1 Friday, 10 March 2006

2 [Judgement]

3 [Open session]

4 --- Upon commencing at 9.03 a.m.

5 JUDGE KWON: Could the registrar please call the case.

6 THE REGISTRAR: Yes, Your Honour. Case number IT-95-14-R77.2, the

7 Prosecutor versus Markica Rebic and Ivica Marijacic.

8 JUDGE KWON: Thank you.

9 Can we have now the appearances, please.

10 MR. AKERSON: Good morning, Your Honours. David Akerson, Rebecca

11 Graham, Salvatore Cannata, and Sebastiaan van Hooydonk for the

12 Prosecution.

13 JUDGE KWON: Thank you, Mr. Akerson.

14 MR. IVANOVIC: [Interpretation] Your Honours, my name is Marin

15 Ivanovic, and I am representing today Mr. Ivica Marijacic.

16 MR. KRSNIK: [Interpretation] Good morning. My name is Kresimir

17 Krsnik, and I'm representing the Defence of Mr. Maricka Rebic.

18 JUDGE KWON: Thank you, Mr. Ivanovic and Krsnik.

19 This is a hearing pursuant to Rule 98 ter of the Tribunal's rules

20 for the Trial Chamber to deliver its judgement in the case against

21 Mr. Ivica Marijacic and Markica Rebic, who are charged with contempt of

22 the Tribunal, punishable under the Tribunal's inherent power and

23 Rule 77(A)(ii) of the Rules. Mr. Marijacic and Mr. Rebic have waived

24 their right to be present at this hearing, but they are represented by

25 counsel. Copies of the judgement will be made available to the parties

1 and the public at the end of this hearing. I will now summarise the

2 judgement.

3 On 18th November 2004, an article appeared in Hrvatski List, a

4 Croatian newspaper, concerning a Dutch army officer, Johannes van Kuijk,

5 who had testified in closed session before this Tribunal in December 1997

6 during the Blaskic trial. The article was written by Mr. Ivica Marijacic,

7 who was the editor-in-chief of Hrvatski List and was presented adjacent to

8 an interview with Mr. Markica Rebic, who was said to be the source of the

9 material for the article. In addition to revealing the identity of

10 Lieutenant Van Kuijk, the newspaper printed extracts from a written

11 statement that he had given to the Prosecution in August 1997. The

12 headline on the front page of Hrvatski List declared that what was being

13 published was a "secret document" and this was repeated in the article

14 written by Mr. Marijacic. In the interview with Mr. Rebic, the Hrvatski

15 List interviewer stated that Mr. Rebic had given the editorial office two

16 documents which were the statement given by the witness and the transcript

17 of his testimony in Blaskic case.

18 Following the publication of this edition of Hrvatski List, an

19 investigation was carried out by the Prosecution. On 26th of April, 2005,

20 an indictment was confirmed against Mr. Marijacic and Mr. Rebic, which

21 charged them with contempt for their knowing and wilful interference with

22 the Tribunal's administration of justice by way of disclosing information,

23 in knowing violation of an order of a Chamber. In particular, they were

24 charged with revealing the identity of a protected witness, the statement

25 of that witness, and the fact that he had testified in non-public

1 proceedings. Following the amendment of the indictment in October 2005,

2 it was further specified that Mr. Marijacic had published the identity and

3 statement of the protected witness, and Mr. Rebic had disclosed the

4 identity of the witness along with his statements and the transcript of

5 his closed session testimony.

6 The amended indictment states that actions of both accused were in

7 breach of three orders issued in the course of the Blaskic trial. The

8 first order was a decision on the protection of witnesses, dated 6th June,

9 1997. The second order was the oral order of the 16th of December, 1997,

10 to hear Lieutenant Van Kuijk's testimony in closed session. The third

11 order was a further written order dated 1st of December, 2000.

12 The trial of the two accused was held on 17th, 18th, and 19th of

13 January, 2006, before this Trial Chamber. Immediately prior to the trial,

14 upon the request of the Prosecution, the Appeals Chamber issued a decision

15 lifting the protective measures granted to Lieutenant Van Kuijk, such that

16 his identity and the content of his testimony could be discussed openly in

17 this trial. In the course of the trial, the Chamber heard legal arguments

18 from the Prosecution and the Defence for both accused, heard two witnesses

19 for the Prosecution, and examined several documents. The Chamber also

20 considered various arguments that had been submitted in writing by the

21 parties prior to trial.

22 The power of this Tribunal to hold individuals in contempt is

23 well-established in the jurisprudence and bears no repetition here. The

24 essence of contempt, as articulated in Rule 77, is the knowing and wilful

25 inference with the administration of justice, and Rule 77(A)(ii) specifies

1 that disclosure of information relating to Tribunal proceedings in knowing

2 violation of an order of a Chamber amounts to such inference. The

3 physical component of this form of commission of contempt is, therefore,

4 the act of disclosure, meaning the revelation of something that was

5 previously confidential, when such disclosure would breach an order of a

6 Chamber. The mental component of this form of commission of contempt is

7 the knowledge of the alleged contemnor of the fact that his disclosure of

8 particular information is tone in violation of an order of a Chamber.

9 The existence of an order or orders that would be breached by the

10 disclosure of information about Lieutenant Van Kuijk is a central part of

11 the Prosecution's case against the accused. During the course of the

12 trial, the Prosecution dropped its argument that the first order, of 6th

13 of June, 1997, was applicable to Lieutenant Van Kuijk; however, the

14 Prosecution maintained its position that the second order, that is the

15 oral order to go into closed session on 16th of December, 1997, served to

16 protect the identity of Van Kuijk, as well as the content of his testimony

17 and statement. Having considered the arguments of the Defence that the

18 closed session did not protect the identity of the witness, nor did it

19 cover the content of his written statements, the Trial Chamber finds that

20 when a witness testifies entirely in closed session such that he is never

21 subject to public view and his name can only be found in the confidential

22 transcript of his testimony, his identity is indeed protected.

23 Furthermore, where the content of the witness's closed session testimony

24 is largely the same as that of a written statement that he has given to

25 the Prosecution, that content is protected by the closed session order and

1 must not be published, whether it is the transcript itself that is printed

2 or extracts of the written statement.

3 In connection with the closed session order, the Defence raised a

4 general argument that this Tribunal is not empowered to issue orders that

5 are binding upon members of the press and public. The Trial Chamber

6 notes, however, the powers that are granted to the Tribunal by the United

7 Nations Security Council in the Statute, as well as the provisions of the

8 Rules which permit Chambers to issue all necessary orders, including

9 orders which exclude members of the press and public from having access to

10 certain information. The Trial Chamber therefore concludes that when a

11 Chamber orders that testimony be heard in closed session, rendering

12 everything that transpires confidential, such an order applies to all

13 persons coming into possession of the protected information.

14 With regard to the third order of 1st of December, 2000, which the

15 Prosecution also asserted was breached by the two accused, the Trial

16 Chamber finds that this order contained no additional protective measures

17 applicable to Lieutenant Van Kuijk and is not satisfied that it applied to

18 Hrvatski List. The Trial Chamber, therefore, finds that the accused

19 cannot be found responsible for contempt for breaching this order.

20 The Trial Chamber is in no doubt that the physical component of

21 contempt is satisfied with regard to both accused. Mr. Rebic disclosed

22 the transcript of Lieutenant van Kuijk's closed session testimony, along

23 with his written witness statement to Hrvatski List. Mr. Marijacic then

24 wrote an article discussing the matters to which Lieutenant Van Kuijk had

25 testified and published extracts from his witness statement. By these

1 actions, both accused breached the closed session order.

2 The Trial Chamber is convinced that both accused knew what they

3 were publishing was protected information. The interview with Mr. Rebic

4 in Hrvatski List reveals that the newspaper was aware that publication of

5 the material provided by Mr. Rebic would be in contravention of orders of

6 the Tribunal and the transcript of van Kuijk's testimony was clearly

7 marked "closed session." Mr. Marijacic described the document that he was

8 publishing as "secret." In a later edition of Hrvatski List, Marijacic

9 wrote that he and Rebic had "pondered at length the pros and cons" of

10 publishing the information. But despite his awareness of its confidential

11 nature, he defiantly opted for publication. For his part, Mr. Rebic

12 repeated to another news agency that he was aware of what he was doing

13 when he disclosed the material to Hrvatski List in November 2004. He also

14 described that material, as comprising "protected documents," and stated

15 that he may face "consequences" for revealing it.

16 In conclusion, the Trial Chamber has found that both accused

17 deliberately disclosed information that was protected by an order for

18 closed session made during the course of the Blaskic trial. It is not for

19 a journalist, or any third party, to act in violation of a closed session

20 order and then try to justify the violation by seeking to go behind the

21 terms of the order.

22 The Chamber has taken into consideration in sentencing that, in

23 this case, no harm was done to Lieutenant Van Kuijk as a result of the

24 revelation of his identity and content of his closed session testimony.

25 However, the deliberate and calculated manner in which Mr. Marijacic and

1 Mr. Rebic defied the closed session order is a serious matter which tends

2 to diminish the authority of the Trial Chamber in the Blaskic trial.

3 Furthermore, public confidence in the effectiveness of the Tribunal's

4 protective measures is vital to the success of its work. It is therefore

5 incumbent on the Trial Chamber to take such steps as it can to ensure that

6 there is no repetition of the type of conduct demonstrated by these

7 accused, on the part of themselves or any other person.

8 The Trial Chamber therefore finds both Ivica Marijacic and Markica

9 Rebic guilty of contempt of the Tribunal and imposes on each of them -- a

10 fine on each of them of 15.000 euros to be paid within 30 days of this

11 judgement to the Registrar of the Tribunal.

12 That's the summary of judgement. The hearing is now adjourned.

13 --- Whereupon the Judgement adjourned at 9.20 a.m.

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