Tribunal Criminal Tribunal for the Former Yugoslavia

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 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.