v. Eldridge to deportable alien's due process challenge to requirements for filing appeal of I] decision); Yanez-Popp v. U.S. I.N.S., 998 F.2d 231 (4th Cir.1993) (applying Mathews v. Eldridge to deportable alien's challenge to denial of motion to reopen proceedings); see also Richardson v. Reno, 162 F.3d 1338 (llth Cir.1998), vacated and remanded on jurisdictional grounds, 526 U.S. 1142. 119 S.Ct. 2016. 143 L.Ed.2d 1029 (1999). Thus, the Court will next assess: (1) the nature of Petitioner's interest in bond redetermination proceedings; (2) the extent of the risk of erroneous deprivation of Petitioner's interests if classified information is introduced in those proceedings; (3) the potential impact of additional or different procedures; and (4) the nature of the Government's interests. a. Petitioner's Interest Respondents argue that Petitioner possesses no entitlement to release, and that the decision to release him is purely a matter of the Attorney General's discretion,*1353 thus precluding his due process challenge under Tefel v. Reno. 180 F.3d 1286 (llth Cir.1999). In Tefel, a class of deportable aliens who had been placed in deportation proceedings prior to IIRIRA challenged the application of the "stop- time" rule for determining eligibility for suspension of deportation.EÎUâ In reviewing the aliens' request for injunctive relief, the Eleventh Circuit held that "because suspension [of deportation] remains a purely discretionary 'act of grace,' " and there were no "limits on the Attorney General's discretion to grant or deny applications for suspension of deportation," the class of deportable aliens "[did] not enjoy any 'liberty or property' interest attendant to their applications for suspension." 180 F.3d at 1301. FN14. Specifically, the plaintiffs challenged the application of IIRIRA § 309(c)(5) which effectively rendered them ineligible to apply for suspension of deportation under former section 244 of the INA. Prior to IIRIRA, the time an alien spent in deportation proceedings counted toward the requirement of physical presence in the United States for a continuous period of not less than ten years after becoming deportable or seven years after applying for suspension of deportation. See Tefel, 180 F.3d at 1289 & n. 1: INA § 244(a)(2), 8 U.S.C. 5 1254faim (1995^. Respondents' reliance on 7efe/ in this matter is misplaced for several reasons. First, the nature of the interest Petitioner asserts is substantially different from that asserted by the Tefel plaintiffs. Here, the issue is not whether Petitioner has a right to release on bail pending his deportation proceedings, but rather whether he has been denied his right to a fundamentally fair proceeding to determine his eligibility for such release. See Greene v. McElrov, 360 U.S. 474. 496. 79 S.Ct. 1400. 3 L.Ed.2d 1377 (1959) ("[W]here governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue."). Petitioner does not, at this time, contest the fact of his continued detention, but rather the process by which it has been obtained. ( See Pet.Mem. in Opp'n at 11.) In addition, Tefel's conclusion that the relief sought was a "matter of grace" turned primarily on the absence of any standards or criteria limiting the scope of the Attorney General's discretion to suspend an alien's deportation order. See 180 F.3d at 1301. In contrast, at the time of his bond redetermination hearing, Petitioner was entitled to release on bond or other conditions unless the IJ determined that he was a threat to national security or a poor bail risk. See Flores. 507 U.S. at 295. 113 S.Ct. 1439: Pare/, 15 I & N Dec. 666. Because these criteria applied to custody determinations, the Attorney General's discretion to release Petitioner from detention was not "unfettered" or purely an "act of grace." Compare Yueh-Shaio Yang, 519 U.S. at 30, 117 S.Ct. 350 (noting Attorney General's "unfettered discretion" to award suspension of deportation and observing parallels between suspension and executive pardon). httpV/international.\vcstla\v com/find/det'ault \vl9spa=inthague- 0()0&rs=WLlN801&fn= top&sv=Split&findiuris=00001&cite=97f+suppl.2d&utid=%7bl60ABE67-8A96-4305- 91B6-3374A619CF21%7d&vi-2.0&rp=%2mnd%2fdefault\vl&mt=lnternationalLaw Page 27 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 185/196 SL PT OA2 Finally, as a "deportable" alien at the time of the bond redetermination hearing, Petitioner enjoys greater protections of due process than those afforded to the aliens in Tefel, who were subject to final orders of deportation from the United States. See Tefel, 180 F.3d at 1290f 1296; see also Zadvvdas, 185 F.3d at 295 (applying more deferential standard of review to due process claims of alien whose deportability had been properly and finally established). The Court finds that Petitioner's challenge to the use of and reliance on classified information at his bond redetermination proceedings implicates core interests of the Due Process Clause: (1) the right to petition the government and have that petition fairly adjudged " 'at a meaningful time and in a meaningful manner,' " Haitian Refugee Center, 676 F.2d at 1039 (quoting *1354 Armstrong v. Manzo. 380 U.S. 545. 552. 85 S.Ct. 1187. 14 LEd.2d 62 (1965^: (2) notice of the grounds on which the Government continues to detain him, see Zadvvdas, 185 F.3d at 297 (holding that deportable alien was entitled to periodic notice of basis for continued detention pending deportation); and (3) an opportunity to present evidence in opposition to the Government's asserted reasons for his detention. See Castillo-Villagra v. I.N.S., 972 F.2d 1017, 1021 (9th Cir.1992) (holding that deportable alien had procedural due process right to present rebuttal evidence in asylum hearing); Rivera-Cruz v. I.N.S., 948 F.2d 962. 968 (5th Cir.1991) (same). The Court further finds that the Government's presentation of, and the IJ and BIA's reliance on, classified evidence that neither Petitioner nor his counsel were able to review, compromised the fundamental fairness of Petitioner's hearing by denying him notice of the evidence against him and a meaningful opportunity to defend against that evidence. See Abourezk v. Reagan, 785 F.2d 1043. 1060-61 (D.C.Cir.1986), aff'd, 484 U.S. 1. 108 S.Ct. 252. 98 L.Ed.2d 1 (19871 ("It is a hallmark of our adversary system that we safeguard party access to the evidence tendered in support of a requested court judgment" in order that an alien would not be faced "with a decision against him based on evidence he was never permitted to see and to rebut.") The Court also finds that the additional failure to maintain any record of the ex parte in camera presentation of the classified evidence compounded the deprivation of a fair hearing on Petitioner's bond redetermination by insulating the IJ's decision from meaningful review by the BIA and this Court. See Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir.1996) (holding that failure to maintain record of deportable aliens' interviews in asylum hearing violated procedural due process). In view of the fact that the denial of release on bond resulted in Petitioner's continued detention away from his family and community, the Court concludes that Petitioner had a strong interest in having his request for redetermination of his custody status fairly judged. See Haitian Refugee Center. 676 F.2d at 1040 (concluding that deportable aliens had constitutionally protected interest in proving entitlement for asylum). b. Risk of Erroneous Determination The risk of error inherent in the truth-finding process is an additional factor influencing the extent of procedural due process required in bond redetermination proceedings. See Mathews v. Eldridge, 424 U.S. at 344. 96 S.Ct. 893: Haitian Refugee Center, 676 F.2d at 1040 (finding that "the risk that the INS will make an erroneous asylum determination under the procedures used here is unacceptably high"). Although the "primary consideration in a bail determination is that the parties be able to place the facts as promptly as possible before an impartial arbiter," Matter ofChirinos, 16 I & N Dec. 276. 277 (BIA 1977), expeditious procedures should not result in uninformed and unreliable decisions. See Haitian Refugee Center, 676 F.2d at 1040 ("When speed was combined with knowingly created scheduling conflicts and unattainable filing deadlines, uninformed and unreliable decisions were almost assured.") Due to the ex parte presentation of the classified information here, a similarly high risk of an erroneous determination regarding Petitioner's custody status may be http //international westlaw com/find/default \vl?spa=mlhague- 000&r5=WMN8.QI&rn=_top&sv=Split&find_mris=00001&cite=97f+5uppl2d&utid=%7bl60ABt£67-8A96-4305- 91B6-3374A619CF21%7J&vr=20&rp=%2fRnd%2fdefaultwl&mt=InternationalLaw Page 28 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 186/196 SL PT OA2 present. See Abourezk, 785 F.2d at 1061 (noting the "firmly held mam rule that a court may not dispose of the merits of a case on the basis of ex parte, in camera submissions.") The Supreme Court has repeatedly emphasized the importance of the integrity and accuracy of administrative determinations in immigration proceedings. See Landon, 459 U.S. at 34. 103 S.Ct. 321 ( citing Mathews v. Eldridge); Bridges v. Wixon. 326 U.S. 135. 153. 65 S.Ct. 1443. 89 L.Ed. 2103 (1945) (noting that signed written statement under oath by witness in deportation hearing "would have afforded protection against mistakes in hearing, mistakes in memory, mistakes *1355 in transcription"); see also Abourezk, 785 F.2d at 1061 ("The openness of judicial proceedings serves to preserve both the appearance and reality of fairness in the adjudication of United States Courts.") Indeed, "the very foundation of the adversary process assumes that use of undisclosed information will violate due process because of the risk of error." American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045. 1069 (9th Cir.19951. rev'd in part on jurisdictional grounds, 525 U.S. 471. 119 S.Ct. 936. 142 LEd.2d 940 (1999). Here, Petitioner and his counsel were not afforded an opportunity to review the classified information presented to the IJ at the ex parte in camera portion of the bond redetermination hearing. Nor were they permitted to review a substitution for the classified information in the form of a statement admitting relevant facts that the classified information would tend to prove. See, e.g., Classified Information Procedures Act ("CIPA"), 18 U.S.C.A.App. 3 S 6fc)m (providing for alternative procedures for disclosure of classified information). Although IJ McHugh provided Petitioner with a one-line unclassified summary of the classified information, ( see Petition Exh. F), the Court finds that the summary on its face was insufficient to provide Petitioner with notice of the information underlying the IJ's determination that he was a threat to national security. As grounds for his determination, the IJ referenced only Petitioner's "association with a terrorist organization known as the Palestinian Islamic Jihad," as demonstrated by classified evidence reviewed ex parte and in camera. ( See Petition Exh. A. at 6.) Without an opportunity for Petitioner to confront the information demonstrating his alleged "association," there was no adversarial check on the quality of the information on which the INS relied. See American-Arab. 70 F.3d at 1069 (quoting Knauff, 338 U.S. at 551. 70 S.Ct. 309 (Jackson, J., dissenting) ("The plea that evidence of guilt must be secret is abhorrent to free men because it provides a cloak for the malevolent, the misinformed, the meddlesome, and the corrupt to play the role of informer undetected and unconnected.")) The risk of an unreliable determination and an erroneous deprivation of procedural due process rights as a result of the use of classified information in a bond redetermination hearing without an "adversarial check on the quality of the information on which the INS relies" is no less than the risk of error in a deportation proceeding conducted m an ex parte in camera manner. See American-Arab, 70 F.3d at 1069 (referring to introduction of classified information in an ex parte in camera deportation hearing); see also id. ("[o]ne would be hard- pressed to design a procedure more likely to result in erroneous deprivations") (quotation omitted). Therefore, the Court finds that the introduction of classified information in an ex parte in camera proceeding, without the benefit of an adversarial check on the reliability of that information, posed a substantial risk that the IJ and the BIA could reach an erroneous or unreliable determination that Petitioner should continue to be detained as a threat to national security. c. Potential Impact of Additional or Different Procedures Although not all of the rights of criminal defendants are applicable in the immigration context, see Carlson, 342 U.S. at 537. 72 S.Ct. 525. the concept of procedural due process arises more generally from the rights to confrontation and cross-examination, applicable in all judicial proceedings. See Greene, 360 U.S. at 496. 79 S.Ct. 1400 (discussing "immutable" principle that "evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue.") Because the "foundation of the adversary process assumes http://international.wcstla\v.com/tlnd/det'ault.\\r?spa=inthaeuc- 000&rs=WLlN8 01 &fn=_ top&sv=Split&findiuns=00001 &cite=97f+suppl 2d&utid=%7b 160ABH67-8A96-4305- 91B6-3374A619CF21 %7d&vr=2 0&rp=%2fTind%2fdefault.wl&mt=InternationalLa\v Page 29 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 187/196 SL PT OA2 that use of undisclosed information will violate due process because of risk of error," American-Arab. 70 F.3d at 1069, additional procedures*iJ56 for the use of classified information in bond redetermination proceedings have a distinct value in minimizing that risk and ensuring the integrity of the result of the proceeding. See Abourezk, 785 F.2d at 1060-61 (providing party access to evidence "preservefs] both the appearance and the reality of fairness in the adjudications of the United States courts.") d. Governmental Interests It is well-settled that the government has an interest in efficient administration of the immigration laws, and in the balancing of interests, it"weigh[s] heavily ... that control over matters of immigration is a sovereign prerogative, largely within the control of the executive and the legislature." Landon. 459 U.S. at 34. 103 S.Ct. 321. In accordance with this delegation, "the role of the judiciary is limited to determining whether the procedures meet the essential standard of fairness under the Due Process Clause and does not extend to imposing procedures that merely displace congressional choices of policy." EMS Id. In addition, present in this case is the governmental interest in protecting national security, an interest that may at times be very compelling. See Haia v. Aaee, 453 U.S. 280. 307. 101 S.Ct. 2766. 69 L.Ed.2d 640 (1981) (finding that protection of national security and foreign policy "is a governmental interest of great importance"); Snepp v. United States. 444 U.S. 507, 509 n. 3. 100 S.Ct. 763. 62 L.Ed.2d 704 (19801 ("The Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service."); see also Carlson, 342 U.S. at 538, 72 S.Ct. 525 (noting importance of detention during deportation proceedings to prevent aliens from injuring United States in the interim). These governmental interests remain undisputed, but the issue is whether these interests justify denial of procedural due process protections to Petitioner in continuing to detain him pending resolution of his deportation proceedings. See HalQ. 453 U.S. at 310. 101 S.Ct. 2766 (balancing citizen's procedural due process rights with national security interests); Rafeedie v. I.N.S., 795 F.Supp. 13. 19 (D.P.C.1992) (balancing permanent resident alien's procedural due process rights with government's national security interests). FN15. The Court notes that the House of Representatives is currently considering a bill that would repeal the ATRC provisions and prohibit the introduction and use of classified national security information m immigration proceedings. See Secret Evidence Repeal Act of 1999, H.R.2121, 106th Cong. (1999). In addition to the immigration and national security interests, however, the government also has an interest in the integrity and accuracy of administrative proceedings in which those interests are furthered. See Bridges, 326 U.S. at 153. 65 S.Ct. 1443 (finding that rules governing immigration proceedings "are designed as safeguards against essentially unfair procedures."); Abourezk, 785 F.2d at 1060 (describing governmental interest in preserving fairness in judicial proceedings). Balancing the government's interests with Petitioner's interests in the context of Petitioner's bond redetermination proceeding, the Court finds that Petitioner's procedural due process rights have been violated insofar as the introduction of and reliance on classified information deprived him of his right to a fundamentally fair hearing to determine his eligibility for release from custody during the pendency of his deportation proceedings. See American-Arab. 70 F.3d at 1070 (holding that government's use of undisclosed classified information violated deportable aliens' due process rights); Haitian Refugee Center, 676 F.2d at 1040 (holding that government conducted asylum proceedings in fundamentally unfair manner as to violate deportable aliens' due process rights); Matter of Velasquez, 19 I & N Dec. 377. 380 (BIA 1986) (holding that evidence considered*J357 by BIA in deportation proceedings must be "probative and its use fundamentally fair, so as not to deprive an alien of due process of law"); see also Haig, 453 U.S. at 310. 101 S.Ct. 2766 http //international \\eslliivv.com/flnd/defaull wl?spa=inthaguc- 000&rs=WUN801&fn= top&sv=Split&fJndiuris=00()01&cite=97t+suppl.2d&utid=%7bl60ABn67-8A96-4305- 9lB6-3374A6l9Cr21%7d&vr=20&rp=%2frind%2rdefaultwl&mt=lnternationalLavv Page 30 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 188/196 SL PT OA2 (holding that statement of reasons for revocation of American citizen's passport and prompt post-revocation hearing comported with procedural due process guarantees). Specifically, the manner in which the IJ conducted Petitioner's bond redetermination proceedings deprived Petitioner of his rights: (1) to notice of the evidence presented in opposition to his release from detention; (2) an opportunity to confront and rebut that evidence; and (3) a fundamentally fair hearing of his application for redetermination of his custody status.fm& FN16. Because the Court has not reviewed the classified information and because the Court finds Petitioner's procedural due process rights were violated on these three grounds, the Court does not reach Petitioner's challenge to the use of hearsay evidence at the ex parte in camera portion of the bond redetermination hearing. Appropriate Remedy [19] Having determined that the manner in which the IJ and BIA conducted Petitioner's bond redetermination proceedings violated his right to procedural due process, the Court must now determine the appropriate remedy. These procedural due process violations described above impermissibly tainted Petitioner's bond redetermination proceedings. Thus, the precise injury here is to Petitioner's constitutionally protected right to have his application for release from custody pending his deportation proceedings fairly judged. Accordingly, the remedy forthat injury is to afford Petitioner the opportunity for his application to be considered by the IJ in a fundamentally fair manner on remand. See Arauz v. Rivkind. 845 F.2d 271, 276 (llth Cir.1988) (affirming district court's order remanding to INS to consider asylum application m fundamentally fair manner); Castro-O'Rvan v. U.S. I.N.S.. 847 F.2d 1307, 1314 f9th Cir.1987) (remanding for reconsideration of asylum application in fundamentally fair hearing). As explained by Judge Friendly, among the most important attributes of a fair hearing are: (1) notice of the proposed action and the grounds on which it is asserted; (2) the right to know the evidence presented against the individual; (3) a decision based solely on the evidence presented; and (4) a proceeding open to the public. See Henry J. Friendly, Some Kind of Hearing, 123 U.Pa.L.Rev. 1267. 1275 (1975): see also Mathews v. Eldridae. 424 U.S. at 348. 96 S.Ct. 893 ("The essence of due process is the requirement that 'a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it.' ") ( quoting Joint Anti- Fascist Committee v. McGrath. 341 U.S. 123. 171-72. 71 S.Ct. 624. 95 L.Ed. 817 (1951) (Frankfurter, J., concurring)). In revisiting Petitioner's application for redetermination of his custody status, the IJ must balance these procedures against the government's interests in detaining Petitioner pending resolution of his deportation proceedings and protecting classified information from unnecessary disclosure. See American-Arab, 525 U.S. at 490. 119 S.Ct. at 947 (noting tension between aliens' interests and government's interests in preventing disclosure of classified information while putting "an end to an ongoing violation of United States law.") a. Determination Based Solely on Public Record The first step in achieving this balance is a determination by the IJ whether, based solely on the evidence presented at the public portions of the bond redetermination proceedings held on May 29, 1997 and June 6, 1997, there are facially legitimate and bona fide reasons to conclude that Petitioner is a threat to national security. See Azzouka v. Meese, 820 F.2d 585. 587 (2d Cir.1987) (per curiam) (determining that public record alone, apart from classified information, contained sufficient evidence*J35S to justify finding that alien was threat to national security). The IJ is in the best position to make such a factual determination.™12 See id. (noting that court had remanded to agency for finding on factual issue of threat to national http://international.westla\v.com/find/det'ault.\vl?SDa=inthaeue- 000&rs=WLIN8.01&fn=_top&sv=Split&findiuns=00001&cite=97f+suppl2d&utid=%7bl60ABE67-8A96-4305- 9m6-3374A619CF2l%7d&vr=20&rp=%2ffînd%2rdetault\vl&mt=liitemationalLa\v Page 3 lof 36 ICC-01/04-01/07-176-AnxA 01-02-2008 189/196 SL PT OA2 security); Flvnn v. Shultz. 748 F.2d 1186. 1194 (7th Cir.1984) (remanding to agency for factual determination). The Court finds that the IJ may in fact be able to make this determination, in conformity with procedural due process, based on the complete record of the public portions of Petitioner's prior bond redetermination hearings, without further hearing. See Arauz, 845 F.2d at 276 (explaining that full evidentiary hearing on remand was not required as long as alien was afforded "some meaningful opportunity to be heard, followed by the [IJ's] careful consideration of the weight to be given such evidence"); United States v. Franz, 818 F.Supp. 1478, 1483 (M.D.Fla. 1993) (finding de novo hearing on remand unnecessary where record of prior administrative hearing was complete and sufficient to make factual determination). Upon a finding that the public record evidence in fact supports the conclusion that Petitioner is a threat to national security, the IJ's inquiry is at an end. FN17. No transcript of the public portion of Petitioner's bond redetermination proceeding was made and the parties have not provided the Court with a tape recording or other record of that hearing. b. Procedures for Use of Classified Information If the IJ determines the public record insufficient to conclude that Petitioner must be detained as a national security threat, only then should the Government present, if it wishes, classified information in support of its argument for continued detention. In such a situation, the Government should not be entirely precluded from relying on classified information, but must introduce it in a manner that affords Petitioner "access to the decisive evidence to the fullest extent possible, without jeopardizing legitimately raised national security interests." Abourezk, 785 F.2d at 1060; see Haitian Refugee Center. 676 F.2d at 1039 & n. 41 (giving government opportunity to submit proposed plan for processing Haitian aliens' asylum applications in conformity with due process). At the public portion of the bond redetermination hearing, the IJ did make efforts to ensure that "all appropriate safeguards were employed to minimize [Petitioner's] disadvantage of not being able to examine the classified evidence," (BIA Bond Redetermination Decision, at 9), such as providing an unclassified summary of the classified evidence and re-opening the hearing to permit Petitioner to present additional rebuttal witnesses. These efforts, however, did not reach far enough to remedy the fundamental deprivations of due process Petitioner sustained as a result of his inability to know and confront the evidence against him. See Greene. 360 U.S. at 496, 79 S.Ct. 1400 (emphasizing importance of disclosure of evidence to individual "so that he has an opportunity to show that it is untrue.") For example, the one- sentence description of Petitioner's "association" with the Palestinian Islamic Jihad and the opportunity to present witnesses who could only testify in the abstract in rebuttal to these allegations did not vitiate the fact that the unclassified summary lacks detail to bolster the credibility of its content and the necessity of its use against Petitioner. See Kiareldeen, 71 F.Supp.2d at 413 (criticizing lack of substance in unclassified summary of classified information used in deportable alien's bond redetermination proceedings). Two statutory schemes suggest procedures that may assist the IJ in conducting a proceeding involving classified evidence that properly balances Petitioner's procedural due process rights and the government's interests in national security and the fair and efficient administration of the *1359 immigration laws.™12 Congress established a statutory scheme for the introduction of classified evidence in criminal proceedings in CIPA, 18 U.S.C.A.App. 3 55 1- 16, and, subsequent to the initiation of Petitioner's deportation proceedings, established a statutory scheme for the use of classified evidence in deportation proceedings in the ATRC procedures. See 8 U.S.C.A. 55 1531 et seq. Neither CIPA nor the ATRC procedures apply in the context of Petitioner's bond redetermination proceedings: CIPA because it applies only to criminal proceedings, see United States v. Koreh. 144 F.R.D. 218. 223 (D.N.J.1992) (holding that CIPA did not apply to denaturalization proceedings which were civil in nature); and the ATRC http //international.westlaw com/find/dcfault \vPspa=inthague- 000&rs=WLIN8()l&fn=_top&sv=SDlit&nndiuris=00001&ciie=97f+suppl2d&utid=%7bl60ABF67-8A96-4305- 91D6-3374A619CF21%7d&vi=20&rp=%2ffînd%2fdcfaullwl&mt=IntemationalLaw Page 32 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 190/196 SL PT OA2 provisions because they apply only to determine the deportability of alien terrorists. See Part III.B.2, supra. FN18. In addition, the Court notes that the Attorney General is, at present, "working on guidelines and regulations to regularize and improve" practices and procedures designed "to ensure that classified evidence is used only when necessary to serve the national interest." See Hearing on H.R. 2121 Before the House Judiciary Subcommittee on Immigration, 106th Cong. (Feb. 10, 2000) (prepared testimony of Larry R. Parkinson, General Counsel, FBI) ("Parkinson Testimony"). The procedures in CIPA and the ATRC do provide guidance, however, for the D to establish procedures for the introduction of classified information in Petitioner's bond redetermination hearings, following the requisite findings based on the public evidence, that will preserve Petitioner's rights to notice, an opportunity to confront the evidence, and a fundamentally fair proceeding, that are the essence of procedural due process. See Mathews v. Eldridge, 424 U.S. at 348. 96 S.Ct. 893. For example, CIPA requires a record of all proceedings, including ex parte in camera proceedings, see 18 U.S.C.A.App. 3 55 4, 6(a), 6(d). and provides the option of substituting a stipulation of the facts the classified evidence would tend to prove. See 18 U.S.C.A.App. 3 5 6(c). In addition, the ATRC procedures provide alien terrorists access to counsel with security clearance to represent them in deportation proceedings. See 8 U.S.C.A. 5 1532(6).™^ FN19. Among the proposed amendments to the ATRC procedures, the Secret Evidence Repeal Act of 1999 would "[e]ntitle an alien subject to arrest and detention for removal or deportation to ... Government-provided counsel and access to all evidence." H.R. 2121, 106th Cong. 5 6 (1999). Following the guidance of CIPA or the ATRC does not, however, require the Government to disclose the classified information to Petitioner. See C.I.A. v. Sims. 471 U.S. 159. 180. 105 S.Ct. 1881. 85 L.Ed.2d 173 (1985) (holding that courts may not themselves order declassification and disclosure of classified national security information). To the contrary, the Court's recognition of the government's interests in combating terrorism and protecting national security underscore the Court's conclusion that classified information should not be abused, but should be invoked only upon an allegation that the alien poses a threat to national security and a finding that the record evidence is insufficient to justify such detention. See American-Arab, 70 F.3d at 1070 ("Only the most extraordinary circumstances could support one-sided process."); Abourezk, 785 F.2d at 1061 (noting "the firmly held main rule that a court may not dispose of the merits of a case on the basis of ex parte, in camera submissions").m2a- A prerequisite, independent finding, on the basis of the record evidence alone, shall serve to reduce the risks of: (1) unnecessary disclosure of classified information; (2) deprivation of an alien's right to procedural due process; and (3) an erroneous administrative determination contrary to fundamental*J360 fairness. See Molerio v. F.B.I.. 749 F.2d 815. 821 (D.C.Cir.19841) (balancing government's and individual's interests to allow introduction of classified information only upon prerequisite finding of necessity). FN20. See also Parkinson Testimony, supra note 18 (explaining that "[b]efore any final decision is made to use classified information in immigration proceedings, the information and the case are subjected to rigorous review at high levels of all affected Justice Department components to ensure that it is necessary and appropriate to use the information"). D. Petitioner's Detention Based on His "Association" with PIJ. Petitioner also claims that his detention based on his "association" with the PIJ violated the INA and the First Amendment. Although Respondents do not address Petitioner's statutory arguments, they do argue that the First Amendment does not preclude the use of classified information in Petitioner's bond redetermination http://mtcrnational.westlaw com/find/default \vl9>>pa=inthaguc- 000&r5=WL1N801&fn=_top&sv=Split&findiuris=00001&cite=97f+supnl.2d&utid=%7bl60ADE67-8A96-4305- 9IB6-3374A619CF21%7d&vr=2.0&rp=%2fHnd%2fdefaultwl&mt=InternalionalUw Page33of36 ICC-01/04-01/07-176-AnxA 01-02-2008 191/196 SL PT OA2 proceedings. ( See Resp. Answer at 46.) In view of the Court's decision to remand this matter to the INS for further proceedings it is necessary to clarify the limits on the Attorney General's ability to detain an alien as "a threat to national security." 1. INA [20] The IJ determined that Petitioner was a threat to national security, and therefore ineligible for release on bond "[specifically because of his association with the Palestinian Islamic Jihad terrorist organization." (IJ's Bond Redetermination Decision at 6.) Therefore, the issue is whether, under the INA, a deportable alien's mere "association" with a known terrorist organization, is reasonable grounds to conclude that he is a threat to national security and that he should therefore continue to be detained during the pendency of deportation proceedings. No authority has been cited to the Court discussing what facts and circumstances suffice, in bond redetermination proceedings, to demonstrate that an alien is a threat to national security based on his "association" with a known terrorist organization, specifically here the PI]. In the deportation context, however, the Supreme Court has addressed the extent of "association" that must be shown to deport an alien based on his membership in or affiliation with the Communist Party pursuant to section 22 of the Internal Security Act of 1950, and INA § 241(a)(6)(c), 8 U.S.C.A. S 1251(a)(6)(g (West 1952). See Rowoldt v. Perfetto, 355 U.S. 115. 78 S.Ct. 180. 2 LEd.2d 140 (1957): Galvan v. Press. 347 U.S. 522. 74 S.Ct. 737. 98 L.Ed. 911 (1954).fjm The Court has interpreted "membership" to mean "more than the mere voluntary listing of a person's name on the Party rolls," Scales v. United States. 367 U.S. 203, 222, 81 S.Ct. 1469. 6 L.Ed.2d 782 (19611. This interpretation recognized that "there is a great practical and legal difference between those who firmly attach themselves" to the beliefs of an organization "being aware of all of the aims and purposes attributed to it," and those who temporarily join an organization unaware "of its international relationship and believing it to be a group solely trying to remedy unsatisfactory social or economic conditions, carry out trade-union objectives, eliminate racial discrimination, combat unemployment, or alleviate distress and poverty." Gastelum- Ouinones v. Kennedy. 374 U.S. 469. 472-73. 83 S.Ct. 1819. 10 L.Ed.2d 1013 (19631. Therefore, under the INA, in order to be deportable based on "membership" or "affiliation" with the Communist Party, the evidence must have shown the alien's "meaningful association" with and awareness of the "distinct and active political nature" of the Party. Id. at 473, 83 S.Ct. 1819 (citing *1361 Rowoldt, 355 U.S. at 120. 78 S.Ct. 180 and Galvan. 347 U.S. at 528. 74 S.Ct. 737): see also Bridges, 326 U.S. at 144, 65 S.Ct. 1443 (holding "course of conduct which reveals cooperation with Communist groups for the attainment of wholly lawful objectives" did not constitute "affiliation" as defined by INA). FN21. Section 22 of the Internal Security Act ("ISA") provided that the Attorney General shall take into custody and deport any alien "who was at the time of entering the United States, or has been at any time thereafter, ... a member of any one of the classes of aliens enumerated in section 1(2) of this Act." ISA 55 1, 22, 64 Stat. 987, 1006, 1008 (1950). Section 1(2)(C1 of the ISA listed "[a]hens who are members of or affiliated with (i) the Communist Party of the United States...." Id. This provision was incorporated into INA § 241(a)(6)(c), 8 U.S.C.A. S 1251(a)(61(c1. See Rowoldt, 355 U.S. at 117 n. 1. 78 S.Ct. 180: Galvan, 347 U.S. at 525 n. 2. 74 S.Ct. 737. The juxtaposition of the evidence presented in Galvan with the evidence presented in Rowoldt provides further definition to the concept of "association" as used in the Internal Security Act and the INA. In Galvan, the INS presented two sources of evidence of the alien's membership in the Communist Party: (1) the alien's own testimony during interrogation by the INS; and (2) the testimony of a woman who had been present when the alien was elected an officer of the Spanish Speaking Club, an alleged unit of the Communist Party. See Galvan, 347 U.S. at 524. 74 S.Ct. 737. http //international.westla\\.com/find/dcfault \\l9spa=iiithaauc- 000&rs=WLlN80l&fn=_top&sv=Split&findiuns=00001&cite=97f+suppl.2d&utid=%7bl60ADE67-8A96-4305- 9IB6-3374A619CF21%7d&vr=2.0&n)=%2ffind%2fdefaultwl&mt=lntcrnationalLaw Page 34 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 192/196 SL PT OA2 In defense against his deportation, the alien argued that he did not join the Communist Party, and that if he did join, he was unaware of the Party's true purposes and program. Id. at 528, 74 S.Ct. 737. As summarized by the Court, the evidence on which the INS Hearing Officer based his finding that the alien was a "member" in the Communist Party showed that: (1) the alien was asked to join the Party by a person he assumed to be an organizer; (2) the alien attended a number of meetings; (3) the alien did not apply for United States citizenship because he feared his Party membership would become known to the authorities; and (4) the alien was active in and an officer of the Spanish Speaking Club. Id. at 529, 74 S.Ct. 737. Based on this evidence, the Court concluded that there was a reasonable foundation for the finding that the alien was a member of the Communist Party, and that, even if the alien was unaware of the Party's advocacy of violence, the evidence "[did] not show a relationship to the Party so nominal as not to make him a 'member' within the terms of the Act." Id. In contrast, the evidence presented in Rowoldt consisted solely of Rowoldt's own testimony that he had previously been a member of the Communist Party for a period of less than one year. See 355 U.S. at 116. 78 S.Ct. 180. Although he had worked as a salesman in a Communist Party bookstore during that time, Rowoldt stated that his purpose in joining the Party was motivated by his need to fight to obtain food and a job. Id. at 117, 78 S.Ct. 180 ("The purpose was probably this-it seemed to me that it came hand in hand-the Communist Party and the fight for bread ... [T]he Communist Party and the Workers' Alliance had one aim-to get something to eat for the people.") Noting that "[t]he differences on the facts between [ Galvan ] and this case [were] too obvious to be detailed," the Court stated: we cannot say that the unchallenged account given by [Rowoldt] of his relations to the Communist Party establishes the kind of meaningful association required by [the INA] ... From his own testimony in 1947, which is all there is, the dominating impulse to his "affiliation" with the Communist Party may well have been wholly devoid of any "political" implications. 355 U.S. at 120-21. 78 S.Ct. 180. See also Grzvmala-Siedlecki v. United States, 285 F.2d 836. 840 (5th Cir.19611 (holding that alien's own testimony established that his "affiliation" with Communist Party was devoid of "political" implications and therefore insufficient to establish "meaningful association" required for deportability under Internal Security Act). Instructed by the Supreme Court's interpretation of the concept of "meaningful association" under the INA, this Court finds that mere "association" with a known terrorist organization such as the PIJ does not constitute a reasonable foundation under the INA for the conclusion that Petitioner was a threat to national security and therefore would not be released from INS custody on bond. While the INA permits the Attorney General to detain an alien as a threat to national security, the statute, *1362 as interpreted by the Supreme Court, requires that the evidence supporting that decision show more than "unexplained membership" and show a "degree of participation" m the activities of the organization that poses a threat to national security. See Carlson. 342 U.S. at 541. 72 S.Ct. 525. Therefore, Petitioner's mere "association" with the PIJ is not a reasonable foundation for the IJ's decision to deny bond and continue to detain Petitioner as a threat to national security. See id. (holding bond redetermination decision may only be overridden "where it is clearly shown that it 'was without a reasonable foundation.' ") (internal citation omitted). On remand, therefore, when evaluating the public record evidence, and/or any classified information presented consistent with this Order, the IJ must determine whether the evidence demonstrates more than mere "membership" or "association," but rather "meaningful association" or a "degree of participation" in activities posing a threat to national security. See Gastelum-Ouinones. 374 U.S. at 476-77, 83 S.Ct. 1819 (holding that evidence was "extremely insubstantial in demonstrating the 'meaningful' character of [the alien's] association with the Party, either directly, by http //international wcstlaw.com/find/deFault.vvl?spa=inlhaaue- 000&rs=W[J|N80l&fn=Jop&sv=Split&findiuris=00001&cite=97f+suppl.2d&utid=%7hl60ABE67-8A96-4305- 91D6-3374A619Cl'21%7d&\i-20&rP=%2fTind%2rdefault\vl&mt=InternationalLaw Page 35 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 193/196 SL PT OA2 showing that he was, during the time of his membership, sensible to the Party's nature as a political organization, or indirectly, by showing that he engaged in Party activities to a degree substantially supporting an inference of his awareness of the Party's political aspect"); Rowoldt. 355 U.S. at 121. 78 S.Ct. 180 (holding that record was "too insubstantial" to demonstrate "meaningful association" required by INA for deportation); Diaz v. Barber, 261 F.2d 300. 301 f9th Cir. 19581 (holding that evidence of alien's past "connections" with Communist Party did not demonstrate "meaningful association" under INA). 2. First Amendment Petitioner also argues that the IJ's decision to deny his release on bond as a threat to national security based on his "association" with the PIJ violates the First Amendment. ( See Pet.Mem. in Support at 33-37.) Having found that the IJ's conclusion that Petitioner is a threat to national security based on his "association" with the PIJ lacks a reasonable foundation under the INA, however, the Court need not reach the First Amendment issues raised by Petitioner. See Bridges, 326 U.S. at 156-57. 65 S.Ct. 1443 (declining to reach constitutional issues where evidence was insufficient to demonstrate "affiliation" required by statute). VI. Conclusion Having concluded that Petitioner possessed a constitutionally protected interest in applying for a redetermination of his custody status and having that application fairly judged, and that the procedures followed at Petitioner's bond redetermination proceedings were not fundamentally fair, the Court has fashioned a remedy for the injury to Petitioner's procedural due process rights by vacating the bond redetermination decisions of the IJ and of the BIA and remanding this matter to the INS for further proceedings consistent with this Order. The Court intends this remedy to strike the proper balance between Petitioner's procedural due process rights and the Government's interests "by adopting procedures that reduce the risk of erroneous deprivation without imposing an undue burden on the government." Walters, 145 F.3d at 1043-44. Accordingly, it is ORDERED AND ADJUDGED that: (1) The Petition for Writ of Habeas Corpus, filed December 22, 1999, is GRANTED IN PART to the extent that the Bond Redetermination Decisions of the Immigration Judge, dated June 23, 1997, and of the Board of Immigration Appeals, dated September 15, 1998, are VACATED and this matter is REMANDED to the Immigration and Naturalization Service for further proceedings consistent with this opinion. The Petition is DENIED IN PART to the extent that Petitioner shall remain in the *1363 custody of Respondents pending a redetermination of Petitioner's custody status by the Immigration Judge. (2) Respondents' Motion to Dismiss, filed February 1, 2000 is DENIED. (3) Petitioner's Motion to Strike, filed February 25, 2000 is DENIED. (4) The Clerk of the Court is DIRECTED to CLOSE this case forthwith. 97 F.Supp.2d 1329 END OF DOCUMENT (C) 2008 Thomson/West. No Claim to Ong. US Gov. Works http://intcrnational.weslla\v com/find/dctault \vl?spa=mthague- 000&rs=WLlN801&fn= top&sv=Sp1it&rindiuns=00001&cite=97f+supnl 2d&utid=%7bl60ARR67-8A96-4305- 91 B6-3374A619CF21%7d&vr=2 0&rp=%2fTind%2fderault wl&mt=[nternatiomilLaw Page 36 of 36 ICC-01/04-01/07-176-AnxA 01-02-2008 194/196 SL PT OA2 UNITED NATIONS E Economie and Social Council GENERAL E/CN.4/1998/39/Add.2 30 March 1998 Original: ENGLISH COMMISSION ON HUMAN RIGHTS Fifty-fourth session Agenda item 8 QUESTION OF THE HUMAN RIGHTS OF ALL PERSONS SUBJECTED TO ANY FORM OF DETENTION OR IMPRISONMENT Report of the Special Rapporteur on the independence of judges and lawyers. Mr. Param Cumaraswamy ADDENDUM Report on the mission of the Special Rapporteur to Colombia CONTENTS Paragraphs INTRODUCTION 1 -19 I. GENERAL 20-61 BACKGROUND A. The crisis in the administration of justice 26 - 34 B. General structure of the judiciary 35-61 II. REGIONAL 62 - 74 COURTS III. REGIONAL COURTS IN LIGHT OF 75 - 95 INTERNATIONAL STANDARDS CONCERNING THE INDEPENDENCE AND IMPARTIALITY OF THE JUDICIARY AND THE RIGHT TO DUE PROCESS OF THOSE TRIED BY THESE COURTS http-.//wwvvunhchrch/Huridocda/Huridoca.nsr/TestFrame/elb44569379d86b080256659005262b3':>Opendocumcnt Page 1 of 37 ICC-01/04-01/07-176-AnxA 01-02-2008 195/196 SL PT OA2 is alleged that the military continues to conduct regular searches and seizures; it arrests and seizes; it arrests, detains and interrogates suspects and witnesses, often without legal counsel present. In addition, Decree 717 of 1996 created special public order zones (zonas especiales de orden pùblico) within which the military have complete control over all public security forces. 67. Article 28 of the 1991 Constitution requires a prior written warrant issued by a competent judicial officer for every arrest. Article 370 of the Code of Penal Procedure provides that the only exception is the case of in flagrante delicto where the suspect is seen committing a crime; this provision has been broadly interpreted by the military to allow it to arrest and to waive the warrant requirement. According to the information received, between 1993 and 1996, the Armed Forces arrested 6,019 persons on suspicion of membership in guerrilla organizations; in 5,500 or over 90 per cent of the cases, the Office of the Procurator-General found there was insufficient evidence to issue formal charges. 68. It is alleged that officials have sought to justify the practice of detaining individuals temporarily within military installations while awaiting transfer to a civilian facility by citing lack of resources and personnel. According to the information received, individuals held in military custody on suspicion of links to the guerrillas have testified that they have been intimidated and tortured to give evidence. 69. In addition, the Office of the Procurator-General (Fiscatia General de la Nación) has an unfettered authority to order arrest, detention and seizures of property under article 250 of the Constitution. Motions can be filed questioning the legitimacy of an arrest or search, but, these motions should be filed before the prosecutor who issued the order, while appeals from his or her decision simply go up the hierarchical chain of command within the Office of the Procurator-General. There is, de jure, an ultimate power of judicial review by the Supreme Court. However, non-governmental organizations claim that in practice there is no review by an independent judge. 70. In the Regional Court system, witnesses for the prosecution are anonymous; this decision rests entirely on the discretion of the prosecutor; the reason provided by the Government is the inability to guarantee the safety of witnesses. Cross examination of anonymous witnesses was authorized only in 1993; however, once it was permitted, it was restricted by the practical difficulties of maintaining the anonymity of the State's witnesses. It was alleged that usually there is no cross examination because there is an assumption that the prosecutor will not produce an unreliable witness. Even though regional court rules do state that the testimony of an anonymous witness cannot by itself sustain a conviction, it can provide sufficient basis for arresting and detaining a suspect. Additionally, it is alleged that when the case enters the judgment phase, prosecutors reveal the name of the witness in an attempt to enhance the probative value of testimony and to ensure convictions. It was also alleged that individuals are often coerced to cooperate with the military in criminal investigations. 71. Judges and prosecutors are also anonymous. Given the obvious problems this situation created in regard to the right to due process of those tried under exceptional circumstances, the Congress tried to introduce some changes in 1996 by adopting the Statutory Law on the Administration of Justice. Article 205 of this law sought to impose some restrictions on the use of anonymous witnesses by providing that the anonymity should be restricted to certain crimes only. However, the Constitutional Court deemed article 205 unconstitutional: these restrictions should not be placed in a statutory law given the fact that they were essentially of http /Avww unhchr ch/Huridocda/Hundoca nst7TestFrame/el b44569379d86b080256659005262b3?Opendocument Page 14 of 37 ICC-01/04-01/07-176-AnxA 01-02-2008 196/196 SL PT OA2 a procedural nature; consequently, the use of anonymous witnesses, prosecutors and judges within the Regional Court system is a standard practice. There is, however, an internal regulation in the Office of the Procurator-General which limits use of anonymity at the prosecutor's discretion. 72. It is alleged that the system of the regional courts is used in order to persecute social and political activists, as well as human rights defenders, many of whom are lawyers. 73. At the time of the mission, there was a total of approximately 1,600,000 cases in the various stages of proceedings, of which 30,000 came under the jurisdiction of the regional courts. The Special Rapporteur was informed that there was no reliable source to indicate the status of these proceedings, thus it was not possible to assess the impact of these special procedures since the establishment of the regional courts. 74. The Special Rapporteur was informed of a particular case which illustrates the flaws in the regional court procedures. On 5 December 1996, 12 members of the Union Sindical Obrera (USO), the trade union for petroleum workers, were arrested by agents of the Office of the Procurator-General of the Nations (Fiscalia General de la Nación) and accused of committing terrorist acts. It is important to note that the petroleum industry in Colombia, nationalized long ago, is controlled today by ECOPETROL, a State-owned company. Among the arrested was César Carrillo Amaya, former president of the USO, the largest member of the most important federation of labour unions, la Central Unitaria de Trabajadores (CUT). The arrests came one month before the USO was due to present its list of petitions to the Government within the framework of an ongoing negotiation of a collective bargaining agreement, giving rise to claims of governmental persecution of the labour movement. The USO trade unionists were charged within the regional justice system of participating in the blowing-up of pipelines carried out by the Ejército Nacional de Liberación (ELN) guerrillas. Their capture and detention were based on the testimony of at least four "faceless" or anonymous informants who collaborated with Army investigations. The Attorney-General (Procurador General). while carrying out his oversight function in this case, determined that some of these anonymous witnesses had been "cloned". In the regional justice system, "cloning" occurs when the same person is presented on two or more separate occasions as different witnesses; this abuse of regional justice has been confirmed in several cases where regular Army informants -some of whom are paid monthly wages to testify - are used to accuse persons of rebellion or terrorist acts. A subsequent judicial decision by the Office of the Procurator- General in response to an appeal lodged by the trade unionists confirmed that witness "cloning" had occurred with respect to some of the testimony, but refused to overturn the arrest orders. At the time of writing, the trial of the 12 labour unionists, and at least 40 more of their colleagues, was pending. III. REGIONAL COURTS IN LIGHT OF INTERNATIONAL STANDARDS CONCERNING THE INDEPENDENCE AND IMPARTIALITY OF THE JUDICIARY AND THE RIGHT TO DUE PROCESS OF THOSE TRIED BY THESE COURTS 75. The Government intends to discontinue the regional system by 30 June 1999. Consequently, regional courts will continue to try civilians who are suspects of any of the crimes that fall within their jurisdiction until 30 June 1999. 76. The Special Rapporteur acknowledges the severe situation of violence that the Colombian httD.//ww\v.unhchrch/I-Iuridocda/Huridoca.nsf/TestFrame/elb44569379d86b080256659005262b3'1Opendocunient Page 15 of 37