Court name
Special Court for Sierra Leone
Case number
SCSL 14 of 2004

Prosecutor v Sam Hinga Norman & Ors - Consequential Order on the Withdrawal of Ms. Quincy Whitaker as Court Appointed Counsel for the First Accused (SCSL 14 of 2004) [2004] SCSL 210 (19 November 2004);

Law report citations
Media neutral citation
[2004] SCSL 210


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:
Extension: 178 7001 or +39 0831 257001 Extension: 174 6996 or +232 22
295996


THE TRIAL CHAMBER


Before:
Hon. Judge Benjamin Mutanga Itoe, Presiding Judge
Hon. Judge Bankole
Thompson,
Hon. Judge Pierre Boutet


Registrar:
Robin Vincent
Date:
24th of November, 2004
PROSECUTOR
Against
Issa Hassan Sesay
Morris Kallon
Augustine
Gbao

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


ORDER ON PROTECTIVE MEASURES FOR ADDITIONAL
WITNESSES


Office of the Prosecutor:

Defence Counsel for Issa Hassan
Sesay
:
Luc Côté
Lesley Taylor
Peter Harrison

Wayne Jordash
Sareta Ashraph


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


Defence Counsel for Augustine Gbao
Andreas
O’Shea
John Cammegh


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


NOTING the Decision on the Prosecution Request for Leave to Call
Additional Witnesses
, delivered on the 29th of
July, 2004, in which the Trial Chamber found that it was satisfied as to a
showing of ‘good cause’ and permitted the
Prosecution to amend its
Modified Witness List by adding six further witnesses to it, namely Witness
TF1-359, Witness TF1-360, Witness
TF1-361, Witness TF1-363, Witness TF1-314 and
Witness TF1-362 (“Additional Witnesses”);


SEIZED of the Prosecution Application for Protective
Measures for Additional Witnesses Further to Trial Chamber Decision on
Prosecution’s Intention to
Extend Protective Measures for Additional
Witnesses of 22 October 2004
, filed on the 2nd of
November, 2004, (“Motion”) in which the Prosecution requested the
extension to the Additional Witnesses of the prescribed
set of protective
measures currently applicable to the original prosecution
witnesses;[1]


NOTING the Decision on Prosecution Motion for Modification of
Protective Measures for Witnesses
, delivered on the
5th of July, 2004 (“Decision of the
5th of July, 2004”), and in particular Order (p)
thereof;


NOTING that in its Response, filed on the 8th
of November, 2004, Counsel for Issa Sesay did not oppose the Motion;


NOTING that Counsel for Morris Kallon did not file any response to the
Motion within the prescribed time limits;


NOTING that in its Response, filed on the
12th of November 2004 (“Gbao Response”),
Counsel for Augustine Gbao, while not opposing the majority of the Motion,
proposed
that the current applicable protective measure (p) providing for the 42
day rolling disclosure period prior to the date of each witness testimony
be if necessary set aside in lieu of a time period of 14
days[2] prior to
commencement of each trial session
, whichever is the
earliest;[3]


NOTING that in its Reply to the Gbao Response, filed on the
16th of November, 2004, the Prosecution submitted that
the 42 day rolling disclosure period be maintained in that, inter alia, a
substantial change of circumstances does not exist surrounding the security for
the witnesses and warranting the variation of
the existing protective
measures;[4]


NOTING that of the Additional Witnesses, five are Category C insider
witnesses. Four Witnesses TF1-359, TF1-360, TF1-361, TF1-363, are former
radio
operators for the Revolutionary United Front/Armed Forces Revolutionary Council
(RUF/AFRC); the fifth, TF1-362, is a former
military trainer of abducted
civilians forcibly recruited by the RUF; while the sixth, TF1-314, is a Category
B witness and former
female child soldier within the RUF who was forcibly
married to an RUF combatant;


MINDFUL that in its Decision of the
5th of July, 2004 the Trial Chamber noted 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 and that
vulnerable witnesses such as children have a high
risk of re-traumatisation and
the possibility of stigmatisation and rejection is real and
high;[5]


NOTING Articles 16(4) and 17(2) of the Statute of the Special Court
for Sierra Leone (“Statute”);


NOTING Rules 75(A) and (B), 53(A) and (C), 69 and 26bis of the
Rules of Procedure and Evidence (“Rules”);


APPLYING THE PRINCIPLE that a decision on protective measures requires
a balance to be struck between full respect for the rights of the Accused and
the
protection needs of victims and witnesses, within the legal framework of the
Statute and Rules and within the context of a fair trial;


NOTING that the Trial Chamber in its Decision of the
5th of July, 2004, granted the following protective
measures to all witnesses in Group I (Witnesses of fact, including witnesses who
are victims of sexual assault and gender crimes (Category A); child witnesses
(Category B) and insider witnesses (Category C)):


  1. That
    all witnesses shall be referred to by pseudonyms at all times during the course
    of proceedings whether during the hearing or
    in documents, including the
    transcript of the proceedings;
  2. That
    the names, addresses, whereabouts and any other identifying information of
    witnesses shall be sealed and not included in any
    of the public records of the
    Special Court;
  1. That
    to the extent that the names, addresses, whereabouts or other identifying data
    concerning witnesses are contained in existing
    public documents of the Special
    Court, that information shall be expunged from those
    documents;
  1. That
    documents of the Special Court identifying witnesses shall not be disclosed to
    the public or media;
  2. That
    all witnesses testify with the use of a screening device from the public;
  3. That
    photographing, video-recording, sketching and recording or reproducing in any
    other manner of images of any witness of Group
    I (witnesses of fact) are
    prohibited while he or she is in the precincts of the Special Court;
  4. That
    the voice of witnesses in Category A (victims of sexual violence) during their
    testimony in trial be distorted in the speakers
    for the public;
  5. That
    witnesses in Category B (children) testify with the use of a closed-circuit
    television; the image appearing on the public’s
    monitors being
    distorted;
  6. That
    the voice of witnesses in Category C (insider witnesses) during their testimony
    in trial be distorted in the speakers for the
    public;
  7. The
    Defence shall refrain from sharing, discussing or revealing, directly or
    indirectly, any disclosed non-public materials of any
    sort, or any information
    contained in any such documents, to any person or entity other than the
    Defence;
  8. The
    Defence shall maintain a log indicating the name, address and position of each
    person or entity which receives a copy of, or information
    from, a witness
    statement, interview report or summary of expected testimony, or any other
    non-public material, as well as the date
    of disclosure; and that the Defence
    shall ensure that the person to whom such information was disclosed follows the
    order of non-disclosure;
  1. The
    Defence shall provide to the Registrar and to the Defence Office a designation
    of all persons working on the Defence team who,
    pursuant to paragraph 35(f)
    above, have access to any information referred to in paragraphs 35(a) through
    35(d) above, and requiring
    the Defence to advise the Registrar and to the
    Defence Office in writing of any changes in the composition of this Defence
    team;
  1. The
    Defence shall ensure that any member leaving the Defence team remits to the
    Defence team all disclosed non-public materials;
  2. The
    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;
  3. The
    Defence Counsel shall make a written request to the Trial Chamber or a Judge
    thereof, for permission to contact any Prosecution
    witness who is a protected
    witness or any relative of such person, and such request shall be timely served
    on the Prosecution. At
    the direction of the Trial Chamber or a Judge thereof,
    the Prosecution shall contact the protected person and ask for his or her
    consent or the parent’s or guardian’s consent if that person is
    under the age of 18, to an interview by the Defence,
    and shall undertake the
    necessary arrangements to facilitate such contact; and
  4. That
    the unredacted witness statements are to be disclosed to the Defence 42 days
    prior to the testimony at trial of these witnesses.

EMPHASIZING the position held in the Kondewa
Decision,[6]
that:


“The Republic of Sierra Leone is a relatively small community where
people are bound to and in fact know and identify themselves
very easily thereby
increasing the danger of risk of a recruitment of hostilities against potential
witnesses and victims and their
families if they are identified by the indictees
of their sympathisers as those whose testimony would incriminate them, or in due
course and more still, the indictees who they support out there;”


MINDFUL of the fact that the security risks for witnesses who testify
before the Special Court are acute, and the additional witnesses have
not waived
their right to
protection;[7]


RECOGNISING the unique feature of the Special Court being located in
Sierra Leone where the offences charged against the Accused are alleged to
have
been committed and that this fact has a substantial impact on the security
considerations for victims and
witnesses;[8]

REITERATING that Rule 69(C) of the Rules clearly states that the date
of testimony of each witness is to be considered as the starting point for
the
rolling disclosure of the relevant unredacted witness
statements;[9]

CONSIDERING that the current 42 day rolling disclosure period
adequately provides the Defence with sufficient time to prepare to cross examine
the Prosecution witnesses to be called in each trial session;

CONSIDERING that insider witnesses and their families are particularly
vulnerable to acts of retaliation and harm and threats to their security;

CONSIDERING that in fulfilling its affirmative obligation to provide
appropriate measures to safeguard the privacy and security of witnesses,
and to
ensure that these measures are consistent with the rights of the Accused, the
Trial Chamber considers that it is in the interests
of justice for the
protective measures granted for Group I witnesses, namely witnesses of facts, in
the Decision of the Trial Chamber
of 5 July 2004, to be applied to Witness
TF1-359, Witness TF1-360, Witness TF1-361, Witness TF1-363, Witness TF1-314 and
Witness
TF1-362 for their protection.

FOR ALL THE ABOVE-STATED REASONS, THE TRIAL CHAMBER

ORDERS that the protective measures granted for witnesses in Group 1
(Category A, B and C) of the Trial Chamber’s Decision on Prosecution
Motion for Modification of Protective Measures of the
5th of July, 2004, as outlined above, be applied for
Witness TF1-359, Witness TF1-360, Witness TF1-361, Witness TF1-363, Witness
TF1-314
and Witness TF1-362.



Done in Freetown, Sierra Leone, this 24th day of
November, 2004

Hon. Judge Pierre Boutet

Hon. Judge Benjamin Mutanga Itoe

Hon. Judge Bankole Thompson

Presiding Judge
Trial Chamber


[Seal of the Special Court for Sierra Leone]



[1] See also Decision
on Prosecution Intention to Extend Protective Measures for Addition Witnesses,
25 October
2004.
[2] The Defence
notes that the period of 14 days accords with the Trial Chamber’s Order
to Prosecution to Provide Order of Witnesses
delivered on the
15th of September, 2004, stating that the Prosecution
shall provide to the Chamber and the Defence the order of witnesses it intends
to
call 14 days prior to each trial session. See Gbao Response, para.
3.
[3] Id. No
specific jurisprudence in support has been provided by the Defence. However,
this position appears consistent with an emerging
practice of the ICTR, albeit
limited to certain cases. See Prosecutor v. Bizimungo et al., ICTR-56-T,
Decision on Bizimungo’s Motion for Reconsideration of the Chamber’s
19 March 2004 Decision on Disclosure
of Prosecution Materials, 3 November 2004
(“Bizimungo Decision”); Prosecutor v. Bagosora et al.,
ICTR-96-7, “Decision on Defence Motion for Reconsideration of the Trial
Chamber’s Decision and Scheduling Order of
5 December 2001”, 18 July
2003.
[4] Reply,
paras 4-10.
[5]
Decision of the 5th July, 2004, paras.
33-34.
[6]
Prosecutor v. Kondewa, SCSL-03-12-PT, Ruling on the Prosecution Motion
for Immediate Protective Measures for Witnesses and Victims and for Non-Public
Disclosure
and Urgent Request for Interim Measures until Appropriate Protective
Measures are in Place, 10 October 2003, para.
30.
[7] Motion, para.
12.
[8] See for
example Prosecutor v. Gbao, SCSL-2003-09-PT, Decision on the Prosecution
Motion for Immediate Protective Measures for Victims and Witnesses and for
Non-Public
Disclosure, 10 October 2003 (“Gbao Protective Measures
Decision”), paras. 21-25; see also Prosecutor v. Norman et al.,
SCSL-2004-14-T, Decision on Prosecution Motion for Modification of Protective
Measures for Witnesses, 8 June 2004, para.
29.
[9] Gbao
Protective Measures Decision, para. 55. Worthy of note is that, while Rule 69(C)
of the Rules provides that “the identity of
the victim or witness shall be
disclosed in sufficient time before a witness is to be called to allow adequate
time for preparation
of the prosecution and the defence”, ICTR Rule 69(C)
provides that “the identity of the victim or witness shall be disclosed
within such time as determined by Trial Chamber to allow adequate time for
preparation of the Prosecution and the Defence”.
See Bizimungo
Decision, para. 23.