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

Prosecutor v Sam Hinga Norman & Ors - Order to the Prosecution for Renewed Motion for Protective Measures Case No.Scsl-04-14-pt (SCSL 14 of 2004, SCSL 14 of 2004) [2004] SCSL 65 (02 April 2004);

Law report citations
Media neutral citation
[2004] SCSL 65


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:
Judge Bankole Thompson, Presiding Judge
Judge Benjamin Mutanga
Itoe
Judge Pierre Boutet
Registrar:
Robin Vincent
Date:
2 April 2004
PROSECUTOR
Against
Sam Hinga Norman
Moinina Fofana
Allieu
Kondewa

(Case No.SCSL-04-14-PT)


ORDER TO THE PROSECUTION FOR RENEWED
MOTION FOR
PROTECTIVE MEASURES


Office of the Prosecutor:

Defence Counsel for Sam Hinga
Norman
:
Luc Côté
James Johnson

James Jenkins-Johnston


Defence Counsel for Moinina
Fofana
:


Michiel Pestman


Defence Counsel for Allieu
Kondewa
:
Charles Margai



THE TRIAL CHAMBER (“Trial Chamber”) of the Special Court
for Sierra Leone (“Special Court”);

NOTING the Status Conference held in this case on 4 March 2004, and
the discussions therein on the protective measures granted to victims
and
witnesses in this case;

NOTING that in the Decisions for protective
measures,[1] the Trial
Chamber ordered, as requested by the Office of the Prosecutor
(“Prosecution”), that the Prosecution may withhold
identifying data
and any other information which could lead to the identity of such a persons
from the Defence, and may delay the
disclosure of these witnesses’
identities until 42 days before the witnesses testify in the cases against Sam
Hinga Norman
and Moinina Fofana and 21 days in the case against Allieu Kondewa,
for three categories of witnesses:

(a) witnesses presently in Sierra Leone who have not affirmatively waived
their right to protective measures;

(b) witnesses who reside outside Sierra Leone but in West Africa who have
not affirmatively waived their right to protective measures;
and

(c) witnesses outside of West Africa who have requested protective
measures;

RECALLING the submissions of the Prosecution at the Status Conference
that in accordance with the Decisions for protective measures, it has
disclosed
redacted witness statements or witness summaries in lieu of witness statements,
and that it has not disclosed the identity
of any witnesses to the Accused or
the Defence Counsel;

RECALLING FURTHER the submissions from the Prosecution that certain
categories of witnesses, including victim-witnesses or “insider”
witnesses,
may require greater levels or forms of protection than other
categories of witnesses;

RECALLING the submissions of the Defence at the Status Conference on
the impact of the protective measures granted in this case on their trial
preparation;

CONSIDERING that the Statute of the Special Court specifically
provides for the protection of victims and witnesses in Article 16(4), which
prescribes
that:

The Registrar shall set up a Victims and Witnesses Unit within the Registry.
This Unit shall provide, in consultation with the Office
of the Prosecutor,
protective measures and security arrangements, counselling and other appropriate
assistance for witnesses, victims
who appear before the Court and others who are
at risk on account of testimony given by such witnesses. The Unit personnel
shall
include experts in trauma, including trauma related to crimes of sexual
violence and violence against children.

And that Article 17(2) of the Statute provides that “[t]he accused
shall be entitled to a fair and public hearing, subject to measures ordered
by the Special Court for the protection of victims and
witnesses
”;[2]

CONSIDERING Rules 69 and 75 of the Rules which implement Articles
16(4) and 17(2) of the Statute;

CONSIDERING Article 17 (“Rights of the accused”) of the
Statute, which prescribes certain minimum guarantees that must be afforded
to
each accused, including the right to have adequate time and facilities for the
preparation of his defence;

CONSIDERING the distinction to be drawn between granting protective
measures vis-à-vis the public versus granting protective measures
that
amount to non-disclosure or delayed disclosure to the Accused and the
Defence;

CONSIDERING that the Decisions for protective measures specified that
the protective measures granted were applicable at that stage of the
proceedings,
namely at the start of the pre-trial
phase;[3]

FINDING that at this advanced stage of the pre-trial proceedings, it
would be in the interests of justice to review the protective measures
required
in this case, and make any necessary and appropriate variations consistent with
the pre-eminent need to balance the interests
of the Prosecution and those of
the Defence;

PURSUANT TO Article 17 of the Statute and Rules 69 and 75 of the
Rules;

HEREBY ORDERS that:

  1. The
    Prosecution file a renewed motion for protective measures by 3 May 2004,
    pursuant to Rules 69 and 75 of the Rules, for each witness
    who appears on the
    Prosecution Witness List, which will be filed on 26 April 2004 in accordance
    with “Order to the Prosecution
    to File Disclosure Materials and Other
    Materials in Preparation for the Commencement of Trial,” of 1 April 2004.
    The motion
    shall specify the form of protection being sought for each witness
    including delayed disclosure, pseudonym, face distortion or closed
    session, to
    the extent that the Prosecution can provide such specification. This motion
    shall further provide an overview of the
    reasons for the protective measures
    sought for witnesses whose names appear on the witness list. In this regard,
    the Trial Chamber
    finds that the Prosecution’s reference to specific
    categories of witnesses may facilitate the Prosecution’s task; and
  2. The
    protective measures granted in this
    case[4] shall remain in
    force until further notice.
Done at Freetown this 2nd day of April 2004

Judge Bankole Thompson


Presiding Judge,
Trial Chamber



[Seal of the Special Court for Sierra Leone]



[1] Prosecutor v.
Samuel Hinga Norman,
SCSL-03-08-PT, Decision on the Prosecutor's Motion for
Immediate Protective Measures for Witnesses and Victims and for Non-public
Disclosure, 23 May 2003 (“Norman Decision”); Prosecutor v.
Moinina Fofana
, SCSL-03-11-PD, Decision on the Prosecutor's Motion for
Immediate Protective Measures for Witnesses and Victims and for Non-public
Disclosure, 16 October 2003 (“Fofana Decision”);
Prosecutor v. Allieu 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 (“Kondewa
Decision”).
[2]
Emphasis added.
[3]
See Norman Decision, paras 14 and 15 ( “a reasonable case has been
made for the prosecution witnesses herein to be granted at this preliminary
stage a measure of anonymity and confidentiality” and “justify, at
this point in time, delaying the disclosure of the
identities of the witnesses
during the pre-trial phase), Fofana Decision, para 16
(“justify, at this point in time, delaying the disclosure of the
identities of the witnesses during the pre-trial phase); Kondewa
Decision, para 29 (“at this pre-trial
stage”).
[4]
See note 1.