Court name
Special Court for Sierra Leone
Case number
SCSL 15 of 2004
Case name

Prosecution v Issa Hassan Sesay & Ors - Decision on Prosecution Motion for the Testimony of Witnesses Tf1-367, Tf-369 and Tf1-371 to be Held in Closed Session and for Other Relief for Witness Tf1-369
Law report citations
Media neutral citation
[2006] SCSL 73


SPECIAL COURT FOR SIERRA LEONE
JOMO KENYATTA
ROAD • FREETOWN • SIERRA LEONE

PHONE: +1 212 963 9915
Extension: 178 7000 or +39 0831 257000 or +232 22 295995

FAX:
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295996


TRIAL CHAMBER I


Before:
Hon. Justice Pierre Boutet, Presiding Judge
Hon. Justice Bankole
Thompson
Hon. Justice Benjamin Mutanga Itoe
Registrar:
Mr. Lovemore G. Munlo SC
Date:
14th of June, 2006
PROSECUTOR
Against
ISSA HASSAN SESAY
MORRIS KALLON
AUGUSTINE
GBAO

(Case No. SCSL-04-15-T)


Public Document


DECISION ON PROSECUTION MOTION FOR THE TESTIMONY OF
WITNESSES TF1-367, TF-369 AND TF1-371 TO BE HELD IN CLOSED SESSION AND FOR OTHER
RELIEF FOR WITNESS TF1-369


Office of the Prosecutor:

Defence Counsel for Issa Hassan Sesay:
James Johnson
Peter Harrison

Wayne Jordash
Sareta Ashraph


Defence Counsel for Morris Kallon:
Shekou
Touray
Charles Taku
Melron Nicol-Wilson


Court Appointed Counsel for Augustine Gbao:
Andreas
O’Shea
John Cammegh

TRIAL CHAMBER I (“Trial Chamber”) of the Special Court for
Sierra Leone (“Special Court”) composed of Hon. Justice Pierre
Boutet, Presiding Judge, Hon. Justice Bankole Thompson, and Hon. Justice
Benjamin Mutanga Itoe;

SEIZED OF the “Prosecution Motion for Testimony of Witnesses
TF1-367, TF1-371 and TF1-369 to be Held in Closed Session and Other Relief
for
TF1-369”, filed
confidentially[1]
by the Office of the Prosecutor (“Prosecution”) on the
26th of May, 2006 (“Motion”), requesting
that the testimonies of protected Witnesses TF1-367, TF1-369 and TF1-371 be held
entirely in closed session and that the testimony of Witness TF1-369 be
interposed during the testimony of Witness
TF1-371;[2]

NOTING that the Defence for the First Accused, Issa Sesay, as well as
the Defence for the Second Accused, Morris Kallon, did not file any
response to
the Motion within the prescribed time limits;

NOTING that Court Appointed Counsel for the Third Accused, Augustine
Gbao, filed a public response to the Motion on the 5th
of June, 2006 (“Response”);

CONSIDERING that, in the said Response, Court Appointed Counsel for
the Third Accused indicated that he does not oppose the Motion that the
testimonies
of these witnesses be held entirely in closed session but invited
the Prosecution to renew orally its request concerning the scheduling
of the
testimony of Witness TF1-369 during the trial proceeding when it possesses more
precise information about the trial
progress;[3]

NOTING that the Prosecution did not file any reply to the Response
within the prescribed time limits;

NOTING the “Prosecution Re-Filed Proposed Order of Appearance of
Witnesses – Eighth Trial Session” filed on the
5th of July,
2006;[4]

MINDFUL of the several Decisions and Orders of this Trial Chamber
concerning protective measures, including the “Decisions on the
Prosecutor’s
Motion for Immediate Protective Measures for Witnesses and
Victims and for Non-Public Disclosure” for each individual accused
in the
RUF
trial[5]
and, in particular, the “Decision on Prosecution Motion for Modification
of Protective Measures for Witnesses” of the
5th
of July
2004;[6]

MINDFUL of this Trial Chamber’s jurisprudence on closed session
testimonies;[7]

MINDFUL of the principle that a decision whether to grant protective
measures requires a balance to be struck between full respect for the
rights of
the Accused to a fair and public trial and the interest needs of victims and
witnesses for protection, within the legal
framework of the Statute and Rules
and in the context of a fair
trial;[8]

RECALLING the “Decision on Prosecution Request for Leave to Call
Additional Witnesses and Disclose Additional Witness Statements”
of the
11th of February, 2005, which, inter alia,
granted leave to the Prosecution to add Witness TF1-367 to its Witness List and,
further, extended the current applicable protective
measures to this Witness;

RECALLING the “Decision on Prosecution Request for Leave to Call
Additional Witness TF1-371 and for Order for Protective Measures”
of the
5th of April, 2006 granting leave to the Prosecution to
add Witness TF1-371 to its current Witness List and, further, extending the
current
applicable protective measures to this Witness;

CONSIDERING that both protected Witnesses TF1-367 and TF1-371 are
former RUF Commanders and have been categorized as Group I, Category C Witnesses
(Insider Witnesses);

CONSIDERING that the Prosecution submits that, by virtue of their
position within the RUF, it will be easy for members of the RUF and members
of
the public to determine the identity of protected Witnesses TF1-367 and TF1-371
if their testimonies are not heard in closed
session;[9]

CONSIDERING that the Prosecution further submits that both protected
Witnesses TF1-367 and TF1-371 have expressed concerns for their safety and
for
that of members of their families should it become known that they appeared as
Prosecution witnesses in the RUF
trial;[10]

MINDFUL that in its Decision of the
5th of July, 2004 the Trial Chamber observed that
insider witnesses and their families were particularly vulnerable to acts of
retaliation
and potential harm if their identities were to be known to the
public;[11]

RECALLING the confidential “Decision on Prosecution Request for
Leave to Call an Additional Expert Witness” of the
10th of June 2005 which granted leave to the
Prosecution to call Witness TF1-369 as an Expert Witness, and the subsequent
confidential
“Order on Prosecution Motion to Request Protective Measures
for Witnesses TF1-041 and TF1-369”, of the 28th
of February, 2006 which, inter alia, granted protective measures to
Witness TF1-369;

RECALLING FURTHER the “Order Regarding Prosecution Motion to
Vary the “Decision on Prosecution Request for Leave to Call an Additional
Expert Witness”” of the 8th of May, 2006 in
which it was ordered that the Prosecution may call Witness TF1-369
at any point in the presentation of its case;

NOTING the confidential “Decision on the Confidential
Prosecution Notice Under 92bis to Admit the Transcripts of Testimony of
TF1-369” of the 23rd of May, 2006;

CONSIDERING that the Prosecution submits that, for various
confidential reasons, it will be easy for members of the public to determine the
identity
of protected Witness TF1-369;
[12]

CONSIDERING that the Prosecution further submits that protected
Witness TF1-369 and her current employer have expressed concerns for her safety
and security and for that of members of her family should it become known that
she appeared as Prosecution witness in the RUF
trial;[13]

NOTING also that the Prosecution submits that due to previous
commitments, Witness TF1-369 will be available to testify in the RUF Trial
only
on about late July 2007;

REITERATING that the permissibility of closed sessions testimonies, as
opposed to testimonies heard in public, is an extraordinary protective
measure
that will only be granted where it is shown that there is a real risk to the
witness and /or his family that their privacy
or security will be
threatened;[14]

SATISFIED that, in light of the particular circumstances of these
witnesses, it is in the interests of justice that protected Witness TF1-367,
TF1-369 and TF1-371 be exceptionally permitted to testify entirely in closed
session;

FINDING that, at this stage, it will be premature to make any
determination concerning the scheduling of Witness TF1-369’s testimony
and, in particular, whether her testimony could be interposed with that of any
other witness;

REITERATING that, as a matter of efficient trial management practice,
similar determinations should ordinarily be done orally on a case-by-case
basis
during the course of the trial proceedings, taking into consideration the
effective progress of the said proceedings and provided
that sufficient notice
has been given to all relevant parties and the Trial
Chamber;[15]

PURSUANT TO Article 17 of the Statute of the Special Court and Rules
26bis, 54, 69, 75, 78 and 79 of the Rules of Procedure and Evidence of
the Special Court;

THE TRIAL CHAMBER

HEREBY PARTIALLY GRANTS the Motion

and, consequently ORDERS as follows:

  1. That
    the testimony of protected Witnesses TF1-367, TF1-369 and TF1-371 shall be held
    entirely in closed session;
  2. That
    in accordance with the norm requiring that criminal trials be conducted in
    public, the transcripts of these Witnesses’
    testimonies shall be publicly
    released after appropriate redaction by the Witness and Victims
    Section;

DECLINES to consider the remaining of the Motion as
premature, and

ORDERS that the Prosecution shall directly liaise with the Defence for
the scheduling of the testimony of Witness TF1-369 and, accordingly,
promptly
report to the Trial Chamber on the availability of the said Witness.

Done at Freetown, Sierra Leone, this 14th day of
June, 2006.

Hon. Justice Benjamin Mutanga Itoe

Hon. Justice Pierre Boutet

Hon. Justice Bankole Thompson

Presiding Judge
Trial Chamber I


[Seal of the Special Court for Sierra Leone]



[1] Having regard to
the principle requiring that criminal trials be conducted in public and
consistent with established jurisprudence
of the Court, the Chamber deems it
necessary that this Decision be now filed publicly, omitting, if necessary and
as it may be required,
any information that could disclose the identity of the
protected Witnesses. See, for instance, Prosecutor v. Sesay, Kallon and
Gbao
, Case No. SCSL-04-15-T, Order to Hear the Evidence of Witness TF1-235
in Closed session, 8 November 2004, para.
1.
[2] Motion, paras
5, 11 and 15.
[3]
Response, paras
2-3.
[4] See also
Prosecutor v. Sesay, Kallon and Gbao, Case No. SCSL-04-15-T, Order for
Public Disclosure of the Identity of Certain Prosecution Witnesses, 2 June
2006.
[5]
Prosecutor v. Sesay, Case No. SCSL-03-05-PT, Decision on the
Prosecutor's Motion for Immediate Protective Measures for Witnesses and Victims
and for Non-public
Disclosure, 23 May 2003, Prosecutor v. Kallon, Case
No. SCSL-03-07-PT, Decision on the Prosecutor's Motion for Immediate Protective
Measures for Witnesses and Victims and for
Non-public Disclosure, 23 May 2003,
and Prosecutor v. Gbao, Case No. SCSL-03-09-PT, Decision on the
Prosecutor's Motion for Immediate Protective Measures for Witnesses and Victims
and for
Non-public Disclosure, 10 October 2003.

[6] Prosecutor v.
Sesay, Kallon and Gbao
, Case No. SCSL-04-15-T, Decision on Prosecution
Motion for Modification of Protective Measures for Witnesses, 5 July 2004
(“Decision
of the 5th of July,
2004”).
[7]
See, for instance, Prosecutor v. Sesay, Kallon and Gbao, Case No.
SCSL-04-15-T, Order to Hear the Evidence of Witness TF1-235 in Closed Session, 8
November 2004, supra note 1; Id.,
Ruling on the Prosecution’s Application for the Entire Testimony of
Witness TF1-362 to be Heard in Closed Session, 11 May
2005; See also
Prosecutor v. Norman, Fofana and Kondewa, Case No. SCSL-04-14-T, Order on
an Application by the Prosecution to Hold a Closed Session Hearing of Witnesses
TF2-082 and TF2-032,
13 September
2004.
[8] See, for
instance, Prosecutor v. Sesay, Kallon and Gbao, Case No. SCSL-04-15-T,
Order on Protective Measures for Additional Witnesses, 24 November 2004, p.
3.
[9] Motion, paras.
9-10.
[10]
Id.
[11]
Decision of the 5th July, 2004, supra note 6, paras.
33-34.
[12] Motion,
para. 13.
[13]
Id., para.
14.
[14] See, for
instance, Prosecutor v. Norman, Fofana and Kondewa, Case No.
SCSL-04-14-T, Order on an Application by the Prosecution to Hold a Closed
Session Hearing of Witnesses TF2-082 and TF2-032,
13 September 2004, supra note
7.
[15]
This has been the case, for instance, of Witness Edwin Kasoma (TF1-288) which
has been recently interposed within the testimony of
Witness TF1-174.