Contempt

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Contempt Appeal Judgement - 27.09.2006 MARIJAČIĆ & REBIĆ
(IT-95-14-R77.2-A)

24. Marijačić was convicted of contempt for the disclosure of information in knowing violation of an order of a Chamber pursuant to Rule 77(A)(ii). The Trial Chamber rightly pointed out that the order in question applies to all persons coming into possession of the protected information, given that Rule 79 is directed at the public in general, including the press, being present in court or not. Also, Rule 77(A)(ii) as such gives jurisdiction to the International Tribunal to hold in contempt any person who discloses information relating to proceedings before the International Tribunal in knowing violation of an order of a Chamber. This is necessary in particular in order to comply with the International Tribunal’s obligation pursuant to Article 22 of the Statute to protect witnesses on whose behalf protective measures have been ordered, and it is ultimately necessary for the International Tribunal to fulfil its mandate.[1] […]

[1] See Prosecutor v. Duško Tadić, Case No. IT-94-1-A-AR77, Appeal Judgement on Allegations of Contempt Against Prior Counsel, Milan Vujin, 27 February 2001, p. 4: “[I] n order to function effectively and fairly, the International Tribunal must have the power to prosecute and punish contempt”.

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Contempt Appeal Judgement - 27.09.2006 MARIJAČIĆ & REBIĆ
(IT-95-14-R77.2-A)

43. […] The Appeals Chamber recalls that for conduct to entail criminal liability it must be possible for the individual to determine ex ante, based on the facts available to him, that the act is criminal. Both Appellants knew that the information was given by a witness with protective measures in place. Thus, the Trial Chamber correctly held that the Appellants had the necessary mens rea.

44. The language of Rule 77 shows that a violation of a court order as such constitutes an interference with the International Tribunal’s administration of justice. It is not for a party or a third person to determine when an order “is serving the International Tribunal’s administration of justice”. It has already been established in the jurisprudence that any defiance of an order of the court interferes with the administration of justice.[1]

[1] Prosecutor v. Slobodan Milošević, Case No. IT-02-54-R77.4, Contempt Proceedings Against Kosta Bulatović – Decision on Contempt of the Tribunal, 13 May 2005, para. 17.

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Contempt Appeal Judgement - 27.09.2006 MARIJAČIĆ & REBIĆ
(IT-95-14-R77.2-A)

45. A court order remains in force until a Chamber decides otherwise. The Appeals Chamber proprio motu notes that the fact that the aforementioned information today is no longer confidential does not present an obstacle to a conviction for having published the information at a time when it was still under protection.[1] Although the reason for the Closed Session Order (to protect the status of the information provided by the Witness) no longer exists, the legal rationale (protected information has to remain so until confidentiality is lifted) is still applicable. To hold otherwise would mean to undermine all protective measures imposed by a Chamber without an explicit actus contrarius, thus endangering the fulfilment of the International Tribunal’s functions and mandate.

[1] The same rationale applies that forms the basis of the principle of temporary law/regime, thus constituting, mutatis mutandis, an exception to the general principle of lex mitior.

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Contempt Appeal Judgement - 27.09.2006 MARIJAČIĆ & REBIĆ
(IT-95-14-R77.2-A)

15. Article 25 of the Statute provides for appeals on the ground of an error of law that invalidates the decision or an error of fact that has occasioned a miscarriage of justice. The settled standard of review applicable for appeals against judgements also applies to appeals against convictions for contempt. A party alleging an error of law must identify the alleged error, present arguments in support of its claim and explain how the error allegedly invalidates the decision.[1]

[1] Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Judgement, 28 February 2005 (“Kvočka Appeal Judgement”), para. 16; Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement, 17 September 2003 (“Krnojelac Appeal Judgement”), para. 10.

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Contempt Appeal Judgement - 19.05.2010 ŠEŠELJ Vojislav
(IT-03-67-R77.2-A)

17. […] In any event, the Appeals Chamber considers that the Trial Chamber did not exceed its jurisdiction in deciding upon the allegations of contempt in the present case. The Appeals Chamber recalls that the Tribunal possesses inherent jurisdiction to ensure that its exercise of judicial functions is safeguarded.[1] As the Trial Chamber explained and the Appeals Chamber has explicitly held, this inherent power extends to Rule 77 of the Rules governing contempt proceedings against conduct interfering with the Tribunal’s administration of justice.[2] […]

[1] See e.g. Prosecutor v. Duško Tadić, Case No. IT-94-1-A-R77, Judgement on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 January 2000 (“Vujin Appeal Judgement”), paras 13-18; Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR77, Judgment on Appeal by Anto Nobilo Against Finding of Contempt, 30 May 2001 (“Nobilo Appeal Judgement”), paras 30, 36; Marijačić and Rebić Appeal Judgement, para. 23.

[2] See Trial Judgement [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-R77.2, Judgement on Allegations of Contempt, 24 July 2009 (confidential; public version filed on the same day)], para. 7. See also Vujin Appeal Judgement, paras 13-18; Nobilo Appeal Judgement, paras 30, 36.

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Contempt Appeal Judgement - 19.05.2010 ŠEŠELJ Vojislav
(IT-03-67-R77.2-A)

26. The Appeals Chamber underscores that the requisite mens rea for a violation of Rule 77(A)(ii) of the Rules is knowledge that the disclosure in question is in violation of an order of a Chamber.[1] Such knowledge may be proven by evidence other than the accused’s statement expressing a particular intent to disclose protected witness identities. […]

[1] Jović Appeal Judgement, para. 27. 

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Contempt Appeal Judgement - 19.05.2010 ŠEŠELJ Vojislav
(IT-03-67-R77.2-A)

29. […] As the Appeals Chamber stated in Jović, “[t]he fact that some portions of [a w]itness’s written statement [has] been disclosed by another third party does not mean that this information [i]s no longer protected, that the court order ha[s] been de facto lifted or that its violation would not interfere with the Tribunal’s administration of justice”.[1] […]

[1] Jović Appeal Judgement, para. 30.

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Contempt Appeal Judgement - 19.05.2010 ŠEŠELJ Vojislav
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9. […] The settled standard of review for appeals against judgements also applies to appeals against convictions for contempt.[1]

[1] Prosecutor v. Josip Jović, Case No. IT-95-14 & 14/2-R77-A, Judgement, 15 March 2007 (“Jović Appeal Judgement”), para. 11; Prosecutor v. Ivica Marijačić and Markica Rebić, Case No. IT-95-14-R77.2-A, Judgement, 27 September 2006 (“Marijačić and Rebić Appeal Judgement”), para. 15; Léonidas Nshogoza v. The Prosecutor, Case No. ICTR-2007-91-A, Judgement, 15 March 2010, para. 12;. See also, inter alia, Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-A, Judgement, 12 November 2009 (“Milošević Appeal Judgement”), para. 12; Prosecutor v. Mile Mrkšić and Veselin [ljivančanin, Case No. IT-95-13/1-A, Judgement, 5 May 2009 (“Mrkšić and [ljivančanin Appeal Judgement”), para. 10; Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Judgement, 17 March 2009 (“Krajišnik Appeal Judgement”), para. 11; Prosecutor v. Milan Martić, Case No. IT-95-11-A, Judgement, 8 October 2008 (“Martić Appeal Judgement”), para. 8.

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Decision on Instigating Contempt Proceedings - 25.07.2008 ŠEŠELJ Vojislav
(IT-03-67-AR77.2)

8. Rule 77(J) of the Rules provides that “[a]ny decision rendered by a Trial Chamber” under Rule 77 is subject to appeal.  The Appeals Chamber has interpreted this provision as allowing for appeals against decisions disposing of the contempt case only.[1]

12. The Appeals Chamber considers that a decision dismissing a request to initiate contempt proceedings is a decision disposing of the contempt case within the meaning of Rule 77(J) of the Rules. The Appeals Chamber notes that in the Impugned Decision, the Trial Chamber held that sufficient grounds did not exist to instigate contempt proceedings against Vučič which in effect dismissed the Prosecution Request to initiate contempt proceedings.[2] The Appeals Chamber accordingly finds that an appeal as of right lies from the Impugned Decision under Rule 77(J) of the Rules.

13. The Appeals Chamber also considers that a party in proceedings before the International Tribunal has the right to request the Trial Chamber to exercise its discretionary power to initiate contempt proceedings for alleged conduct that, if proven, would harm that party’s right to a fair trial. The Appeals Chamber further considers that the right to make such a request, by implication, gives rise to a corresponding right to challenge any incorrect application of the legal standard governing such requests. Accordingly, the Appeals Chamber finds that, in light of the Prosecution’s submission that the Trial Chamber applied an incorrect legal standard when considering the Prosecution Request, which denied the Prosecution a fair opportunity to present its case and thus implicated the Prosecution’s right to a fair trial,[3] the Prosecution can challenge the Impugned Decision under Rule 77(J) of the Rules.

[1] See Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR77.1, Decision on Vojislav Šešelj’s Appeal Against the Trial Chamber’s Decision of 19 July 2007, 14 December 2007, p. 2.

[2] Impugned Decision, para. 51.

[3] Appeal [Confidential Prosecution’s Appeal Brief, 26 June 2008], paras 7, 18, and 35.

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Decision on Instigating Contempt Proceedings - 25.07.2008 ŠEŠELJ Vojislav
(IT-03-67-AR77.2)

16. The Appeals Chamber considers that in finding that it did not have sufficient elements “to determine” whether Vučič committed contempt of the Tribunal, based on the conclusions of the amicus curiae that the mental element of contempt had not been “establish and that it would have to be “proven” that Vučič had effective knowledge that VS-032 was a protected witness, the Trial Chamber required a final finding of contempt. The Appeals Chamber recalls, however, that the “sufficient grounds” standard under Rule 77(D) of the Rules requires the Trial Chamber only to establish whether the evidence before it gives rise to a prima facie case of contempt of the Tribunal and not to make a final finding on whether contempt has been committed.[1] The Appeals Chamber accordingly finds that the Trial Chamber applied an incorrect legal standard when considering the Prosecution Request, which amounts to a discernible error.The Appeals Chamber granted the Appeal in part and remanded the Impugned Decision to consider whether sufficient grounds existed to proceed against Vučič for contempt in light of the correct legal standard.

The Appeals Chamber granted the Appeal in part and remanded the Impugned Decision to consider whether sufficient grounds existed to proceed against Vučič for contempt in light of the correct legal standard.

[1] See Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Order Concerning Allegations Against Milka Maglov, 15 April 2003, p. 3. See also Prosecutor v. Josip Jović, Case Nos. IT-95-14 & 14/2-R77, Decision on Review of Indictment and Order for Non-disclosure, 12 September 2005, pp. 1-2; Prosecutor v. Ivica Marijačić and Markica Rebić, Case No. IT-95-14-R77.2, Decision on Review of Indictment, 26 April 2005, pp. 1-2.

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Contempt Appeal Judgement - 19.07.2011 HARTMANN Florence
(IT-02-54-R77.5-A)

158. The Appeals Chamber considers that Hartmann appears to submit that, had the Trial Chamber enforced a “strong” presumption in favour of unrestricted publicity, it would have ruled in her favour and permitted her to disclose confidential information pursuant to her freedom of expression rights. The Appeals Chamber considers that there is no merit in Hartmann’s submission. There is no strong presumption of unrestricted publicity for matters a Chamber has ruled are not to be disclosed to the public. This was made clear in the Jović case, in which it was held that:

The effect of a closed session order is to exclude the public, including members of the press, from the proceedings and to prevent them from coming into possession of the protected information being discussed therein. In such cases, the presumption of public proceedings under Article 20(4) of the Statute does not apply. [1]

159. At the heart of Hartmann’s submission is the alleged inconsistency of the Trial Judgement with freedom of expression principles recognised by the ECHR. The Appeals Chamber is not bound by the findings of regional or international courts and as such is not bound by ECtHR jurisprudence.[2]

160. The Appeals Chamber notes that Article 21 of the Statute of the Tribunal mirrors the provisions of Article 14 of the ICCPR.[3] The ICCPR and its commentaries are thus among the most persuasive sources in delineating the applicable protections for freedom of expression in the context of the Tribunal’s proceedings.[4] The Human Rights Committee of the United Nations (“Human Rights Committee”) has interpreted Article 14(1) of the ICCPR to require that courts’ judgements be made public, with “certain strictly defined exceptions.”[5] The Appeals Chamber notes that, although Article 19(2) of the ICCPR states that “[e]veryone shall have the right to freedom of expression,” Article 19(3) recognises that

The exercise of the right provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

The travaux préparatoires of the ICCPR indicate that the “protection of […] public order” in Article 19(3) was intended to include the prohibition of the procurement and dissemination of confidential information.[7] In respect of whether the restriction to an individual’s freedom of expression is “necessary” to achieve its aim, the Human Rights Committee has considered whether the action taken was proportionate to the sought-after aim.[8]

161. Based upon the foregoing, therefore, in order to legitimately restrict Hartmann’s freedom of expression under Article 19 of the ICCPR, the restriction must have been provided by law and proportionately necessary to protect against the dissemination of confidential information.[9] The two Appeal Decisions in the case of Prosecutor v. Slobodan Milošević contained restrictions on the freedom of expression that were “provided by law” because they were filed confidentially under protective measures granted pursuant to Rule 54 bis of the Rules. Furthermore, restricting Hartmann’s freedom of expression in this manner was both proportionate and necessary because it protected the “public order” by guarding against the dissemination of confidential information. These restrictions were therefore within the ambit of Article 19(3) of the ICCPR.

162. In this regard, the Appeals Chamber observes that the Trial Chamber found that the effect of Hartmann’s disclosure of confidential information decreased the likelihood that states would cooperate with the Tribunal in the future, thereby undermining its ability to exercise its jurisdiction to prosecute and punish serious violations of humanitarian law.[10] The Trial Chamber further found that prosecuting an individual for contempt under these circumstances was proportionate to the effect her actions had on the Tribunal’s ability to administer international criminal justice.[11] The Appeals Chamber is therefore of the view that the Trial Chamber was correct to conclude that Rule 54 bis of the Rules permits the Tribunal to impose confidentiality in an effort to secure the cooperation of sovereign states.[12] In light of the foregoing, the Appeals Chamber is satisfied that the Trial Chamber adequately took into account all relevant considerations to ensure that its Judgement was rendered in conformity with international law.[13]

163. Hartmann also relies on an Appeals Chamber decision in Brđanin to support her argument that the Trial Chamber erred by failing to consider the public’s right to receive information disclosed by Hartmann in evaluating the proportionality of the interference with her freedom of expression.[14] In the instant case, however, the Appeals Chamber considers that the Trial Chamber did explicitly consider the public’s right to receive information. In evaluating the proportionality of the interference with Hartmann’s freedom of expression, it considered certain factors that were:

salient in weighing the public interests involved: namely, the public interest in receiving the information and the protection of confidential information to facilitate the administration of international criminal justice, which is also in the public interest, indeed, on an international scale.

164. Finally, the Appeals Chamber considers ARTICLE 19’s discussion of national legal standards regarding freedom of expression.[16] While ARTICLE 19 sets out different ways in which domestic jurisdictions address freedom of expression in the context of contempt of court, it cites no jurisprudence to support the position that contempt proceedings for disclosing confidential information in violation of a court order impermissibly restrict an individual’s freedom of expression.

[1] Jović Contempt Appeal Judgement [Prosecutor v. Josip Jović, Case No. IT-95-14 & 14/2-R77-A, Judgement, 15 March 2007], para. 21.

[2] Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.6, Decision on Appeals Against Decision Admitting Transcript of Jadranko Prlić’s Questioning into Evidence, 23 November 2007, para. 51. In the Delalić et al. Appeal Judgement, the Appeals Chamber stated that, “[a]lthough the Appeals Chamber will necessarily take into consideration other decisions of international courts, it may, after careful consideration, come to a different conclusion”. Delalić et al. Appeal Judgement [Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement, 20 February 2001], para. 24.

[3] See U.N. Security Council, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704, 3 May 1993, para. 106. This Report was issued pursuant to U.N. Security Council Resolution 808, which requested the Secretary-General “to submit for consideration by the [Security] Council […] a report” on the establishment of the Tribunal. See U.N. Security Council Resolution 808, U.N. Doc, S/RES/808 (1993), p. 2.

[4] The ICCPR has 167 state parties and, as such, is considered to be closer to universal application than the European Convention, which is a regional human rights instrument. See United Nations Treaty Collection, <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en>, accessed 11 July 2011. The Appeals Chamber in the Barayagwiza Decision stated that the ICCPR “is part of general international law and is applied on that basis.” In contrast, the Appeals Chamber indicated that, “[r]egional human rights treaties, such as the [ECHR] and the American Convention on Human Rights, and the jurisprudence developed thereunder, are persuasive authority which may be of assistance in applying and interpreting the Tribunal’s applicable law. Thus, they are not binding of their own accord on the Tribunal. They are, however, authoritative as evidence of international custom.” Jean-Bosco Barayagwiza v. The Prosecutor, Case. No. ICTR-97-19-AR72, Decision, 3 November 1999, para. 40.

[5] CCPR General Comment No. 13: Article 14 (Administration of Justice) Equality before the Courts and the Right to a Fair and Public Hearing by an Independent Court Established by Law, 13 April 1984, para. 6.

[6] ICCPR, Article 19(3). Article 14(1) of the ICCPR also restricts a journalist’s right to report on court proceedings. It states, inter alia, that “the press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”. This provision was cited in the Blaškić and Jović cases. See Jović Contempt Trial Judgement, para. 23, note 95; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-PT, Decision on the Objection of the Republic of Croatia to the Issuance of Subpoenae Duces Tecum, 18 July 1997, note 248.

[7] See Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary 2nd Revised Edition N.P. Engel, 2005, pp. 464-65 (stating that the term “public order” “covers the grounds for restriction set out in Art. 10(2) of the [ECHR] and repeatedly proposed during the drafting of Art. 19 of the [ICCPR], namely, the procurement and dissemination of confidential information and endangering the impartiality of the judiciary”).

[8] Jong-Choel v. The Republic of Korea (CCPR Communication No. 968/2001), U.N. Doc. A/60/40 vol. II (27 July 2005), p. 60, para. 8.3; see also Marques v. Angola (CCPR Communication No. 1128/2002), U.N. Doc. A/60/40 vol. II (29 March 2005) p. 181, para. 6.8 (“The Committee observes that the requirement of necessity implies an element of proportionality, in the sense that the scope of the restriction imposed on freedom of expression must be proportional to the value which the restriction serves to protect.”).

[9] See CCPR General Comment No. 10: Freedom of Expression (Art. 19), 29 June 1983, para. 4; see also Kim Jong-Cheol v. Republic of Korea, para. 8.3; Marques v. Angola, para. 6.8.

[10] Trial Judgement [In the Case Against Florence Hartmann, Case No. IT-02-54-R77.5, Judgement on Allegations of Contempt, 14 September 2009], para. 74.

[11] Trial Judgement [In the Case Against Florence Hartmann, Case No. IT-02-54-R77.5, Judgement on Allegations of Contempt, 14 September 2009], para. 74.

[12] Trial Judgement [In the Case Against Florence Hartmann, Case No. IT-02-54-R77.5, Judgement on Allegations of Contempt, 14 September 2009], para. 72. The Trial Chamber relied upon testimony by Robin Vincent, who testified that the confidentiality breaches would lead to less cooperation by sovereign states regarding the disclosure of information, thereby affecting the Tribunal’s ability to administer international criminal justice. The Trial Chamber also noted that “the testimony was not challenged by the Accused”. See Trial Judgement [In the Case Against Florence Hartmann, Case No. IT-02-54-R77.5, Judgement on Allegations of Contempt, 14 September 2009], para. 72, note 171.

[13] ARTICLE 19’s brief discusses other human rights instruments that guarantee freedom of expression. See ARTICLE 19 Amicus Brief, para. 3. While the Appeals Chamber acknowledges that these instruments contain freedom of expression guarantees, they follow a similar approach to restrictions on freedom of expression as the European Convention and the ICCPR. The UDHR states: “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” UDHR, Article 29(2). The African Charter on Human Rights and Peoples states: “Every individual shall have the right to express and disseminate his opinions within the law”. African Charter on Human and Peoples' Rights, Article 9(2). The American Convention on Human Rights similarly notes: “Everyone has the right to freedom of thought and expression”. American Convention on Human Rights, Article 13(1). In Article 13(2), it restricts that right by noting, “The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure (a) respect for the rights or reputations of others; or (b) the protection of national security, public order, or public health or morals.” American Convention on Human Rights, Article 13(2).

[14] Hartmann Final Appeal Brief, para. 19.

[15] Trial Judgement [In the Case Against Florence Hartmann, Case No. IT-02-54-R77.5, Judgement on Allegations of Contempt, 14 September 2009], para. 73 (internal citations omitted).

[16] See ARTICLE 19 Amicus Brief, paras 30-32.

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ICTY Rule Rule 54 bis
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Contempt Appeal Judgement - 19.07.2011 HARTMANN Florence
(IT-02-54-R77.5-A)

51. The legal reasoning in a confidential decision on protective measures characteristically contains references to the information or documents directly subject to an order of protective measures under the Rules, as well as references to related information or surrounding circumstances that tend to identify the documents or information directly subject to protective measures. The legal reasoning integrates such references, together with the law relevant to the determination of the issues, and the analysis of both by the Chamber in question. It therefore follows that the legal reasoning of a decision on protective measures necessarily falls within the ambit of the confidential status ordered in respect of such a decision. Similarly, the confidential submissions of parties concerning an application for protective measures and information regarding the purported effect of a decision on protective measures typically contain information tending to identify the documents or information subject to the protective measures ordered in the relevant decision. Thus, the confidentiality order respecting such a decision necessarily encompasses information concerning the purported effect of that decision and the confidential submissions of the parties regarding the application for protective measures.

52. The confidential issuance of a decision by a Chamber constitutes an order for the non-disclosure of the information contained therein, and it is not for a party to decide which aspects of a confidential decision may be disclosed.[1] This principle equally applies to third parties. The discretion as to whether the confidential status of a decision may be lifted in whole or in part belongs exclusively to a competent Chamber of the Tribunal with its intimate knowledge of all the facts, information, and circumstances surrounding the relevant case. Furthermore, “[a] court order remains in force until a Chamber decides otherwise.”[2] Accordingly, in the instant case, in the absence of an order of a competent Chamber varying or lifting the confidential status of the two Appeal Decisions, the content of both Decisions remained subject to an order of non-disclosure.

53. Regarding Hartmann’s submission that Rule 77(A)(ii) of the Rules does not encompass the particular information that Hartmann was found to have disclosed, the Appeals Chamber notes that Rule 77(A)(ii) of the Rules does not purport to restrict liability in terms of any specific kind of information that might be disclosed. Rather, the focus of Rule 77(A)(ii) of the Rules is the fact of deliberate disclosure in knowing violation of an order prohibiting disclosure. […]

76. The Appeals Chamber considers that the Trial Chamber set forth its explanation for the difference between a general legal principle, which should always be available to the public (i.e., “applicable law”), and “legal reasoning”, which is the result of a Chamber applying that “applicable law” to the facts before it and which can sometimes be withheld from the public.[3] The Appeals Chamber finds no error in the distinction drawn by the Trial Chamber between “applicable law” and “legal reasoning”, a distinction that is a regular feature of decisions issued by Chambers of the Tribunal. The Appeals Chamber also rejects Hartmann’s contention that the distinction between “applicable law” and “legal reasoning” must be provided for in Rule 77 of the Rules or international law in order for it to be employed at the Tribunal. Hartmann has therefore failed to demonstrate that the Trial Chamber erred.

92. In the present case, the filings by the Applicant and the Appeal Decisions that resulted therefrom were confidential; therefore, the content of this material was confidential until a competent Chamber of the Tribunal decided otherwise, and it was not within the authority of a party or a third party to reveal any of the confidential information. The Appeals Chamber is of the clear view that no actions on the part of associated officials or representatives of the Applicant—or any other third-parties (whether acting as agents of the Applicant or not)—could have unilaterally lifted the confidentiality of the information contained within the Appeal Decisions that Hartmann was convicted for revealing to the public. The Appeals Chamber therefore finds that the Trial Chamber did not err when it held that a decision remains confidential until a Chamber explicitly decides otherwise, and rejects sub-grounds 5.1 and 5.2.[4] […]

[1] Prosecutor v. Naser Orić, Case No. IT-03-68-A, Decision on Prosecution’s Motion to Seal Defence Appeal Brief, 10 May 2007 (confidential), p. 3.

[2] Marijačić and Rebić Contempt Appeal Judgement [Prosecutor v. Ivica Marijačić and Markica Rebić, Case No. IT-95-14-R77.2-A, Judgement, 27 September 2006], para. 45.

[3] Trial Judgement, para. 39.

[4] Trial Judgement, para. 46.

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Contempt Appeal Judgement - 19.07.2011 HARTMANN Florence
(IT-02-54-R77.5-A)

98. The Appeals Chamber considers that, in order to convict Hartmann, the Trial Chamber had to conclude that publishing the confidential information in the Book and Article in violation of a court order was done “knowingly and wilfully”.[1] The Trial Chamber convicted Hartmann in part based upon its finding that “the Chamber is satisfied beyond reasonable doubt that the Accused had knowledge at the time of publication of her Book and the Article that her disclosure was in violation of an order of the Tribunal”.[2] The Appeals Chamber is of the view the Trial Chamber, having made this finding, was under no obligation to also make a finding on whether Hartmann’s actions were “more than negligent”. In the present case, the only criterion that the Trial Chamber had to explicitly consider to establish contempt under Rule 77 of the Rules was whether Hartmann knowingly and wilfully interfered with the Tribunal’s administration of justice.

127. The Appeals Chamber recalls that it is settled jurisprudence that “the requisite mens rea for a violation of Rule 77(A)(ii) of the Rules is knowledge that the disclosure in question is in violation of an order of a Chamber. Such knowledge may be proven by evidence other than the accused’s statement expressing a particular intent”.[3] Insofar as Hartmann contends that the Nobilo Appeal Judgement set out a different standard,[4] she is mistaken; any ambiguity in its analysis of the mens rea required to enter a conviction for contempt has been definitively addressed by later Appeals Chamber judgements.[5]

128. The Trial Chamber set out the mens rea required to enter a conviction for contempt under Rule 77(A)(ii) of the Rules as follows:

The mens rea required [....] is the disclosure of particular information in knowing violation of a Chamber’s order. Generally, it is sufficient to establish that the conduct which constituted the violation was deliberate and not accidental. This may be inferred from circumstantial evidence. Where it is established that an accused had knowledge of the existence of a Court order, a finding of intent to violate the order will almost necessarily follow. Wilful blindness to the existence of the order, or reckless indifference to the consequences of the act by which the order is violated may satisfy the mental element. Mere negligence in failing to ascertain whether an order had been made is insufficient.[6]

The Appeals Chamber considers that the Trial Chamber’s analysis of the mens rea required to enter a conviction for contempt was consistent with Appeals Chamber precedent. It correctly found that this precedent does not require the Prosecution to prove specific intent to interfere with the administration of justice in order to secure a conviction under Rule 77(A)(ii) of the Rules.

[1] See Rule 77(A) of the Rules. See also Nshogoza Appeal Judgement, paras 56-57 (“No additional proof of harm to the Tribunal’s administration of justice is required. The Appeals Chamber is not convinced that the defiance of a Chamber’s order conveys any different connotation than a knowing and wilful violation of one. Considerations of the gravity of an accused’s conduct or his underlying motivations are rather to be assessed in connection with the decision to initiate proceedings or in sentencing. Bearing this in mind, the Appeals Chamber considers that the various statements by Trial Chambers, cited by Nshogoza, which take into account the minimal gravity surrounding a violation of a Chamber’s order should be understood, not as a finding that the conduct was not contempt, but as an exercise of the discretion of the Chamber not to initiate proceedings in such circumstances. The fact that other persons might also have engaged in similar conduct is not a defence.”) (internal citations omitted).

[2] Trial Judgement, para. 62.

[3] [ešelj Contempt Appeal Judgement [In the Case Against Vojislav [ešelj, Case No. IT-03-67-R77.2-A, Judgement, 19 May 2010], para. 26 (internal citations omitted). See also Jović Contempt Appeal Judgement [Prosecutor v. Josip Jović, Case No. IT-95-14 & 14/2-R77-A, Judgement, 15 March 2007], para. 27.

[4] See Hartmann Final Appeal Brief [Florence Hartmann’s Appellant Brief, 12 October 2009], para. 84. See also Nobilo Appeal Judgement [Prosecutor Zlatko Aleksovski, Case No. IT-95-14/1-AR77, Judgment on Appeal by Anto Nobilo Against Finding of Contempt, 30 May 2001], paras 40-41.

[5] See, e.g., [ešelj Contempt Appeal Judgement [In the Case Against Vojislav [ešelj, Case No. IT-03-67-R77.2-A, Judgement, 19 May 2010], para. 26; Jović Contempt Appeal Judgement [Prosecutor v. Josip Jović, Case No. IT-95-14 & 14/2-R77-A, Judgement, 15 March 2007], para. 27. See also Nobilo Appeal Judgement[Prosecutor Zlatko Aleksovski, Case No. IT-95-14/1-AR77, Judgment on Appeal by Anto Nobilo Against Finding of Contempt, 30 May 2001], paras 40, 41, 53, and 54. 

[6] Trial Judgement [In the Case Against Florence Hartmann, Case No. IT-02-54-R77.5, Judgement on Allegations of Contempt, 14 September 2009], para. 22 (internal citations omitted).

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ICTR Statute Article 19(4) ICTY Statute Article 20(4) ICTR Rule Rule 77 ICTY Rule Rule 77
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Contempt Appeal Judgement - 19.07.2011 HARTMANN Florence
(IT-02-54-R77.5-A)

107. Hartmann is incorrect in her argument that “[w]hilst the Prosecutor need not prove an actual interference with the administration of justice, proof must be made that the impugned conduct created a real risk for the administration of justice”.[1] When a court order has been violated, the Trial Chamber does not need to assess whether any actual interference took place or whether a real risk to the administration of justice has taken place because such a violation per se interferes with the administration of justice. The Appeals Chamber in the Jović case held that “[t]he language of Rule 77 shows that a violation of a court order as such constitutes an interference with the International Tribunal’s administration of justice.”[2] Thus, “[n]o additional proof of harm to the International Tribunal’s administration of justice is required”.[3]

[1] Hartmann Final Appeal Brief, para. 73.

[2] Jović Contempt Appeal Judgement, para. 30, quoting Marijačić and Rebić Contempt Appeal Judgement, para. 44.

[3] Jović Contempt Appeal Judgement, para. 30; see also Nshogoza Appeal Judgement, para. 56; Šešelj Contempt Appeal Judgement, para. 20.

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108. It also follows from the above that the issue of whether there was a real risk to the administration of justice was not a jurisdictional matter. The Appeals Chamber is therefore of the view that the Trial Chamber did not err by refusing to treat this issue as such during the trial.

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Decision on Admissibility of Notice of Appeal - 04.09.2008 HAXHIU Baton
(IT-04-84-R77.5-A)

9. The Appeals Chamber recalls that the International Tribunal, pursuant to Rule 77 of the Rules and in accordance with the International Tribunal’s consistent jurisprudence, possesses the inherent power to address conduct interfering with its administration of justice. The International Tribunal has both the subject matter and personal jurisdiction to prosecute contempt.

[1] See Prosecutor v. Josip Jović, Case No. IT-95-14 & 14/2-R77-A, Judgement, 17 March 2007, para. 34 with further references. 

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(IT-04-84-R77.5-A)

Haxhiu filed his notice of appeal against the trial judgement convicting him for contempt 26 days after the date of the trial judgement. The Prosecution asked to strike the notice of appeal as being time-barred. Haxhiu argued that appeals against judgements on appeal are filed not within the time limit prescribed by Rule 77(J) (15 days) but pursuant to the general time-limit for appeal against judgements pursuant to Rule 108 (30 days). The Appeals Chamber held as followed:

12. At the outset, the Appeals Chamber recalls that in Prosecutor v. Marijačić and Rebić it was confronted with a question similar to the one in this case. The Appeals Chamber in that case explicitly rejected the argument, made by one of the appellants in relation to the filing of the appeal brief, that Section III of the Practice Direction is only applicable to interlocutory decisions but not to judgements rendered pursuant to Rule 77. The Appeals Chamber consequently held that “Section III [of the Practice Direction] applies to final decisions of a Trial Chamber under Rule 77.”[1]

13. The same reasoning applies to Rule 77(J) of the Rules, which is mirrored in paragraph 4 of the Practice Direction. Indeed, in Prosecutor v. Šešelj, the Appeals Chamber stated that “Rule 77(J) of the Rules shall be interpreted as allowing for appeals against decisions disposing of contempt cases only.”[2]

14. Accordingly, the Appeals Chamber finds that Haxhiu’s Notice of Appeal was filed outside the prescribed time-limits. […]

[1] Prosecutor v. Ivica Marijačić and Markica Rebić, Case No. IT-95-14-R77.2-A, Judgement, 27 September 2006, para. 14.

[2] Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR77.1, Decision on Vojislav Šešelj’s Appeal Against the Trial Chamber’s Decision of 19 July 2007, 14 December 2007, p. 2, with further references (emphasis added).

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Contempt Appeal Judgement - 03.07.2009 JOKIĆ Miodrag
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28. The Appeals Chamber recalls that Rule 77(A)(i) of the Rules states:

The Tribunal in the exercise of its inherent power may hold in contempt those who knowingly and wilfully interfere with its administration of justice, including any person who

(i) being a witness before a Chamber, contumaciously refuses or fails to answer a question; […]

The Trial Chamber found that Rule 77(A)(i) of the Rules imposes criminal liability “where a witness knowingly and wilfully interferes with the Chamber’s administration of justice by persistently refusing or failing to answer a question without reasonable excuse while being a witness before the Chamber.”[1] Its ensuing discussion covered two main points: “Whether the Accused persistently refused or failed to answer a question without reasonable excuse while being a witness before the Chamber”[2] and “[w]hether by refusing to testify the Accused knowingly and wilfully interfered with the Tribunal’s administration of justice”.[3] While the Trial Chamber did not explicitly state what it considered to be the actus reus and mens rea of the offence, the Appeals Chamber understands from this structure that the Trial Chamber considered the actus reus to be persistently refusing or failing to answer a question without reasonable excuse while being a witness before the Chamber and the mens rea to be knowingly and wilfully interfering with the Tribunal’s administration of justice by refusing to testify. Accordingly, the Appeals Chamber turns to consider whether the Trial Chamber erred in so defining the actus reus and mens rea of contempt under Rule 77(A)(i).

[1] Trial Judgement, para. 12.

[2] Trial Judgement, p. 7, paras 22-31.

[3] Trial Judgement, p. 11, paras 32-36.

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31. Turning to the mens rea of contempt under Rule 77(A)(i) of the Rules, the Appeals Chamber notes that there has been considerable discussion in the jurisprudence as to the meaning of the word “contumacious” and whether it adds an extra element to the mens rea of the offence beyond the chapeau element of Rule 77(A) of “knowingly and wilfully interfer[ing] with [the] administration of justice”. As discussed above, the Appeals Chamber considers that “contumaciously” falls within the actus reus of the offence and therefore does not create an additional element of the mens rea. Accordingly, the Appeals Chamber finds that the Trial Chamber was correct in holding that the mens rea of contempt under Rule 77(A)(i) is knowingly and wilfully interfering with the Tribunal’s administration of justice by refusing to testify.

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29. In defining the actus reus as “persistently refusing or failing to answer a question without reasonable excuse while being a witness before the Chamber” the Trial Chamber went beyond the language found in the Rule by adding the phrase “without reasonable excuse” and replacing the word “contumaciously” with “persistently”. The Appeals Chamber notes that the additional language of “without reasonable excuse” appears to have been taken from Judge Kwon’s dissenting opinion in the Matter of Witness K12 in the Slobodan Milošević case, in which he made reference to “obstinate refusal to answer without reasonable excuse”,[1] but neither appears in the language of the Rule nor elsewhere in the jurisprudence on the interpretation of this Rule.[2] However the Appeals considers that, in any event, such an addition cannot be considered as going to the detriment of the Accused for the reason that it is an addition pro reo, i.e. it narrows the scope of the crime under this Rule.

30. The Appeals Chamber now turns to the Trial Chamber’s replacement of the word “contumaciously” with “persistently”. This follows the reasoning in the contempt proceedings against Kosta Bulatović in the Slobodan Milošević case in which the Trial Chamber referred to the accused “deliberately refus[ing] to comply with an order of the Trial Chamber to answer questions and persist[ing] in that refusal when fully advised of the position and given a further opportunity to respond.”[3] Although discussion in the jurisprudence of the meaning of “contumacious” has tended to be undertaken in the context of the mens rea,[4] if “contumacious” is defined as “persistent”, it is in fact more relevant to the actus reus than the mens rea in the sense of it being a repeated or continuous refusal. This interpretation is the most consistent with the French version of Rule 77(A)(i) which does not contain the word “contumacious” or any direct equivalent but rather states:

Dans l’exercice de son pouvoir inhérent, le Tribunal peut déclarer coupable d’outrage les personnes qui entravent délibérément et sciemment le cours de la justice, y compris notamment toute personne qui: i) étant témoin devant une Chambre refuse de répondre à une question malgré la demande qui lui en est faite par la Chambre [...]

In light of the phrase “malgré la demande qui lui en est faite par la Chambre” (despite the Chamber’s request), the crime under  Rule 77(A) of the Rules must be consider committed not when the witness merely refuses to answer a question put by one of the parties, but rather when it is a refusal maintained in the face of the Chamber’s request to answer the question of a party or a question put by the Chamber itself. Accordingly, the Appeals Chamber finds no error in the Trial Chamber’s reference to “persistently refusing or failing to answer a question” in defining the actus reus.

[1] Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T-R77, Trial Chamber Finding in the Matter of Witness K12, Dissenting Opinion of Judge Kwon, 21 November 2002 (“Judge Kwon’s Dissenting Opinion in the Matter of Witness K12”), para. 2.

[2] See Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T-R77, T. 18-34 (18 November 2002); Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T-R77, Trial Chamber Finding in the Matter of Witness K12, 21 November 2002 (“Trial Chamber in the Matter of Witness K12”); Prosecutor v. Slobodan Milošević, Contempt Proceedings against Kosta Bulatović, Case No. IT-02-54-R77.4, Decision on Contempt of the Tribunal, 13 May 2005 (“Bulatović Trial Decision on Contempt”); Prosecutor v. Slobodan Milošević, Contempt Proceedings against Kosta Bulatović, Case No. IT-02-54-R77.4, Separate Opinion of Judge Bonomy on Contempt of the Tribunal (“Separate Opinion of Judge Bonomy in Bulatović Trial Decision on Contempt”); Prosecutor v. Slobodan Milošević, Contempt Proceedings against Kosta Bulatović, Case No. IT-02-54-A-R77.4, Decision on Interlocutory Appeal on Kosta Bulatović Contempt Proceedings, 29 August 2005 (“Bulatović Appeal Decision on Contempt”).

[3] Bulatović Trial Decision on Contempt, para. 16.

[4] In the Trial Chamber in the Matter of Witness K12, the Trial Chamber interpreted “contumaciously” to mean “perverse”; T. 33 (18 November 2002) (closed session)); However, Judge Kwon dissented on this interpretation, arguing that “Rule 77 may be interpreted in such a way that the terms ‘knowingly’, ‘wilfully’ and ‘contumaciously’ all have legal significance, but that, taken together, they should be interpreted as meaning an obstinate refusal to answer without reasonable excuse.” (Judge Kwon’s Dissenting Opinion in the Matter of Witness K12, para. 2). In the contempt proceedings against Kosta Bulatović also in the Slobodan Milošević case, the Trial Chamber referred to “the test of ‘knowingly and wilfully’ interfering with the Tribunal’s administration of justice by ‘contumaciously’ refusing to answer questions” and concluded that this test was met when the accused “deliberately refused to comply with an order of the Trial Chamber to answer questions and persisted in that refusal when fully advised of the position and given an further opportunity to respond.” (Bulatović Trial Decision on Contempt, para. 16). Meanwhile Judge Bonomy’s separate opinion appended to that decision stated that the plain meaning of “contumacious” as “stubbornly or wilfully disobedient to authority” should be preferred over defining it as “perverse” (Separate Opinion of Judge Bonomy in Bulatović Trial Decision on Contempt, para. 1). 

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27. […] The mens rea that attaches to contempt under Rule 77(ii) requires only knowledge of the facts that make the conduct of the accused illegal; that is, knowledge that the disclosure was in violation of an order of the Chamber. It is not a valid defence that one did not know that disclosure of the protected information in violation of an order of a Chamber was unlawful. As the Appeals Chamber has previously stated, where a person is subject to the International Tribunal’s authority, that person must abide by its orders “regardless of his personal view of the legality of those orders”.[1] Likewise, an accused may not raise a mistake of law as a defence to his knowing breach of an order of the International Tribunal on the ground that the mistake was founded on legal advice.

 

[1] The Prosecutor v. Slobodan Milošević, Case No. IT-02-54-A-R77.4, Decision on Interlocutory Appeal on Kosta Bulatović Contempt Proceedings, 29 August 2005, para. 11 (“Bulatović Interlocutory Appeal Decision”).

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30. As the Trial Chamber correctly recognized, the actus reus of contempt under Rule 77(A)(ii) is the disclosure of information relating to proceedings before the International Tribunal where such disclosure would be in violation of an order of a Chamber.[1] […] Moreover, an order remains in force until a Chamber decides otherwise.[2] The fact that some portions of the Witness’s written statement or closed session testimony may have been disclosed by another third party does not mean that this information was no longer protected, that the court order had been de facto lifted or that its violation would not interfere with the Tribunal’s administration of justice. […]

[1] See Trial Judgement [ Judgement rendered by Trial Chamber III on 30 August 2006 convicting him for contempt in the case of Prosecutor v. Josip Jović, Case Nos. IT-95-14 & IT-95-14/2-R77], para. 19; see also Marijačić & Rebić Appeal Judgement, para. 24.

[2] Marijačić & Rebić Appeal Judgement, para. 45.

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36. […] Rule 77(D)(i) provides in relevant part that that where a Chamber has directed the Prosecutor to investigate a potential matter of contempt with a view to preparing and submitting an indictment for contempt and “the Chamber considers that there are sufficient grounds to proceed against a person for contempt, the Chamber may […] direct the Prosecutor to prosecute the matter”. […] While Rule 77(D)(i) provides that a “Chamber” may direct the Prosecutor to prosecute a person for contempt, it does not preclude a Confirming Judge from authorizing the Prosecution to prosecute on behalf of the Trial Chamber that is seized with the matter.[1]

[1] Cf. Rule 47(F) of the Rules [Rules of Procedure and Evidence].

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Decision on Amicus Prosecutor - 08.12.2015 KAMUHANDA Jean de Dieu
(MICT-I3-33-AR90/108.1)

11.     Pursuant to Rule 90(J) of the Rules of Procedure and Evidence of the Mechanism (“Rules”), a decision disposing of a contempt case rendered by a Single Judge is subject to appeal as of right. The Appeals Chamber notes that in the Impugned Decision, the Single Judge dismissed Kamuhanda’s request for the appointment of an amicus curiae Prosecutor to complete the investigations into contempt identified in the ICTR Oral Decision, thus effectively disposing of the contempt case before the Mechanism. Accordingly, the Appeals Chamber finds that an appeal as of right lies from the Impugned Decision under Rule 90(J) of the Rules, and recognizes the Appeal as validly filed.

[1] Impugned Decision [The Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33, Decision on Motion for Appointment of Amicus Curiae Prosecutor to Investigate Prosecution Witness GEK, 16 September 2015], paras. 3, 11.

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10.     As to the scope of Rule 77 of the Rules raised in point (b), the Appeals Chamber notes that, while the rule does not specifically provide for holding in contempt those who are in possession of confidential material to which they were not granted access or make “confidential use” of unauthorized confidential material, it does generally provide for holding in contempt “those who knowingly and willfully interfere with [the Tribunal’s] administration of justice”.[1]

[1] Rule 77(A) of the Rules.

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Nobilo Contempt Appeal Judgement - 30.05.2001 ALEKSOVSKI Zlatko
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43. The prosecution’s submission that wilful blindness as to the existence of the order is sufficient is based upon the common law’s acceptance of such a state of mind (also called deliberate ignorance) as being equally culpable as actual knowledge of the particular fact in question in certain areas of the criminal law. […] Proof of knowledge of the existence of the relevant fact is accepted in such cases where it is established that the defendant suspected that the fact existed (or was aware that its existence was highly probable) but refrained from finding out whether it did exist because he wanted to be able to deny knowledge of it (or he just did not want to find out that it did exist).  In some cases, it has been suggested that such a state of mind is capable of giving rise to the inference of actual knowledge, but in most cases it is merely said to be sufficient to prove knowledge.

44. It is, of course, important to emphasise that common sense propositions of fact are not transformed into propositions of law. It can never be said that a requirement of actual knowledge may be established by anything less than actual knowledge.  But the acceptance in certain areas of the law of wilful blindness as establishing knowledge is of some assistance in determining whether, in any particular case, a “knowing” violation implies a requirement of actual knowledge of what has been violated. What must be identified in the present context is the type of conduct which can properly be described as “knowing and wilful”, which interferes with the Tribunal’s administration of justice and which is appropriately dealt with as contempt, with its liability for imprisonment or a substantial fine.

45. Mere negligence in failing to ascertain whether an order had been made granting protective measures to a particular witness could never amount to such conduct.  It is unnecessary in this appeal to determine whether any greater degree of negligence could constitute contempt. Negligent conduct could be dealt with sufficiently, and more appropriately, by way of disciplinary action, but it could never justify imprisonment or a substantial fine even though the unintended consequence of such negligence was an interference with the Tribunal’s administration of justice.  At the other end of the spectrum, wilful blindness to the existence of the order in the sense defined is, in the opinion of the Appeals Chamber, sufficiently culpable conduct to be more appropriately dealt with as contempt. Whether other states of mind, such as reckless indifference to the existence of the order, constitute contempt by a knowing violation of the order can be left to the cases in which they arise for determination.

54. In most cases where it has been established that the alleged contemnor had knowledge of the existence of the order (either actual knowledge or a wilful blindness of its existence), a finding that he intended to violate it would almost necessarily follow.  There may, however, be cases where such an alleged contemnor acted with reckless indifference as to whether his act was in violation of the order.[1]  In the opinion of the Appeals Chamber, such conduct is sufficiently culpable to warrant punishment as contempt, even though it does not establish a specific intention to violate the order.  The Appeals Chamber agrees with the prosecution that it is sufficient to establish that the act which constituted the violation was deliberate and not accidental. […]

[1]    This is a reckless indifference to the consequences of the act by which the order is violated, rather than a reckless indifference to the existence of the violated order to which reference was made in par 45, supra.

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Nobilo Contempt Appeal Judgement - 30.05.2001 ALEKSOVSKI Zlatko
(IT-95-14/1-AR77)

55. There has been some debate concerning the procedure laid down by Rule 77(F)[1] under which it is for a Chamber, proprio motu, to initiate the proceedings whereby a person is called upon to answer the allegations against him when the Chamber has reason to believe he may be in contempt.  This is in contrast with the procedure laid down by Rule 91[2], whereby a Chamber may direct the Prosecutor to investigate whether a witness has knowingly and wilfully given false testimony, with a view to the preparation and submission of an indictment for false testimony.  The suggestion has been made that it should be for the Prosecutor to initiate proceedings for contempt by way of indictment or, where the alleged contemnor is associated with the prosecution, for an amicus curiae appointed by a Chamber to do so.

56. It is not the intention of the Appeals Chamber to enter this debate, but its existence underlines the danger of a Chamber being both the prosecutor and the judge in relation to a charge of contempt, and the possibility in such a case that the ordinary procedures and protections for the parties are overlooked. […] It is therefore essential that, where a Chamber initiates proceedings for contempt itself, it formulates at an early stage the nature of the charge with the precision expected of an indictment, and that it gives the parties the opportunity to debate what is required to be proved. It is only in this way that the alleged contemnor can be afforded a fair trial.[3]

[1] NOTE: AT THE TIME OF THE PRESENT DECISION RULE 77(F) PROVIDED:

(F) When a Chamber has reason to believe that a person may be in contempt of the Tribunal, it may, proprio motu, initiate proceedings and call upon that person that he or she may be found in contempt, giving notice of the nature of the allegations against that person. After affording such person an opportunity to appear and answer personally or by counsel, the Chamber may, if satisfied beyond reasonable doubt, find the person to be in contempt of the Tribunal.

[2] NOTE: AT THE TIME OF THE PRESENT DECISION RULE 91(B) PROVIDED:

(B) If a Chamber has strong grounds for believing that a witness has knowingly and wilfully given false testimony, it may direct the Prosecutor to investigate the matter with a view to the preparation and submission of an indictment for false testimony.

[3]    An example of what is required may be found in Prosecutor v Simić et al, Case IT-95-9-R77, Scheduling Order in the Matter of Allegations Against Accused Milan Simić and his Counsel, 7 July 1999, pp 3-6.

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(ICTR-07-91-A)

56. The Appeals Chamber is equally unconvinced by Nshogoza’s argument that the actus reus of contempt requires a certain threshold of gravity. As the ICTY Appeals Chamber has stated, “[a]ny defiance of an order of a Chamber per se interferes with the administration of justice for the purposes of a conviction for contempt.”[1] No additional proof of harm to the Tribunal’s administration of justice is required.[2] The Appeals Chamber is not convinced that the defiance of a Chamber’s order conveys any different connotation than a knowing and wilful violation of one.[3]

57. Considerations of the gravity of an accused’s conduct or his underlying motivations are rather to be assessed in connection with the decision to initiate proceedings or in sentencing.[4] Bearing this in mind, the Appeals Chamber considers that the various statements by Trial Chambers, cited by Nshogoza, which take into account the minimal gravity surrounding a violation of a Chamber’s order should be understood, not as a finding that the conduct was not contempt, but as an exercise of the discretion of the Chamber not to initiate proceedings in such circumstances. The fact that other persons might also have engaged in similar conduct is not a defence.

[1] Prosecutor v. Josip Jović, Case No. IT-95-14 & 14/2-R77-A, Judgement, 15 March 2007, para. 30 (“Jović Appeal Judgement”). See also Prosecutor v. Ivica Marijačić and Markica Rebić, Case No. IT-95-14-R.77.2-A, Judgement, 27 September 2006, para. 44 (“The language of Rule 77 shows that a violation of a court order as such constitutes an interference with the International Tribunal’s administration of justice. […] It has already been established in the jurisprudence that any defiance of an order of the court interferes with the administration of justice.”) (“Marijačić and Rebić Appeal Judgement”).

[2] Jović Appeal Judgement, para. 30.

[3] Jović Appeal Judgement, para. 30 (using “defiance” and “violation” interchangeably in describing the actus reus of a violation of Rule 77(A) of the Rules). See also Marijačić and Rebić Appeal Judgement, para. 44.

[4] Jović Appeal Judgement, para. 41 (noting that the Trial Chamber correctly considered in mitigation the fact that some of the witness protection measures which were violated were unnecessary). Cf. also Blagojević and Jokić Appeal Judgement, para. 202; Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgement, 15 July 1999, para. 269.

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Contempt Appeal Judgement - 15.03.2010 NSHOGOZA Léonidas
(ICTR-07-91-A)

80. As discussed in connection with the Second Ground of Appeal, the Trial Chamber did not err in determining that any violation of a court order interferes with the administration of justice.[1] Consequently, it correctly stated that the mens rea requirement for contempt under Rule 77(A) of the Rules is satisfied by proof of “any knowing and wilful conduct in violation of a Chamber’s order”.[2]

85. Furthermore, the Trial Chamber also fully considered the fact that Nshogoza was acting on the instructions and advice of the Lead Counsel.[3] However, the fact that he was following orders of a superior has no bearing on whether he possessed the requisite mens rea,[4] which, as stated above, is simply the knowing and wilful violation of a court order. Consequently, Nshogoza has failed to demonstrate any error in the Trial Chamber’s findings relating to the mens rea.

[1] See supra Section IV.A.1 (Ground 2: Alleged Errors Relating to the Actus Reus: Legal Requirements).

[2] See Trial Judgement [The Prosecutor v. Léonidas Nshogoza, Case No. ICTR-07-91-T, Judgement], para. 179.

[3] Trial Judgement, paras. 180-182.

[4] Cf. Haraqija and Morina Appeal Judgement, para. 53. 

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Contempt Appeal Judgement - 15.03.2010 NSHOGOZA Léonidas
(ICTR-07-91-A)

12. The Appeals Chamber recalls the applicable standards of appellate review pursuant to Article 24 of the Statute of the Tribunal (“Statute”). The Appeals Chamber reviews errors of law which invalidate the decision of the Trial Chamber and errors of fact which have occasioned a miscarriage of justice. This standard of review, applicable for appeals against judgements, also applies to appeals against convictions for contempt.[1]

[1] Prosecutor v. Astrit Haraqija and Bajrush Morina, Case No. IT-04-84-R77.4-A, Judgement, 23 July 2009, para. 14 (“Haraqija and Morina Appeal Judgement”). See also Contempt Proceedings Against Dragan Jokić, Case No. IT-05-88-R77.1-A, Judgement on Allegations of Contempt, 25 June 2009, para. 11 (“Dragan Jokić Appeal Judgement”).

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(ICTR-98-42-A)

NOTING further that […] proceedings for contempt and false testimony “are independent of the proceedings out of which they arise”;

[1] Karemera et al. Decision, para. 25 and references cited therein. Cf. The Prosecutor v. Hormisdas Nsengimana, Case Nos. ICTR-01-69-A and ICTR-10-92, Decision on Prosecution Appeal of Decision Concerning Improper Contact with Prosecution Witnesses, 16 December 2010, in which the Appeals Chamber considered an appeal against a decision related to contempt allegations issued by Trial Chamber I after the rendering of the trial judgement in Mr. Nsengimana’s case.

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Vujin Contempt Appeal Judgement - 31.01.2000 TADIĆ Duško
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13. There is no mention in the Tribunal’s Statute of its power to deal with contempt. The Tribunal does, however, possess an inherent jurisdiction, deriving from its judicial function, to ensure that its exercise of the jurisdiction which is expressly given to it by that Statute is not frustrated and that its basic judicial functions are safeguarded.[1] As an international criminal court, the Tribunal must therefore possess the inherent power to deal with conduct which interferes with its administration of justice. The content of that inherent power may be discerned by reference to the usual sources of international law.

14. There is no specific customary international law directly applicable to this issue. There is an international analogue available, by way of conventional international law, in the Charter of the International Military Tribunal (an annexure to the 1945 London Agreement)[2] which gave to that tribunal the power to deal summarily with “any contumacy” by “imposing appropriate punishment, including exclusion of any Defendant or his Counsel from some or all further proceedings, but without prejudice to the determination of the charges”.[3] Although no contempt matter arose before the International Military Tribunal itself, three contempt matters were dealt with by United States Military Tribunals sitting in Nurnberg in accordance with the Allied Control Council Law No 10 (20 December 1945), whereby war crimes trials were heard by the four Allied Powers in their respective zones of occupation in Germany. That Law incorporated the Charter of the International Military Tribunal. The US Military Tribunals interpreted their powers as including the power to punish contempt of court.[4]

15. It is otherwise of assistance to look to the general principles of law common to the major legal systems of the world, as developed and refined (where applicable) in international jurisprudence.[5] Historically, the law of contempt originated as, and has remained, a creature of the common law. The general concept of contempt is said to be unknown to the civil law, but many civil law systems have legislated to provide offences which produce a similar result.

See also paras. 16-17.

18. A power in the Tribunal to punish conduct which tends to obstruct, prejudice or abuse its administration of justice is a necessity in order to ensure that its exercise of the jurisdiction which is expressly given to it by its Statute is not frustrated and that its basic judicial functions are safeguarded. Thus the power to deal with contempt is clearly within its inherent jurisdiction.[6] That is not to say that the Tribunal’s powers to deal with contempt or conduct interfering with the administration of justice are in every situation the same as those possessed by domestic courts, because its jurisdiction as an international court must take into account its different setting within the basic structure of the international community.[7]

19. This Tribunal has, since its creation, assumed the right to punish for contempt. The original Rules of Procedure and Evidence, adopted on 11 February 1994, provided by Rule 77 (“Contempt of Court”) for a fine or a term of imprisonment where — subject to the provisions of what is now Rule 90(F), which permits a witness to object to making any statement which may tend to incriminate him or her — a witness “refuses or fails contumaciously to answer a question relevant to the issue before a Chamber”. In January 1995, such punishment was also made applicable to a person who attempts to interfere with or intimidate a witness, and any judgment of a Chamber under Rule 77 was made subject to appeal.[8] In July 1997, such punishment was also made applicable to any party, witness or other person participating in proceedings before a Chamber who discloses information relating to the proceedings in violation of an order of the Chamber. Both of these additions expressly identified the relevant conduct as “contempt”.

24. Care must be taken not to treat the considerable amount of elaboration which has occurred in relation to Rule 77 over the years as if it has produced a statutory form of offence enacted by the judges of the Tribunal, notwithstanding the form in which Sub-rules (A) to (D) may be expressed. Article 15 of the Tribunal’s Statute gives power to the judges to adopt only-

[…] rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters.[9]

That power does not permit rules to be adopted which constitute new offences, but it does permit the judges to adopt rules of procedure and evidence for the conduct of matters falling within the inherent jurisdiction of the Tribunal as well as matters within its statutory jurisdiction.[10] As stated earlier, the content of these inherent powers may be discerned by reference to the usual sources of international law, but not by reference to the wording of the rule.

25. Sub-rules (A) to (D) are statements of what was seen by the judges at Plenary meetings of the Tribunal to reflect the jurisprudence upon those aspects of the law of contempt as are applicable to the Tribunal. Those statements do not displace the underlying law; both the Tribunal and the parties remain bound by that underlying law.[11]

26. In the opinion of the Appeals Chamber:

(a) the inherent power of the Tribunal as an international criminal court to deal with contempt is for present purposes adequately encompassed by the wording of the reservation inserted in Rule 77 in November 1997 — that the Tribunal has the power “to hold in contempt those who knowingly and wilfully interfere with its administration of justice” — as such conduct would necessarily fall within the general concept of contempt, being “conduct which tends to obstruct, prejudice or abuse the administration of justice”;[12] and

(b) each of the formulations in the current Rules 77(A) to (D), when interpreted in the light of that statement of the Tribunal’s inherent power, falls within — but does not limit — that inherent power, as each clearly amounts to knowingly and wilfully interfering with the Tribunal’s administration of justice.

28. […] The inherent power of the Tribunal to deal with contempt has necessarily existed ever since its creation, and the existence of that power does not depend upon a reference being made to it in the Rules of Procedure and Evidence. As the Appeals Chamber is satisfied that the current formulation of Rules 77(A) to (D) falls within that inherent power, the amendments made in December 1998 did not increase the nature of the conduct which amounts to contempt to the prejudice of the Respondent’s rights.[13]

See also paras. 20-23.

NOTE: IN NOVEMBER 1997 SHORTLY AFTER THE BEGINNING OF THE RELEVANT PERIOD IN THIS CASE, RULE 77 WAS AMENDED AND IT PROVIDED AS FOLLOWS:

(A) Any person who

(i) being a witness before a Trial Chamber, contumaciously refuses or fails to answer a question,

(ii) interferes with or intimidates a witness who is giving, has given, or is about to give evidence before a Trial Chamber,

(iii) discloses information relating to those proceedings in knowing violation of an order of the Chamber, or

(iv) without just excuse fails to comply with an order to attend before or produce documents before a Chamber,

commits a contempt of the Tribunal.

(B) When a Chamber has good reason to believe that a person may be in contempt of the Tribunal it may call on that person that he or she may be found to be in contempt. After affording such person an opportunity to appear and answer personally or by counsel, the Chamber may, if satisfied beyond reasonable doubt, find the person to be in contempt of the Tribunal and impose a fine not exceeding Dfl. 20,000 or a term of imprisonment not exceeding six months, to be served as provided in Rule 103.

(C) Any person so called upon shall, if that person satisfies the criteria for determination of indigency established by the Registrar, be assigned counsel in accordance with Rule 45.

(D) Any decision rendered under this Rule shall be subject to appeal in cases where leave is granted by a bench of three Judges of the Appeals Chamber, upon good cause being shown. Applications for leave to appeal shall be filed within seven days of the impugned decision.

(E) Payment of a fine shall be made to the Registrar to be held in a separate account.

(F) Nothing in this Rule affects the inherent power of the Tribunal to hold in contempt those who knowingly and wilfully interfere with its administration of justice.

AT THE TIME OF THIS JUDGMENT, FOLLOWING AMENDMENTS IN DECEMBER 1998 RULE 77 (A) TO (E) PROVIDED:

(A) Any person who

(i) being a witness before a Chamber, contumaciously refuses or fails to answer a question,

(ii) discloses information relating to those proceedings in knowing violation of an order of a Chamber, or

(iii) without just excuse fails to comply with an order to attend before or produce documents before a Chamber,

commits a contempt of the Tribunal.

(B) Any person who threatens, intimidates, causes any injury or offers a bribe to, or otherwise interferes with, a witness who is giving, has given, or is about to give evidence in proceedings before a Chamber, or a potential witness, commits a contempt of the Tribunal.

(C) Any person who threatens, intimidates, offers a bribe to, or otherwise seeks to coerce any other person, with the intention of preventing that other person from complying with an obligation under an order of a Judge or Chamber, commits a contempt of the Tribunal.

(D) Incitement to commit, and attempts to commit, any of the acts punishable under this Rule are punishable as contempts of the Tribunal with the same penalties.

(E) Nothing in this Rule affects the inherent power of the Tribunal to hold in contempt those who knowingly and wilfully interfere with its administration of justice.

FURTHER AMENDMENTS WERE MADE TO RULE 77 IN DECEMBER 2000, DECEMBER 2001, JULY 2002 AND JULY 2009.

[1] Nuclear Tests Case, ICJ Reports 1974, pp 259-260, par 23, followed by the Appeals Chamber in Prosecutor v Blaškić, Case IT-95-14-ARlO8bis, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 Oct 1997 (“Blaškić Subpoena Decision”), footnote 27 at par 25. See also Northern Cameroons Case, ICJ Reports 1963, p 29.

[2] Agreement by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945.

[3] Article 18 (c).

[4] All references are taken from “Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No 10”: US v Karl Brandt, 27 June 1947, at 968-970 (where a prosecution witness assaulted one of the accused in court); US v Joseph Altstoetter, 17 July 1947, at 974-975, 978, 992 (where defence counsel and a private individual attempted improperly to influence an expert medical witness by making false representations, and mutilated an expert report in an attempt to influence the signatories of the report to join in altering it); and US v A/fried Krupp von Bohien und Halbach, 21 Jan 1948, at 1003, 1005-1006, 1088, 1011 (where defence counsel staged a walk out, and then failed to appear, in protest of a ruling against their clients, but which conduct was ultimately dealt with on a disciplinary basis).

[5] cf Prosecutor v Blaškić, Case IT-95-14-PT, Decision on the Objection of the Republic of Croatia to the Issuance of Subpoenae Duces Tecum, TC II, 18 July 1997, par 152; Prosecutor v Furundžija, Case IT-95-17/1, 10 Dec 1998, Judgment, pars 177-178.

[6] The Appeals Chamber has already held this to be so, but as an obiter dictum only, in the Blaškić Subpoena Decision, par 59.

[7] Blaškić Subpoena Decision, par 40.

[8] The heading of the rule was corrected to read “Contempt of the Tribunal”.

[9] The emphasis has been added.

[10] Rule 91, which deals with false testimony, is another provision in the Rules concerning the conduct of a matter falling within the inherent jurisdiction of the Tribunal.

[11] Rule 96, which deals with evidence in cases of sexual assault, is a similar statement insofar as it deals with the admissibility of evidence of consent by the victim.

[12] See footnote 16 [Report of the Committee on Contempt of Court, UK Cmnd 5794 (1974) (“Phillimore Committee Report”), par 1.  That passage has been accepted as a correct assessment of the purpose and scope of the law of contempt by the European Court of Human Rights, in Sunday Times v United Kingdom, Series A Vol 30 at pars 18 and 55, (1979) 2 EHRR 245 at 256, 274, by the English House of Lords, in Attorney-General v Times Newspaper Ltd [1992] 1 AC 191 at 207-209 (per Lord Ackner), and by the Ontario Court of Appeal, in Regina v Glasner (1994) 119 DLR (4th) 113 at 128-129.  See also AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106 (High Court of Australia);  Witham v Holloway (1995) 183 CLR 525 at 533 (per joint judgment), 538-539 (per McHugh J) (High Court of Australia);  US v Dixon & Foster 509 US 688 (1993) at 694 (Supreme Court of the United States).].

[13] The ruling given on 26 April 1999 during the hearing (at Transcript page 33) expressly left open the issue as to whether the amendments made after the relevant period did indeed introduce a new standard of conduct.

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ICTR Rule Rule 77 ICTY Rule Rule 77
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Vujin Contempt Appeal Judgement - 31.01.2000 TADIĆ Duško
(IT-94-1-A-R77)

130. At the same time, the Appeals Chamber has also taken into account as relevant to the guilt or innocence of the Respondent the evidence which was given as to his character. Such evidence is relevant because it bears on the questions as to whether the conduct alleged to constitute contempt was deliberate or accidental, and whether it is likely that a person of good character would have acted in the way alleged.

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Decision on False Testimony - 16.02.2010 KAREMERA et al.
(ICTR-98-44-AR91.2)

25. The Appeals Chamber considers that, similarly to proceedings for false testimony pursuant to Rule 91 of the Rules, discussed above, investigations and proceedings pursuant to Rule 77 of the Rules are independent of the proceedings out of which they arise and can be undertaken contemporaneously with those proceedings.[1] As separate proceedings, they give rise neither to concerns regarding inconsistent findings, nor to concerns regarding the expeditiousness of the trial. […]

[1] See, e.g., Prosecutor v. Slobodan Milošević, Contempt Proceedings Against Kosta Bulatović, Case No. IT-02-54-R77.4, Decision on Contempt of the Tribunal, 13 May 2005; Contempt Proceedings Against Dragan Jokić, Case No. IT-05-88-R77.1-A, Judgement on Allegations of Contempt, 25 June 2009 (arising from Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-T, proceedings which are ongoing). 

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Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

295. It is not disputed by the parties that nothing in the Statute or the Rules imposes the mandatory communication to the parties to the main proceedings of an amicus curiae report requested pursuant to Rules 77(C)(ii) or 91(B)(ii) of the Rules.[1] The decision to communicate an amicus curiae report filed before the trial chamber pursuant to Rules 77 or 91 of the Rules to the parties of the main proceedings therefore falls within the discretion of the trial chamber. This discretion must be exercised consistently with Articles 19 and 20 of the Statute, which require trial chambers to ensure that trials are fair and expeditious.[2] […]

[…]

300. Mindful that the decision to communicate to the parties of the main proceedings an amicus curiae report filed pursuant to Rules 77 or 91 of the Rules falls within the discretion of the relevant chamber and that there may be instances where the communication of such reports is not in the interests of justice, the Appeals Chamber fails to understand why, in this case, the Trial Chamber decided to deprive the parties of information that might have been relevant to their cases in the absence of any circumstances that may have justified its non-communication. The Appeals Chamber therefore finds that the Trial Chamber’s decision not to communicate the Second Amicus Curiae Reports to the parties before the delivery of the Trial Judgement was unreasonable and constituted an abuse of the Trial Chamber’s discretion.[3]

[1] Both Rules 77(C)(ii) and 91(B)(ii) of the Rules state that the appointed amicus curiae is to “report back to the Chamber as to whether there are sufficient grounds for instigating” contempt or false testimony proceedings.

[2] See, e.g., Nizeyimana Appeal Judgement, para. 286; Ndahimana Appeal Judgement, para. 14; Setako Appeal Judgement, para. 19.

[3] In light of this outcome, the Appeals Chamber finds it unecessary to considers Nyiramasuhuko’s and Ntahobali’s contention that the Trial Chamber erred in stating in the Trial Judgement that the investigations against Witnesses QA, QY, and SJ were “on-going”.

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ICTY Rule Rule 77(C)(ii);
Rule 91(B)(ii)
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Decision on Contempt Proceedings - 26.04.2017 NGIRABATWARE Augustin
(MICT-12-29-R)

Pages 2-3:

CONSIDERING that, pursuant to Rule 90 of the Rules, the Mechanism in the exercise of its inherent power may hold in contempt those who knowingly and wilfully interfere with the administration of justice;

CONSIDERING, however, that in matters pertaining to State obligations, it is well-established that State officials “are mere instruments of a State and their official action can only be attributed to the State”,[1] that, subject to certain limited exceptions,[2] “[t]hey cannot be the subject of sanctions or penalties for conduct that is not private but undertaken on behalf of a State”, and “cannot suffer the consequences of wrongful acts which are not attributable to them personally but to the State on whose behalf they act”;[3]

CONSIDERING that “[i]t is the State which is bound by [the obligation to cooperate with the Mechanism under Article 28 of the Statute] and it is the State for which the official or agent fulfils his function that constitutes the legitimate interlocutor of the [Mechanism] and “shall therefore incur international responsibility for any serious breach of that provision by their officials”;[4]

CONSIDERING that the Mechanism “is endowed with the inherent power to make a judicial finding concerning a State’s failure to observe the provisions of the Statute or the Rules” and “also has a power to report this judicial finding to the [United Nations] Security Council”;[5]

CONSIDERING, however, that the Mechanism “is not vested with any enforcement or sanctionary power vis-à-vis States” and that “[i]t is primarily for its parent body, the [United Nations] Security Council, to impose sanctions, if any, against a recalcitrant State”; [6]

[…]

CONSIDERING that the Mechanism has, therefore, taken appropriate measures provided for in the Statute and the Rules to address Republic of Turkey’s non-compliance with the Order of 31 January 2017 and that the procedure envisaged under Rule 90 of the Rules is not applicable in this case;

[1] Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-AR108 bis, Judgement on the Request of the Republic of Croatia for Review of the Decision of the Trial Chamber II of 18 July 1997, 29 October 1997 (“Blaškić Appeal Decision”), para. 38. See also Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Decision on Application for Subpoenas, 1 July 2003 (“Krstić Appeal Decision”), paras. 20.

[2] For instance, those responsible for war crimes, crimes against humanity, and genocide cannot invoke immunity from national or international jurisdiction even if they perpetrated the crimes while acting in their official capacity (see Blaškić Appeal Decision, paras. 41, 42). See also Blaškić Appeal Decision, para. 51; Krstić Appeal Decision, paras. 24-27.

[3] Blaškić Appeal Decision, para. 38. See also Blaškić Appeal Decision, paras. 42-44.

[4] Blaškić Appeal Decision, para. 44.

[5] Blaškić Appeal Decision, para. 33. See also Blaškić Appeal Decision, para. 37.

[6] Blaškić Appeal Decision, para. 33.

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MICT Statute Article 28 MICT Rule Rule 8;
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