Protected status after termination of trial

Notion(s) Filing Case
Contempt Appeal Judgement - 15.03.2010 NSHOGOZA Léonidas

65. Furthermore, the fact that the trial had concluded or that the protected witnesses may have approached Nshogoza did not in any way terminate their protected status. Rule 75(F) of the Rules states that protective measures once ordered continue to have effect in any proceeding before the Tribunal until rescinded, varied, or augmented.[1] In addition, the Kamuhanda Witness Protection Order clearly states that “the [protected] witness does not have the right, without authorization from the Chamber, to disclose his or her identity freely.”[2] This measure was added by the Trial Chamber proprio motu and was not challenged by the Kamuhanda Defence.

66. Although in some circumstances such a measure might be considered onerous, the Appeals Chamber is unable to determine that it was unreasonable or unjustified as a means of ensuring that any waiver is fully informed and voluntary given the information submitted by the Prosecution to the Trial Chamber at the time and the prevailing security climate. Furthermore, Nshogoza has failed to demonstrate why, in the particular circumstances of this case, it would have been impractical or particularly onerous to seek a variation of the Kamuhanda Witness Protection Order before proceeding with further contact with the protected witnesses. Indeed, at the relevant time of the contact, this case remained before either the Trial Chamber or the Appeals Chamber and thus an urgent, and even ex parte, application could have been made.[3]

67. The Appeals Chamber recognizes that such measures might stifle effective Defence investigations where the Prosecution qualifies an excessive number of individuals as potential Prosecution witnesses, in particular without even ascertaining their willingness to appear. However, the Appeals Chamber is not satisfied that this was the case here. Witness A7/GEX was clearly identified to the Kamuhanda Defence as a potential witness willing to appear for the Prosecution on 26 March 2001 shortly before the trial.[4] Nshogoza’s contention that the witness protection measures for Witness A7/GEX should have lapsed at the conclusion of the trial fails to appreciate the Tribunal’s interest in protecting individuals who have agreed to cooperate and provide statements on a confidential basis. Potential witnesses who did not eventually testify may face similar risks as those who did, for instance by virtue of their cooperation with either party. Those who decided not to testify out of fear might also require continued anonymity, depending on the circumstances. In any case, even if Nshogoza were correct that the prohibitions on contact with this particular witness were no longer applicable, it cannot reasonably be argued that he had the right to disclose information, which had been consistently treated as confidential, to third parties without official sanction from a Chamber.

[1] See also Jović Appeal Judgement, para. 30 (“[A]n order remains in force until a Chamber decides otherwise.”).

[2] Kamuhanda Witness Protection Order, para. 12. See also Kamuhanda Witness Protection Order, p. 6 (“MODIFIES the measure sought in point 3(j) and recalls that it is the Chamber’s decision solely and not the decision of the witness to determine how long a pseudonym is to be used in reference to Prosecution witnesses in Tribunal proceedings, communications and discussions between the Parties to the trial, and with the public.”).

[3] Nshogoza brought Witnesses GAA and A7/GEX to the notary along with Augustin Nyagatare in March 2004. See Trial Judgement, para. 74. At the time, the Kamuhanda case was pending on appeal. The Trial Judgement does not specify when the earlier meetings occurred. However, the Trial Chamber in the Kamuhanda case was actively seized of this case until it delivered its Judgement on 22 January 2004. See Kamuhanda Appeal Judgement, paras. 1, 440.

[4] Trial Judgement, para. 161. A review of the specific disclosure in the Kamuhanda case reflects that Witness A7/GEX was named among eight other witnesses in a confidential disclosure alluding to the Kamuhanda Witness Protection Order. The cover memo clearly indicates that the unredacted statements are “highly confidential” and the cover page of Witness A7/GEX’s statement is also marked in large bold type with the word “confidential”. See The Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-I, Interoffice Memorandum, Subject: Disclosure of unredacted witness statements in the case Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-54-I [sic], dated 26 March 2001, paras. 1, 3, 5, p. 514.

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