080724IT

Page 101

1 Thursday, 24 July 2008

2 [Judgement]

3 [Open session]

4 [The accused not present]

5 --- Upon commencing at 9.04 a.m.

6 JUDGE ORIE: Mr. Registrar, would you please call the case.

7 THE REGISTRAR: Good morning, Your Honours. Good morning to

8 everyone in the courtroom. This is case number IT-04-84-R77.5, the

9 Prosecutor versus Baton Haxhiu.

10 JUDGE ORIE: Thank you, Mr. Registrar.

11 This Chamber is sitting today to deliver its judgement in the

12 case of the Prosecutor versus Baton Haxhiu.

13 May I have the appearances, please.

14 Prosecution first.

15 MR. SAXON: Dan Saxon for the Prosecution, Your Honours, together

16 with my colleagues Mr. Vincent Lunny, to my right; and Mr. Crispian Smith

17 to my left.

18 JUDGE ORIE: Thank you, Mr. Saxon.

19 For the Defence.

20 MR. KEMPERDICK: Your Honour, it's Christian Kemperdick for the

21 Defence.

22 JUDGE ORIE: Thank you, Mr. Kemperdick.

23 This case concerns an allegation by the Prosecution that the

24 accused, Baton Haxhiu, a journalist from Kosovo, committed the crime of

25 contempt of the Tribunal. In the Scheduling Order filed on the 17th of

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1 July, 2008, the accused was given the choice whether to be present today

2 and the Chamber was duly informed by the Defence that the accused has

3 waived his right to be present during this hearing.

4 Mr. Kemperdick, could you confirm that Mr. Haxhiu waives his

5 right to be present today.

6 MR. KEMPERDICK: Yes, Your Honour. Mr. Haxhiu waives his right

7 to be present today.

8 JUDGE ORIE: Thank you.

9 For the purposes of this hearing, the Chamber will briefly

10 summarize the procedural history of the case, the applicable law, the

11 submissions of the parties, and the Chamber's findings.

12 We emphasize that this is a summary only, and that the

13 authoritative account of the Chamber's findings is to be found in the

14 written judgement, which will be made available at the end of this

15 session.

16 The indictment against the accused was confirmed on the 10th of

17 April, 2008. It alleges that the accused wrote and published a newspaper

18 article which revealed the identity of a protected witness, to whom I

19 will refer as "the witness." The witness testified in the Haradinaj

20 et al case before the Tribunal. According to the indictment, the accused

21 knowingly and wilfully interfered with the administration of justice in

22 knowing violation of orders by a Trial Chamber of the Tribunal.

23 The trial against the accused took place on the 24th of June,

24 2008. The accused gave an unsworn statement pursuant to Rule 84 bis of

25 the Rules, and the Prosecution called one witness.

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1 I will now move to the law on contempt as applied in this case.

2 Despite the Statute's silence on the subject, it is firmly

3 established that the Tribunal possesses an inherent jurisdiction to

4 prosecute contempt. This inherent jurisdiction derives from the

5 Tribunal's judicial function to ensure that its exercise of the

6 jurisdiction, which is expressly provided for in the Statute, is not

7 frustrated and that its basic judicial functions are safe-guarded.

8 The accused is charged pursuant to Rule 77(A)(ii) of the Rules.

9 This provision provides that: "The Tribunal in the exercise of its

10 inherent power may hold in contempt those who knowingly and wilfully

11 interfere with its administration of justice, including any person who

12 discloses information relating to those proceedings in knowing violation

13 of an order of a Chamber."

14 The elements of this form of contempt are the revelation to a

15 third party or to the public of confidential information in breach of an

16 order of a Trial Chamber. The person revealing the information must have

17 done so in the knowledge that it was done in violation of an order of a

18 Trial Chamber.

19 I will now move to the parties' submissions and the Chamber's

20 discussion on the question whether the accused disclosed confidential

21 information relating to proceedings before the Tribunal in breach of an

22 order of a Trial Chamber.

23 The Chamber found that the published newspaper article contains

24 the real name of the witness and describes him as a protected witness,

25 that it refers to the supposed place of residence of the witness, and

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1 that it also mentions that the witness's name "was found on the list of

2 witnesses who were to testify under full confidentiality against Ramush

3 Haradinaj's group."

4 The Trial Chamber further found that at the time of publication,

5 the identity of the witness remained protected by an oral decision of the

6 28th of August, 2007, rendered by the Haradinaj Trial Chamber.

7 The parties have agreed, and the Chamber found, that the accused

8 was the author of the newspaper article and that he accepted

9 responsibility for its publication.

10 The Chamber was, therefore, convinced beyond a reasonable doubt

11 that the accused, by writing and publishing the newspaper article,

12 revealed the name of the witness, whose identity was protected by the

13 oral decision of the 28th of August, 2007, and that he thereby disclosed

14 information relating to proceedings before the Tribunal in breach of an

15 order of a Trial Chamber.

16 I will now move to the parties' submissions and the Chamber's

17 discussion on the question whether the accused knew that this disclosure

18 of the name of the witness was in violation of an order of a

19 Trial Chamber.

20 The Prosecution submitted that the evidence of a Mr. Haxhiu's

21 knowledge that he was publishing protected information is contained in

22 the newspaper article itself. It further submitted that the accused

23 acknowledged in his interview with the Prosecution investigators that he

24 was aware of the Tribunal's regulations and that he had violated the

25 Rules.

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1 The Defence argued that because the oral decision of the 28th of

2 August, 2007, was not specific enough, the accused could not have known

3 at the time what protective measures were in place and what exactly was

4 protected, the witness's identity or the content of his testimony.

5 The newspaper article written and published by the accused states

6 that the witness's name was found on a list of witnesses who were to

7 testify under full confidentiality. It twice refers to the witness as a

8 protected witness. The Prosecution's request for protective measures for

9 the witness was filed publicly on the 27th of August, 2007. In that

10 request, the Prosecution requested that the witness's pseudonym be

11 retained and that the witness testify with face and voice distortion.

12 The request was granted on the 28th of August, 2007.

13 When it rendered its decision, the Trial Chamber stated publicly

14 that the requested protective measures for the witness were granted, that

15 the witness would be referred to by pseudonym, that the witness's face

16 and voice could not be seen or heard by the outside world, but that the

17 content of the witness's testimony would be public.

18 Therefore, the Trial Chamber made the nature of the protective

19 measures granted to the witness unambiguously clear to those present in

20 the courtroom and to the public. By assigning a pseudonym to the

21 witness, the Trial Chamber protected the witness's identity.

22 In his interview with the Prosecution, the accused agreed and

23 admitted that it was against the law to publish the name of the witness

24 and that he had violated "the rule of the Tribunal" by publishing it.

25 The accused added that because the witness's name was known in Kosovo by

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1 a select group of people, he published the witness's name to protect the

2 witness because the Tribunal had failed to do so. In this respect, the

3 Chamber considered that individuals, including journalists, cannot decide

4 to publish information in defiance of protective measures orders on the

5 basis of their own assessment of the public interest in that information.

6 The Trial Chamber was convinced beyond a reasonable doubt that

7 the accused knew that his disclosure of the name of the witness in the

8 newspaper article was done in violation of an order of a Trial Chamber.

9 The Chamber, therefore, found the accused guilty of the crime of

10 contempt as charged in the indictment.

11 In its consideration of the sentence to be imposed, the Chamber

12 considered a number of factors, including that the identity of the

13 witness was not published as the main subject of the newspaper article,

14 but in the context of another matter covered by it and that the newspaper

15 in question has a circulation of 5.000. The accused's conduct could have

16 jeopardized the security of the witness and his family. Moreover, it was

17 of a kind to undermine confidence in the effectiveness of the Tribunal's

18 protective measures orders and to have the effect of dissuading witnesses

19 from cooperating with the Tribunal.

20 The Chamber further considered the accused's cooperation with the

21 Prosecution, as represented by the Defence and undisputed by the

22 Prosecution, in the investigation of the case against him, and also in

23 the cases of Prosecutor versus Slobodan Milosevic and the Prosecutor

24 versus Milutinovic et al.

25 The Chamber attached some, although limited, weight to the family

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1 circumstances of the accused and the fact that the accused has no past

2 record of interfering with the administration of justice. The

3 Trial Chamber has also considered the fact that the accused spent five

4 days in the United Nations Detention Unit when determining the amount of

5 the fine to be imposed.

6 According to Rule 77(G) of the Rules, the maximum penalty that

7 may be imposed on a person found to be in contempt of the Tribunal shall

8 be a term of imprisonment of seven years, a fine of 100.000 euros, or

9 both. The Prosecution recommended that the Chamber impose a fine of

10 15.000 euros on the accused. The Defence submitted that should the

11 accused be found guilty an admonishment would suffice.

12 I will now read the relevant part of the disposition of the

13 judgement.

14 Pursuant to the Statute of the Tribunal and Rules 77 and 77 bis

15 of the Rules, the accused, Mr. Baton Haxhiu, is guilty of contempt of the

16 Tribunal, punishable under Rule 77(A)(ii) and Rule 77(G) of the Rules.

17 Mr. Haxhiu is hereby sentenced to a fine of 7.000 euros, full amount of

18 which is to be paid to the Registrar of the Tribunal within 30 days of

19 this judgement. Alternatively, the fine may be paid by two instalments

20 of 3.500 euros each, the first to be paid by the 24th of August, 2008,

21 and the second by the 24th of November, 2008. The Registrar is to take

22 measures necessary for the enforcement of the sentence.

23 This concludes the delivery of the judgement. The pre-trial

24 detention as a consequence takes an end.

25 The judgement will now be made publicly available and the Chamber

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1 stands adjourned.

2 --- Whereupon the hearing adjourned at 9.21 a.m.