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The Hague, 19 July 2011
Appeals Chamber Affirms Florence Hartmann’s Contempt Conviction
The Appeals Chamber today affirmed the conviction of Florence Hartmann, a former spokesperson for the Tribunal’s Prosecutor, for contempt of the Tribunal and upheld the imposition of a 7,000 Euro fine.
On 14 September 2009, the Trial Chamber found Hartmann guilty of disclosing the contents, purported effect, and confidential nature of two Appeals Chamber Decisions from the Prosecutor v. Slobodan Milošević case in a book and an article authored by her in 2007 and 2008, respectively. She was sentenced to pay a fine of 7,000 Euros, in two installments of 3,500 Euros each.
The Appeals Chamber dismissed all grounds of appeal advanced by Hartmann and ordered that the fine of 7,000 Euros be paid to the Tribunal’s Registrar in two installments of 3,500 Euros each, by 18 August 2011 and 19 September 2011, respectively.
In dismissing Hartmann’s appeal, the Appeals Chamber held that “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. This principle equally applies to third parties.” The Appeals Chamber emphasised, “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.”The Appeals Chamber concluded that “[a] court order remains in force until a Chamber decides otherwise” and that, in this specific case, “the content of both Decisions remained subject to an order of non-disclosure.”
The Appeals Chamber dismissed Hartmann’s appeal that the Tribunal had already made public the information which she was convicted for revealing to the public, holding that the confidential legal reasoning of the two decisions were never disclosed, nor any related confidential information. The Appeals Chamber stated, “The fact that the Milošević Trial Chamber had granted protective measures to the SDC materials was a matter of public record as early as 23 September 2004; however, Hartmann was not convicted for revealing this fact, the existence of the Appeal Decisions, or the law contained within them (which had been revealed by the President and the Appeals Chamber), but rather for revealing the confidential legal reasoning contained within those decisions.”
With respect to the alleged infringement of Hartmann’s right to freedom of expression as a journalist, the Appeals Chamber held that the restrictions contained in the two Appeals Decisions were within the ambit of Article 19 of the International Covenant on Civil and Political Rights (ICCPR), according to which the restriction must be provided by law and proportionately necessary to protect against the dissemination of confidential information. The Appeals Chamber held that the restrictions of the freedom of expression were provided by law because they were filed confidentially under protective measures pursuant to the Rules of the Tribunal. The Appeals Chamber further held that “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.”
In relation to this, the Appeals Chamber upheld the Trial Chamber’s finding that Rule 54 bis of the Tribunal’s Rules permits the Tribunal to impose confidentiality in an effort to secure the cooperation of sovereign states. The Appeals Chamber agreed with the Trial Chamber’s finding, stating that, “by virtue of Hartmann’s actions, there existed a real risk that states may not be as forthcoming in their cooperation with the Tribunal where provision of evidentiary material was concerned.” The Appeals Chamber was therefore satisfied that the Trial Chamber adequately took into account all relevant considerations to ensure that its Judgement was rendered in conformity with international law.
The order in lieu of an Indictment charging Hartmann with two counts of contempt was filed on 27 August 2008. At a further appearance before the Tribunal in November 2008, a plea of not guilty was entered on her behalf. The trial took place on 15, 16, and 17 June and 1 July 2009, with closing arguments in the trial being heard on 3 July 2009.
International Criminal Tribunal for the former Yugoslavia
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