Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Thursday, 11 September 2008

 2                           [Judgement]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 1.14 p.m.

 6             JUDGE ANTONETTI: [Interpretation]  Madam Registrar, please call

 7     the case.

 8             THE REGISTRAR:  Good afternoon, Your Honours.  This is case

 9     number IT-03-67-R77.1-T, In the Matter of Ljubisa Petkovic.

10             JUDGE ANTONETTI: [Interpretation]  Today is Thursday, the 11th of

11     September, 2008.  Good afternoon, Mr. Petkovic; good afternoon to your

12     Defence counsel, and good afternoon to everyone assisting us in this

13     courtroom.  The registrar, the court deputy, and everyone else.

14             The Trial Chamber is now going to deliver its Judgement in the

15     case of contempt against Mr.  Ljubisa Petkovic.  Mr. Petkovic, would you

16     please stand whilst I read out the Judgement in your case.

17             Today, Thursday, 11th of September 2008, the Trial Chamber,

18     consisting of Jean-Claude Antonetti, president, Frederik Harhoff and

19     Flavia Lattanzi is delivering its judgement on the allegations against

20     Ljubisa Petkovic, the accused, pursuant to Article 77(A)(iii) of the

21     Rules of Procedure and Evidence of the Tribunal.  This is only a summary

22     which does not form part of the Judgement delivered by the Trial Chamber.

23     The only authorative account of the Trial Chamber's findings is in the

24     written Judgement, copies of which will be available after the hearing.

25             The accused and the Defence will be given a confidential version

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 1     of the Judgement while a public redacted version will be available to the

 2     public.

 3             77(A)(iii) reads, and I quote:  "(A) The Tribunal, in the

 4     exercise of its inherent power, may hold in contempt those who knowingly

 5     and willfully interfere with its administration of justice, including any

 6     person ... who without just excuse fails to comply with an order to

 7     attend before or produce documents before a Chamber."

 8             The accused is charged with having knowingly and willfully

 9     interfered with the administration of justice by refusing to comply with

10     the subpoena issued on 7th of April, 2008, proprio motu and

11     confidentially by the Trial Chamber in the case against Vojislav Seselj.

12     This subpoena ordered Ljubisa Petkovic to appear before the Trial Chamber

13     as of 13th of May, 2008, as a "chamber witness."  The accused having

14     failed to do so, the Trial Chamber decided to initiate the proceedings

15     itself.

16             The trial was held on the 3rd of September, and the Defence put

17     forward two witnesses, the accused and his wife.

18             The Defence of Ljubisa Petkovic acknowledged that the actus reus

19     of the offence of contempt as described in 77(A)(iii) of the Rules was

20     constituted by the mere fact that the accused failed to appear at the

21     time and location indicated by the Trial Chamber.  The Trial Chamber

22     equally considers that the actus reus of the offence of contempt is

23     constituted by the absence of the accused at the hearing of 13 May 2008.

24             The Trial Chamber thereafter considered whether the circumstances

25     surrounding the notification of the subpoena and the deterioration of the

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 1     state of health of the accused could amount to "just excuse" pursuant to

 2     Rule 77(A)(iii) of the Rules, as submitted by the Defence in support of

 3     its contention that the accused should be acquitted.

 4             The Trial Chamber considers that the accused has not established

 5     the existence of just excuses pursuant to 77(A)(iii) of the Rules.

 6     First, considering all the elements in its possession, or his possession,

 7     the accused could not reasonably doubt that he was the addressee of the

 8     subpoena.  Secondly, though psychologically fragile, the accused was not

 9     in a state of health which prevented him from informing the Trial Chamber

10     that he could not comply with the subpoena.

11             Moreover, the Trial Chamber considers that the mens rea of the

12     offence is constituted by the fact that the accused, instead of complying

13     with the obligations imposed on him by the subpoena, voluntarily failed

14     to execute it by choosing to escape, without just excuses.  As a

15     consequence, he knowingly and willfully interfered with the

16     administration of justice.

17             Therefore, the Trial Chamber is satisfied beyond reasonable doubt

18     that the accused is guilty of the offence of contempt, pursuant to

19     77(A)(iii) of the Rules.

20             In its determination of the sentence, the Trial Chamber took into

21     account the gravity of the offence, the general sentencing practice of

22     the courts of the former Yugoslavia, and the jurisprudence of the

23     Tribunal, as well as the aggravating circumstance constituted by the

24     failure of the accused to comply, for the second time, with an order of

25     the Trial Chamber.  Due consideration was also given to the following

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 1     mitigating circumstances:  The absence of any prior criminal history; the

 2     facts that the accused voiced excuses for his conduct and the family; and

 3     personal circumstances of the accused.  In that regard, when determining

 4     the sentence, the Trial Chamber took into account the financial situation

 5     of the accused.

 6             Before reading the disposition, the Trial Chamber wishes to

 7     underline the gravity of the offence for which the accused is found

 8     guilty.  In that regard, the Trial Chamber wishes to recall that

 9     witnesses are not the property of the parties and that when the Trial

10     Chamber decides, by way of a subpoena, that their testimony is necessary

11     to establish the truth, they have to comply with it.  When ordered to

12     appear as a Trial Chamber witness, pursuant to Rule 98 of the Rules, the

13     accused could not refuse to comply with the subpoena by stating that he

14     was, and I quote, "'a Defence witness."

15             For the reasons summarized above, having taken into consideration

16     the totality of the arguments and evidence presented by the Defence, the

17     Trial Chamber decides that, pursuant to Rule 77 of the Rules: (i) the

18     accused Ljubisa Petkovic is guilty of contempt of the Tribunal,

19     punishable pursuant to 77(A)(iii) of the Rules; (ii) the accused Ljubisa

20     Petkovic is sentenced to four months of imprisonment, credit being given

21     to the three months and 14 days spent in detention at the United Nations

22     Detention Unit; (iii) the registry shall take all necessary measures for

23     the accused to serve his sense.

24             The summary of the Judgement in this case has been read out, and

25     we are now going to adjourn.

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 1             Thank you very much.

 2                           --- Whereupon the hearing adjourned at 1.27 p.m.