1 Monday, 15 June 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.28 a.m.
5 JUDGE MOLOTO: Mr. MacFarlane.
6 MR. MacFARLANE: Thank you, Your Honours.
7 As I mentioned at the outset, my opening comments will be brief
8 and to the point.
9 [Prosecution Opening Statement]
10 MR. MacFARLANE: In my respectful submission, at the end of the
11 day, this is a relatively straightforward case. The order in lieu of
12 indictment sets out clearly what the facts in issue are, and, at the
13 outset, I'd like to describe, in my respectful submission, what the case
14 is about and, correspondingly, what it's not about.
15 The case is about four key issues, four central points. With
16 respect to the book in question, "Paix et Chatiment," whether or not the
17 book disclosed confidential information; in other words, the actus reus
18 of the offence of contempt of the Tribunal. And, secondly, again in
19 relation to the book, whether what's often referred to as the fault
20 requirement or the mens rea, the knowing or mental element of the
21 offence, is demonstrated in relation to that book. The third and fourth
22 points relate to the article in question, the Bosnian Institute article,
23 and it's essentially the same thing : Was there an improper disclosure
24 of confidential information, the actus reus, and was it done knowingly,
25 willfully, the mens rea or the fault requirement. Those are the four
1 issues. And it's my respectful submission, and throughout the course of
2 the trial, I'll be urging the Chamber to ensure we're focusing on those
3 four issues, because at the end of the trial, in my respectful
4 submission, the decisions concerning those four points will be
6 Now, what is the case not about, because in a case like this it's
7 very easy to be side-tracked, it's very easy to take off-ramps that will
8 take us into a zone that's completely irrelevant and will have the effect
9 of clouding the issues defined in the order in lieu of indictment. This
10 case is not about the terrible conflict that occurred in the former
12 It's not about who is to blame in that conflict. It's not about the
13 politics in the region. It's not about whether the accused,
14 Florence Hartmann, received any special treatment as a result of being a
15 former employee of this Tribunal. It's not about that at all or,
16 correspondingly, whether she's entitled to differential treatment as a
17 result of being a journalist. In my respectful submission, the case is
18 not about that. It's not about what the media are saying or have been
19 saying about the case, and it's not about individuals' opinions about the
20 fact that the accused has been charged.
21 At the end of the evidence, I anticipate it will demonstrate --
22 the case will demonstrate that the steps taken by the accused and the
23 words that she used and the comments that she used in her publications
24 were not mere inadvertence, they were not an accident; they were
25 deliberate. I anticipate that the evidence will demonstrate that her own
1 words, which are what are at issue here, in essence, were a statement of
2 defiance. And if the evidence does demonstrate that, in my respectful
3 submission, at the end of the day, this case is all about one of
5 The focus in this case will be on her own words, not what someone
6 else did, not what anybody involved in these proceedings did or did not
7 do. It will turn on her own words, what she decided to publish. And I
8 expect that at the end of the trial, the issue will not be so much the
9 actus reus
10 and purposes, is not an issue. The issue will be one of mens rea,
11 whether or not she, in fact, knew what she was doing, whether it was
12 willful, whether it was knowing. I anticipate that the evidence
13 throughout the trial and at the end of the trial will demonstrate that in
14 the affirmative.
15 Thank you, Your Honour.
16 JUDGE MOLOTO: Thank you, Mr. MacFarlane.
17 Mr. Khan.
18 MR. KHAN: I'm grateful, Mr. President, Your Honours.
19 [Defence Opening Statement]
20 MR. KHAN: My learned friend has emphasised, quite rightly, that
21 it is imperative that Your Honours do not get side-tracked in this case.
22 The Defence has no fear on that account. Your Honours have had the
23 privilege of sitting in judgement in many cases in this institution for
24 many years of far greater complexity than this particular matter. There
25 is no danger whatsoever of getting side-tracked with a Bench of this
2 But what my learned friend states, and I would agree with him, is
3 that one should also focus on the words of my client, Ms. Hartmann. It
4 is my respectful submission that is precisely what my learned friend
5 singularly failed to do in his previous incarnation as the amicus
6 investigator in this case.
7 Your Honour, what are the words of my client that may be
8 relevant? Well, Your Honour, let me start by citing her interview on the
9 22nd of May, 2008, in which she stated:
10 "I am extremely surprised and devastated by these proceedings by
11 the Tribunal. I have worked for years without counting all the time I
12 invested to serve the Tribunal, to the detriment of my family and my
13 children, and I carried out my work such that no one could ever doubt my
14 commitment, which certainly went beyond that demanded by my employer, the
15 United Nations, and with the intellectual rigour recognised by many
17 Your Honour, she continued, and this is page 4 out of 10 of that
19 "If I may continue on my career," she says, "I formally reject
20 having ever knowingly violated any regulation and affirm that I never
21 knowingly or willingly endeavoured to hamper the course of justice in any
23 Your Honour, I'll read just one more paragraph. She continues:
24 "I note that much of the information contained in the pages of my
25 book, i.e., the documents mentioned in the file, communicated to my
1 adviser, Maitre Bourdon up to the start of the interview, had been
2 disclosed. Much of this information had been available, some of it for
3 years now, without ever giving rise to my reactions by the Tribunal."
4 And then she quotes many, many documents.
5 Your Honour, my learned friend has come very late in the day to
6 the importance of the words of my client, because as you'll see from the
7 face of this interview, the documents my client referred to, the details
8 my client referred to, were not even translated to my learned friend.
9 They were not put to the previous specially-appointed Trial Chamber.
10 They were not part of his report.
11 Your Honour, there's no fault, in my respectful submission, or no
12 doubt is cast on the integrity and impartiality and highest
13 professionalism of the originally-constituted, specially-appointed
14 Trial Chamber. They were handicapped, due to no fault of their own, by a
15 completely incomplete dossier and report that was produced by my learned
16 friend in his previous incarnation as the amicus investigator of this
17 case. None of these facts were put before Your Honours 'colleagues
19 Your Honour, let's be clear. The two confidential decisions that
20 are the subject matter of these proceedings were never read by my client
21 at the time she was working as the spokesperson of the former Prosecutor,
22 Carla Del Ponte. Indeed, the first time that they were read were when
23 they were handed to her by my learned friend sitting opposite. And that
24 is not an assertion, that is an issue where the parties are in agreement.
25 And, Your Honours, I will refer you to the 7th of February agreed facts,
1 where my learned friend consents and agrees that that is the truth.
2 Your Honour, Ms. Hartmann was never briefed while she was a
3 spokesperson of the Prosecutor in relation to any of these decisions.
4 She never spoke to the press, there's no briefing she gave in relation to
5 those decisions, and there is no evidence that my learned friend intends
6 to put before you to controvert these assertions.
7 Your Honour, it's also important, in the Defence's respectful
8 submission, to note that in relation to the second decision, the 6th of
9 April decision, it was rendered three days after -- three days after my
10 client left her job as the spokesperson of the Prosecutor. Again, this
11 is not a matter of controversy. This is an agreed fact, and it is set
12 down in the 6th of February, 2009 filing. She left her job as
13 spokeswoman on the 3rd of April of that year.
14 So, Your Honour, this case is not about abuse of position of
15 trust. This is not about an evil individual who is somehow trying to
16 hamper the administration of justice, get a false result due to witness
17 intimidation, as have been most of the contempt cases that this Court has
19 My learned friend accepts, once again, in his 7th of February,
20 2009, filing, that my client did not act with reprehensible motives.
21 Your Honour, by the end of this case, we will ask you to step
22 back and review, as you would do in any event, the evidence in its
23 totality, and it will be our strong -- the respectful submission that a
24 striking feature of this case has been the constant erosion in my learned
25 friend's case. From the time he submitted his first report, the case has
1 eroded as far as the allegations are concerned in material particulars to
2 the pre-trial brief. And again since the pre-trial brief has been filed
3 and again in some particulars, there has been a stepping back by my
4 learned friend for the Prosecution.
5 Your Honours, by the end of the case, it is the Defence's
6 respectful submission and belief that Your Honours will find that my
7 learned friend has not discharged his heavy responsibility to prove this
8 criminal matter to the required standard of beyond reasonable doubt.
9 Now, Your Honours, in assessing the parameters of this case, it
10 is, of course, apt to bear in mind that the crime of contempt is not a
11 strict liability offence. It is not any technical breach of a
12 confidential order that would give rise to responsibility. And, Your
13 Honours, we say, on behalf of Ms. Hartmann, that when one dissects the
14 Prosecution's case, four facts are asserted which it is said that my
15 client breached: namely, the existence -- this is the first fact, the
16 existence of the confidential decisions; the fact that those decisions
17 were confidential; the identity of the moving party; and, fourthly, the
18 subject, namely, that the protective measures were granted in relation to
20 Your Honour, Mr. President, all these facts will be shown to have
21 been public.
22 Now, the Defence do not say -- it is not such a crude argument to
23 say that any breach of confidentiality gives a license to anyone to
24 publish with abandon so as to prejudice the proper administration of
25 justice; not a bit of it. But we do say -- and we do not say that any
1 journalist can unilaterally arrogate to themselves the seat of moral
2 judgement to decide what the public should or should not know. We fully
3 accept that these decisions are for Your Honours, who make judicial
4 determinations. But what we do say is that this Tribunal, Judges of this
5 Court, made these facts public themselves.
6 Your Honours, we will prove, from public filings, that brother
7 Judges and sister Judges of this Court made the existence of these two
8 confidential decisions public; in particular, the fact that the decision
9 were made, the identity of the moving party, the confidential character
10 of those decisions, that the focus of those decisions had to do with
11 national interest. And, Your Honour, we will refer in due course to the
12 Milutinovic decision by the Appeals Chamber in 2006. There's decisions
13 in 2007. There's the Milosevic Trial Chamber decision of 2004, where the
14 factual matrix was made public by the Judges.
15 But what is the Defence argument in that case? The Defence
16 argument is unequivocal. It is that the Tribunal and the Judges of this
17 Court have the power to amend confidentiality orders, but the Rules do
18 not dictate any form by which confidentiality orders need to be lifted;
19 and it is not so mathematical a formula that every confidential decision
20 requires a formal decision of the Bench to render it public.
21 It is our respectful submission that by the end of this case,
22 Your Honours will be satisfied that the Tribunal, by actus contrarius,
23 may decide to lift the confidential nature of a decision, in whole or in
24 material particulars.
25 Your Honours, that, in fact, is borne out by Your Honour himself,
1 Judge Moloto. If one looks at the decision of this case itself -- the
2 history of this case itself, one would, perhaps, remember that on the
3 19th of May, 2009, Your Honours rendered a confidential decision
4 pertaining to a Defence motion for leave to appeal against a decision
5 relating to the binding order request that we put towards the Registry.
6 Now, Your Honour, that decision, its existence, and its subject matter,
7 were confidential. There's no dispute about that. But, Your Honour,
8 Mr. President, during the Status Conference of that day, after the
9 decision was made public, Your Honour referred to the existence of that
10 decision, including the subject matter, including the purported effect,
11 and the fact that it was confidential, and Your Honour did that in public
13 Now, there is absolutely no suggestion that that was improper or
14 that any Rule has been violated. Instead, what the Defence submit is
15 that this, even in this small case, is evidence that the confidential
16 nature as to the existence of the decision and its status could be lifted
17 by Your Honour, acting in a judicial capacity to act as a waiver or a
18 lifting to the extent that Your Honour has made facts public. Now, this
19 is an important part of the Defence case, as you will hear.
20 Your Honour, when assessing -- and before I move on there,
21 contrary to what my learned friend has opined, this goes directly to the
22 actus reus
23 very much in issue, we say, because the Tribunal, acting actus
24 contrarius, lifted confidentiality to the extent that is asserted to be
25 criminal, when done by my client, there is simply no actus reus
1 actus reus
2 friend should know, he has the pre-trial brief, we've made it clear that
3 unless there's a clear waiver, every aspect of the case is in issue,
4 unless expressly agreed, and we put the Prosecution to strict proof on
5 all aspects, including most fundamentally and basically actus reus
6 mens rea.
7 Your Honour, the other point is: It is germane to note that the
8 applicant, the person who -- the country, the state, that sought the
9 protections themselves have waived that confidentiality. How perverse
10 would it be, in the Defence respectful submission, that the applicant who
11 requests confidentiality can go 'round talking about the same facts, and
12 yet a journalist who repeats those facts should be held criminally
14 Your Honour, in public session, in the International Court of
15 Justice, of course, one of the principal organs of the United Nations,
16 the representative of Serbia
17 May, 2006, in the genocide case, and I quote:
18 "Madam President," and at that time it was Judge Rosalyn Higgins,
19 "Madam President, with all due respect to this honourable Court, the
20 representatives of Serbia
21 contents of the redacted sections of the Supreme Defence Council
22 documents for two serious reasons."
23 Your Honour, with your leave, I pause there. It's important to
24 note contents are mentioned, as opposed to what we say are the legal
25 reasoning and the decisions of a Bench. And, Your Honour, he states, the
1 representative, one -- is the two reasons: The redacted sections were
2 classified by the Supreme Defence Council as a military secret, and
3 according to the confidential decision to the Council of Ministers of
4 Serbian Montenegro, as a matter of national security interest; and, 2:
5 "At this moment the redacted sections of the STC documents are
6 under protective measures imposed by the ICTY confidential order, and we
7 are obliged to respect that order."
8 But, Your Honour, what's important to note is that the applicant
9 did not seek protective measures, nor was he granted -- nor was the state
10 granted, by their own understanding, protective measures in relation to:
11 firstly, the fact that the state, Serbia
12 had applied for protective measures in relation to those documents;
13 secondly, that they were the applicant; thirdly, the reasons for the
14 application; and, fourthly, the fact that should measures be granted, the
15 existence of those measures remain confidential.
16 Your Honour, therefore, none of these matters, in our respectful
17 submission, when you look at this case in the 'round can be said to have
18 been germane to the confidential order or the confidential part of the
19 decision of the Appeals Chambers that rendered these decisions
21 Now, Your Honour, when one goes to mens rea, the public nature of
22 the decisions is relevant. This is not a statement of defiance, as my
23 learned friend fears. This is a matter of intent.
24 Six months before my client's book was published, two
25 world-widely -- globally distributed newspapers, "The New York Times" and
1 the "International Herald Tribune," on the 9th of April, 2007
2 displayed articles -- written articles quoting exactly the same facts
3 that are included in my client's book, and not a whisper -- not a murmur
4 was heard from the corridors of this Court to say that "The New York
5 Times" or the powerful "International Herald Tribune" had acted in breach
6 of contempt. Now, Your Honours, this is different from the Haxhiu case
7 we will show. It's different from an argument that there's a public
8 secret. This is relevant to mens rea. The fact that two of the
9 highest-profile newspapers in the world have talked about and discussed
10 and critiqued the very decisions that my client, as a journalist, later
11 wrote about, is relevant to her intent, her belief that she was willfully
12 or knowingly interfering in any way with the proper administration of
14 Your Honour, an important feature of distinction, and we'll come
15 to this at the end in closing, is when one surveys the jurisprudence of
16 this Court, the Haxhiu cases and the other cases, one of the features are
17 the Tribunal is very prompt in acting after, for example, a witness's
18 name was made public. This case can be distinguished in many, many ways
19 from that.
20 Your Honour, for six months, no murmur. My client's belief that
21 what she did was lawful and proper and unremarkable, has been and will be
22 established by the Defence, and it is the Defence's strong belief that my
23 learned friend will be shown to have singularly failed in his
24 responsibility to prove a guilty mind, as it is his burden to do.
25 Your Honour, similarly, even earlier than that, on the 9th of
1 March, 2007
2 detailed article, again, almost duplicating the areas that my client is
3 now asserted to have written about in criminal violation of her
4 responsibilities to the Court. Your Honour, the same argument applies in
5 relation to that. And, Your Honour, that's at 2 and 3 of our 65 ter
6 list, tab 2 and 3 of or 65 ter list.
7 Before I move on, I will -- it is important to bear in mind that
8 even back in 2005, the 17th of May, 2005, albeit before the
9 Appeals Chamber gave its orders, there was a very extensive special
10 investigation by the Institute of War
11 report at tab 14, in which all these matters were discussed and made
13 Your Honour, it is, therefore, our -- it will be our submission
14 that the mens rea aspect has not been proved.
15 Your Honour, as far as special privileges for journalists are
16 concerned, the matter is not straight --
17 JUDGE MOLOTO: May I remind you, Mr. Khan, we are not in closing
18 argument, but in opening statement. Nothing has been proved, indeed.
19 MR. KHAN: You were, when one is reviewing the Prosecution's
20 case, it must be viewed through the prism, in the Defence's respectful
21 submission, that this Court, established as it was to uphold the highest
22 standards of international justice, will view the accumulated years of
23 jurisprudence from other international and regional courts and bodies
24 carefully and view those cases as lending persuasive weight that will
25 inform Your Honours' exercise of discretion.
1 In order to convict my client, my learned friend will have to
2 persuade Your Honours to set aside decades of jurisprudence from the
3 European Court of Human Rights. Your Honour, there are cases of
4 Webber -- there's the "Sunday Times" case known as the thalidimide case,
5 there is "The Observer" newspaper case, the spy-catcher case. All these
6 cases -- Strasbourg
7 restriction in the form of contempt served a legitimate objective or was
8 proportionate, one must look at several factors that we'll come to in the
9 closing brief, but, Your Honours, they include the right of
10 journalistic -- journalists to write as the watch-dog of society in
11 democratic pluralistic societies, and that's the watch-dog, not only the
12 executive, but all parts, including the judiciary and the legislature.
13 That's the first link. But the second is the public's right to know.
14 And, Your Honour, it is our submission that when one bears in
15 mind that the offence of contempt does not appear in the Statute of this
16 Court, but falls within your implied powers, your inherent jurisdiction,
17 in order to fulfill your overall mandate, it is critical not to overly
18 extend the envelope, not to overly extend the parameters of criminal
19 responsibility, so that they would stymie -- they would stymie freedom of
20 speech that is needed.
21 Your Honour, in short, every aspect of the Prosecution's case
22 will fall away. The witnesses that we will call, Natasa Kandic,
23 Mr. Joinet, will -- and Nura Alispahic, will demonstrate both the margin
24 of deference that is given under international human rights norms to
25 journalistic freedom -- although it's a qualified right, the European --
1 the Strasbourg
2 the offence that is charged against our client. And, Your Honour, when
3 one is looking and critiquing my learned friend's case, we would ask you
4 not to be -- not to turn away from that jurisprudence. We are confident
5 that you will not. And if you do not, our client will be acquitted.
6 Your Honours, those are my submissions in opening, and I'm most
8 JUDGE MOLOTO: Thank you very much, Mr. Khan.
9 Just before you call your witness, Mr. MacFarlane, you had raised
10 an issue earlier, and I don't think we did finally dispose of it, your
11 position as an intended witness for the Defence. I just wanted to say to
12 you that Mr. Khan indicated the number of witnesses that he's going to
13 call, and he's now indicated he's calling three and you're not one of
14 those. Does that dispose of your situation?
15 MR. MacFARLANE: Yes, it does, Your Honour. Thank you very much.
16 JUDGE MOLOTO: You may call your witness.
17 [The witness entered court]
18 JUDGE MOLOTO: Good morning, sir.
19 THE WITNESS: Good morning.
20 JUDGE MOLOTO: May you please make the declaration.
21 THE WITNESS: [Interpretation] I solemnly declare that I will
22 speak the truth, the whole truth, and nothing but the truth.
23 WITNESS: YORRIC FELIX KERMARREC
24 [The witness answered through interpreter]
25 JUDGE MOLOTO: Thank you very much. You may be seated.
1 Mr. MacFarlane.
2 MR. MacFARLANE: Thank you, Your Honours.
3 Examination by Mr. MacFarlane:
4 Q. Sir, I understand that you're employed by a company located in
6 A. Yes, I work for Flammarion.
7 JUDGE MOLOTO: Yes, Mr. Khan.
8 MR. KHAN: I do apologise. Your Honours, perhaps before we
9 move -- the witness hasn't given his name, and I do note at page 27, line
10 2, this witness is identified as Mr. Robin Vincent, and, of course, that
11 is patently wrong.
12 JUDGE MOLOTO: Mr. MacFarlane.
13 MR. MacFARLANE: Yes, sir.
14 Q. Could you state your full name to the Court, to the Tribunal,
16 A. My name is Kermarrec and my name is Yorric. Do you want to know
17 when I was born? I was born on November the 12th, 1969.
18 MR. MacFARLANE: Thank you, sir.
19 JUDGE MOLOTO: Maybe if you would spell your name for us so that
20 we can write it down, sir.
21 THE WITNESS: [Interpretation] K-e-r-m-a-r-r-e-c;-r-r-e-c, that's
23 JUDGE MOLOTO: That's the surname. What's the first name?
24 THE WITNESS: [Interpretation] This is my surname. My first name
25 is Y-o-r -r-i-c.
1 JUDGE MOLOTO: Thank you very much.
2 Mr. MacFarlane, you may proceed.
3 MR. MacFARLANE:
4 Q. Sir, I understand that you are employed with an organisation, a
5 company known as Flammarion at Paris
6 A. I work for Flammarion, the headquarters of Flammarion being in
8 Q. Can you describe the nature of the business?
9 A. Flammarion is a publishing company, distributing books.
10 Q. Can you describe the company in terms of its size?
11 A. Flammarion is the fifth French publisher, general publisher.
12 Q. Can you advise the Chamber of your position -- your title within
13 the organisation?
14 A. I mainly deal with legal issues for Flammarion.
15 Q. I understand that in 2006, late 2006, Flammarion entered into
16 discussions with the accused before this Chamber, with a view to the
17 prospects of publishing a book; is that correct?
18 A. Yes, I believe this is correct.
19 Q. Did those discussions lead to the signing of a publishing
21 A. Yes, the discussions led to the signing of a publishing agreement
22 in December 2006.
23 Q. The precise date was ...
24 A. The precise date was December the 20th, 2006.
25 Q. What was the name of the proposed book at that stage?
1 A. The name in the contract was the following "Dans les coulisses du
2 Tribunal de La Haye."
4 another name?
5 A. Yes, correct, the present title being "Paix et Chatiment," "Peace
6 and Punishment."
7 Q. Were there any other persons that signed the contract or were
8 involved in the discussions, or was the accused the sole author?
9 A. Well, there are two questions in your question. I believe that
10 there was an agent involved in the discussions focusing on this contract,
11 that Florence
12 author of this book.
13 Q. The contract which has been tendered before this Chamber notes
14 the prospect of an advance, that is, a financial advance, which could be
15 provided by Flammarion in respect of the book. Can you advise as to
16 whether or not an advance was, in fact, provided?
17 A. Yes, correct. The advance payment, as mentioned in the contract,
18 was paid to Florence Hartmann. The first half was paid when the contract
19 was signed, and the second half was paid when the book was published.
20 Q. Thank you. And as I understand it, under this publishing
21 agreement there was a royalty agreement; that is to say, it was
22 contemplated that a certain amount of the monies paid for the book would
23 then be provided to the author by way of royalties; is that correct?
24 A. Yes, it's correct.
25 Q. Can you advise the Chamber with respect to the level or number of
1 sales of this book up to date or the most recent figures that you have?
2 A. On June the 8th, some 3.799 books have been sold.
3 Q. Is the book still actively being sold by Flammarion?
4 A. Yes, the book is still being sold.
5 Q. Can you comment with respect to any sales or any other editions
6 in other countries? That is to say, did Flammarion have rights for other
7 editions in other languages in other countries or not?
8 A. Flammarion only has rights for French editions, and translation
9 rights in other countries belong to Ms. Hartmann.
10 MR. MacFARLANE: Thank you.
11 I have no further questions, Your Honours.
12 JUDGE MOLOTO: Thank you very much, Mr. MacFarlane.
13 Yes, Mr. Khan, Mr. Mettraux.
14 MR. METTRAUX: Good morning again, Mr. President. Good morning,
15 Your Honours. Bon jour, Mr. Kermarrec.
16 Your Honours, before we start, we have a number of binders, of
17 documents, which we intend to use in cross-examination of Mr. Kermarrec
18 and in cross-examination of Mr. Vincent, and with the assistance of the
19 Court usher, we'll have those distributed.
20 JUDGE MOLOTO: Thank you, sir.
21 MR. METTRAUX: There is a copy for each of Judges, for the
22 Registry, for our friend for the Prosecution, and for the witness.
23 Cross-examination by Mr. Mettraux:
24 MR. METTRAUX: Thank you very much, for that, and my apologies.
25 Q. Mr. Kermarrec, you discussed a moment ago with the Prosecutor the
1 process of negotiation of a publishing agreement between yourself,
2 Flammarion, and Ms. Hartmann. Were you a party to these negotiation?
3 A. Personally, no.
4 Q. And can you indicate, perhaps, who, on behalf of Flammarion, was
5 responsible for those?
6 A. This was the responsibility of Gilles Haeri.
7 Q. And any other person at Flammarion who dealt with Ms. Hartmann in
8 relation to this agreement?
9 A. You have the direct publisher of Florence Hartmann,
10 [indiscernible], who has followed the publishing process.
11 Q. And can you explain, perhaps briefly, why Flammarion was of the
12 view that it should -- or that it was interested in publishing
13 Ms. Hartmann's book? Could you explain that?
14 A. Florence Hartmann was, before the negotiations, one of the
15 experts in international issues for Flammarion, and also she was -- she
16 knew about all the questions concerning Serbia. She had been a
17 journalist working for "Le Monde." She had followed all these cases.
18 She had published a book in 1999 on Milosevic, and she also acted as a
19 spokeswoman to Carla Del Ponte; and this is the reason why we wanted to
20 publish her book.
21 Q. And did you, and by "you,"I mean Flammarion, do you think it
22 would be of publish interests for a book of this sort that you and
23 Ms. Hartmann were negotiating about?
24 A. Yes, absolutely, since there was a very strong political
25 discussion on the -- on international justice and the genocide in former
2 interest [as interpreted], it was of very strong publish interest.
3 Q. Thank you. And simply for the transcript, at page 31, line 25,
4 it should be "of public interests."
5 In general terms, Mr. Kermarrec, are the books published and
6 produced by Flammarion protected by the freedom of expression?
7 A. Yes, all the books are protected by the freedom of expression.
8 JUDGE MOLOTO: Could you indicate a convenient moment where we
9 could take a break. [Microphone not activated] If it is a convenient
10 moment for you, but if it is not --
11 MR. METTRAUX: Your Honour, any moment convenient to Your Honours
12 would be convenient to us.
13 JUDGE MOLOTO: We usually take a break at quarter past. We'll
14 take a break and come back at quarter to 11.00. Court adjourned.
15 --- Recess taken at 10.16 a.m.
16 --- On resuming at 10.47 a.m.
17 JUDGE MOLOTO: Yes, Mr. Mettraux.
18 MR. METTRAUX: Thank you, Your Honour.
19 Q. Mr. Kermarrec, before the break I was asking you questions as to
20 whether the books published by Flammarion were covered by the principle
21 of freedom of expression, and you indicated that this was the case. Do
22 you recall that?
23 A. Yes, correct.
24 Q. And may I take it, perhaps, that this would be the case with the
25 book published by Ms. Hartmann; is that correct?
1 MR. MacFARLANE: Your Honours, if I might rise at this point.
2 JUDGE MOLOTO: Yes, Mr. MacFarlane.
3 MR. MacFARLANE: I think we have a fundamental question that we
4 need to deal with at this point, and I would like to raise it, and that
5 is that the witness has been put forward as a fact witness, not as an
6 expert, and we seem to be moving more and more in the direction of
7 freedom of expression, whether the book in question is covered by notions
8 of freedom of expression, whether Flammarion -- what Flammarion's view is
9 on that. It seems to me that those are all issues for the Chamber to
10 consider in due course and are in the realm of issues of law, so I am
11 concerned that we're moving in a direction that's inappropriate, and I
12 thought I should raise it at this point.
13 JUDGE MOLOTO: Mr. Mettraux.
14 MR. METTRAUX: Your Honour, do you wish me to respond or should I
16 JUDGE MOLOTO: Of course you have to respond.
17 MR. METTRAUX: Thank you, Your Honour. Well, I can reassure the
18 Chamber that I'm not going to ask Mr. Kermarrec to draw any expertise --
19 any type of expertise that he may or may not have, nor am I seeking from
20 him any legal conclusion that the Chamber might be minded to make or not
21 to make at the end of this case. What I'm seeking from this witness is
22 the confirmation of a number of facts that pertain to his work as a legal
23 adviser to Flammarion. This is the reason why he was called in the first
25 There were persons at Flammarion who might be factually relevant
1 to this case, Your Honour, who had taken part in this negotiation. These
2 people were not called. This person was called as the director of
3 Flammarion. This is the person that has been called and the reason why
4 he was called. I'm asking him questions that pertain to the course of
5 his work, in my respectful submission.
6 JUDGE MOLOTO: As long as you stay in the fact part and not move
7 into expertise.
8 MR. METTRAUX: I will do, Your Honour.
9 JUDGE MOLOTO: Thank you.
10 MR. METTRAUX:
11 Q. Could you indicate, perhaps, to complement the answer that you've
12 given a moment ago, why it is important from the point of view of a
13 publisher, like yours, Flammarion, that your publications be protected by
14 the principle of freedom of expression? Could you explain briefly why
15 that is important and relevant to you?
16 A. The freedom of expression for a publisher is really the core of
17 his activity, particularly for books -- for political books, or for books
18 in dispute, or books carrying certain opinions, and a publisher -- and
19 that this is a private service, because if they are disputed, concerning
20 the content of the books, they will no more be able to continue their
21 job, and the political stake is very important; and the publisher might
22 be placed in a position not to be able to publish books or to allow
23 people to express opinions concerning political issues or issues of
24 general interest. This is the reason why publishers really try to
25 support authors giving very strong political opinions.
1 JUDGE MOLOTO: Who does this protection protect, sir? Does it
2 protect you, as the publisher, or does it protect the author, because
3 your answer is not quite clear.
4 THE WITNESS: [Interpretation] The freedom of expression protects
5 the publisher and the author, and they both do a common job, carry out
6 the job jointly.
7 JUDGE MOLOTO: Thank you.
8 MR. METTRAUX:
9 Q. Thank you for this answer, Mr. Kermarrec, and I'll give you the
10 warning that counsel generally receives. We'll ask you to slow down a
11 bit for the interpreters and the transcript, so they can follow your
12 words and translate them for the benefits of counsel and the rest of the
13 people in the courtroom.
14 You've also been asked about the sales of Ms. Hartmann's book by
15 my colleague. Do you recall that?
16 A. Yes.
17 Q. And do you recall perhaps indicating, I believe, that 3.799
18 copies had been sold of this book, as of 8th of June, 2009? Do you
19 recall that?
20 A. Yes, correct.
21 Q. And you were also asked by my colleague about what in English
22 would be referred as an advance, and I think the contract refers to the
23 French, "delavois [phoen]." Could you explain briefly what that means in
24 publishing terms?
25 A. The advance paid to the author is an advance on royalties and
1 copyrights, and this means that the advance is compensated by the
2 author's publishing rights, which are paid for by royalties, and the
3 publisher starts paying the copyrights after the publication. Once the
4 advance has been paid by the copyrights, are such royalties or
5 percentages paid on sales.
6 Q. So perhaps to make that a little bit clearer for the Court,
7 Mr. Kermarrec, am I to understand that, in effect, you, Flammarion, paid
8 an advance of 15.000 Euro to Ms. Hartmann. And as the royalties, as you
9 call them, come in at Flammarion, these royalties are actually cashed in
10 by Flammarion and are deducted from the 15.000; is that correct?
11 A. Yes, the royalties have been deducted from the 15.000 Euros.
12 Q. And perhaps because my question was not the clearest, is that
13 correct that the royalties do not come on top of the 15.000, but they
14 actually are paid only as of the moment when more than 15.000 Euro have
15 been made in royalties; is that correct?
16 A. Yes, correct. And one may also add that to -- that the advance
17 is not compensated by the sales of this book, which means that
18 Ms. Hartmann's account in Flammarion is in the red.
19 JUDGE MOLOTO: The 15.000, do I understand, from the royalties,
20 not the royalties from the 15.000?
21 MR. METTRAUX: I can perhaps try to make it clear, Your Honour.
22 Q. Can you tell this Chamber, Mr. Kermarrec, how much royalties have
23 been cashed in at this point by Ms. Hartmann, approximately?
24 A. I'll try to explain that once again.
25 We have paid, all in all, 15.000 Euros, which -- 15.000 Euros are
1 an advance on the copyrights to be paid. Given the sales of the book,
2 i.e., 3.799 books, I believe that the royalties amount to 5.000 Euros.
3 Today, the copyright of Ms. Hartmann is in the red for an amount of
4 10.000 Euros, which means that the future sales will come and reduce this
5 minus -- this 15.000 Euros. Once the 15.000 Euros are completely
6 compensated, Ms. Hartmann will be able to get a new amount from
8 Q. And I think you've said --
9 JUDGE MOLOTO: Mr. Mettraux, if I may just ask you, from my
10 interpretation I keep hearing reference to copyright, and if you could
11 just clear that. Copyright and royalties to me are two distinct issues,
12 and --
13 MR. METTRAUX: I agree with Your Honour. I can indicate from the
14 French word that Mr. Kermarrec is using of royalties, this is the
15 entitlement to which Ms. Hartmann is entitled as of the contract which
16 pertains to the copyrights that are indicated in the agreement. This is
17 effectively the money she receives from the sales and for each individual
18 sales on the book. The copyright in English, as you said, is not quite
19 accurate in that respect.
20 Q. But may I clarify, perhaps, Mr. Kermarrec, with you, and I think
21 you've said it, but at this stage would it be correct to suggest that
22 Ms. Hartmann is actually in debt, vis-a-vis Flammarion, for approximately
23 10.000 Euro? Would that be correct?
24 A. Yes, correct.
25 Q. And perhaps to clear this issue, is that information which at any
1 stage you communicated to the Prosecutor, Mr. MacFarlane?
2 A. To be honest, I don't really remember.
3 Q. And you've indicated, I believe, to my colleague that the book
4 continues to sell; is that correct?
5 A. Yes, the book is still on sale, yes.
6 Q. And are you aware of any effort or any request on the part of the
7 Prosecution to stop or prevent the sale of this book? Are you aware of
8 any such effort on his part?
9 A. No.
10 Q. You've also discussed the process of negotiation that took place
11 between Ms. Hartmann and your company, Flammarion. I would like to ask
12 you this: At the time when you entered into an agreement with
13 Ms. Hartmann, did you know of Ms. Hartmann as a trustworthy and reliable
15 A. Yes, correct. Given her records, her resume, and since she had
16 been working as a journalist for one of the largest French newspapers, we
17 considered her experience to consider that she was an author trustworthy
18 to be reliable that could be published by Flammarion.
19 Q. And was her journalistic experience and her journalistic
20 reputation at all relevant to your decision to enter into an agreement
21 with her?
22 A. Yes, indeed.
23 Q. And would it be fair to say that in view of the fact that you,
24 Flammarion, decided to publish Ms. Hartmann's book, you were satisfied
25 with the journalistic work, the quality of the book that had been
1 produced by Ms. Hartmann; is that correct?
2 A. Yes, we feel that, in Flammarion, that this is a book of a
3 certain quality.
4 Q. And do you have any reason to believe, Mr. Kermarrec, that the
5 book contained anything that is inaccurate?
6 A. No.
7 Q. And do you have any reason to believe that it contains anything
8 false or untrue?
9 A. No.
10 Q. Do you have any reason to believe that Ms. Hartmann wrote that
11 book in anything other than plain good faith?
12 A. Absolutely not.
13 Q. And at the time of publishing this book, did you have any reason
14 to believe that the book contained material, which, at the time of
15 publication, was still protected by confidential orders, the disclosure
16 of which could have criminal consequences? Did you have any reason to
17 believe this was the case?
18 A. No.
19 Q. And do you have any reason to believe that Ms. Hartmann would
20 have tried to mislead Flammarion as to the content of her book?
21 A. No, I don't think so either.
22 Q. And in light of the good name and reputation that you've said you
23 were aware of, the good name and reputation of Ms. Hartmann, do you have
24 any reason to believe that Ms. Hartmann hid from her publisher,
25 Flammarion, that the book contained contemptuous material or material
1 that should not be discussed publicly? Do you have any reason to believe
3 JUDGE MOLOTO: You've asked that question, and it's been
4 answered, sir.
5 THE WITNESS: [Interpretation] Not that I know of.
6 MR. METTRAUX: I'm grateful. Your Honour, this is all the
7 questions. Thank you very much.
8 JUDGE MOLOTO: Thank you very much.
9 Just at the stage before I call on you, Mr. MacFarlane, the point
10 I want to make to both parties: You've been talking about an agreement
11 and talking about a book, both of which are not in evidence yet. I don't
12 know what's going to be the possible position with these books and these
14 You can re-examine the witness now.
15 [Trial Chamber and legal officer confer]
16 JUDGE MOLOTO: Sorry, Mr. MacFarlane, it looks like Judge Guney
17 has a question to raise.
18 Questioned by the Court:
19 JUDGE GUNEY: [Interpretation] Witness, could you please help me
20 in clarifying a point. I would like to know whether you took part in the
21 negotiations regarding the publishing agreement or the publishing of this
23 A. Personally, not, no.
24 JUDGE GUNEY: [Interpretation] Are you a signatory to this
1 A. No, I'm not a signatory to this agreement.
2 JUDGE GUNEY: [Interpretation] So you followed this matter?
3 A. I started following up this matter where -- at the point where
4 there was some legal requests that were made.
5 JUDGE GUNEY: [Interpretation] And are you still involved in this
7 A. Yes, especially as a witness today.
8 JUDGE GUNEY: [Interpretation] Thank you very much.
9 Re-examination by Mr. MacFarlane:
10 Q. My first question is in relation to the publishing agreement or
11 contract, which is Exhibit P8 in these proceedings, and I believe you
12 have a copy in your file as well. My question is this: There is a
13 reference a moment ago to royalties and copyright, and possible overlap.
14 I direct your attention to Article 5(A), which appears to make reference
15 to copyright as a separate issue.
16 MR. METTRAUX: Your Honour, could the Prosecutor indicate perhaps
17 what sentence he is referring to. That would be of assistance.
18 JUDGE MOLOTO: Mr. MacFarlane, are you able to come to the
19 assistance of your learned friend?
20 MR. MacFARLANE: Yes, thank you, Your Honour. It's in the second
21 paragraph of sub (A). In English, it reads:
22 "If the author has not received advance payment for copyright,
23 she shall be paid 305 Euros accordingly."
24 THE WITNESS: [Interpretation] I would just like to point out --
25 if you allow me, I would just like to point out, if you allow me, that
1 this article is talking about a case where the publisher would not
2 publish the book in question. Since the book was published, this is
4 MR. MacFARLANE: Thank you. Thank you for clarifying that.
5 Q. As well, my learned friend, in his questions to you, asked you if
6 you had any reason to believe that there is any inaccuracy in the book,
7 and you indicated, "No"; is that correct?
8 A. Yes, indeed.
9 Q. My question is this: Does Flammarion investigate whether or not
10 there are any inaccuracies or do you rely on the author?
11 A. We rely on the author, and the publishing house is not there to
12 rewrite or to do a job that has been done by the author over again. The
13 relationship between the publishing house and the author is a trusted
14 relationship, which means that if we have any doubt or any indications,
15 and it was not the case with Ms. Hartmann, then, of course, we could ask
16 to double-check or we could ask for additional information from the
18 Q. Similarly, my learned friend asked you whether or not you had any
19 reason to believe that there is confidential information or inappropriate
20 information in the book. Is your position essentially the same thing,
21 that Flammarion doesn't actively investigate that, but rather relies on
22 the author?
23 A. Yes, indeed, that's the case.
24 MR. MacFARLANE: Thank you. No further questions.
25 JUDGE MOLOTO: Thank you very much, Mr. MacFarlane.
1 Any questions, Judge?
2 Mr. Mettraux, I note that Judge Guney asked questions after you
3 had finished your cross-examination. Do you have any questions arising
4 from the questions by him?
5 MR. METTRAUX: None, Your Honour, but I'm grateful.
6 JUDGE MOLOTO: Thank you very much.
7 In that case, thank you very much, Mr. Kermarrec. That brings us
8 to the conclusion of your testimony. You are now excused. You may stand
9 down. Please travel well back home. Thank you so much.
10 [The witness withdrew]
11 JUDGE MOLOTO: Mr. MacFarlane.
12 MR. MacFARLANE: Thank you, Your Honour.
13 The next witness on behalf of the Prosecution is Robin Vincent.
14 JUDGE MOLOTO: I'm sorry, Mr. MacFarlane. I know that -- it has
15 come to my notice that, in fact, these documents are already in evidence.
16 I'm sorry about my comment.
17 MR. MacFARLANE: That's fine. Thank you, Your Honour.
18 JUDGE MOLOTO: Are you sure your witness is here?
19 MR. MacFARLANE: I was just wondering the same thing myself. I
20 have every reason to believe that the witness will be here. I assume he
21 was in another part of the building and was waiting.
22 JUDGE MOLOTO: Okay. Thank you, Mr. MacFarlane.
23 [The witness entered court]
24 JUDGE MOLOTO: Good afternoon, sir.
25 THE WITNESS: Good afternoon, Your Honours.
1 JUDGE MOLOTO: Would you please make the declaration.
2 THE WITNESS: I solemnly declare that I will speak the truth, the
3 whole truth, and nothing but the truth.
4 WITNESS: ROBIN VINCENT.
5 JUDGE MOLOTO: Thank you. You may be seated, and make yourself
7 Mr. MacFarlane.
8 MR. MacFARLANE: Thank you, Your Honours.
9 One preliminary issue. The evidence will demonstrate that
10 Mr. Vincent is presently the Registrar for the Special Tribunal for
12 wanted to advise the Chamber that that issue has been addressed by me,
13 and I have provided copies of correspondence to my learned friend.
14 The -- as a result of an exchange of correspondence, the Assistant
15 Secretary-General for Legal Affairs, on behalf of the Secretary-General,
16 has waived Mr. Vincent's immunity from legal process by a letter dated
17 the 6th of January, 2009. I have a copy of that letter, if either my
18 learned friend or the Chamber feels that it ought to be a part of the
19 record, but my friend has a copy and has had a copy for quite some time.
20 MR. KHAN: Your Honour, if it's of any assistance, Mr. Vincent is
21 well known, I believe, to everybody in the courtroom, and what my learned
22 friend has said regarding the waiver of immunity accurately portrays the
23 situation, and the Defence is not contending or contesting that averment.
24 JUDGE MOLOTO: Thank you, Mr. Khan.
25 It's up to you. I don't think the Chamber necessarily wants the
1 document to be tendered into evidence, but you decide.
2 MR. MacFARLANE: It seems to me that a notation on the record is
3 sufficient, so I'm not intending to tender the letter. Thank you very
4 much for the opportunity.
5 JUDGE MOLOTO: Thank you very much.
6 Examination by Mr. MacFarlane:
7 Q. Mr. Vincent, I understand that you are presently the Registrar
8 for the Special Tribunal for Lebanon
9 A. That's correct.
10 Q. And I understand that you have previously worked within other
11 international criminal tribunals and as well within court services in the
12 United Kingdom; is that correct?
13 A. That's correct.
14 Q. Could you briefly outline your experience in that respect?
15 A. Very briefly, yes, 39 years in the Court Service for England
17 the UN invited me to become the Registrar for the Special Court for
18 Sierra Leone, where I was for three and a half years. And then
19 subsequent to that a number of posts, again at the request of the
20 United Nations, either at the Cambodian courts and the then various kind
21 of undertakings, including a five-month spell here at ICTY as the acting
22 Deputy Registrar. And then subsequently for the last two years, I've
23 been involved in the establishment of the Special Tribunal for Lebanon
24 Q. Thank you for that, Mr. Vincent. I just have a couple of
25 questions based on your hands-on, in-the-field experience, and they
1 relate to the question of protective measures.
2 Can you describe to the Chamber the most common scenarios in
3 which protective measures are seen as necessary and the circumstances
4 that most commonly give rise to an application for protective measures?
5 A. Well, most commonly, in my experience, it's when it's the
6 involvement of protection of the giving of evidence by witnesses.
7 Protective measures are not infrequent; in fact, probably very much in
8 the majority, insofar as many of the war crimes tribunals are concerned.
9 In international jurisdiction, it happens to be less frequent, but, still
10 again, protective measures are frequently required so far as witnesses
11 are concerned.
12 Since I've been involved in the international scene, then, of
13 course, and again with my brief experience here in the Yugoslav Tribunal,
14 but also with Sierra Leone as well, there have been occasions when, of
15 course, protective measures, so far as confidentiality, in terms of
16 states are concerned; or, indeed, information which is coming from
17 outside, an individual witness or perhaps from a body or an organisation.
18 Q. I direct your attention, in particular, to the last scenario you
19 described, and that is involving information from a state. Can you
20 describe, for the benefit of the Chamber, your experience or your
21 understanding with respect to the implications of the improper disclosure
22 of state information in situations where there have been protective
24 A. Well, I have to say immediately that my experience is far greater
25 so far as protected witnesses are concerned, but I do have some
1 experience so far as states are concerned. And putting it very, very --
2 I hope simply very bluntly is the fact that tribunals in the
3 international scene, and indeed the Lebanon Tribunal, which I am involved
4 in at the moment, faces a significant challenge in terms of the level of
5 cooperation that these tribunals can get from states in a number of
6 regards. And what I would say is that it's, I think, fairly obvious that
7 if there is any lack of confidence in the tribunal, so far as the state
8 is concerned that's in a position to provide evidence which is crucial to
9 that particular tribunal, once its recognised that there has been or may
10 well be dangers of breaches, then it's unlikely that the cooperation that
11 tribunal seeks will actually be forthcoming.
12 MR. MacFARLANE: Thank you. No further questions.
13 JUDGE MOLOTO: Mr. Khan.
14 Cross-examination by Mr. Khan:
15 Q. Mr. Vincent, good morning.
16 A. Good morning.
17 Q. It is still the morning. Is it correct, in your experience, that
18 there is a whole range of -- is it correct, in your experience, that a
19 mere breach of a confidential order need not give rise to harm, to any
20 prejudice to the administration of justice?
21 A. I have to say I'm interested in the description of a mere breach.
22 Have I -- do I have experience of situations where there has been, as a
23 result of an administrative error or because perhaps the identity of a
24 witness has become known, has there been a cataclysmic impact so far as
25 that tribunal is concerned? No. I have experience of that, but
1 certainly it's something which every tribunal/court, whether it's
2 national or international, would seek to avoid. So I think every such
3 instance of that does, in itself, have some impact. And I think if there
4 is a situation where, for instance, a tribunal was seen from the outside
5 world as consistently or at any stage being perhaps prone to breaches of
6 confidentiality, I think it does have a serious impact on that
7 organisation. But it has happened in the past with -- I certainly can
8 think of a couple of instances where witnesses -- confidentiality of
9 witnesses has been breached, once deliberately, I can remember in
10 Sierra Leone, and on a couple of occasions accidentally. It doesn't
11 actually enhance the reputation of the tribunal, and it certainly can
12 cause difficulties for the future.
13 Q. Indeed. And is it correct that often courts, for example, such
14 as the Special Court for Sierra Leone, based as it is in the conflict or
15 the former conflict zone, in those courts, as well as this Tribunal and
16 at the Lebanon Tribunal, the issue of witness protection is the --
17 perhaps one of the most vexing questions that is faced regarding
18 confidentiality; that's one of the issues that is of the most critical
19 importance? Would you agree with that?
20 A. I would certainly agree. Whether it's vexing, it's certainly
21 challenging. And it's something which is crucial to that particular
22 institution, especially if there are any concerns from those who may find
23 themselves being asked to give evidence.
24 Q. And, of course, the reason it is vexing or challenging is because
25 of the most direct consequences that could take place to a witness
1 should, for example, his or her name be revealed?
2 A. Yes, that's correct, and I think the -- if I could add, is that,
3 of course, the issue frequently is - and I mentioned Sierra Leone
4 example - is if the breach of confidentiality, so far as a witness is
5 concerned, is seen to be deliberate, then of course that's a completely,
6 wholly different ball game to one where there is an inadvertence
7 administrative error.
8 Q. Yes. But in answer to my question, the reason why it's of most
9 direct interest is because of the possible consequences of a breach to a
10 human being?
11 A. Certainly, so far as witnesses are concerned, yes.
12 MR. KHAN: Now, perhaps if the witness can be shown, I think --
13 has the document been distributed from Sierra Leone? Just one moment.
14 Mr. Vincent, it's not in that binder, the first document. It's a
15 later edition. To the Judges first, please.
16 JUDGE MOLOTO: Mr. Usher, I guess before you give the witness
17 that document, you must pass it by his learned colleague. Thank you.
18 MR. KHAN: Your Honour, there are copies, of course, for my
19 learned friend, for the Registry, and for Your Honours. I hope they'll
20 be distributed.
21 Your Honour, if my learned friend has seen it, may the copy be
22 handed to the witness, with your leave?
23 JUDGE MOLOTO: Mr. MacFarlane?
24 MR. MacFARLANE: I am seeing it and reading it for the first
25 time. There has not been any discussions --
1 JUDGE MOLOTO: Do you know what you are reading, because I've got
2 several pages which are flagged. I am not sure which of these documents
3 has been given to the witness or is he receiving all?
4 MR. KHAN: Your Honour, they are identical bundles.
5 JUDGE MOLOTO: Okay.
6 MR. MacFARLANE: I have -- a number are flagged on the material I
7 have, but I -- this is the first time I've seen it. I have no idea what
8 the contents are.
9 MR. KHAN: Well, Your Honour, if my learned friend is patient, he
10 will get to the documents in a moment. This is, of course,
11 cross-examination. For the time being, all I'm asking is if the document
12 that my learned friend has, if he is content, it is the same document I
13 am seeking to show to the witness. That's the limit of what I'm seeking
14 to do at this juncture.
15 JUDGE MOLOTO: That is the limit of my question to you, Mr. --
16 MR. MacFARLANE: I have a document with four flags on it and a
17 yellow sticky, and that's what I have.
18 JUDGE MOLOTO: Thank you very much, sir.
19 You may proceed, Mr. Khan.
20 MR. KHAN: Mr. President, I'm most obliged.
21 Q. Mr. Vincent, if you can peruse those documents for a moment.
22 They are very short. There's four tabs. The first, details, Rule 52 and
23 53 of the Special Court for Sierra Leone, Rules and Procedure of
24 Evidence. Are you familiar with those Rules?
25 A. Yes, I am.
1 Q. And at tab 2, you will see the date the 7th of March, 2003
2 decision by Judge Bankole Thompson, approving the indictment and ordering
3 non-disclosure in relation to the case against Charles Ghankay Taylor.
4 Do you see that?
5 A. I do, yes.
6 Q. And, no doubt, you will see at tab 2 your name, detailed as the
8 A. That's correct.
9 Q. And you were the Registrar on the 7th of March, 2003, were you
11 A. I was, yes.
12 Q. And at -- you will see on the decision dated the 7th of March
13 that His Honour Judge Thompson -- [French spoken on English channel]
14 JUDGE MOLOTO: I'm sorry, Mr. Khan, suddenly we are getting the
15 French translation through what is supposed to be an English channel.
16 MR. KHAN: Well, Your Honour, perhaps that will --
17 JUDGE MOLOTO: Hold on, Mr. Khan. Let the technical people sort
18 it out for us.
19 Madam Registrar? It is okay now?
20 Thank you. You may proceed, Mr. Khan.
21 MR. KHAN: Your Honour, I was going to say if it is -- if I was
22 being translated into French, I lived in the hope that I would come
23 across somewhat more eloquently than I do at the moment.
24 Q. Mr. Vincent, if you can look at, first of all, Rule 53, and if
25 you look at paragraph B of that Rule, can you see it detailed, as a
1 Rule for the Court of which you were the Registrar, that when approving
2 an indictment, the designated Judge may, on application of the
3 Prosecutor, order there be no disclosure of the indictment until it is
4 served on the accused, or in the case of a joint accused, all of the
5 accused? Do you see that?
6 A. I do see it, yes.
7 Q. I'm grateful. And if you could turn over the page to tab 2, and
8 that's the 7th of March decision. And on the page, the penultimate
9 paragraph, above Judge Bankole Thompson's signature, you will see that
10 the learned Judge, seized of that matter in that Court, ordered that the
11 indictment, the warrant of arrest, and the transfer and detention, remain
12 confidential until further order; do you see that?
13 A. I see that, yes.
14 Q. Now, if you can turn over the page again, you will see a press
15 statement from the Prosecutor of the Special Court for Sierra Leone
16 then Prosecutor, Mr. David Crane. Do you see that press release dated
17 the 4th of June?
18 A. I do, yes.
19 Q. And would you agree with me, after perusing it, that Prosecutor
20 David Crane made public the fact that an indictment had been issued? Can
21 you see that?
22 A. I can, yes.
23 Q. And the date is the 4th of June?
24 A. It is, yes.
25 Q. If you can turn the tab once more, can you see a decision of
1 Judge Pierre Boutet, dated the 12th of June, 2003?
2 A. Yes, I can.
3 Q. And that's an order for the disclosure of the indictment, the
4 warrant of arrest, and the order for transfer and detention, and the
5 decision approving the indictment, an order for non-disclosure; is that
7 A. That's right, yes.
8 Q. And you'll see once again in the penultimate paragraph that
9 learned Judge ordered, on the 12th of June, that the indictment and the
10 warrant be made public; is that right?
11 A. That's right, yes.
12 Q. Would I be correct in understanding or would you agree with me
13 that the only -- or a reasonable conclusion for David Crane's going
14 public on the 4th of June, 2003, that an indictment had been issued and a
15 warrant obtained, was that as the applicant for those protective
16 measures, it was considered he could make that fact public without a
17 direct court order? Would you agree with that conclusion?
18 A. Certainly, in the circumstances of this particular case, that was
19 the view that was taken, yes.
20 Q. I'm grateful. Now, if you could go to tab 12 of the file. And
21 just one moment. I should ask : There was never at any stage any
22 allegations of contempt against Mr. David Crane, was there, for going
23 public on the indictment?
24 A. No, there wasn't, but certainly there were -- there were,
25 I think, seen to be extenuating circumstances so far as that particular
1 action was concerned. And he was an officer of the court.
2 I'm sorry, tab 12?
3 Q. Yes. And garbed as David Crane was with the role of high office,
4 being the Prosecutor, did that give him some particular special
5 authorities in relation to an order of the judiciary that a member of the
6 public would not enjoy? Is that what you're saying, Mr. Vincent?
7 A. What I'm saying is, is that as I recall the circumstances, that
8 the opportunity for the indictment to be served, and other details,
9 presented itself unexpectedly and very late around that time. I can't be
10 precise whether it was the 3rd of June or the 4th of June, but certainly
11 as will you will probably know, that was on the information having been
12 provided to the Prosecutor that the person, the subject of the indictment
13 and the arrest warrant, had, in fact, for the first time left his own
14 country, and the Prosecutor felt that he had to act in the best
15 interests. What contact he had -- emergency contact he had with the
16 Judge of the Trial Chamber, I was not aware, but I was instructed to
17 serve the papers on the respective diplomatic officials that evening and
18 the following morning to coincide with the person who was subject to that
19 order arriving in a car.
20 Q. Mr. Vincent, I don't want to delay you too long. I'm not asking
21 you about your own conduct, and forgive me if I wasn't clear. Let me go
22 back to the question.
23 Is it your contention to Their Honours that the official position
24 of an individual as a Prosecutor gives him particular rights, vis-a-vis
25 orders of the Bench, that members of the public do not enjoy? Is that
1 your contention, yes or no?
2 A. Certainly. Can I say straightaway that I wasn't attempting to
3 defend my conduct. The situation was that in the circumstances, I
4 believed that he had the authority to do that, in the particular
5 circumstances, in the best interests of justice.
6 Q. Yes. And one of the reasons motivating you to that conclusion,
7 perhaps, is the fact that as the applicant for those protective measures,
8 he could decide that those measures were no longer necessary, albeit in
9 the interests of - how did you put it - in the interest -- in the best
10 interests of justice?
11 A. Yes.
12 Q. Can we go to tab 12, please.
13 A. I'm at tab 12, yes.
14 Q. Can you see that document? It's a CNN news report.
15 A. Yes.
16 Q. And can you see that CNN's Christiane Amanpour stated that:
17 "An indictment in relation to Slobodan Milosevic is likely to be
18 handed down this week, perhaps as early as Thursday. Details on the
19 indictment are not available. Other people may be named. The Tribunal
20 would not comment on the report?"
21 Do you have any knowledge of the Milosevic case?
22 A. Only that which I picked up from press reports and also somewhat
23 belatedly after I was here for five months.
24 Q. And would it be a fair conclusion, from reading this report, that
25 perhaps Christiane Amanpour made public that an indictment was imminent
1 before the indictment had been publicly made available by the Court? Is
2 that a fair reading of the news report?
3 A. With respect, no, I don't think it is. I think it's pure
4 speculation, and speculation is rife around all the international courts
5 and tribunals. And I think for every press release that you will show
6 me, I could probably give you 10 or 15 which happens around the
7 Lebanon Tribunal in the last three months, none of which have had any
8 factual base or accuracy, but have been pure speculation.
9 Q. Well, bear with me for a moment. You see the second paragraph --
10 are you familiar with Christiane Amanpour in your work as Registrar of
11 various courts?
12 A. Yes, I have met her, yes.
13 Q. Would it be fair to say that she is one of the most
14 well-respected commentators on the news media?
15 A. I think that's a fair assessment, yes.
16 Q. She's not an individual given for wild conjecture, is she, in
17 your experience?
18 A. No. But with experience, of course, comes, perhaps, a better
19 understanding of the events within tribunals. But with the greatest of
20 respect, whether she is experienced or otherwise, my reading of this is
21 it's speculation. I mean, the word "likely" gives that away, I think.
22 Q. Yes. And if you see in paragraph 2, the speculation seems to be
23 quite specific, because she states that the indictment is likely to be
24 handed -- "is likely to be handed down this week, perhaps as early as
1 A. Yes.
2 Q. It's quite specific speculation, is it not?
3 A. Well, speculation comes in a series of forms, but "likely" is
4 still, as far as I'm concerned, the word that actually controls all that.
5 Q. Yes. And if I told you that the indictment, indeed, did come
6 down, was made public in that week, would you think perhaps that it would
7 make the report accurate, would it not?
8 A. It certainly would do, but as I understand, tribunals don't
9 normally go through a series where they look at speculation and then tick
10 a box whether it's right or wrong. I suspect that probably, in your
11 distinguished career, you'll come across many such press reports which
12 have subsequently disappeared and sunk without trace and have never
13 proved to be true.
14 Q. But in this particular case, in this particular case, if you had
15 been the Registrar at the time, would any alarm bells have sounded from
16 this report?
17 A. If I had been Registrar at the time, one is always concerned
18 about speculation if it appears from your knowledge to have some basis of
19 truth, but the situation is, as I say, again based on my experience, I
20 have reached the stage where I have become, to a certain extent, somewhat
21 kind of cynical with reporting from the press in a number of respects, so
22 you read it as it is. I think if there is -- if there was details which
23 actually talked about names, events, et cetera, then I would be concerned
24 that there would have been a breach of confidentiality, and I would have
25 perhaps looked internally to see where it might have come from.
1 Q. And you can see, of course, in the first paragraph the name
2 Slobodan Milosevic is mentioned; you can see that, can you not?
3 A. Yes.
4 Q. If you go to the second page, it's another CNN news report, and
5 it states much the same thing, but what it adds is that the Tribunal
6 would not comment on the report, but would hold a news conference "on
8 A. Yes.
9 Q. And it gives these details. So these types of reports were
10 commonplace; is that right?
11 A. Yes. I think they are in my experience of all the tribunals,
12 there is a -- there is a huge -- and it's a phrase I'm not sure exactly
13 that it covers the issue, but known as the "feeding frenzy," so far as
14 the press are concerned. And there is always a significant amount of
15 speculation, but there is in life generally, and just eventually somebody
16 gets it right.
17 Q. Yes. So you think with Christiane Amanpour, it was just potluck?
18 A. No, I don't think it's potluck, but, I mean, you, yourself,
19 referred to her experience, and that is why she's respected. I mean, she
20 certainly has a significant understanding amongst the international press
21 of events, and so, therefore, it's not unusual sometimes that things --
22 people can put 2 and 2 together and actually make 4 or 5, and so, no, it
23 doesn't come as any surprise to me, and it's fairly commonplace in these
25 Q. And, of course, being a fair individual, and, of course, as
1 Registrar you're known as being fair between the parties, in that
2 capacity and the capacity, of course, as a witness, would you agree that
3 it is in the interests of the various courts that you have worked in for
4 there to be proper discussion, debate, and critiquing of the work of
5 these various international legal institutions that you would not wish to
7 A. I could not agree with you more. I think it's incredibly
8 important that the work of these tribunals is transparent, and I think
9 it's the job of the Registrar, who is normally given the responsibility
10 so far as outreach and present public affairs is concerned, is that he or
11 she does their utmost to see that that happens. However, there is a very
12 definite line between that and the discussion, through outreach, or
13 through present public affairs, or any other medium, so far as decisions
14 of the Trial Chamber is concerned or Appeals Chamber. Judicial process
15 is something which has to be respected by the Registry and, indeed, all
17 Q. If you can turn to tab 31.
18 And, Your Honour, while the witness is turning to that, I did
19 intimate, at the outset, there is a large number of documents. I'm not
20 going to take Mr. Vincent's time or, more importantly, Your Honours' to
21 go through each of those documents; but in the end, I will seek to tender
22 all of them, the documents detailed in this section, from the Bar table.
23 Mr. Vincent, you see the tab 31. It's a decision of the then
24 President of this Tribunal, Judge Pocar, dated the 27th of April, 2007
25 A. Yes, I do.
1 Q. I'm most grateful. And if you'd turn the page, can you see the
2 second paragraph?
3 A. Yes, I can, starting: "Noting the decision ."
4 Q. Yes. Can you read that, please?
5 A. "Noting the decision on request of Serbia and Montenegro
6 review of the Trial Chamber's decision of 6 December 2005, rendered
7 confidentially by the Appeals Chamber on 6 April 2006."
8 Q. I'm most grateful. Working in these various courts, there's
9 nothing unusual, is there, about various Chambers referring to the
10 existence of various confidential decisions in their filings, in their
11 public filings, I should add?
12 A. It's not unusual, no.
13 Q. And you see there that from these two lines from
14 President Pocar's decision, his order, that you see who the applicant was
15 in that case; it's Serbia
16 A. It is, yes.
17 Q. You see that a decision is filed confidentially; is that right?
18 A. That's right, yes.
19 Q. And you see the date of the decision being the 6th of April,
21 A. Yes, I do.
22 Q. And that, sir, wouldn't have raised any eyebrows in your time
23 when you were the Registrar?
24 A. It's very much a matter for judicial discretion. I mean, it's an
25 order -- it's an order of the Chamber. Presumably the wording of the
1 order was something that was revealed to the Registrar at some stage, and
2 if the Registrar felt, in this particular case or any particular case,
3 that there was perhaps some advice that he or she could give, or perhaps
4 a comment on that, it would be a matter for the Registrar. I have to say
5 again, from my experience, is that this is not the first document I've
6 seen where such a confidential decision has been referred to, but then
7 again I can remember occasions when, in fact, a Chamber has avoided, for
8 some particular reason, making reference to a confidential decision that
9 was rendered. I can't speak as to the backgrounds of this.
10 Q. No, I'm not asking you to, I'm not asking you to at all, so
11 forgive me if I was misleading. What I'm trying to say is: From your
12 understanding and experience, a Bench can best determine -- or a judge of
13 these courts can best determine how to handle a confidential decision;
14 would you agree with that?
15 A. I would have thought that's the ultimate situation, yes.
16 Q. And the status of a confidential decision can be varied by a
17 judge in a number of ways; would you agree with that?
18 A. Yes.
19 Q. If you can turn to tab 32, I'd be most grateful. And once there,
20 if you can see the cover page, this is a public decision of the
21 Appeals Chamber of this Court, dated the 12th of May, 2006 --
22 A. Yes.
23 Q. -- in the Milutinovic case. And it's a decision on the request
24 of the United States of America for review.
25 A. Yes.
1 Q. Is that correct?
2 A. That's correct.
3 Q. Now, if you would be so good as to go to paragraph 6.
4 A. Yes.
5 Q. And if you go to -- well, go over the page first to footnote --
6 to footnote 7.
7 A. I'm struggling to find footnote 7, if we're still looking at
8 paragraph 6. I have --
9 JUDGE MOLOTO: It will be on page 3, sir.
10 MR. KHAN: Yes.
11 JUDGE MOLOTO: Page 3 of that decision.
12 THE WITNESS: Your Honour, thank you. Yes, I'm with that.
13 MR. KHAN:
14 Q. Can you see there, in footnote 7 on page 3, that reference is
15 made to a Milosevic decision of the 6th of April, 2006?
16 A. Yes, I can.
17 Q. And this is in the same public filing that we were talking about
18 a moment ago?
19 A. Yes, yes.
20 Q. Now, at this juncture, if you could turn to page 4, and if
21 briefly you can peruse -- just glance at footnote 14, 15, 16, 17, 20, 66,
22 78, 79. Would I be correct in saying that those refer to Milosevic
23 decisions of that date?
24 A. It certainly appears so, yes.
25 Q. And if I told you that those decisions were confidential, you
1 wouldn't think reference to the existence of that jurisprudence was
2 anomolous in that public filing?
3 A. Yes, can I just be entirely sure that which you're putting to me,
4 Mr. Khan, is that we are -- are you saying that all these footnotes refer
5 to the same decision?
6 Q. All these footnotes relate to Milosevic decisions.
7 A. To Milosevic decisions, not to the one of 2006 alone?
8 Q. No.
9 A. Okay, fine. I'm with you now. Thank you. I've spotted one for
10 2005, yes.
11 JUDGE MOLOTO: If you could just be clear, sir, are you
12 suggesting, Mr. Khan, by any chance, that those footnotes reveal
14 MR. KHAN: Your Honour, they reveal the existence of confidential
15 decisions, including the names, as I've mentioned, in relation to the
16 earlier document, the names of the applicants, the date, the decision,
17 and the fact that it's confidential. And as mentioned in the opening,
18 these are part of the allegations that are raised against my client in
19 support of the contempt charge that she faces.
20 JUDGE MOLOTO: For the sake of expediency, could you just limit
21 yourself to the question that's put to you? I was just asking you: Are
22 you suggesting that those footnotes reveal the jurisprudence, any
24 MR. KHAN: Yes, Your Honour. The existence of cases are part of
25 the jurisprudence of the Court.
1 JUDGE MOLOTO: Thank you very much. Thank you. Thank you.
2 MR. KHAN:
3 Q. Mr. Vincent, if you could be so good as to go to -- well, I think
4 jump to tab 35.
5 A. Yes, I'm with you.
6 Q. And if you can go to paragraph 12.
7 A. Yes, I'm with 12.
8 Q. And can you say, very briefly, that that paragraph refers to
9 the -- paragraphs 11, in fact, and 12 -- 11 refers to STC documents?
10 A. It does, yes.
11 Q. Paragraph 12 refers to International Court of Justice proceedings
12 that are pending?
13 A. It does, yes.
14 Q. At paragraph 13, the Prosecution submits that Serbia-Montenegro's
15 collateral interest in the ICJ cannot excuse its noncooperation with the
16 production of documents concerning the most serious war crimes in this
17 case? Do you see that?
18 A. That's correct, I see that, yes.
19 Q. You see footnote 16 on page 6. It details some 67 documents
20 provided by Serbia-Montenegro?
21 A. That's correct, yes.
22 Q. And if you go to the cover page, you'll see that that filing by
23 the Prosecution is dated the 20th of May, 2003?
24 A. Yes, that's correct, yes.
11 Page 171 redacted.
8 [Private session]
11 Page 173 redacted. Private session.
4 [Open session]
5 THE REGISTRAR: We're in open session, Your Honours.
6 JUDGE MOLOTO: Thank you so much.
7 Yes, Mr. Khan.
8 MR. KHAN:
9 Q. Mr. Vincent, if you could go to tab 37, you'll see a press
11 A. Yes.
12 Q. This is a press release from the Registry of this Court, is it
14 A. It is, yes.
15 Q. What is the date of this press release?
16 A. 15th of January, 2009.
17 Q. And what is the heading of this press release?
18 A. "Stanislav Galic transferred to Germany to serve sentence."
19 Q. Right. Could you turn the tab, please, to tab 38?
20 A. I have, yes.
21 Q. What is the date of that document?
22 A. It is the 16th of January, 2009.
23 Q. So it's the day after the Registry issued a press release; is
24 that right?
25 A. It is right, yes.
1 Q. And if you go to that -- the second page of that judicial order,
2 it was on the 16th of January that the then President of this Court,
3 Judge Robinson, instructed the Registry to lift the confidential status
4 of the order and to order that it, therefore, be considered public; is
5 that right?
6 A. That's right, yes.
7 Q. If you could --
8 JUDGE MOLOTO: Are you still going to be some time?
9 THE INTERPRETER: Microphone, please.
10 MR. KHAN: I hope to be finished in five minutes.
11 JUDGE MOLOTO: Because it's about time for the next break.
12 MR. KHAN: Your Honour, if you wish to have a break, we can
13 resume afterwards.
14 JUDGE MOLOTO: Thank you very much.
15 We'll take a break and come back at half past 12.00. Court
17 --- Recess taken at 12.02 p.m.
18 --- On resuming at 12.34 p.m.
19 JUDGE MOLOTO: Mr. Khan.
20 MR. KHAN: Mr. President, Your Honours, I'm grateful.
21 Before I resume with Mr. Vincent, may I just read into the record
22 a correction, a corrigendum to the filing that we made this morning, the
23 15th of June, 2009. It's the Defence response to the amicus prosecutor's
24 submission of redacted exhibits, and at paragraph 30, page 10 of that
25 Defence filing, at subparagraph (2), we state that:
1 "Using the mechanism provided for in footnote 25 of its decision
2 of the 19th of May, 2009, the Trial Chamber should be asked to provide
3 clear and candid answers to the three Defence questions."
4 It is, of course, a mistake, and I'm grateful to your senior
5 legal officer for pointing it out to us. I would ask that "Trial
6 Chamber" be deleted, and it should be replaced with "the amicus
7 prosecutor." Your Honour, I just read that into the record. We do not
8 intend to file a written corrigendum, unless Your Honours deem it
10 JUDGE MOLOTO: Thank you, Mr. Khan.
11 MR. KHAN:
12 Q. Mr. Vincent, we were turning, I believe, to tab 40. Can you see
13 that document?
14 A. Yes, I can.
15 Q. It is marked "Confidential," is it not?
16 A. It is, yes.
17 JUDGE MOLOTO: We are not in private session.
18 MR. KHAN: I know.
19 Q. It is marked "Confidential," is it not?
20 A. It is, yes.
21 Q. Are you familiar with the practice direction of the ICTY
22 regarding contempt?
23 A. Not comprehensively, no, but I am -- I'm aware of the background
24 and the outline, yes.
25 Q. Would you take it from me that Article 12 of that practice
1 direction requires that the completed report of the amicus investigator
2 shall be submitted confidentially to the Registrar for all -- for onward
3 transmission to the Chamber?
4 A. I would take it from you, yes.
5 Q. I'm grateful. Turning to tab 41, you will see, no doubt, a
6 public document. It is the order in lieu of indictment on contempt in
7 this case. Can you see that?
8 A. I can, yes.
9 Q. It is dated the 27th of August of 2008; am I right?
10 A. That's right, yes.
11 Q. The specially-appointed Trial Chamber, being presided over by
12 Judge Agius?
13 A. Yes. That's right.
14 Q. If you turn to page 2, looking at paragraph 1, you will see, in
15 the final sentence, that reference is made to the amicus curiae's report;
16 is that right?
17 A. That's right, yes.
18 Q. Would you agree, and this has some cross-over with my earlier
19 questions, that the Bench could decide how, or in what way, or in what
20 manner, it chose to vary any confidential document emanating from this
22 A. As long as it was at that stage within the Rules of Procedure and
23 Evidence agreed by the plenary, I would say yes.
24 Q. And if you could turn over to tab 42.
25 A. Yes.
1 Q. Again, this is a public document, is it not?
2 A. It appears so, yes, it is.
3 Q. Filed on the 1st of December, 2008, in this case, the case
4 against Florence Hartmann; is that right?
5 A. That's right, yes.
6 Q. And if you look at paragraph 1, once again, the Bench, presided
7 over by Judge Agius, refers to the confidential response to the motion
8 that had been filed, so the Prosecution's confidential response is
9 referred to in a public filing? You can see that, can't you?
10 A. Yes, I can, yes.
11 Q. If you go to tab 43 -- can you see that?
12 A. I can, yes.
13 Q. Can you go to paragraph 9 for me, please?
14 A. Yes, I'm there.
15 Q. And can you see that at paragraph 9, the amicus again refers to
16 the confidential report?
17 A. Yes.
18 Q. And if you look at paragraph 17 for me, please, again reference
19 is made to the report, "as was noted in the report," can you see that?
20 And it gives details as to the contents of the report. Can you see that?
21 A. I'm just checking, this is 17, yes, as noted in the report.
22 Q. "No knowing and willful interference with the administration of
23 justice," and it refers to case law on that.
24 A. Yes.
25 Q. Paragraph 19, again reference to the same confidential report?
1 A. Yes.
2 Q. I won't go through all of them. Paragraph 23, you'll see the
3 same reference, [Overlapping speakers] ... detention?
4 A. I'm with you, yes.
5 Q. So, again, the amicus prosecutor in this case is referring to the
6 existence of a report and also alluding to the contents of the report,
7 stating that the report fairly brought to the attention of the Chamber,
8 the Defences, and the points of argument, so on and so forth; you see
10 A. Yes, I do, yes.
11 Q. Would you agree with me that an express decision is not required
12 by a Bench to change the status of a confidential decision?
13 JUDGE MOLOTO: Yes, Mr. MacFarlane.
14 MR. MacFARLANE: Thank you, Your Honours.
15 It seems to me that that's a pivotal question in these
16 proceedings. It involves a question of law, and I submit that the
17 witness ought not to be placed in the position of having to answer that.
18 That's an issue for this Chamber to consider.
19 JUDGE MOLOTO: Mr. --
20 MR. KHAN: Well, Your Honour, it is a pivotal question, and no
21 doubt that's why my learned friend rose to his feet. But in my
22 submission, it's completely consistent with the focus of this witness's
23 testimony. He is explaining, from his accumulated experience in various
24 ad hoc and special courts, what the practice is regarding the filing of
25 documents. My question touches upon the practice of the courts that no
1 doubt my learned friend objects, because his primary contention is that
2 there's a very rigid rule; unless there's an express waiver, an express
3 decision from a Bench or from a single Judge, stating that this
4 particular decision, decision X, Y, or Z, is formally made public, it
5 remains confidential, and the focus of the Defence cross-examination is
6 that no such rule exists; not that it's more honoured in the breach than
7 the observance. No such rule exists.
8 And at the end of the case, once we get to the stage of closing,
9 Your Honours will look at the practice of the Benches of this Court and
10 other courts and will come to the irresistible conclusion that, in fact,
11 Your Honours do vary the nature of decisions for -- on a case-by-case
12 basis, and it's within your discretion. So, Your Honour, it goes to this
13 point that I alluded to in my opening speech, and it is a proper
15 Of course, it's not going to the ultimate issue. That's for
16 Your Honours -- completely in Your Honours' hands at the end of the day.
17 But in my respectful submission, the objection should be summarily
19 JUDGE MOLOTO: Mr. Khan, it is the view of the Chamber that that
20 is the ultimate question to be answered by the Bench, number one.
21 Number two, to the extent that you say -- you ask the witness to
22 tell you whether Benches can make confidential documents public, that
23 question has been asked and answered. The witness said to you a few
24 minutes ago, yes, of course, a Chamber can do that, provided that it is
25 done according to the Rules of Procedure and Evidence. And I'm afraid
1 we'll have to sustain the objection.
2 MR. KHAN: Well, Your Honour, I'll move on. Of course, it went
3 to my original submission that there is this species, very well-practiced
4 species --
5 JUDGE MOLOTO: Sorry. Are you still arguing the objection?
6 MR. KHAN: No, I'm not. I'm, for the record, for the record I'm
7 clarifying --
8 JUDGE MOLOTO: The Chamber has ruled. Move on with your next
10 MR. KHAN: Well, Your Honour, with the greatest of respect, I
11 must, for the sake of the record, for appeal, be allowed to clarify what
12 my response was, lest there be any misunderstanding.
13 JUDGE MOLOTO: The ruling was made on what you said before your
14 clarification. What you have to appeal, if you have to appeal, is the
15 ruling, you can do so and argue your clarification before the
16 Appeal Chamber.
17 MR. KHAN: Your Honour, I will do as instructed.
18 JUDGE MOLOTO: Thank you.
19 MR. KHAN: I will do as instructed.
20 Perhaps the witness can be shown the decision of Prosecutor and
21 Rasim Delic, the 14th of January, 2008, presided over by Your Honour. If
22 that could be distributed, please.
23 Your Honours, I do apologise. It seems that we are one
24 document -- one copy short. I wonder perhaps if one of Your Honours
25 could share for the time being - I do apologise - and we will endeavour
1 to get an additional copy at the next break. I do apologise.
2 Your Honours, I'm most gracious. Thank you.
3 Q. Mr. Vincent, looking at the first page of that document, you will
4 see the Bench, will you not?
5 A. I do indeed, yes.
6 Q. And the Presiding Judge is who?
7 A. Judge Patrick Robinson.
8 Q. Sorry, are you looking at the decision on the motion to vary the
9 decision on the sixth Prosecution motion for the admission of evidence
10 pursuant to Rule 92 bis?
11 A. I'm now looking halfway through the document, yes, and it's in
12 Trial Chamber I, and it's Justice Moloto presiding, yes.
13 Q. And it's dated the 14th of January, is it not --
14 A. It is, yes.
15 Q. -- 2008?
16 A. Yes.
17 Q. And it's a public decision?
18 A. Yes.
19 Q. If you could be so good as to go to page 3.
20 A. Yes.
21 Q. Can you read the third paragraph down, starting with: "Noting"?
22 A. "Noting that according to the jurisprudence, the Chamber has
23 inherent discretionary power to reconsider a" --
24 THE INTERPRETER: Would you please read more slowly.
25 THE WITNESS: I'll start again.
1 MR. KHAN:
2 Q. Yes, please.
3 A. "Noting that according to jurisprudence, the Chamber has inherent
4 discretionary power to reconsider a previous decision when the interests
5 of justice so requires."
6 And there's reference to a footnote.
7 MR. KHAN:
8 Q. And please be so good as to read the footnote, Mr. Vincent.
9 A. The footnote 8 reads:
10 "See Prosecutor re Slobodan Milosevic, confidential decision on
11 request of Serbia
12 decision of 6 December 2005
13 Then reference case number IT-02-54-AR-108 bis, 3-6 April 2006,
14 para 25, FT 40.
15 Q. And it's correct, is it not, that in your reading of this public
16 decision, a confidential decision is relied upon in support of a finding,
17 a public finding of Trial Chamber I; that is a fair assessment, is it
19 A. So it appears, yes.
20 Q. Let's move to the case of Rasim Delic, so a decision -- public
21 decision dated the 23rd of August, 2006. Do you see that?
22 A. I do, yes.
23 Q. Who is presiding, please?
24 A. Judge Patrick Robinson.
25 Q. And can you turn to page 4?
1 A. Yes.
2 Q. And, in fact, if you can start from the last paragraph on page 3
3 and read it, please, starting: "Considering ..."
4 A. "Considering that the criteria for reconsideration have been
5 clearly established by the Appeals Chamber, ruling, that a Chamber --"
6 Q. Sorry, that's a quote, is it?
7 A. Sorry, "... that a Chamber has inherent discretionary power to
8 reconsider a previous interlocutory decision in exceptional cases if," I
9 quote again, "a clear error or reasoning has been demonstrated or if it
10 is necessary to do so to prevent injustice."
11 And then there's a reference to footnote 10.
12 Q. And please be so kind as to read to Their Honours that footnote.
13 A. I'll do my best.
14 JUDGE MOLOTO: Mr. Khan, if you could -- you said the witness
15 must turn to page 4, and I am at page 4 of this decision, and I'm not
16 seeing what he's reading.
17 MR. KHAN: Your Honour, are you looking at the decision of the
18 23rd of August, 2006?
19 JUDGE MOLOTO: That's correct, sir.
20 MR. KHAN: Your Honour, if you go to the top of the page, he
21 started on the last line of page 3: "Considering ..."
22 And Mr. Vincent very kindly continued to the top of page 4 with
23 the quotation.
24 JUDGE MOLOTO: I'm gone to page 4 because you referred to page 4,
25 not page 3, so that's why I didn't see where you were reading.
1 Thank you so much. You may proceed.
2 MR. KHAN: I'm most grateful, Your Honour.
3 JUDGE MOLOTO: Thank you. Okay.
4 Q. Mr. Vincent, if you could read the footnote, please, into the
6 A. Page 4, footnote 10:
7 "Prosecutor v. Milosevic, case number IT-02-54-AR-108 bis 3
8 (confidential), decision on the request of Serbia and Montenegro
9 review of the Trial Chamber's decision of 6 December 2005, 6 April 2006
10 para 25, N40."
11 Q. I'm grateful. Are you aware, Mr. Vincent, that that is the
12 decision that is the subject matter -- one of the decisions that is the
13 subject matter of contempt proceedings against Ms. Hartmann?
14 A. Certainly I'll take your word for that, and certainly the dates
15 do actually bear some resemblance to extracts of publications I've seen,
16 yes. So I would accept that from you.
17 Q. And you would agree with me that very clearly the jurisprudence
18 of the Appeals Chamber in that confidential decision has been referred to
19 in the public decision referred to by Judge -- presided over by
20 Judge Patrick Robinson; that's correct, is it not?
21 A. Well, certainly that decision has been referred to, yes.
22 Q. Yes. That decision and a clear -- you've seen the quotation
23 marks, a clear extract of the jurisprudence; that's right, is it not?
24 A. I wasn't aware of the decision in detail, but again I have to
25 take your word that's it.
1 Q. Well, please don't take my word. From the face of the document,
2 being an experienced court official, it's very clear, is it not,
3 Mr. Vincent, that what the Trial Chamber is doing is referring to the
4 confidential decision of the Appeals Chamber? That's the only possible
5 reading, is it not?
6 A. That's right. The only point I was making was that I'm not
7 familiar with the exact wording of that decision.
8 Q. If you could turn, please, to the case of Perisic, 22nd of
9 September, 2006
10 THE COURT: Where would we find that, Mr. Khan?
11 MR. KHAN: Your Honours should have it. I believe my assistant
12 has handed it up.
13 JUDGE MOLOTO: You've got to tell us the page.
14 MR. KHAN: Your Honours, it is a document dated the 22nd --
15 JUDGE MOLOTO: Yes, sir.
16 MR. KHAN: Your Honour, I'm most grateful for your tolerance and
17 bearing with me.
18 JUDGE MOLOTO: If you could please guide us where to look --
19 MR. KHAN: I will.
20 JUDGE MOLOTO: You've given us this document, you have given us
21 this file, you must tell us where to look. And you have given us this
23 MR. KHAN: I will. Your Honour, I will do my utmost.
24 JUDGE MOLOTO: Okay. To say the Perisic case, I don't know if
25 it's here or here or there.
1 MR. KHAN: Your Honour, I am referring as I made clear at the
2 outset, and forgive me if I didn't, that these are discreet filings that
3 were handed out just after the break, and they constitute three
4 documents --
5 JUDGE MOLOTO: Sure.
6 MR. KHAN: -- this being the final one of those three.
7 Your Honour, I will take it slowly, and I do apologise if there's
8 inconvenience to the Bench.
9 Q. Mr. Vincent, do you have that to hand?
10 A. I do, yes.
11 Q. It's before a Trial Chamber presided over by Judge Robinson; is
12 that correct?
13 A. That's right, yes.
14 Q. Dated the 22nd of September, 2006?
15 A. Yes.
16 Q. In the Perisic case?
17 A. Yes.
18 Q. And it's entitled: "An Order on the Applicant's Renewed Motion
19 Seeking Access to Confidential Material in the Milosevic Case," with
20 annex A; is that correct?
21 A. That's correct.
22 Q. If you could be so good as to turn to page 2.
23 A. Yes.
24 Q. Can you see the noting in the penultimate paragraph?
25 A. Yes, I can.
1 Q. Could you be so kind, once again, to read that?
2 A. Starting with the word: "Noting."
3 Q. Please.
4 A. "Noting the legal standard for reconsideration of a decision that
5 has been established in the jurisprudence of the Tribunal as follows:"
6 Then in brackets:
7 "A. The Chamber has inherent discretionary power to reconsider a
8 previous interlocutory decision in exceptional cases," and then in
9 quotes, "if a clear error of reasoning has been demonstrated or if it is
10 needed to do so to prevent injustice."
11 And then a footnote 3 is referred to.
12 Q. And please read into the record footnote 3, please.
13 A. Footnote 3 reads:
14 "C. Prosecutor v. Milosevic, case number IT-02-54-AR 108 bis 3,
15 confidential decision on request of Serbia and Montenegro
16 the Trial Chamber's decision of 6 December 2005, para 25, note 40."
17 Then in brackets, quoting [Overlapping speakers] --
18 Q. That's fine.
19 A. That's fine, thanks.
20 Q. I think that's more than enough. Thank you for that.
21 Once again, is it not patently obvious, Mr. Vincent, that in this
22 public filing of the Trial Chamber in the Perisic case, they are
23 referring not only to the existence of a confidential decision, but the
24 jurisprudence of the confidential decision in the Milosevic case?
25 A. It certainly appears to be part of that jurisprudence, yes.
1 Q. Yes.
2 A. It's an extract.
3 Q. Yes, of the jurisprudence, on the face, that was rendered by the
4 Appeals Chamber of this Court on the 6th of December, 2005?
5 A. It appears so, yes.
6 Q. Yes. In all these cases, an application to do with protective
7 measures sought by Serbia
8 A. That's right, yes.
9 Q. Has it come to your attention, being a very senior court official
10 in the various courts, whether or not Serbia has ever complained about
11 these confidential parts of the jurisprudence being made public?
12 JUDGE MOLOTO: Mr. Khan, where in that footnote 3 is there a
13 reference to Serbia
14 MR. KHAN: Your Honour, in that decision -- Your Honour, in that
15 decision --
16 JUDGE MOLOTO: No, in that footnote. I'm asking you about the
18 MR. KHAN: Confidential decision on the request of Serbia
20 December, 2005.
21 JUDGE MOLOTO: Right.
22 MR. KHAN: So it's very clear it has to do with a request by
24 JUDGE MOLOTO: For the review of a decision, that's all.
25 MR. KHAN: Indeed, indeed.
1 Q. And they are confidential decisions, of course?
2 A. Yes.
3 Q. So if you could answer my question that was posed just a moment
4 ago. Are you aware at all - if you're not, say so - whether or not the
5 applicant -- whether or not Serbia
6 about the jurisprudence filed confidentially being cited publicly by the
7 Judges of this Court? Has that ever come to your attention or not?
8 A. I'm not aware of anything of that nature, but then again I don't
9 claim to have any -- any knowledge of that particular issue.
10 Q. If you would go to tab 30, please. Are you looking at the
11 transcript of the International Court of Justice, dated the 8th of May,
13 A. Yes, I am.
14 Q. And if you can read to yourself, because I've mentioned it
15 already to the Bench, just read quickly paragraphs 55 to the bottom of
16 the page. This refers to the genocide case between Bosnia-Herzegovina
17 and Serbia-Montenegro; is that right?
18 A. That's right, yes.
19 Q. And is it correct, and do take your time if you haven't gotten to
20 it --
21 A. I've just reached the final sentence.
22 Q. Yes.
23 A. Yes, I've reached the end of the page, yes.
24 Q. And if you could go to paragraph 59 over the page, please.
25 That's on page 28, Mr. President.
1 A. Yes, I've read the paragraph.
2 Q. Is it correct that that extract from the International Court of
3 Justice, and you'll see that it's in public session from the cover page,
4 it discusses ST -- SDC
5 A. Yes, that's right, yes.
6 Q. It discusses the fact that Serbia-Montenegro had -- was stating
7 that it couldn't discuss those documents because they were under
8 protective measures imposed by the ICTY. You can see that?
9 A. That's correct, yes.
10 Q. And they are very clear, are they not, that they draw a
11 distinction between the contents of the redacted sections? They say that
12 they're not entitled to discuss the contents of the redacted sections of
13 the Supreme Defence Council documents at this moment. Do you see that?
14 A. I do see it, yes.
15 Q. Would you agree with me that there is a -- in the practice of the
16 courts that you have been involved in, that there is a difference between
17 the underlying issue -- the underlying interest that is sought to be kept
18 confidential and the jurisprudence of the Court? Could you agree with
19 that or not? For example, if there is a decision, and a protected
20 witness, Witness X's name is mentioned in it, it is not uncommon in these
21 courts for that jurisprudence to be cited, albeit without any mention of
22 Witness X, in order to widely disseminate the jurisprudence of the Court
23 and to inform other Trial Chambers? That is the practice, is it not?
24 A. It's not unheard of. I'm not saying -- I'm not -- practice can
25 vary from courts and tribunal. It's not unknown to me, but it's not
1 something that I would have said is established practice across the
2 board, as it were. But you may well have better experience of that than
3 I do.
4 Q. And what is the practice, generally? We touched upon the
5 Charles Taylor case right at the outset, where the prosecutor, who had
6 been the applicant, made public the indictment prior to the order of the
7 Bench making the indictment public, and we see here that
8 Serbia-Montenegro, talking about an application to the ICTY, the contents
9 of documents, that they have to do with STC documents, is it the case, in
10 fact -- is the practice that very often the applicant who seeks the
11 measures is given, at the very least, a wide latitude as to when they
12 will determine the interest worthy of protection ceases, and that's why
13 David Crane was entitled to do what he did, and that's why
14 Serbia-Montenegro, in public session, referred to the contents and the
15 decisions of this Court that were subject to orders of confidentiality?
16 Would that be a fair assessment, sir?
17 A. I think that both those, of course, are very different. The
18 circumstances always have to be taken into account. Certainly, so far as
19 the David Crane decision was concerned, there is -- there is nothing
20 significant about the publication of the order of the Court, as far as
21 unveiling the indictments against Charles Taylor, other than the fact of
22 timing and extreme circumstances around that particular issue. So
23 there's no particular part of any process that was being followed; it was
24 just the fact of life at that time. And so I think each and every
25 instance has to be looked at on its merits, and it's far beyond me to get
1 involved in decisions that are taken by particular Courts or Benches
3 Q. Yes. The nub of the question though is this: In your experience
4 in the ICTY, the Special Court for Sierra Leone, Cambodia
5 but particularly the more advanced courts, the mature courts, is it the
6 case, in practice, that a Bench -- well, let's go backwards. Is it
7 correct that a Bench ordinarily orders protection in response to an
9 A. It is, yes.
10 Q. And that application can be filed by the Prosecution, by the
11 Defence, or by states, amongst others?
12 A. It can be, yes.
13 Q. And the rationale for such orders of confidentiality are to
14 encourage cooperation from states and to allow the proper administration
15 of justice; is that right?
16 A. Yes, that's one of the reasons, yes.
17 Q. And it's also the case, is it not, that given that a Bench will
18 either consent -- a Bench will either grant an application or reject it,
19 a margin of deference, as a matter of practice, is given for the -- is
20 given to the applicant as to when that confidentiality is no longer
21 needed. That is the reality, is it not?
22 A. It is, yes.
23 Q. Are you aware of numerous cases where arrest warrants have been
24 issued which did not have -- are you familiar with arrest warrants? Have
25 you seen them?
1 A. I have, indeed, yes.
2 Q. And they are of two type, are they not; the older ones
3 ordinarily, when the practice of under-sealing indictments were issued,
4 simply stated that a warrant is issued by the Bench, and they ordered
5 that the warrant remains confidential until further order?
6 A. That is possible, yes.
7 Q. And there was another species of warrants that were developed
8 that said later on that they are to be rendered confidential either until
9 such further order of the Bench or until the warrant is executed?
10 A. Yes.
11 Q. In relation to the first class of order, are you aware of a very
12 large number of cases where, after the warrant was executed, individuals,
13 whether they be NATO, or the Prosecution, or S-4, made the warrants
14 public absent an order of this Court?
15 A. I'm not aware of numerous orders, no.
16 Q. Are you aware of the White House, during President Bush's time,
17 in the Dokmanovic case, making public that Dokmanovic had been arrested
18 before a Judge of this Court had made public the warrant and indictment?
19 A. That is a case that had escaped my attention.
20 Q. But if they were -- if you agree with me for the moment that
21 there are numerous cases --
22 A. No, I don't agree there are numerous cases, no.
23 Q. Are you familiar -- just one moment. Are you familiar with --
24 Your Honours, do bear with me a moment, please.
25 Are you familiar with the Vasiljevic case?
1 A. By name -- by name only.
2 MR. KHAN: Your Honours will see -- I'm not going to go through
3 all of these. These are matters for evidence at the end. Your Honours
4 will see at tab 13, there's a press release by NATO, Lord Robinson, on
5 the 25th of January that makes it public, that makes it public, and,
6 Your Honours, we will adduce evidence during the course of the trial --
7 we'll adduce evidence during the course of the trial that it was on the
8 day after that, that a formal order was entered by the Bench to make this
9 decision public.
10 Q. Mr. Vincent, if I just read the names -- I'm not going to spend
11 time over it, but if I mentioned the Nikolic case, the Mrdja case, Bala,
12 Musliu, Limaj, in all of these cases, I put it to you, that statements
13 were made by K-4 or S-4 or NATO prior to an order issued by a Judge of
14 this Court rendering public that which had been confidential --
15 A. Of course I would accept that from you. My only comment, of
16 course, is in every case there are prevailing circumstances which either
17 require action to be taken, and the Taylor
18 accept from you that those events took place.
19 Q. Yes. Every decision, of course, rests on its own facts in many
21 A. That's correct, yes, especially so far as arrest warrants are
23 MR. KHAN: Yes. Your Honours, just one moment.
24 Mr. Vincent, I must oblige for you being so patience and taking
25 the time to come to court today. You'll be pleased to know, especially
1 since its lunchtime, that I have no further questions.
2 THE WITNESS: Mr. Khan, thank you very much, indeed.
3 JUDGE MOLOTO: Thank you.
4 Any re-examination, Mr. MacFarlane?
5 MR. MacFARLANE: I do have a few questions in re-examination.
6 They shouldn't take too much time.
7 Re-examination by Mr. MacFarlane:
8 Q. My first question, Mr. Vincent, is more general than specific, in
9 connection with a particular situation. Would you believe that in
10 serious situations involving disclosure, that on occasion an
11 investigation is commenced?
12 A. Yes.
13 Q. And the question whether or not a charge is laid will depend on
14 the results of that investigation?
15 A. Certainly, it's my experience that there normally has to be some
16 form of preliminary investigation to decide whether or not there are
17 grounds for it to proceed further.
18 Q. So disclosure, per se, does not necessarily lead to the charging
20 A. Not in my experience, no. It's more of a kind of ongoing
22 Q. Secondly, with respect to the situation involving David Crane and
23 the Special Court for Sierra Leone, I have one or two questions in
24 connection with that.
25 You -- my learned friend took you through the sequence of events
1 there, indicating that a release was issued on the 4th of June and then
2 there was an order for disclosure on the 12th of June. That document I
3 believe you have before you as well.
4 A. Yes, I have, yes.
5 Q. I just draw your attention to the order for the disclosure of the
6 indictment on the 12th of June.
7 A. Yes.
8 Q. And on page 2, in the middle, the paragraph reading: "Having
9 received ...," could you read that paragraph, please?
10 A. Yes:
11 "Having received on the 7th of June, 2003, a request from the
12 Prosecutor for the public disclosure of the indictment against the
13 accused, the warrant of arrest and order for transfer and detention, and
14 the decision approving the indictment and order for non-disclosure."
15 Q. From that, then, I take it that the Prosecutor moved within three
16 days for an order permitting disclosure. Is that how you read that?
17 A. That's correct, yes. As I mentioned to counsel, Mr. Karim Khan,
18 it's my point throughout this really is the question of circumstances. I
19 mean, I was there at the time. There were extreme circumstances which
20 persuaded the Prosecution, indeed the Court, to act as it did.
21 Q. Do you know, from your own experience, whether or not there had
22 been any communication between Mr. Crane, and/or his office, and the
23 Chamber prior to the issuance of the statement on the 4th of June?
24 A. My understanding was there had been.
25 Q. Thank you. Thirdly --
1 MR. KHAN: Your Honour, I do apologise to interject. Obviously,
2 I don't have a right to re-examine, but I don't know what that means, "my
3 understanding." I would like a "yes" or "no" in relation to matters that
4 are in the direct knowledge of the witness.
5 THE WITNESS: Your Honours, perhaps with your permission, I can
6 clarify that. And if I perhaps get into just a little of extraneous
7 material, it may help, is that it came to the Prosecution's attention
8 that the person concerned, and I think as I said to Mr. Karim Khan, was
9 about to leave what was regarded as a safe haven. The indictment was
10 there, the arrest warrant was there, and when the Prosecutor spoke to me
11 late -- quite late the evening concerned, when he requested me to ensure
12 that documents were served on diplomatic representatives both in Freetown
13 and by facsimile in Accra
14 that the matter had been mentioned to the Trial Chamber. In fact, I
15 understand that he had contacted a member of the Trial Chamber, and as a
16 result of that, then asked me to implement the transport of the
17 indictment and the arrest warrant. So that was my understanding. I was
18 not present at any discussion, and I received no direct order from
19 anybody in the Trial Chamber.
20 JUDGE MOLOTO: Thank you.
21 MR. MacFARLANE: Thank you, sir.
22 Q. Thirdly, my learned friend has taken you through some documents,
23 some of which -- at least one of which made specific reference to
24 inadvertent disclosure.
25 A. That's right, yes.
1 Q. Those were the words that were used in the documents.
2 A. Yes.
3 Q. In your experience, and you've been in international tribunals
4 for quite a number of years, have you ever seen a prosecution commenced
5 as a result of an inadvertent disclosure?
6 A. No, I haven't.
7 Q. Thank you. I'd like to take you back to the big binder, tab 12.
8 That was the CNN --
9 A. Yes, I have it, yes.
10 Q. And you'll recall the discussion that you had with my learned
11 friend concerning Christiane Amanpour --
12 A. That's right.
13 Q. -- and her commentary on the situation in that case. In that
14 release, did Ms. Amanpour ever indicate that the information she was
15 talking about was confidential?
16 A. No, she didn't.
17 Q. So she did not declare to the world that the information was
19 A. No, she didn't, no.
20 MR. MacFARLANE: Thank you. No further questions.
21 JUDGE MOLOTO: Thank you.
22 Questioned by the Court:
23 JUDGE MOLOTO: Mr. Vincent, from your experience as Registrar in
24 the various courts, when a decision is rendered confidentially, what,
25 according to you, is being protected? Is it the existence of the order
1 or the decision or is it the contents of the decision?
2 A. It's the contents of the decision.
3 JUDGE MOLOTO: Thank you very much.
4 Any questions arising from my question, Mr. Khan? Thank you very
6 That brings us to the end of your testimony, Mr. Vincent. Thank
7 you so much for coming to testify at the Tribunal. You are now excused.
8 You may stand down, and please travel well back home.
9 THE WITNESS: Your Honours, I'm grateful. Thank you.
10 JUDGE MOLOTO: Thank you very much.
11 [The witness withdrew]
12 JUDGE MOLOTO: Mr. MacFarlane.
13 MR. MacFARLANE: Thank you, Your Honours.
14 That completes the viva voce evidence of the Prosecution, but
15 there is one matter that I would like to raise, and I would like to move
16 to tender a document. I've advised my learned friend of my intention. I
17 understand that he will object, so I will outline the nature of the
18 document and the basis for my motion at this point.
19 We have copies for the Chamber and --
20 JUDGE MOLOTO: You may proceed.
21 MR. MacFARLANE: My learned friend has --
22 JUDGE MOLOTO: Your learned friend is on his feet. Mr. Mettraux.
23 MR. METTRAUX: Yes, Your Honour. Perhaps I take a preliminary
24 objection. I think the argument as to the admissibility or otherwise of
25 this document and the property of seeking to tender this document should
1 be made without the Chamber, with all due respect, having this document
2 in question. We believe, Your Honour, that the relevance of the content
3 is close to nil. At this stage, we believe they are procedural and, I
4 would say, statutory aspects pertaining to this issue. And I think if
5 Mr. MacFarlane is willing to put forward his case in that respect, we
6 would believe to be able to respond to it without Your Honour having to
7 see the content of the document.
8 JUDGE MOLOTO: That would accord to my understanding,
9 Mr. MacFarlane. If the Chamber should rule that the documents are
10 inadmissible, then it's preferable that the Chamber does not have sight
11 of them. So you can argue your basis for tendering them, and then the
12 Chamber will rule based on that, and then we can decide whether to have
13 sight of them.
14 MR. MacFARLANE: Thank you, Your Honours.
15 Of course, it's necessary for me to allude to the nature of the
16 document so that the Chamber can appreciate the relevance and reliability
17 and perhaps a sense of the probative value of the document, and I will do
18 that. Let me describe, in broad terms at this point, the nature of the
19 document and then the history in terms of this litigation.
20 It is a one-page letter forwarded from the then Registrar to the
21 accused, dated the 19th of October, 2007, and it concerns the very issues
22 before the Chamber. It is on official UN stationery, in particular ICTY
23 stationery. It is signed personally by the Registrar, and it evidences
24 the address to which the letter was forwarded.
25 Essentially, without going into all the detail concerning the
1 document, it was a letter from the Registrar which cautioned the accused
2 about the apparent disclosure of confidential information, cautioned or
3 warned. There's various adjectives and verbs that can be used, but it's,
4 at minimum, a caution that there appears to be a problem here.
5 MR. METTRAUX: Well, Your Honour, we would object again. I'm
6 grateful to Your Honour, and I apologise to my friend, but we believe
7 that the very purpose that we outlined in our original objection,
8 Mr. MacFarlane is trying to transpire the objection, which was upheld by
9 the Bench. Your Honour, we believe that, in effect, Mr. MacFarlane is
10 trying to present the content of the document. We don't need to know
11 about that, in our submission.
12 JUDGE MOLOTO: Mr. MacFarlane, do you have any further
13 submissions outside the content of the document?
14 MR. MacFARLANE: Yes, I do.
15 JUDGE MOLOTO: Go outside the content.
16 MR. MacFARLANE: I can move directly to that.
17 I alerted my friend and the Chamber that I intended to describe
18 the document, because without some description of the document, it would
19 be very difficult to understand its relevance. So that was why I
20 referred to it in broad terms.
21 In terms of the history behind this document and the proposition,
22 as I put forward, that the accused is not taken by surprise, counsel are
23 not taken by surprise, neither are prejudiced in any way, because it's
24 been in the hands of the accused for quite some time. It was, first of
25 all, delivered to the accused as a letter. Secondly, in June of last
1 year, it was put to the accused during the course of the suspect
2 interview, so she understood that it was a document of concern, so that
3 was the second point at which it was referred to. Her counsel was there
4 with her at the time, so she had the benefit of legal advice in respect
5 of this document and any other issues that arose.
6 The next step to ensure no prejudice or no one being taken by
7 surprise: It, in the fall of last year, was included in the disclosure
8 package that was provided to the accused and counsel. It is included on
9 the 65 ter list as part of the documents relied upon by the Prosecution.
10 It's further referred to in the amended 65 ter list. So there are many,
11 many points at which the accused and her counsel were aware of the fact
12 that the Prosecution was focusing on the document, felt that it was
13 relevant, and intended to rely upon it during the proceedings.
14 In correspondence over the past couple of months, it was noted
15 that counsel for the Prosecution intended to use the document potentially
16 during cross-examination of the accused, should she take the stand, and
17 advice that we received at the beginning of proceedings this morning
18 indicate that the accused does not intend to testify, as is her right.
19 So this, with full disclosure, repeated attention to the
20 document, placing it in the hands of the accused, placing it in the hands
21 of counsel for the accused, and clear indications that it was going to be
22 used in these proceedings on the 65 ter list and in correspondence, there
23 cannot be any prejudice, there cannot be anyone taken by surprise. And
24 it's on that basis that I move to have the document marked as an exhibit
25 in these proceedings.
1 JUDGE MOLOTO: Just to recap, you said this is correspondence
2 directly linked to these proceedings?
3 MR. MacFARLANE: Yes, yes, in the context of the wide range of
4 correspondence that counsel always have in cases of this sort. My
5 learned friend and I have had dozens if not hundreds of letters and
6 e-mails, and it's in that context, but it's related directly to this
8 JUDGE MOLOTO: Yes, Mr. Mettraux?
9 MR. METTRAUX: Well, thank you, Your Honour.
10 The first thing we would like to place on the record is that
11 contrary to Mr. MacFarlane's submission of a moment ago that counsel or
12 the accused intended or ever sought to rely upon this document, we wish
13 to make it clear that this has never been the case.
14 The matter, perhaps, Your Honour, we'll take it a few steps back.
15 In the process of investigation, if I may call it that, of this
16 case, and the process of preparation that has gone into this case, both
17 by the amicus and by the Defence, we sought information from the
18 Prosecutor, Mr. MacFarlane, as to the origin of this document, and more
19 specifically the chain of custody of this document.
20 In other words, we wanted to know from Mr. MacFarlane how he came
21 about this document. The reason for our request, Your Honour, is that
22 this document appears to come from the personnel file of Ms. Hartmann
23 which, as Your Honour well knows, is protected by confidentiality. In
24 other words, we were querying with Mr. MacFarlane how he could have
25 obtained this document without any court order to that effect.
1 As a result of that, Your Honour, a number of letters, as
2 Mr. MacFarlane indicated, were exchanged between the Defence and the
3 Prosecution, and in two of these letters on the 14th and the 15th of
4 January this year, Mr. MacFarlane said this, and will read from only one
5 of them:
6 "We were querying a set of documents, all of which, including
7 this one, appear to come from the personnel UN file of Ms. Hartmann, and
8 the answer of Mr. MacFarlane at this time was:
9 "None of these documents will be tendered as part of the case of
10 the Prosecution."
11 Your Honour, this was the position of the amicus.
12 The other matter that I would wish to bring to your attention,
13 Your Honour, is that the Defence made a number of similar efforts to
14 obtain documents from the Registry pertaining to the file of
15 Ms. Hartmann, as well as the file of other individuals working in this
16 Tribunal; and in response to those queries, we received several of those,
17 this was the position of the Registrar at the time, acting Registrar,
18 Mr. John Hocking:
19 "The records of this Tribunal, not forming part of the public
20 record of the Court, are, in principle, not subject to disclosure to
21 external parties unless there would be a basis for the Registry to
22 consider disclosure, such as, for example, an order by the Chamber in
23 relation to the relevance of the record you seek to consult."
24 And it goes on. We've had a number of responses of that sort
25 from the Registry.
1 What I would like to draw to the attention of the Chamber is
2 we've never had the benefit of any sort of cooperation on the part of the
3 Registry insofar as pertain to access to any confidential material from
4 this Tribunal, and Mr. MacFarlane has refused to provide us information
5 as to the chain of custody of this document.
6 Furthermore, and contrary to what Mr. MacFarlane has indicated,
7 we've never had any notice of his intention to use this document in these
8 proceedings, as just indicating in his e-mail of the 14th and I believe
9 again the 15th of January this year, he's positively indicated he would
10 not seek to tender this document.
11 When in the situation, Your Honour, where we've effectively been
12 denied the ability and haven't undertaken an investigation of this
13 matter, on the undertaking given by Mr. MacFarlane that he would not seek
14 to tender this document, he's indicated that he might have wished to use
15 it with Ms. Hartmann in cross-examination. Whether that's the case or
16 not, he now has an indication that Ms. Hartmann will not testify, and we
17 believe that in that -- as a result of this, Your Honour, that this
18 document should not be admitted.
19 JUDGE MOLOTO: Mr. Mettraux, your very fast sentence -- sorry --
20 MR. METTRAUX: Yes, I can see the place where the words are
21 missing. If you wish, Your Honour, I could read them again.
22 JUDGE MOLOTO: Just wait, just give me a chance you said:
23 "The first thing we would like to place on the record is that
24 contrary to Mr. MacFarlane's submission of a moment ago, that counsel or
25 the accused intended or ever sought to rely on this document."
1 MR. METTRAUX: Well, if that's the record, it should have had an
2 additional word, which is "never." We never gave any intention of any
3 intention on our part to rely or use that document at trial.
4 JUDGE MOLOTO: I didn't hear Mr. MacFarlane suggesting that the
5 Defence or the accused intended to use the document. I thought I heard
6 him saying the Prosecution had not intended.
7 MR. METTRAUX: Your Honour, if that's the case, we stand
8 corrected. We had understood it differently, and I apologise if that's
9 the case.
10 JUDGE MOLOTO: In your address, you also said that you sought
11 from Mr. MacFarlane -- you had a suspicion that this document comes from
12 the personnel files of Madam Hartmann. Did you ask Mr. MacFarlane that
13 question and did he respond to you?
14 MR. METTRAUX: Yes, and Mr. MacFarlane will correct me if I
15 misrepresent or mis-remember the exact word being used. We sought more
16 generally the chain of custody, as it's called, of this document. And we
17 mentioned, in particular, the origin, whether or not it came from the
18 personnel file of Ms. Hartmann. We believe, Your Honour, that we also
19 made that reference in two of our filings, and again I stand to be
20 corrected if wrong. We believe it was done in a motion on abuse of the
21 process, in a motion for reconsideration, where we raised issues and
22 concerns in relation to these matters.
23 JUDGE MOLOTO: I'm sorry to interrupt you. My question is very
24 focused and it needs a focused answer.
25 Did you get an answer -- did you ask Mr. MacFarlane whether this
1 document comes from Ms. Hartmann's personnel file, and did he answer to
2 that question?
3 MR. METTRAUX: Well, we believe we did, Your Honour, and --
4 JUDGE MOLOTO: No, I want a fact. Did you or did you not?
5 MR. METTRAUX: I believe we did, and I would not want to pretend
6 we used that specific word. We believe we referred to the personnel file
7 of Ms. Hartmann.
8 JUDGE MOLOTO: Did you receive any response specifically to that
10 MR. METTRAUX: No, Your Honour. The position of the Prosecutor
11 in this case has been consist in that regard, that this matter was
12 irrelevant. And once he had taken the position that he would not use
13 that document, we ceased to ask questions in relation to this matter,
14 since it had become, indeed, irrelevant to the admission of this
16 JUDGE MOLOTO: Well, moving on to the response from the Registry,
17 when the Registrar replied -- or the acting Registrar, as he then was
18 called, replied to you to say that unless the Registrar finds it
19 necessary to reveal personnel documents, they normally don't, and such
20 exceptional circumstances could be by way of a court order?
21 MR. METTRAUX: Well, Your Honour, I can do no more than citing
22 the words of the Registry. I'm not in a position to assess what their
23 position or their motivation or the basis on which they could add -- the
24 only one --
25 JUDGE MOLOTO: I recapturing those words of the Registrar as a
1 prelude to my question to you. My question to you is: Are you aware of
2 an order of Court that ordered that personnel documents of Madam Hartmann
3 be made public?
4 MR. METTRAUX: To the extent we are aware, Your Honour, no such
5 order exists.
6 JUDGE MOLOTO: And what then would be the reasonable inference to
7 draw from that response by the Registrar?
8 MR. METTRAUX: Well, Your Honour, our request pertains to a
9 different personnel file of a different person. I would prefer not to
10 mention the name of that person. But the inference to be drawn from the
11 letter of the Registrar is that without a court order to that effect,
12 there was no entitlement by whomever gave a copy of that document to
13 Mr. MacFarlane to receive it in the first place.
14 JUDGE MOLOTO: No, no. Is that a reasonable inference? Is the
15 reasonable inference that without a court order, there hasn't been any
16 public disclosure of any documents from any personnel files of any staff
18 MR. METTRAUX: Well, Your Honour, the problem we have is we have
19 a document here in front of us that appears to come from that personnel
20 file. We have no alternative explanation.
21 JUDGE MOLOTO: What's your basis for having this --
22 MR. METTRAUX: Well, the basis for it, Your Honour, is the
23 suggestion that we made to that effect -- that we believe we made to that
24 effect to the Prosecutor and that he has not said otherwise. If the
25 Prosecutor is now willing to stand and to indicate where this document
1 comes from, and that, in fact, it comes from another source in relation
2 to which no order of the Court was necessary, we take his word for it.
3 JUDGE MOLOTO: Mr. Prosecution has told this Court today that
4 this is a letter written by the Registrar to Madam Hartmann, so the
5 source of this letter is the Registrar.
6 MR. METTRAUX: But the problem, Your Honour, is that this letter,
7 once sent, is kept only in a number of archives, if I may call them that.
8 A copy would be with the personnel file of Ms. Hartmann, as we
9 understand, and the -- and with Ms. Hartmann, herself. What we're trying
10 to establish, Your Honour, is whether and to what extent Mr. MacFarlane
11 is in a position to establish the legality with which he has obtained the
12 material. The other issue we raised, Your Honour, as well pertain to the
13 fairness of the course which has been followed in this matter, denying us
14 this information and putting us now in an ambush situation where we have
15 taken the position that there was no need to investigate this matter and
16 now being faced with this document.
17 JUDGE MOLOTO: Mr. Mettraux, I think the Prosecutor has just told
18 the Court that this is a document emanating from the Registrar, directly
19 related to these proceedings. Now, I can't understand why you should say
20 it comes from the personnel file or -- personnel file of Madam Hartmann,
21 if it's a document related to these proceedings. These proceedings
22 started here after Madam Hartmann had left this place.
23 MR. METTRAUX: Well, with all due respect, Your Honour, perhaps
24 the short answer to that is: This document does not pertain to these
25 proceedings, since it predates, I should say, any proceedings against
1 Ms. Hartmann. So to the extent that the Prosecutor is claiming that this
2 document forms part of this proceeding, this would be quite misleading,
3 in our submission, Your Honour. This predates any indictment, any start
4 of investigation against Ms. Hartmann, as we understand it from the
5 record that has been made available to us.
6 MR. KHAN: Mr. President, with your leave, if I can be very
8 The context, of course, is relevant, but the core issue is
9 simple. The primary submission of the Defence is that the Defence have
10 every right to rely, in good faith, upon the representations of the
11 Prosecution, especially an amicus prosecutor. He has given a written
12 undertaking that must bide against him. In writing, he said in very
13 clear terms, Mr. President and Your Honours, that he would not rely upon
14 this evidence in his own case. Without any good reason, he has done a
15 volte-face. He is trying to do precisely that which he said he would
16 not, and he must be bound by his own undertakings, in our respectful
17 submission, to allow a prosecutor, who must be taken to know his case,
18 know his responsibilities, and know the elements that he needs to --
19 JUDGE MOLOTO: You have got to be brief.
20 MR. KHAN: I will.
21 JUDGE MOLOTO: If you will give me the point. We know that the
22 Prosecutor is supposed to know his case, is supposed to know his brief.
23 Don't repeat that.
24 MR. KHAN: I won't, Your Honour, the key point is context is
25 context. It's the background. The core issue and the primary submission
1 is that the prosecutor must be bound by his --
2 JUDGE MOLOTO: Stand by his words, that's the core issue.
3 [Trial Chamber confers]
4 MR. METTRAUX: Perhaps a matter --
5 JUDGE MOLOTO: If I may, I'm just trying to recap myself.
6 Now, you raised an objection. Mr. MacFarlane answered. You
8 MR. METTRAUX: We have a clarification, with Your Honour's leave,
9 to your question of the personnel file. In the motion of the 23rd of
10 January, 2001 -- 2009, I apologise. It was expressly mentioned,
11 Ms. Hartmann's ICTY personal file.
12 JUDGE MOLOTO: Personnel file or personal file?
13 MR. METTRAUX: Personal file, which we understand to be the same.
14 It's the United Nations personal file.
15 JUDGE MOLOTO: Okay. Mr. MacFarlane, you rose while the Chamber
16 was conferring. Did you have something to say on this matter, noting
17 that you have no right of reply?
18 MR. MacFARLANE: Yes. If I might receive --
19 JUDGE MOLOTO: Without leave of the Court.
20 MR. MacFARLANE: If I might be allowed one minute. There was a
21 few points that I thought required clarification, and I think the record
22 is incomplete at the moment, so I can do it in one minute.
23 JUDGE MOLOTO: Will you, please.
24 MR. MacFARLANE: Thank you.
25 Very briefly, number one, the document was not taken from the
1 personnel file. In my capacity as amicus curiae investigator, I sought
2 the file and was denied the file, so it came from another -- it came from
3 the Registry as part of the package that was provided to me at the
4 beginning of the investigation.
5 Number 2, my learned friend has read a letter which preceded
6 their pre-trial brief, which indicated that none of the documents would
7 be tendered as part of the case for the Prosecution. But he didn't read
8 the next sentence, which makes it clear that it might be used, if at all,
9 in cross-examination of any Defence witnesses that might be called,
10 including the accused.
11 Number 3, the pre-trial brief followed that from the accused, and
12 that made it clear what the issue were, and hence it was placed on the
13 65 ter list and repeated again. So my learned friends have had lots of
14 notice that this could be used in these proceedings. Thank you.
15 JUDGE MOLOTO: Thank you. Before you sit down, I would like
16 clarity. You say it doesn't come from the personnel file of
17 Madam Hartmann, but there is a submission that it predates these
18 proceedings and, therefore, could not have been part of these
19 proceedings. Do you have any response to that?
20 MR. MacFARLANE: The -- it might be preferable to move into --
21 JUDGE MOLOTO: May the Chamber please move into private session.
22 [Private session]
15 --- Whereupon the hearing adjourned at 1.48 p.m.
16 to be reconvened on Tuesday, the 16th day of June,
17 2009, at 9.00 a.m.