THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA BEFORE THE SPECIALLY-ASSIGNED TRIAL CHAMBER

Transcription

1 IT R D D April 2009 SF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA BEFORE THE SPECIALLY-ASSIGNED TRIAL CHAMBER Case No. IT R77.5 Before: Judge Mehmet Güney Judge Liu Daqun Judge Bakone Justice Moloto Acting Registrar: Mr. John Hocking Filed: 21 April 2009 IN THE CASE OF FLORENCE HARTMANN PUBLIC MOTION PERTAINING TO THE NULLIFICATION OF TRIAL CHAMBER S ORDERS AND DECISIONS Amicus: Mr. Bruce MacFarlane, QC On behalf of Ms Hartmann: Mr. Karim A. A. Khan, Lead Counsel Mr. Guénaël Mettraux, Co-Counsel

2 1942 Procedural background 1. The procedural background in this matter has already been included in the Defence Motion for Disqualification of Two Members of the Trial Chamber and of Senior Legal Officer in Charge of the case of 3 February and its Addendum of 10 February The Defence refers to that procedural background and adopts it by reference. The Defence will merely complement it with procedural incidents that have occurred since then. 2. On 3 February 2009, the Trial Chamber ordered the postponement of the trial sine die On 3 February 2009, the Trial Chamber gave its reasons for its decisions regarding the Defence Motions for stay of proceedings and for the issuance of subpoena to the amicus prosecutor, rendered during the status conference On 4 February 2009, the Chamber issued an order varying time limits for filing of applications for certifications On 7 February 2009, the Defence filed the Defence Motion Pursuant to Rule 65ter, providing additional set of agreed facts between parties. 6. On 9 February 2009 the Defence filed a number of motions for leave to appeal: (i) Defence Motion for Leave to Appeal Trial Chamber s Decision on Defence Motion for Reconsideration dated 14 January 2009; (ii) Defence Motion for Leave to Appeal Trial Chamber s Decision regarding Stay of Proceedings for Abuse of Process; 1 A public version was filed on 6 February 2009:Defence Motion for Disqualification of Two Members of the Trial Chamber and of Senior Legal Officer in Charge of the Case (public), 6 February Order Postponing Commencement of Trial (public),3 February Reasons for Decision on the Defence Motion for Stay of Proceedings for Abuse of Process (public), 3 February 2009; Reasons for Decision on Urgent Defence Motion for the Issuance of Subpoena to Amicus Curiae Prosecutor (public), 3 February Order Varying Time Limits for Filings of Applications for Certification (public), 4 February IT R April 2009

3 1941 (iii)defence Motion for Leave to Appeal Trial Chamber s Decision regarding Prosecution Witness Statements; (iv) Defence Motion Seeking Certification of Trial Chamber s Reasons for Decision on Urgent Defence Motion for the Issuance of Subpoena to Amicus Curiae Prosecutor dated 03 February On 18 February 2009, the President of the Tribunal, acting pursuant to Rule 15(B)(ii), appointed a panel of three judges to provide their opinion on the merits of the issue of the disqualification. On 25 March 2009, the panel reported to the President. The majority of the panel granted the Defence Motion for disqualification in part with respect to the recusal of two members of the Trial Chamber and invited the President to assign two new judges to the specially appointed Trial Chamber. These Judges have now been replaced by order of the President. 8. The following Defence motions were pending at the time of the Decision of Disqualification: Defence Motion for Binding Orders to the Registry, filed 2 February 2009; Defence Motion pursuant to Rule 65ter, filed 7 February 2009; Defence Motion for Leave to Appeal Trial Chamber s Decision on Defence Motion for Reconsideration dated 14 January 2009, filed 9 February 2009; Defence Motion for Leave to Appeal Trial Chamber s Decision regarding Stay of Proceedings for Abuse of Process, filed 9 February 2009; Defence Motion for Leave to Appeal Trial Chamber s Decision regarding Prosecution Witness Statements, filed 9 February 2009; Defence Motion Seeking Certification of Trial Chamber s Reasons for Decision on Urgent Defence Motion for the Issuance of Subpoena to Amicus Curiae Prosecutor dated 03 February 2009, filed 9 February Public version filed on 12 February IT R April 2009

4 1940 Motion for leave for extension of word-limit 9. Because of the importance of the present matter and the number of issues (legal and factual) that are at stake, the Defence hereby seeks leave for a 6000-word extension so as to permit the Defence to fully outline the nature and scope of its submissions and so as to ensure that the President is adequately briefed in relation to each and all of these. The issues raised therein are numerous, complicated and are supported by many legal authorities. Furthermore, the resolution of this matter by the Trial Chamber would have the effect of resolving many issues that would otherwise pertain to several separate applications. 10. Should the amicus Prosecutor need a similar extension of words for the purpose of his response, the Defence would have no objection to such a request. Nullity of Trial Chamber s decisions and orders 11. In accordance with the Panel s decision of 25 March, all decisions and orders issued by the impugned Trial Chamber have been rendered null and must be set aside. 12. In Karemera, for instance, the ICTR made it clear that decisions rendered by a Trial Chamber that was later found to have fallen short of the requisite standard of impartiality and independence would be voided by such a finding: 14. The Chamber is of the view that the rehearing of the proceedings, as stated in Rule 15bis (C) of the Rules and consequent upon the Appeals Chamber Decisions of 28 September 2004 and 22 October 2004, relates to that proceedings before the Trial Chamber and, therefore, to the presentation of evidence. The Chamber concludes also that all previous interlocutory orders or decisions previously related to the evidence presented during the trial which started in 27 November 2003 have to be disregarded and have no more effect. [...] 20.This jurisprudence explains that, pursuant to the Rules, the appearance of bias affects the jurisdiction of the judge to adjudicate in a particular case. In applying IT R April 2009

5 1939 this principle to the instant case where the Appeals Chamber ruled after decision making power had been exercised, not only in the Trial stage but also in the Pre- Trial stage of the proceedings, the Chamber has to be cognizant of the need to avoid any appearance of bias. Even if there is no suggestion of actual bias, where appearances may give rise to doubts about impartiality, this alone may amount to an inadmissible jeopardy of the confidence which a Tribunal must inspire. 6 Justice must not only be done, but also should manifestly and undoubtedly be seen to be done The Chamber notes that all the Defence teams for each of the accused contended that the Decision of 13 February 2004 granting in part the Prosecution Motion for leave to amend the Indictment was affected by an appearance of bias. The Chamber concludes that in the interests of justice, and as a consequence of the ruling of the Appeals Chamber Decision of 22 October 2004, that decision should no longer have effect. 22.The Chamber also considers that it has the power to make such a ruling independently of the Appeals Chamber ruling, where it concludes that it is required in the interests of justice. The Chamber is endowed with inherent powers to make judicial findings that are necessary to achieve the primary obligation to guarantee a fair trial to the accused. 8 6 The European Court of Human Rights has generated a large amount of jurisprudence on the right to be tried by an independent and impartial tribunal and on the notion of objective impartiality. See Eur.Ct.H.R., Piersack v. Belgium, Judgment of 1 October 1982, par. 30; Eur.Ct.H.R., Thomann v. Switzerland, Judgment of 10 June 1996, par. 30; Eur.Ct.H.R., Ferrantelli and Santangelo v. Italy, Judgment of 7 August 1996, par. 58; Eur.Ct.H.R., Incal v. Turkey, Judgment of 9 June 1998, par. 65; Eur.Ct.H.R., Castillo Algar v. Spain, Judgment of 28 October 1998, par. 45; Eur.Ct.H.R., Pescador Valero v. Spain, Judgment of 17 June 2003, par. 23 (Judgments available at < 7 See Sesay Case, par See Prosecutor v. Blaskic, Case No. IT A, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 199 (AC), 29 October 1997, par. 25, footnote 27: Consonant with the case-law of the International Court of Justice, the Appeals Chamber prefers to speak of "inherent powers" with regard to those functions of the International Tribunal which are judicial in nature and not expressly provided for in the Statute, rather than to "implied powers". The "implied powers" doctrine has normally been applied in the case-law of the World Court with a view to expanding the competencies of IT R April 2009

6 1938 As Judge David Hunt stated: It is the fundamental obligation of this Tribunal, imposed by Articles 20 and 21 of its Statute, to ensure the fair and expeditious trial of those indicted before it. [ ] The Tribunal also has an inherent power, deriving from its judicial function, to control its proceedings in such a way as to ensure that justice is done Accordingly, in the interests of justice and the rights of the accused, the Chamber concludes that the Decision of 13 February 2004 has to be given no more effect. The Chamber considers therefore that the only operative indictment in the present case is the amended Indictment filed on 21 November The above position, which may be said to represent a general principle of law, has also been adopted, inter alia, in the Pinochet case. 11 In that case, the House of Lords, having found merit in the Defence application of an appearance of bias on the part of one of its members (Lord Hoffmann), the Court set aside its previous decision which had been political organs of international organisations. [ ] As is well known, reference to the Court's "inherent powers" was made by the International Court of Justice in the Northern Cameroons case (I.C.J. Reports 1963, p. 29) and in the Nuclear Tests case. In the latter case the Court stated that it "possesses an inherent jurisdiction enabling it to take such action as may be required, on the one hand to ensure that the exercise of its jurisdiction over the merits, if and when established, shall not be frustrated, and on the other, to provide for the orderly settlement of all matters in dispute Such inherent jurisdiction, on the basis of which the Court is fully empowered to make whatever findings may be necessary for the purposes just indicated, derives from the mere existence of the Court as a judicial organ established by the consent of States, and is conferred upon it in order that its basic judicial functions may be safeguarded" (Nuclear Tests case, I.C.J. Reports 1974, pp , para. 23). 9 Prosecutor v. Simic et al., Case No. IT-95-9-PT, Separate Opinion of Judge David Hunt on Prosecutor s Motion for a Ruling Concerning the Testimony of a Witness (TC), 27 July 1999, par. 25. See also Prosecutor v. Tadic, Case No. IT-94-1-A, Judgment (AC), 15 July 1999, par Karemera, Decision on Severance of Andrew Rwamakuba and Amendments of the Indictment, Article 20(4) of the Statute, Rule 82(B) of the Rules of Procedure and Evidence 7 Dec 2004 (emphasis added). 11 See Regina v Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte [2001] 1 AC 119, at 125, 137, 139, 143, 146 ( Pinochet Judgment ). IT R April 2009

7 1937 adopted with Lord Hoffmann participating. 12 Other jurisdictions, such as Australia 13 or South Africa 14 have applied the same principle. 14. This reasoning that sustains this position is the logical consequence of the impact that a Chamber s lack of impartiality (or a lack of appearance thereof) will necessarily have on the validity and legitimacy (or perceived validity and legitimacy) of decisions rendered by such a Chamber. 15. Where the impartiality of a judge is in question the appearance of the matter is just as important as the reality. 15 The absolute need for public confidence in the integrity of the administration of justice demands that only these courts whose impartiality is beyond dispute can take decisions that will impact upon the rights, position and interests of a defendant in criminal proceedings. Where such guarantee is not present, the tribunal s actions fall short of internationally-recognised standards and must be set aside. 16. This view is further supported by the terms of Rule 15bis, which provides that in the absence of a Judge, and in the interests of justice, the other two members of a Trial Chamber may decide to continue with the proceedings in the absence of that judge. The power to continue with the proceedings in such a case would seem to include, arguably, a power by the remaining two judges to render decisions where necessary and appropriate. However, that provision does not allow for the continuation of proceedings where more than one Judge is absent or unable to attend and decisions rendered by a single Judge in such a situation would be invalid. Whilst the present case is not one pertaining to the Absence of a Judge in the sense of Rule 15bis, the terms of that provision further emphasis the fact that under no circumstance could a decision of a Trial Chamber be validly rendered with only one of three judges being present or qualified to take part in 12 Ibid. See also e.g. Dimes v Proporietors of Grand Junction Canal, 3 HL Case. 759 (in particular per Lord Campbell, at ); Sellar v Highland Railway Co., 1919 SC (HL) 19;Bradford v McLeod, 1986 SLT 244; Reg v Altrincham Justices, ex parte N Pennington [1975] QB 549, at 552 (per Lord Widgery CJ). 13 See e.g. Antoun v R [2006] HCA 2; Gassy v The Queen [2008] HCA See e.g. S v Dube and Others (523/07) [2009] ZASCA 28 (30 March 2009), in particular pars Pinochet Judgment, at 139, per Lord Nolan. IT R April 2009

8 1936 the proceedings. 16 In the present case, at least two of the members of the Trial Chamber (including the Presiding Judge) have been impugned so that none of the decisions and orders rendered by the Chamber to which they belong could be or remain binding in these proceedings. 17. In this instance, for the reasons explained in the panel s decision, the Trial Chamber did not meet the requisite element of objective impartiality as was necessary for the Chamber to be able to validly decide the course of proceedings against Ms Hartmann. 18. In view of the above, all the orders and decisions rendered by the Trial Chamber in these proceedings must be disregarded as being without effect. With a view to assist the Trial Chamber, these have been listed in confidential Annex C. Trial Chamber s discretion and re-initiation of contempt proceedings against Ms Hartmann Effect and consequence of the above onto the pre-trial record and discretionary authority of the Trial Chamber 19. As a result of the panel s report of 25 March and subsequent President s decision, and for the reasons outlined above, all Trial Chamber s orders and decisions are null and must be set aside. This includes the Order in lieu of indictment (first issued on 27 August 2008 and amended on 27 October 2008). In other words, at this point, there are no charges validly pending against Ms Hartmann. 20. The Trial Chamber is, therefore, required to exercise its discretion pursuant to Rule 77 and the Practice Direction 17 in deciding whether or not to initiate new proceedings against Ms Hartmann. 21. The Defence submits that all circumstances militate against the re-initiation of proceedings. 16 The only exception(s) to that Rule is provided for in Rule 65ter insofar as decisions could be rendered by a single Judge in his capacity as pre-trial Judge. See also Rule 65ter(A) concerning the authority of the Presiding Judge to designate the pre-trial Judge. 17 Practice Direction on the Procedure of the Investigation and prosecution of Contempt before the International Tribunal, in particular pars 7 and 13. IT R April 2009

9 For the reasons given below, the Defence submits that the Trial Chamber should exercise its discretion by deciding not to re-initiate proceedings to investigate or prosecute this matter. 23. In the alternative, the Trial Chamber could exercise its authority to reconsider the Order in lieu of an indictment and adopt the view supported in law and evidence that in light of all circumstances that are now known to the Trial Chamber the initiation of contempt proceedings against Ms Hartmann is both unnecessary and unjustified. Incompleteness and unreliability of the investigative record 24. The Defence submits that the material presently in possession of the Trial Chamber would not allow and would not be sufficient to warrant the exercise of its discretion in favour of initiating new proceedings in relation to allegations against Ms Hartmann. Reasons are as follows: (i) The material put before then President Pocar CONFIDENTIAL based on which the Trial Chamber was initially appointed was inaccurate, incomplete and misleading; (ii) The material later collected by the amicus investigator would not provide a valid basis upon which the present Trial Chamber could rely to exercise its discretion in such a way as to re-initiate proceedings since this material has been shown to be unreliable, incomplete, one-sided and misleading. The material collected by the Defence and which forms part of the record demonstrates the general lack of merit of the allegations made by the amicus CONFIDENTIAL. The Defence submits that no reasonable Trial Chamber could decide to indict a person on the basis of information that has now been positively shown to have one-sided, incomplete and unreliable. (iii) Insofar as the information now available would allow for any reasonable decision to be taken in this matter, it would be one to the effect that the Trial Chamber IT R April 2009

10 1934 should exercise his discretion in such a way as to decide not to re-initiate proceedings in this matter First, as noted above, the information contained in the material provided to then President Pocar based on which he appointed a Trial Chamber has now been shown to have been inaccurate, incomplete and misleading. 26. CONFIDENTIAL 27. As is clear from the Defence submissions and from the information that now forms part of the record, this assertion was patently wrong, inaccurate and misleading. 19 All of it was already public and none of it has been shown to have been acquired by reason of her former position. 28. CONFIDENTIAL 29. Therefore, and for the reasons given above, it would not be reasonable, the Defence submits, for the Trial Chamber to exercise its discretion by initiating or continuing the prosecution of Ms Hartmann based on the information provided to President Pocar. 30. Secondly, the material that was collected by the amicus as part of his investigation would not provide a sufficient nor adequate basis on which the present Trial Chamber could reasonably exercise its discretion to order new contempt proceedings. 31. This is so because the material collected by the amicus is unreliable, incomplete, onesided and misleading. Any decision based on the amicus flawed investigation would be infected by its deficiencies. 32. CONFIDENTIAL 18 The Defence invites the Chamber in particular to consider the annexes to its Motion of Reconsideration dated 14 January See Motion for Reconsideration, 14 January 2009, pars 19 et seq. See also Defence Pre-Trial Brief, 15 January 2009, pars 23 et seq. Because of the importance of the Defence Motion of 14 January, and because it is several times referred to in the present application, it has been included (without its annexes) as confidential Annex A. IT R April 2009

11 The Defence has already described the serious flaws of the investigative process and only need to refer and adopt its submissions by reference. 20 What matters for the present purpose is the fact that, seen as a whole, the material that has now been relied upon by the Defence clearly demonstrates the flaws of the investigation as well as the unreliability and one-sidedness/incompleteness of the material relied upon by the amicus prosecutor. Of particular interest here are the following considerations: (i) (ii) First, the material obtained by the amicus is itself impugned by the panel s decision insofar as it is material that resulted, not from an independent/impartial investigation, but from one conducted by or at the behest of the Trial Chamber. Such conduct has been found to fall short of the relevant human rights guarantees. Secondly, the material collected by the amicus is itself unreliable. In the absence of statements of any of the persons whom he intends to call as witnesses, the reliability or otherwise of the information provided by the proposed witnesses may not be properly assessed by the present Trial Chamber. In Nyiramasuhuko, the ICTR has pointed out that before initiating criminal proceedings, the Tribunal would have to consider the quality and reliability of the material put before it, in particular the hearsay or unsworn nature of the material relied upon by a party to request the initiation of contempt proceedings and requiring that such allegations should only be brought on the basis of properly prepared and substantiated submissions. 21 In this case, there is simply no reliable evidence as would be admissible under the Rules at the disposal of the Trial Chamber to exercise his discretion in such a way that would be both reasonable and fair to Ms Hartmann. In the circumstances, the Defence submits that such a course would be unreasonable. 20 See, in particular, Motion for Stay of Proceedings for Abuse of the Process, 23 January 2009 (included (without its annexes in confidential Annex B); see also Motion for Reconsideration, 14 January 2009 (Annex A). 21 Nyiramasuhuko (Kanyabashi case), Decision on Prosecutor s Allegations of Contempt, the Harmonisation of the Witness Protection Measures and Warning to the Prosecutor s Counsel, 10 July 2001, pars 8 and 12. IT R April 2009

12 1932 (iii) Thirdly, the amicus Prosecutor has persistently refused to be interviewed by the Defence as would have allowed the Defence to establish the extent and nature of the abuses committed as part of the investigation and the consequences thereof onto these proceedings. 22 In those circumstances, the grand extent of the flaws and shortcomings of the investigation cannot be fully explored. The Defence submits that the Trial Chamber should draw the necessary inferences from the amicus s refusal to cooperate in this matter, in particular as regard the reliability of the material that has been provided by him. 34. Fourthly, much information relevant to these proceedings have now been put forward by the Defence The Defence submits that justice and fairness demand that a decision whether to reinitiate proceedings should not be taken without considering all information now available on record. The ad hoc Tribunals have already pointed out that bearing in mind the principle of the presumption of innocence, any allegations of contempt are to be handled with due care Setting aside the flaws of the investigative process, it is clear that, should the Trial Chamber take into consideration all the information now on record, it could not reasonably come to the view that contempt proceedings are necessary and justified in the 22 Requests to that effect were made on the following dates: 14 and 30 January, 2 and 3 February. The request was renewed on 8 April 2009 and again rejected on 16 April At the time of the decision of disqualification, a motion for leave to appeal the Trial Chamber s decision not to grant a subpoena against the amicus was pending (Defence motion seeking certification of Trial Chamber s Reasons for decision on urgent Defence motion for the issuance of subpoena to amicus curiae Prosecutor dated 3 February 2009, 9 February 2009). 23 The Defence refers, in particular, to the material attached to its Motion for Reconsideration, 14 January 2009 and to the submissions and material contained in its Pre-Trial Brief of 15 January Nyiramasuhuko (Kanyabashi case), Decision on Prosecutor s Allegations of Contempt, the Harmonisation of the Witness Protection Measures and Warning to the Prosecutor s Counsel, 10 July 2001, par 6. See also Seselj, Decision on Certain allegations made in Motion Number 23, 18 November IT R April 2009

13 1931 circumstances. Most relevant in that regard is the material that was annexed to or refer to the Defence Motions for Reconsideration and Abuse of the Process respectively Finally, as will be discussed next, in this instance, all relevant circumstances militate against the renewal of proceedings against Ms Hartmann. Factors pertaining to the allegations against Ms Hartmann 38. The Defence submits that all relevant factors militate against a decision to re-start proceedings and thus suggests that the Trial Chamber should exercise his discretion in such a way as not to re-initiate contempt proceedings against Ms Hartmann. (i) Public character of the information allegedly disclosed in violation of confidential orders 39. In its filings of 14 January 2009, the Defence has established that all four facts in relation to which Ms Hartmann was being prosecuted had been made public by the Tribunal, by the Applicant and were openly discussed in the media. 26 The amicus Prosecutor did not take issue with these submissions, but maintained his position that, despite this fact, Ms Hartmann could be prosecuted for contempt. 40. Although the Trial Chamber need not decide upon the question of whether this would constitute a defence to contempt charges, it is a fact that is directly relevant to the exercise of its discretion to initiate proceedings pursuant to Rule 77 and Practice Direction. The Defence submits that initiating contempt proceedings in those circumstances would not be reasonable. 41. Considerations of good sense, opportunity and proper allocation of Tribunal resources all militate, the Defence submits, against the view that new proceedings should be re-initiated. 25 Motion for Reconsideration, confidential, 14 January 2009;Motion for Stay of Proceedings for Abuse of Process, confidential, 23 January Motion for Reconsideration, 14 January 2009, pars 14 et seq. IT R April 2009

14 1930 (ii) Insufficient gravity or seriousness of the impugned conduct to warrant contempt proceedings 42. The jurisprudence (and practice) of this Tribunal recognizes that not all instances of disclosure of information in violation of a confidential order are such as to warrant contempt proceedings First, the Tribunal does not criminalise conducts that are merely negligent In fact, and thus far, the Tribunal has only criminalized serious breaches of court orders which had effectively interfered with the administration of justice. Where this could not be established, the court has generally regarded such conduct as falling below the threshold relevant to the Tribunal s contemptuous jurisdiction. In Ntakirutimana, for instance, the ICTR found that the disclosure in violation of the witness protection order was not sufficiently serious to be tantamount to contempt And even within the category of conduct that might have interfered with the administration of justice, the Tribunal has been careful to prosecute only the most serious among them as only those are capable of interfering with the Tribunal s ability to fulfill its primary mandate, i.e., to prosecute serious violations of humanitarian law. In Furundzija, for instance, the Tribunal took the view that the pattern of violations of court s order by the Prosecution was not sufficiently serious to amount to a crime of contempt since only the most serious interferences with the administration of justice were intended to be prosecuted under that heading Revealingly for the present purpose, in the Brdjanin case, the Trial Chamber found that one of the counts of contempt raised against Ms Maglov did not meet 27 See, for illustrations, Defence Pre-Trial Brief, 15 January 2009, par Aleksovski, Judgment on Appeal by Anto Nobilo,30 May Ntakirutimana, Decision on Prosecution Motion for Contempt of Court and on two Defence Motions for Disclosure, 16 July 2001, pars Furundzija, The Trial Chamber s Formal Complaint to the Prosecutor concerning the conduct of the Prosecution, 5 June 1998,par.11. IT R April 2009

15 1929 that threshold as the information which she was said to have disclosed in violation of a court order related to disclosure of a fact that was already publically known. 31 The application of that jurisprudence for the present purpose would lead the Trial Chamber to conclude that it would be unreasonable to initiate or continue contempt proceedings in this matter. 47. Prior to the President s Decision, Ms Hartmann was being prosecuted, not for disclosing the content of any of the documents that were the subject of the protective measures. No one, prior to her, has been prosecuted before this Tribunal for disclosing the existence of a confidential order, its date, its confidential nature or its subject-matter as opposed to the actual content of the documents or person that was protected by a confidential order. This, the Defence submits, is further evidence of the a priori insufficient seriousness of the matter to warrant contempt proceedings. 48. Under the nullified indictment, Ms Hartmann was being prosecuted for allegedly disclosing the four following facts in breach, the amicus Prosecutor said, of two confidential orders: 32 (a) the existence (and dates) of the two impugned decisions; (b) the confidential character of these decisions; (c) the identity of the moving party/applicant; (d) the subject, namely, the fact that protective measures were granted in relation to CONFIDENTIAL. 49. Up until the Trial Chamber queried this issue with the amicus Prosecutor, 33 the amicus Prosecutor had not taken issue with the understanding of the Defence that 31 Brdjanin (Maglov), Decision on Motion for Acquittal pursuant to Rule 98bis, 19 March 2004, pars 9-10 (in relation to count 3). 32 See Motion for Reconsideration of 14 January 2009 (pars 14-18) and in Defence Pre-Trial Brief of 15 January 2009 (par 7). IT R April 2009

16 1928 these were in fact the four facts that were the subject of the charges that he was prosecuting. 34 He thus waived his right to take issue with these or should be regarded as being estopped to do so. 50. The Tribunal s jurisprudence provides that in some cases disclosure of a fact already known is not serious enough in principle to warrant a conviction for contempt. 35 The Defence submits that this would be the case, for instance, where, as in the present case, the trial in question had been terminated, there is no demonstrated effect (or even possible effect) on the course or the administration of justice, and the facts in question had been extensively discussed in the media without any steps being taken to prevent further disclosure of these Also, and as already noted, the Tribunal itself and the Applicant had publically and officially acknowledged and disclosed these four facts. 37 Although the Trial Chamber need not decide at this stage whether this would provide a full defence to the charges, it is certainly a fact that would weigh heavily against any decision to initiate contempt charges against Ms Hartmann. 52. As noted by the Defence in a previous filing, as a result of the amicus investigative failure to elicit these facts, Ms Hartmann was being prosecuted for disclosing facts that neither the Tribunal, nor the Applicant, thought were covered by the impugned confidential orders that form the basis of the charges Transcript of the Status Conference, 30 January 2009, pp.53-57; Defence Motion for Disqualification of Two Members of the Trial Chamber and of Senior Legal Officer in Charge of the Case with Annexes (confidential), 3 February 2009,pars On at least two occasions, in its Motion for Reconsideration of 14 January 2009 (pars 14-18) and in its Pre- Trial Brief of 15 January 2009 (par 7), the Defence had outlined its understanding of the charges in this manner. The amicus Prosecutor did not take issue with it. He, therefore, may be said to have agreed with the Defence or, if he has later changed his mind, he would be estopped from seeking to present a different case. 35 Brdjanin, Maglov.Decision,19 March 2004,pars Motion for Reconsideration, pars Motion for Reconsideration, pars Motion for Reconsideration, par 8. IT R April 2009

17 In light of this, the Defence submits that the only reasonable course open would be to decide not to re-initiate proceedings for contempt. 54. Also relevant to the exercise of discretion are the following considerations: (a) No prejudice has been demonstrated to the applicant: Ms Hartmann was being prosecuted for acts that have had no proven consequences. (b) No actual interference with the course/administration of justice has been established: Ms Hartmann was being prosecuted for an alleged interference with the course of justice when none was established. (c) There has been no disclosure/revelation of the content of the material/documents that were the subject of the protective measures: Ms Hartmann was being prosecuted not for disclosing any protected information but for disclosed the fact that an order exists that protects these documents. (d) Facts which are said to have been disclosed were already in the public domain: Ms Hartmann was being prosecuted for saying what everyone already knew. And she is the only one to be prosecuted for these facts. (e) There is no evidence of an intention on the part of Ms Hartmann to damage the reputation of the Tribunal (nor did the amicus Prosecutor so allege): Ms Hartmann was being prosecuted despite the absence of an intention to interfere with the administration of justice. (f) No witness was endangered as a result of the conduct of Ms Hartmann: Ms Hartmann was being prosecuted despite the fact that victims of the conflict in Bosnia have all called for and supported the view that the facts for which she is being prosecuted should be made public. 39 (g) Ms Hartmann is the mother of two children, which she still supports financially. She does not have a regular paid job so that a new prosecution 39 Annexes See also further below. IT R April 2009

18 1926 and any conviction as could result from it would have dramatic consequences on her family. 40 (h) To the extent that any prejudice might have been caused by the conduct of Ms Hartmann, the stigma that resulted from the initiation of proceedings against her and the distress that this has caused to both Ms Hartmann and her family would have constituted more than an adequate sanction. In that sense, no other good purpose could be served by a new or renewed prosecution in this matter. (iii) Abuse of process in the investigation which will require the annulment of any finding made during that process and could require the Tribunal to appoint a new amicus investigator to look once again into this matter 55. In its Motion of 23 January 2009, the Defence had outlined many of the shortcomings, failings and abuses that marred the amicus investigation. 41 In particular, the Defence had put forward the following shortcomings and violations as, it submits, occurred during the amicus investigation of this matter (see confidential Annex B): 42 (a) Complete failure on the part of the amicus to investigate à décharge; (b) Violations by the amicus of United Nations immunities and Tribunal Statute; (c) Violation by the amicus of Court orders; (d) Failure by the amicus to abide by basic standards of investigative diligence in the process of collecting evidence; (e) Failure by the amicus to provide the specially-assigned Chamber with a reliable factual foundation on which to decide to initiate contempt proceedings; 40 Decision (regarding indigence),13 November See confidential Annex B. 42 Motion for Stay of Proceedings for Abuse of Process, 23 January 2009 (see confidential Annex B); Prosecution Response to the Motion of the Stay of Proceedings, 29 January 2009; Reasons for Decision on the Defence Motion for Stay of Proceedings for Abuse of Process, 3 February 2009; and Defence Motion for Leave to Appeal Trial Chamber s Decision re Stay of proceedings for Abuse of Process, 9 February IT R April 2009

19 The specially-assigned Trial Chamber rejected, disregarded or failed to address many of these complaints and the Defence had sought leave to appeal that Decision. 43 The Defence reserves its right to ask the Chamber to consider these matters on their merit. 57. These factors, which the Chamber can consider in confidential Annex B, would warrant the stay of proceedings for abuse of the process. Although the Chamber need not decide the merit of this submission for the present purpose, there is the very real possibility that should new proceedings be initiated against Ms Hartmann, they should later have to be stayed based on the abuses that have occurred in the context of the investigation. The Defence submits that it would be a safer and more economical course that proceedings should not re-start, rather than being halted later. (iv) Lack of reliability of the material collected as part of the investigation 58. The amicus Prosecutor took no statements from any of the persons whom he interviewed during the investigative process nor from any of the persons whom he listed as proposed witnesses. This fact has given rise to litigation already, and was the subject of a Defence Motion for leave to appeal the specially-assigned Trial Chamber s decision on that point. 44 The Defence has submitted (unsuccessfully thus far) that such practice constitutes a direct violation of the Appeals Chamber s jurisprudence and of the Rules What matters for the present purpose, however, is the fact that, as noted above, the material collected by the amicus is unreliable and that further investigative steps would be necessary to assess even the prima facie reliability of that information. 43 Defence Motion for Leave to Appeal Trial Chamber s Decision re Stay of proceedings for Abuse of Process, 9 February Defence Motion for Leave to Appeal Trial Chamber s Decision regarding Prosecution Witness Statements, 9 February Motion for Stay of Proceedings for Abuse of Process, 23 January 2009; Defence Motion for Leave to Appeal Trial Chamber s Decision regarding Prosecution Witness Statements, 9 February IT R April 2009

20 Also relevant is the fact that, as noted by Judge Flügge, the material that was collected by the amicus investigator (now amicus prosecutor) was sought and obtained at the behest and under the direction of the Trial Chamber whose impartiality has now been impugned. As a result, the fruit of the investigation is itself suspect of the lack of impartiality that attached to members of the Chamber in charge of the matter at the time. In those circumstances, and as a minimum, an amicus should be appointed to conduct an investigation à décharge, which the present amicus completely failed to carry out. Only then would the Trial Chamber be able to confidently assume that it has been provided with a full and fair record of the investigation for the purpose of deciding on the continuation of proceedings. 61. A new investigation as would be necessary in the present circumstances could take many more months and would require the Tribunal to allocate vast resources to such a process, which might be better used to allow the Tribunal to fulfill its primary mandate. (v) Need to comply with and guarantee the fundamental rights of Ms Hartmann 62. In its Motion for Reconsideration, the Defence had put forth arguments that the initiation of contempt proceedings would be contrary to internationally-recognised standards of international human rights law. 46 The impugned Trial Chamber failed to address these arguments. Because they are directly relevant to the Chamber s exercise of discretion, the Defence renews those submissions verbatim below: 63. In two parallel cases pertaining to the publication of Spycatcher, British newspapers complained of a violation of Article 10 of the ECHR caused by the actions of the Attorney-General who sought to restrain the publication of extracts of that book. 47 The Court of Appeal had issued injunctions against The Observer 46 Motion for Reconsideration, pars Observer and Guardian v United Kingdom,Judgment,26 November 1991,Series.A,No216;(1992) 14 EHHR 153;Sunday Times v United Kingdom (no 2),Judgment of 26 November 1991,Series.A,No217;(1992) 14 EHHR,229. IT R April 2009

21 1923 and The Guardian which also bound all media within the jurisdiction of English courts and held that any publication or broadcast of the Spycatcher material would constitute a criminal contempt of court. 48 Copies of the books were imported from outside the UK. However, the court order remained in force until October The European Court of Human Rights distinguished between two time-periods: for the first period (July 1986-July 1987), the Court held by a narrow majority that the risk of material prejudice to the national security existed justifying the imposition of the above-mentioned injunction. Concerning the later period, by contrast, and unanimously, the Court held that Article 10 of the ECHR had been violated. The basis of its reasoning on that point was that the material could no longer be regarded as likely to prejudice the national security of the country since the book had become freely available in the United States. 64. The same reasoning, if applied to the present circumstances, would lead to the necessary conclusion that the enforcement of the confidential orders contained in the impugned decision and to do so through the criminal prosecution of a journalist would constitute a violation of the rights guaranteed in the ECHR and the Statute. 65. Again, the Chamber need not decide this issue on its merit. But these are factors that are directly relevant to the exercise of its discretion as to whether to initiate or continue proceedings in this matter. 66. The prosecution of journalists for allegedly disclosing facts of public interest is likely to undermine the freedom of the press, hinder public discussion of important matters and is unlikely to contribute to a frank and open discussion about those events which interest the Tribunal and the public at large Ibid. 49 See e.g. D. Feldman, Civil Liberties and Human Rights in England and Wales (OUP, 1993), in particular, IT R April 2009

22 The oppressive and overreaching interpretation of contempt that would result in the initiation of criminal proceedings would thus infringes on Ms Hartmann s fundamental right to information and expression Finally, the Defence has already pointed out that it is the position under international law that because of the dominant position that they occupy, authorities (judicial or otherwise) must display restraint in sanctioning freedom of expression and show prudence in choosing measures that are the least restrictive of this protected interest. 51 Criminal proceedings for contempt, if allowed to proceed in the present case, would fall short of that standard and would have a chilling effect on the work of journalists as regard the activities of this Tribunal A second prosecution particularly in light of the relatively minor nature of the charges could be regarded as oppressive or, as has been suggested in the media, as spiteful Although the Tribunal cannot decide whether to initiate criminal proceedings on the basis of the way in which those are perceived in the public, the mandate of the Tribunal is duly circumscribed to those cases that are capable of contributing to peace and reconciliation in the former Yugoslavia whether directly (in the case of those prosecuted in relation to alleged violations of Article 2-5 of the Statute) or indirectly (in the case of Prosecution for contempt of those whose actions have threatened the Tribunal s ability to fulfill its primary mandate). 71. In this context, the role of the Tribunal vis-à-vis the victims should be taken into consideration. The Tribunal has rightly taken the view that as part of its mandate it 50 See the recent Judgment of the ECHR (14 April 2009) in Tarsasag A Szabadsagjogokert v Hungary (Appl No 37374/05) regarding the scope and importance of that right. 51 See e.g. Castells, Judgment of 23 April 1993, par 46; Goodwin, Judgment of 27 March 1996, par 39; Wille Judgment of 28 October 1999, par 50; Cumpana and Mazare, Judgment of 17 December 2004, par Regarding the doctrine of chilling effect, see also P. van Dijk, Theory and Practice of the European Convention on Human Rights (Intersentia, 4 th ed., 2006), , in particular Book Review of The Economist, 22 January 2009, Carla del Ponte Madame Prosecutor, see ANNEX D. IT R April 2009

23 1921 should attempt to bring justice to the victims. 54 In this case, there is no identifiable victim: the applicant did not complain of Ms Hartmann s conduct and its representatives in fact disclosed to the public the very same facts for which Ms Hartmann is being prosecuted. More, those victims to whom the Tribunal owes its mandate i.e. those who suffered the consequences of serious violations of humanitarian law have made their view known that they do not support the Prosecution of Ms Hartmann and, in fact, regard it as contrary to their interests. 55 In that sense, the prosecution could be said, not only to be inconsistent with the Tribunal s mandate vis-à-vis the victims, but in fact plainly contradictory with it. Again, whilst the Tribunal may not be held hostage to the views of others, be they the victims of the Yugoslav wars, their opinion merits due consideration when deciding whether to initiate criminal proceedings that are seen as contrary to their interests Instead of setting a precedent which might come to be viewed as a violation of generally-recognised human rights and a plain contradiction of the Tribunal s role and mandate, the Defence submits that the Trial Chamber should clearly and undoubtedly uphold these standards by deciding this matter in such a way that, in the circumstances, criminal proceedings for contempt of court is inappropriate and inadequate. 54 Bringing war criminals to justice; bringing justice to victims at Carla del Ponte: Peace without justice is not sustainable. It is terrible mistake to think that people will simply forget. Even after a hundred years, sometimes even several hundreds of years, unpunished crimes continue to represent huge stumbling blocks in establishing peaceful, normal relations between some states. at 55 The Defence is informed that a number of applications to be heard as amicus curiae have been made by victims groups. Several such groups have voiced their disapproval of these proceedings. 56 Ibid. IT R April 2009

24 1920 Other factors pertaining to the interests of the justice 73. The discretion of the Trial Chamber in this matter would also require it, the Defence submits, to consider the opportunity of new proceedings against Ms Hartmann. 74. Considering the limited resources at the disposal of the Tribunal and the time available to terminate its mandate, it would seem that the Tribunal should focus on and allocate its resources to those cases which fall within its primary jurisdiction and, as far as allegations of contempt are concerned, on those cases that are so serious as to impact on the Tribunal s ability to carry out its primary jurisdiction. 75. Punishing a person who might have been no more than negligent or mistaken and who, in good faith, believed that she was acting in pursuance of the Tribunal s ultimate search for truth and justice would serve no valid purposes and would undermine the stigma that should attach to a criminal conviction. 76. As discussed above, considerations of cost and efficiency in the administration of justice are relevant to the Chamber s exercise of discretion in this matter. Although the amount already spent on this matter may not be recovered, it would seem wise, and a judicious use of the Tribunal s resources, to put an end to the mounting costs of these unnecessary proceedings. 77. Should these proceedings be re-initiated, the cost of an externally-contracted amicus Prosecutor as well as the cost of a Defence team (not to mention all judicial and support staff) would have to be born by the Tribunal. Because of the nullifying effect of the panel s Decision, all Defence applications will have to be renewed and decided anew, which might have the effect of extending these proceedings by several months. In view of the complete and unchallenged - failure of the amicus to carry out an investigation à décharge, further Defence investigations might also be necessary in this instance. This, in turn, would mean that additional resources would have to be allocated to the Defence and further expenses be incurred by the Tribunal. The Defence submits that these might be better used with a view to fulfill the Tribunal s primary mandate. IT R April 2009

25 1919 Motion for voir-dire hearing or status conference 78. Should the Trial Chamber take the view that additional submissions are necessary in this matter or if he wishes to hear the parties in relation to any of the matters outlined above, the Defence submits that Chamber could order a voir-dire hearing (or status conference) during which any outstanding matter (of law or fact) could be addressed by either or both parties. 79. The procedure of voir-dire is available under Rule 89(B) 57 and such a hearing may be ordered where one is necessary 58 or where employing the procedure would best favour a fair determination of the matter before it. 59 The Appeals Chamber has held the voir-dire could be ordered where one was appropriate in the circumstances Should the Trial Chamber decide to call a voir-dire hearing, the Defence submits that this could eventually result in an important saving of time and resources for the Tribunal. Conclusions and relief sought 81. In view of the above, and for the reasons given and in the interests of justice, the Defence submits that (i) (ii) The Defence submits that the Trial Chamber should exercise its discretion in such a way as to not re-initiate nor continue contempt proceedings against Ms Hartmann. In the alternative, and should the Chamber take the view that Order in Lieu is still in force, the Defence submits that it should reconsider its decision to 57 Delalic,Decision on the Motions for the Exclusion of Evidence by the Accused, Zejnil Delalic, 25 September 1997, par See e.g. Ibid, par Ibid, par Celebici Appeal Judgment, par 543. IT R April 2009

26 1918 (iii) indict Ms Hartmann in light of the above and with a view to prevent an abuse of the process as would result from such proceedings 61 and decide that Ms Hartmann should not be indicted in relation to the facts that formed the basis of the charges. Finally, the Defence seeks leave to be heard in relation to the continuation or otherwise of these proceedings. The Defence submits that the most practical course in this matter would be for the Trial Chamber to order a status conference or a voir-dire hearing during which the parties could expose their views as to the continuation or otherwise of these proceedings and so that the Trial Chamber can make inquiries as to any outstanding matter in relation to which it wishes to receive the assistance of the parties. Respectfully submitted, Karim A. A. Khan Lead-counsel for Florence Hartmann Guénaël Mettraux Co-counsel for Florence Hartmann Word count: 8,263 Words Done the 21 April Bobetko, Decision on Challenge by Croatia to Decision and Orders of Confirming Judge, 29 November 2002,par 15. IT R April 2009