"Appeal Judgement on Allegations of Contempt Against Prior Counsel, Milan Vujin"

27 February 2001
Judges Jorda [Presiding], Bennouna, Wald, Pocar and Liu)

Procedural Background

• Pursuant to Rule 77 of the Rules of Procedure and Evidence1, Mr. Milan Vujin, Counsel from Belgrade, was called upon by the Appeals Chamber in early 1999 to respond to allegations that he had acted "in contempt of the Tribunal in that he knowingly and wilfully intended thereby to interfere with the administration of justice". Until November 1998, Mr. Vujin had represented Dusko Tadic in different capacities during proceedings in the Tribunal - as non-assigned co-counsel during the pre-trial stages of the prosecution, and as assigned lead counsel in the preparation of his appeal against his conviction and in proceedings before the Appeals Chamber. The allegations of contempt arose out of the Mr. Vujin's conduct as lead counsel for Tadic's appeal.

  The allegations of contempt against Milan Vujin were based on the fact that he provided additional evidence to the Appeals Chamber which he knew were false. These related to the weight to be accorded to statements of a man named Mlado Radic and to the responsibility of another man named Goran Borovnica in the killing of two Muslim policemen. The allegations also referred to manipulation of potential witnesses and to witness tampering.

• On 31 January 2000, the Appeals Chamber ruling in the first instance rendered its Judgement on allegations of contempt against prior counsel, Milan Vujin2. The Appellant was found guilty of contempt of the Tribunal and fined Dfl 15,000. The Appeals Chamber also directed the Registrar to consider striking him off the list of assigned counsel kept pursuant to Rule 45 of the Rules3.

• On that same day, Milan Vujin filed an application for leave to appeal against the Judgement which a Bench of the Appeals Chamber granted to him on 25 October 20004.

The Decision

The Appeals Chamber upheld the Judgement of 31 January 2000 ruling in the first instance. It dismissed the Appeal and ordered the Appellant to pay a fine of Dfl 15,000 to the Registrar within twenty-one days. The Appeals Chamber also found that the Registrar might consider striking off or suspending the Appellant for a set period from the list of assigned counsel and reporting his conduct to the latter's professional body.

The Reasoning

The Chamber considered that although "Rule 77 of the Rules does not expressly provide for the right to appeal a contempt conviction of the Appeal Chamber, [...] the Rules must be interpreted in conformity with the International Tribunal's Statute". It noted that the United Nations Secretary-General had stated that the Tribunal "must respect the internationally recognised standards regarding the rights of the accused including Article 14 of the International Covenant on Civil and Political Rights5"6. The Appeals Chamber characterised this text as "an imperative norm of international law" and consequently found that the Tribunal had to adhere to it. It further noted the penal nature of Rule 77 and the potential custodial sentence of up to 7 years' imprisonment. Consequently, a person found guilty of contempt by the Appeals Chamber shall have the right to appeal the conviction. The Chamber however regretted that the procedure was not "initially referred to a Trial Chamber, thereby providing for the possibility of appeal, rather than being heard by the Appeals Chamber, ruling in the first instance." Moreover the Judges pointed out the duty of the Tribunal "to guarantee and protect the rights of those who appear as accused before it". Therefore, the Appeals Chamber admitted the appeal, due to "the special circumstances" of this case.

The Appeals Chamber noted that the Tribunal "must have the power to prosecute and punish matters of contempt" in order to "function effectively and fairly" and that "the adoption of rules to prosecute and punish contempt falls within the purview of 'other appropriate matters' as required by Article 15 of the Statute"7. Therefore, the Chamber dismissed Mr. Vujin's submission on the Tribunal's lack of "power to prosecute and punish contempt".

The Appeals Chamber stated that "Rule 77 of the Rules does not provide for the striking off the list of eligible counsel as punishment following a conviction for contempt" and added that the Appeals Chamber Judgement "merely directed the Registrar to 'consider' striking" Milan Vujin off the list. It considered that "counsel can expect to be either suspended or struck off the list of assigned counsel kept by the Registrar" when convicted of contempt. Therefore, the Chamber dismissed the Appellant's submission on the direction to the Registrar to consider striking Milan Vujin off the list.

The Appeals Chamber referred to its Judgement of 24 March 2000 in the case The Prosecutor v. Zlatko Aleksovski8, in which it considered that, when ruling in the first instance, the Appeals Chamber may only overturn a Chamber's finding of fact, "where the evidence relied on could not have been accepted by any reasonable tribunal or where the evaluation of evidence is wholly erroneous". The Appeals Chamber found that Milan Vujin had not submitted that the allegations against him, if established, would not constitute contempt of the Tribunal and that it had heard many witnesses including the Appellant's testimony and set out a detailed and careful analysis of the evidence.

Pursuant to Rule 1159, the Appeals Chamber refused to admit an additional statement as evidence on the ground that the Appellant had not made any submissions about the unavailability of the statement at trial10.

Finally, the Appeals Chamber considered that "the evidence relied upon for the Judgement would have 'been accepted by any reasonable Tribunal' and that the evaluation of the evidence was not 'wholly erroneous'". Therefore, the Appeals Chamber dismissed Milan Vujin's submission to overturn the findings of fact.

Separate Opinion of Judge Wald dissenting from the Finding of Jurisdiction

In her Separate Opinion, Judge Wald stated that she does not think that Article 25 of the Statute11 gives to the Judges "the power to create such a two-level process" in the Appeals Chamber. She added that she finds no basis in the Rules either "for an appeal from one Appeals Chamber bench to another."

The Judge reviewed human rights norms in international conventions and in domestic laws on the right of appeal for convictions originating from the highest Court. On the basis of her examination, she could not "conclude that the creation of a new right to appeal an Appeals Chamber judgement is necessary so as to avoid a flagrant violation of accepted human rights norms."

Judge Wald emphasised that "the goal of providing an appeal from all convictions for criminal contempt is an eminently worthy one. However, it must be accomplished without wrenching all meaning from the constraints on the jurisdiction of the Appeals Chamber as set out in the Statute and Rules", such as transforming "the Appeals Chamber into a two-level entity for contempt only".

Judge Wald pointed out that since the rule of law "requires that courts acknowledge the statutes and rules that bind them in the exercise of their powers, even when those restraints interfere with understandable aspirations to maximise human rights norms", she dissented from the jurisdictional aspect of the judgement only.

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1. "(A) Any person who

(B) Any person who threatens, intimidates, causes any injury or offers a bribe to, or otherwise interferes with, a witness who is giving, has given, or is about to give evidence in proceedings before a Chamber, or a potential witness, commits a contempt of the Tribunal.
(C) Any person who threatens, intimidates, offers a bribe to, or otherwise seeks to coerce any other person, with the intention of preventing that other person from complying with an obligation under an order of a Judge or Chamber, commits a contempt of the Tribunal.
(D) Incitement to commit, and attempts to commit, any of the acts punishable under this Rule are punishable as contempts of the Tribunal with the same penalties.
(E) Nothing in this Rule affects the inherent power of the Tribunal to hold in contempt those who knowingly and wilfully interfere with its administration of justice.
(F) When a Chamber has reason to believe that a person may be in contempt of the Tribunal, it may, proprio motu, initiate proceedings and call upon that person that he or she may be found in contempt, giving notice of the nature of the allegations against that person. After affording such person an opportunity to appear and answer personally or by counsel, the Chamber may, if satisfied beyond reasonable doubt, find the person to be in contempt of the Tribunal.
(G) Any person so called upon shall, if that person satisfies the criteria for determination of indigency established by the Registrar, be assigned counsel in accordance with Rule 45.
(H) The maximum penalty that may be imposed on a person found to be in contempt of the Tribunal:

(i) under Sub-rules (A) and (E) above is a term of imprisonment not exceeding twelve months, or a fine not exceeding Dfl. 40,000, or both;
(ii) under Sub-rules (B), (C) or (D) above is a term of imprisonment not exceeding seven years, or a fine not exceeding Dfl. 200,000, or both.

(I) Payment of a fine shall be made to the Registrar to be held in a separate account.
(J) Any decision rendered by a Trial Chamber under this Rule shall be subject to appeal in cases where leave is granted by a bench of three Judges of the Appeals Chamber, upon good grounds being shown. Applications for leave to appeal shall be filed within seven days of the impugned decision. Where such decision is rendered orally, the application shall be filed within seven days of the oral decision, unless

2. The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-AR77, Appeals Chamber, Judgement on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 January 2000 (summarised in Judicial Supplement No. 11).
3. "(A) Whenever the interests of justice so demand, counsel shall be assigned to suspects or accused who lack the means to remunerate such counsel. Such assignments shall be treated in accordance with the procedure established in a Directive set out by the Registrar and approved by the Judges.
(B) A list of counsel who, in addition to fulfilling the requirements of Rule 44, have shown that they possess reasonable experience in criminal and/or international law and have indicated their willingness to be assigned by the Tribunal to any person detained under the authority of the Tribunal lacking the means to remunerate counsel, shall be kept by the Registrar.
(C) In particular circumstances, upon the request of a person lacking the means to remunerate counsel, the Registrar may assign counsel whose name does not appear on the list but who otherwise fulfils the requirements of Rule 44.
(D) If a request is refused, a further request may be made by a suspect or an accused to the Registrar.
(E) The Registrar shall, in consultation with the Judges, establish the criteria for the payment of fees to assigned counsel.
(F) Where a person is assigned counsel and is subsequently found not to be lacking the means to remunerate counsel, the Chamber may make an order of contribution to recover the cost of providing counsel.
(G) A suspect or an accused electing to conduct his or her own defence shall so notify the Registrar in writing at the first opportunity."
4. The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-AR77, Appeals Chamber, Decision on Application for Leave to Appeal, 25 October 2000 (summarised and analysed in Judicial Supplement No. 21).
5. Article 14(5) of the Covenant provides that "[e]veryone convicted of a crime shall have the right to have his conviction and sentence reviewed by a higher tribunal according to the law."
6. Report of the Secretary-General pursuant to Paragraph 2 of the Security Council Resolution 808 (1993), S/25704, 3 May 1993, page 27, para. 106.
7. "The judges of the International Tribunal shall adopt rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters."
8. The Prosecutor v. Zlatko Aleksovski ("Lasva River Valley"), Case No. IT-95-14/1-A, Appeals Chamber, Judgement, 24 March 2000 (summarised in Judicial Supplement No. 13).
9. "(A) A party may apply by motion to present before the Appeals Chamber additional evidence which was not available to it at the trial. Such motion must be served on the other party and filed with the Registrar not less than fifteen days before the date of the hearing.
(B) The Appeals Chamber shall authorise the presentation of such evidence if it considers that the interests of justice so require."
10. On the conditions of application of this text, see The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-A, Appeals Chamber, Decision on Appellant's Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 15 October 1998 (summarised in Judicial Supplement No. 1).
11. "1. The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following grounds:
(a) an error on a question of law invalidating the decision; or
(b) an error of fact which has occasioned a miscarriage of justice.
2. The Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers." (Emphasis added)