Court name
Special Court for Sierra Leone
Case number
SCSL 16 of 2004

Prosecutor v Alex Tamba Brima & Ors - Decision on the Prosecution’s Oral Application for Leave to be Granted to Witness Tf1-150 to Testify Without Being Compelled to Answer Any Questions in Cross-examination That the Witness Declines to Answer on Grounds

Law report citations
Media neutral citation
[2005] SCSL 134


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

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Extension: 178 7000 or +39 0831 257000 or +232 22 295995

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295996


TRIAL CHAMBER II


Before:
Justice Teresa Doherty, Presiding Judge
Justice Richard
Lussick
Justice Julia Sebutinde
Registrar:
Robin Vincent
Date:
16 September 2005
PROSECUTOR
Against
Alex Tamba Brima
Brima Bazzy Kamara
Santigie Borbor
Kanu

(Case No.SCSL-04-16-T)


DECISION ON THE PROSECUTION’S ORAL APPLICATION FOR
LEAVE TO BE GRANTED TO WITNESS TF1-150 TO TESTIFY WITHOUT BEING COMPELLED
TO
ANSWER ANY QUESTIONS IN CROSS-EXAMINATION THAT THE WITNESS DECLINES TO ANSWER ON
GROUNDS OF CONFIDENTIALITY PURSUANT TO RULE 70
(B) AND (D) OF THE RULES.


Office of the Prosecutor:

Defence Counsel for Alex Tamba
Brima
:
Jim Hodes
Lesley Taylor
Melissa Pack

Glenna Thompson
Kojo Graham


Defence Counsel for Brima Bazzy
Kamara:

Andrew Daniels
Mohamed Pa-Momo Fofanah


Defence Counsel for Santigie Borbor
Kanu
:
Geert-Jan Alexander Knoops
Carry Knoops
Abibola E.
Manly-Spain
Amadu Koroma

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court
for Sierra Leone (“Special Court”), composed of Justice Teresa
Doherty,
presiding, Justice Richard Lussick and Justice Julia Sebutinde;

SEISED of the Prosecution’s Oral Request for Leave for Witness
TF1-150 to testify without being compelled to answer any question in
cross-examination that the witness may decline to answer on grounds of
confidentiality, pursuant to the provisions of section 70
(B) and (D) of the
Rules; (the “Motion”);

NOTING the oral submissions in response by Counsel for the accused
persons Brima, Kanu and Kamara (the “ Joint Response”);

NOTING the Prosecution’s oral submissions in reply (the
“Reply”);

CONSIDERING also the provisions of Article 17 of the Statute of the
Special Court for Sierra Leone (“the Statute”) and Rules 70 and
79
of the Rules of Procedure and Evidence of the Special Court (“the
Rules”):

HEREBY DECIDES AS FOLLOWS :


  1. INTRODUCTION:
  1. Prosecution
    Witness TF1-150 is a foreign national who served in Sierra Leone during the
    period May 1998 to 2001 as a Human Rights
    advisor to an international
    organisation (“the former employer”). By virtue of his employment,
    Witness TF1-150 obtained
    information relating to the conflict situation in
    Sierra Leone during the said period, some of which information he obtained on a
    confidential basis. In the interest of the former employer, Witness TF1-150
    enjoyed and continues to enjoy by virtue of his employment,
    certain privileges
    and immunities in respect of all words spoken or written and all acts performed
    by him in the performance of his
    duties, including immunity from legal process.
    That means that he cannot testify before a court of law regarding his work
    except
    with the express permission of his former employer.
  2. By
    a letter dated 23 May 2005 addressed to the Prosecutor, SCSL, the former
    employer waived part of that immunity and granted Witness
    TF1-150 permission to
    testify before the Special Court in a number of cases including the
    Prosecutor v. Alex Tamba Brima et al. However, due to the sensitive and
    confidential nature of some of the information that the witness might divulge,
    the waiver of immunity
    is conditional upon certain conditions, one of which is
    that the witness must testify in closed session. In compliance with the request
    of the former employer, the Trial Chamber on 13 September 2005 ordered pursuant
    to Rule 79 (A) (iii) of the Rules that in the interests
    of justice Witness
    TF1-15- do testify in closed session.
  3. In
    addition to the closed session, the Prosecution now seeks an order from the
    Trial Chamber guaranteeing before Witness TF1-150 is
    called to testify, that he
    will not be compelled to answer any questions in cross-examination, relating to
    the names of his informants
    or sources of information, on the grounds that he
    obtained information from these sources on conditions of confidentiality.

II. SUBMISSIONS OF THE PARTIES:

The Motion:

  1. The
    Prosecution requests the Trial Chamber pursuant to the provisions of Rule 70 (B)
    and (D) of the Rules to allow Witness TF1-150
    to testify without being compelled
    to answer any questions in cross-examination which questions the witness may
    decline to answer
    on grounds of confidentiality.
  2. In
    particular the Prosecution submitted that despite having been granted leave to
    testify in closed session, Witness TF1-150 is unwilling
    to disclose or divulge
    the names of the sources of information that he obtained in the course of his
    employment as a Human Rights
    officer while working in Sierra Leone, by virtue of
    the fact that he obtained that information under conditions of confidentiality.
    The Prosecution maintained that under Rule 70 (D) the Trial Chamber has no power
    to compel the witness to answer any question which
    the witness declines to
    answer on grounds of confidentiality.
  3. The
    Prosecution further submitted that as a matter of principle, Witness TF1-150
    being a Human Right official, is privileged from
    revealing the identity of his
    sources and that if he were compelled to reveal the names of those sources, this
    will result not only
    breach of confidentiality between the witness and his
    sources but may also lead to the compromise of their safety or security. The
    Prosecution relies in this regard on the provisions of section “J-
    Confidentiality” of the Training Manual on Human Rights
    Monitoring,
    2001.
  4. The
    Prosecution further submitted that if the Trial Chamber were to compel Witness
    TF1-150 to disclose the names of his sources it
    will set a bad precedent for
    other Human Rights workers trying to gather information in the field as victims
    and other would-be informers
    will find it difficult in future to confide in such
    officials again.
  5. The
    Prosecution submitted that in any event, the Defence will suffer no unfair
    prejudice if the witness is allowed to confine his
    testimony to the type of
    source e.g. an NGO or an individual, but without being compelled to name the
    organisation or individual.

Joint Response:

  1. The
    Defence jointly opposed the application and submitted that Rule 70 upon which
    the Prosecution seeks to rely does not apply to
    Witness TF1-150 or his testimony
    and therefore does not accord him the immunity from being compelled to answer
    certain questions,
    in particular naming the sources of his information.
  2. The
    Defence submitted further that the protective measures already accorded to
    Witness TF1-150 including leave to testify in closed
    session pursuant to Rule 79
    of the Rules sufficiently guarantee the confidentiality of any information that
    the witness may divulge
    in the course of his testimony and that it is
    unnecessary for the Trial Chamber in addition to shield him from having to
    answer certain
    question in cross-examination.
  3. The
    Defence further submitted that the right of an accused person to examine
    witnesses against him as part of a fair trial process,
    is guaranteed by Article
    17 (4) (e) of the Statute and outweighs any other considerations such as the
    witness’s confidentiality
    obligations towards his informants. The Defence
    further submitted that Rule 75 (A) which empowers the Trial Chamber to grant
    witnesses
    and victims “protective measures” also enjoins the Trial
    Chamber to ensure that such measures are not inconsistent with
    the rights of the
    accused persons, and that in fact the Prosecution request if granted would be
    prejudicial to those rights.

Prosecution Reply

  1. The
    Prosecution submitted in reply that Rule 70 (D) absolutely prohibits the Trial
    Chamber from compelling a witness summoned under
    that Rule to answer a question
    after the witness declines to do so on grounds of confidentiality.
  2. Furthermore,
    the Prosecution maintained that the duty of a Human Rights Official to maintain
    the confidentiality of his sources outweighs
    the rights of accused persons to
    insist on disclosure of the names of those sources.

III. DELIBERATIONS

  1. Witness
    TF1-150 worked as a Human Rights monitor for an international organisation in
    Sierra Leone during a period relevant to the
    indictment in the case of The
    Prosecutor v. Alex Tamba Brima et
    al
    .[1] By virtue of
    his employment in the organisation he enjoyed and continues to enjoy certain
    privileges and immunities including immunity
    from legal process. In other words
    he cannot be compelled to appear and testify in a court of law relating to his
    employment without
    the express permission of his former employer.
  2. The
    Prosecution tendered to the court a letter dated 23 May 2005 in which the former
    employer of Witness TF1-150 did in fact waive
    part of that immunity and granted
    him permission to appear before the Special Court in the AFRC Case and to
    testify freely as to the existence or otherwise of any of the elements
    of any of the crimes set out in the Statute of the Special
    Court or other
    matters which, in the opinion of the Court, are relevant to the individual
    criminal responsibility of an accused person
    or of any circumstance of an
    exculpatory or mitigatory nature, as well as to be asked and to answer questions
    which seek to establish
    the existence of any such element or
    circumstance.”
  3. However,
    the former employer observes in the said letter that in view of the
    sensitive and confidential information” that the witness is
    likely to divulge, his testimony should only be given on that following
    conditions, namely that he “testifies in closed session; that
    transcripts and recordings of his testimony be restricted to the trial Chambers
    and their staff,
    to the Prosecution and their staff and to the accused and their
    counsel and expert advisers; and that the Prosecution and their staff
    as well
    as accused and their counsel and expert advisers be prohibited from divulging
    the contents of such testimony to the media
    or to any other third
    part.
    ” The waiver does not extend to the release confidential
    documents of the former employer unless prior permission in this regard
    is
    sought and obtained.
  4. Based
    upon the contents of this letter the Trial Chamber on 13 September 2005 granted
    leave to Witness TF1-150 to testify in closed
    session pursuant to Rule 79 (A)
    (iii) of the Rules. In addition to the closed session measures, the Prosecution
    now seeks additional
    protection for the witness by requesting the Trial Chamber
    not to compel him to answer certain questions in cross-examination if
    the
    witness refuses to answer the questions on grounds of confidentiality.
  5. We
    note that in the said letter the former employer does not impose any
    restrictions on the witness’s testimony or on his ability
    to disclose the
    sources of information and instead authorises him to “testify
    freely
    ” once the above pre-conditions have been met. It is the witness
    himself who as a matter of principle feels that he is under
    obligation to
    maintain the confidentiality of his sources.
  6. First
    of all, we are of the view that the provisions of Rule 70 upon which the
    Prosecution seeks to rely are not applicable to Witness
    TF1-150 or his
    testimony. The Rule applies only where the Prosecutor “is in possession
    of information which has been provided to him on a confidential basis and which
    has been used solely for the purpose
    of generating new evidence...

    That has not been shown to be the case here. We might add that it is that
    initial information together with its source that
    may not be disclosed by the
    Prosecutor without the prior consent of the source. In this case the Prosecution
    has not shown that they
    are in possession of that initial information.
    Similarly, the Prosecution has not satisfied the criteria envisaged under Rule
    70
    (D) of the Rules. In our view Rule 70 (D) applies where “the person
    or representative of the entity providing the initial information

    (i.e. the informant himself) has been called upon to testify. In this case
    Witness TF1-150 is not the originator of the initial
    information nor
    the person or representative of the entity providing the initial
    information
    ” but is merely a recipient thereof. As such he cannot rely
    on the protection offered by Rule 70 (D) of the Rules. Furthermore
    the ICTY
    authorities cited by the Prosecution in support of their arguments, including
    The Prosecutor v. Slobodan
    Milosevic[2]
    and
    The Prosecutor v. Radoslav Brdjanin and Momir
    Talic[3],
    are
    persuasive but distinguishable and therefore not pertinent to this case.
  7. Secondly,
    whereas the Trial Chamber recognises the privileged relationship between a Human
    Rights officer and his informants as well
    as the public interest that attaches
    to the work of Human Rights officers gathering confidential information in the
    field, we do
    not think that the privilege and/ or public interest should
    outweigh the rights of the accused persons to a fair trial as guaranteed
    by
    Article 17 of the Statute. In any event, we are of the view that the protective
    measures pertaining to a closed session under
    Rule 79 are more than sufficient
    to maintain the confidentiality of any information that Witness TF1-150 may
    divulge in the course
    of his testimony, without the need for additional measures
    whose effect is to curtail the statutory rights of the accused. In this
    regard
    we agree with the view expressed by the witness’s former employer in their
    letter referred to above. In our opinion
    it would be prejudicial to the rights
    of the accused persons if Witness TF1-150 were permitted to disclose certain
    information and
    withhold the names of the sources, as the Defence would be
    handicapped in their attempts to challenge the information disclosed without
    knowing the name of the source.

FOR ALL THE ABOVE REASONS the
Trial Chamber dismisses the Prosecution request and rules that Witness TF1-150
can be compelled to answer questions relating to
the sources of his
information.


Honourable Justice Teresa Doherty will deliver a separate dissenting
opinion.


Done at Freetown this 16th day of September
2005.




Justice Richard Lussick

Justice Julia Sebutinde


[Seal of the Special Court for Sierra Leone]


[1] Case No.
SCSL-04-16-T
[2]
The Prosecutor v. Slobodan Milosevic, Confidential Decision on
Prosecution’s Application for a Witness Pursuant to Rule 70 (B), 30
October 2003; The Prosecutor v. Slobodan Milosevic, Case No.
IT-02-54-AR108bis & AR 73.3, Public Version of the Confidential Decision on
the Interpretation and Application of Rule
70, 23 October
2002.
[3] The
Prosecutor v. Radoslav Brdjanin and Momir Talic
, Case No. IT-99-36-AR73.9,
Decision on Interlocutory Appeal, 11 December 2002.