Case No. IT-99-36-T


Judge Carmel Agius, Presiding
Judge Ivana Janu
Judge Chikako Taya

Mr. Hans Holthuis

Decision of:
15 April 2003





The Office of the Prosecutor:

Ms. Joanna Korner
Mr. Andrew Cayley

Counsel for the Accused:

Mr. John Ackerman

TRIAL CHAMBER II (“Trial Chamber”) of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“Tribunal”):

NOTING the statement of a witness who is supposed to give evidence for the Prosecution in this case (“the Witness”), filed on 19 April 2002, alleging that Milka Maglov, at the time co-counsel for Radoslav Brdjanin, intimidated the Witness ;

NOTING the appointment on 26 April 2002 of an amicus curiae by the Registrar, at the direction of the Trial Chamber, to investigate the above allegation ;

NOTING the report filed by the amicus curiae on 14 June 2002, detailing the results of his investigation;

RECALLING the oral hearing of 10 July 2002, at which the parties and counsel for Milka Maglov addressed the report’s findings, including not only the alleged intimidation of the Witness but also the allegation that Milka Maglov revealed the identity of the Witness and his role in the trial to a member of the public in violation of an order of a Chamber;1

CONSIDERING the purpose and scope of the law of contempt as a means whereby the courts may act to prevent or punish conduct which tends to obstruct, prejudice or abuse the administration of justice either in relation to a particular case or generally;2

CONSIDERING the Tribunal’s inherent power to hold in contempt those who knowingly and wilfully interfere with the Tribunal’s administration of justice by threatening or intimidating a witness who is to give evidence in proceedings before a Chamber, or by disclosing information relating to those proceedings in knowing violation of an order of a Chamber,3

RECALLING that pursuant to Rule 77(D) the Trial Chamber is required to determine whether, based on the records that the Trial Chamber has before it, there is a prima facie case of contempt to answer, and not to make a final finding on whether or not there has been contempt of the Tribunal;

FINDING that facts before this Trial Chamber, if believed could lead to the conclusion that a) Milka Maglov approached the Witness and intimidated him; and /or b) Milka Maglov revealed the identity of the Witness to a member of the public, in violation of an order of a Chamber;

CONSIDERING therefore that on the basis of this, there are sufficient grounds to proceed against Milka Maglov for contempt on the basis of Rule 77(A)(iv) and Rule 77(A)(ii) of the Rules;

HEREBY REFERS this matter to the President to designate a Trial Chamber to proceed according to Rule 77(D)(ii) of the Rules.

Done in French and English, the English version being authoritative.

Dated this fifteenth day of April 2003,
At The Hague
The Netherlands

Carmel Agius
Presiding Judge

[Seal of the Tribunal]

1 - Prosecutor v Brdjanin, IT-99-36-PT, Decision on Motion by Prosecution for Protective Measures, 3 July 2000, par 65(4)(a).
2 - 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) 114 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 judgement), 538-539 (per Mc Hugh J) (High Court of Australia); US v Dixon & Foster 509 US 688 (1993) at 694 (Supreme Court of the United States). As to the jurisprudence of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia, see Prosecutor v. Tadic, IT-94-1-A-R77, Judgement on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 January 2000 (“Vujin Decision”), par 26(a); Prosecutor v. Aleksovski, IT-95/14/1-A-R77, Judgement on Appeal by Anto Nobilo Against Finding of Contempt, 30 May 2001 (“Nobilo Decision”), par 30.
3 - Vujin Decision, pars 26(a), 39-42; see also Rule 77(A) of the Rules.