Eliézer Niyitegeka filed a motion for review before the Appeals Chamber, requesting the Appeals Chamber, inter alia, to admit excerpts of closed session transcripts from other cases to which he had not been granted access. The Appeals Chamber declined to examine those excerpts “obtained in direct violation of Trial Chambers’ orders”.[1] Following the Appeals Chamber’s decision, Eliézer Niyitegeka requested access to the relevant closed session transcripts to the relevant Trial Chambers. His requests were denied, together with his requests for reconsideration and for certification of an appeal. Eliézer Niyitegeka then filed a motion for clarification before the Appeals Chamber.

8.       […] the Appeals Chamber recalls that, in its Decision on Third Request for Review, it stated that the closed session material submitted by the Applicant in support of his Third Request for Review had been “obtained in direct violation of Trial Chambers’ orders”.[2] The Appeals Chamber was well aware that the Applicant was not a party to the proceedings in which the protective measures were ordered. However, it considered that, by obtaining and making use of closed session material to which he undoubtedly knew that he was not authorized to have access, the Applicant took part in the breach of the Trial Chambers’ orders committed by those who were directly bound by them. The Applicant therefore participated in the violation of the orders for protective measures imposed by the Trial Chambers and, thereby, “seriously undermine[d] the integrity of the Tribunal’s proceedings”.[3]    

11.     […] the Appeals Chamber clarifies that, although the Applicant was not a party to the cases in which the protective measures were ordered, he was bound by the Trial Chambers’ orders not to disclose confidential material from the moment it came into his possession. Similar to what the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia found in respect of closed session orders,[4] the Appeals Chamber considers that the orders of protective measures apply to all persons coming into possession of protected information. This is necessary, in particular, in order to comply with the Tribunal’s obligation pursuant to Article 21 of the Statute to protect witnesses on whose behalf protective measures have been ordered. Such orders would be meaningless if third parties were allowed to disclose confidential information on the sole ground that the orders were not expressly directed to them.

14. The Appeal Chamber notes that protective measures ordered in one proceeding “shall continue to have effect mutatis mutandis in any other proceeding before the Tribunal”.[1] It further recognises that once the Appeals Chamber has granted access to confidential materials from another case, it then determines if and what additional protective measures are necessary in order to “strike a balance between the rights of a party to have access to material to prepare its case and guaranteeing the protection and integrity of confidential information”.[2]

15. The Appeals Chamber finds that existing protective measures should continue to apply to any material released to Perišić. It will further give the opportunity to the parties to the Dragomir Milošević case to request additional protective measures, if they so choose.

6. […] when the Appeals Chamber becomes seised of an appeal against a trial judgement, it becomes the Chamber “seised of the first proceedings” within the meaning of Rule 75(G)(i) of the Rules.[1] The Appeals Chamber, therefore, finds that the Applicant, as a party to the second proceedings,[2] properly filed his Motion before the Appeals Chamber.

7. The Appeals Chamber further recalls that, pursuant to Rule 75(F) of the Rules, protective measures that have been ordered in any proceedings before the Tribunal continue to have effect mutatis mutandis in any other proceedings before the Tribunal unless and until they are rescinded, varied or augmented. Rule 75(G) confers the competence to consider requests to vary protective measures on the Chamber seised of the first proceedings.[3] As previously observed by the Appeals Chamber, if the Chamber seised of the first proceedings were to transfer this competence to the Chamber seised of the second proceedings by way of a general referral, “the regulatory regime of Rule 75(G)(i) of the Rules would be frustrated and an important protection feature for victims and witnesses before the Tribunal would be circumvented”.[4]

8. The Krajišnik Decisions do not contradict the above interpretation.[5] These decisions concerned applications to, inter alia, rescind or vary the measure of delayed disclosure to the accused of witness identities, ordered by the Chamber seised of the first proceedings pursuant to Rule 69 of the Rules.[6] The question addressed in the Krajišnik Decisions is materially different from the present situation, where the Applicant seeks a general referral that any protective measure ordered by the Chamber seised of the first proceedings pursuant to Rule 75 of the Rules may subsequently be varied by the Chamber seised of the second proceedings.[7]

9. On the basis of the above, the Appeals Chamber reiterates that Rule 75(G) of the Rules clearly defines the procedure to be followed if a party seeks to vary protective measures ordered in previous proceedings.[8] As the Motion seeks a de facto circumvention of this Rule, it shall be denied without further consideration.

The Krajišnik Appeals Chamber was seized of a motion by Stanišić, asking for access to all confidential material in the Krajišnik case for the purposes of his defence. The Prosecution responded that it would not oppose access to all inter partes material subject to material relating to certain witnesses (specified in an ex parte annex) whose identities had been protected from Krajišnik pursuant to Rule 69 orders and who the Prosecution intended to call in the Stanišić trial as well. The question therefore arose whether Rule 75(F), which stipulates that once protective measures are ordered in one trial they are also in effect with regard to other proceedings before the Tribunal, also applies to measures ordered pursuant to Rule 69. The Appeals Chamber answered this question in the affirmative:

P. 7: CONSIDERING that “delayed disclosure” orders are protective measures to which Rule 75(F) of the Rules applies;[1]

CONSIDERING that even though such orders given in the first proceedings could be considered moot once disclosure is made, “the meaning of the expression ‘mutatis mutandis’ itself requires a flexible application of the principle enshrined in [Rule 75] and suggests that the same kinds of protection given to a witness in one case should be automatically extended to this witness in a later case, regardless of whether this is literally ‘continuation’”;[2]

FINDING that the sensitive witnesses in the Krajišnik case, as listed in the Prosecution Annex, were protected by delayed disclosure orders and that, if they are going to testify in another case, the information from the Krajišnik case should similarly be subject to delayed disclosure to the defendants in that other case (unless an order pursuant to Rule 75(G) is made);[3]

6. As a preliminary matter, the Appeals Chamber notes that the Impugned Decision was rendered after the close of the trial and appeal proceedings in Kamuhanda’s case[1] and that, therefore, Rule 80(B) of the Rules, which requires certification to appeal a decision rendered at trial, by its plain language is not applicable in the present case.[2] The Appeals Chamber further observes that Rule 86 of the Rules, which regulates measures for the protection of victims and witnesses, does not expressly provide for an appeal as of right or address the issue of whether a decision rendered by a Single Judge after the close of trial and appeal proceedings is subject to appeal. In interpreting an equivalent provision in the ICTR Rules, the ICTR Appeals Chamber has held that an applicant is entitled to appeal a decision on witness protective measures which was rendered after the close of the trial and appeal proceedings.[3] Bearing this practice in mind and in light of the importance of the protection of victims and witnesses to the proper functioning of the Mechanism,[4] the Appeals Chamber considers that it has jurisdiction over this appeal.

12. In granting protective measures in the present case, the Trial Chamber considered that “the fears of the potential witnesses and their families, if they testify on behalf of [Kamuhanda] without protective measures” were well founded.[1] The Appeals Chamber notes that, following the death of a witness who had benefited from protective measures, security concerns may remain for the witness’s family. Therefore, the security concerns of members of a deceased witness’s family may constitute a relevant consideration in determining whether the protective measures granted to the witness should remain in place or be rescinded under Rule 86(A) of the Rules.

Pages 3-4:

RECALLING that, pursuant to Rule 71(B) of the Rules, the Prosecution shall, on request, permit the Defence to inspect any books, documents, photographs, and tangible objects in its custody or control, which are material to the preparation of the defence;

CONSIDERING, that the pseudonyms that Karadžić wishes to inspect are not books, documents, photographs, or tangible objects in the Prosecution’s custody or control, but rather information contained in confidential and ex parte filings;

FINDING, therefore, that Rule 71(B) of the Rules is not applicable;

[…]

CONSIDERING that disclosing pseudonyms of protected witnesses in this case who were the subject of Rule 86 proceedings may reveal details about non-public investigations in other jurisdictions[1] which were communicated to the Mechanism on a confidential and ex parte basis;

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

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

See also para.251.

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

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

[…]

(C) Subject to Rule 75, the identity of the victim or witness shall be disclosed in sufficient time prior to the trial to allow adequate time for preparation of the defence.[4]

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

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

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

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

233. On 14 December 2011, the ICTR Appeals Chamber in the Bagosora and Nsengiyumva case held that the trial chamber in that case had erred in ordering the prosecution to disclose the identity of protected victims and witnesses and their unredacted statements no later than 35 days before the expected date of their testimony, rather than prior to trial. In interpreting a provision of the ICTR Rules that was identical to Rule 69(C) of the ICTY Rules, the ICTR Appeals Chamber stated that, while a trial chamber has discretion to order protective measures where it has established the existence of exceptional circumstances, “this discretion is still constrained by the scope of the Rules”.[12] It emphasized that at the time of the trial chamber’s decision in that case, the phrase “prior to the trial” was part of Rule 69(C) of the ICTR Rules. It further stated that it did not consider that the trial chamber’s “disregard for the explicit provision of the Rules was necessary for the protection of witnesses”.[14] It noted a protective measures decision in the Nsengiyumva case prior to the joinder of the two cases[15] in which the trial chamber had ordered the temporary redaction of identifying information until witnesses were brought under the protection of the ICTR, but had nonetheless required that the defence be provided with unredacted witnesses statements within sufficient time prior to the trial.[16] It continued that “[a]t no point did the Trial Chamber indicate that any problems had arisen from this previous arrangement justifying a more restrictive disclosure schedule”.[17]

[…]

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

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