|(Exclusively for the use of the media. Not an official document)||
The Hague, 30 May 2001
Mr. Nobilo Cleared of Contempt in the Aleksovski Case
On 30 May 2001, the Appeals Chamber consisting of Judges Hunt, Presiding, May, Robinson, Pocar and Fassi Fihri, rendered its Judgement on Appeal by Anto Nobilo Against Finding of Contempt.
The Appeals Chamber allowed the appeal by Mr. Nobilo and directed the Registrar to repay to him the sum of NLG 4,000 paid as the fine imposed by the Trial Chamber.
BACKGROUND ON THE FACTS AND THE PROCEEDINGS
As one of the Defence Counsel for General Blaškić, Mr. Anto Nobilo in September 1998 sought to tender during the re-examination of a Defence witness in the Blaškić trial, a map prepared by a witness who had testified for the Prosecution in the associated Aleksovski trial. He named the Aleksovski witness, describing him as such, and had the Blaškić witness disclose the professional position held by the Aleksovski witness. The Aleksovski Trial Chamber, however, had granted protective measures, inter alia, in respect of that witness’s identity, face and profession.
On 25 September 1998, the Prosecution filed a confidential Motion in which it complained to the Trial Chamber that the protective order had been violated, so that the Trial Chamber might call upon Mr. Nobilo to explain what had happened, pursuant to Rule 77(A) and (F) [Contempt of the Tribunal] of the Rules of Procedure and Evidence.
On 11 December 1998, Trial Chamber I, consisting of Judges Rodrigues, Presiding, Vohrah and Nieto-Navia, found that Mr. Nobilo had disclosed information relating to proceedings in the trial of Zlatko Aleksovski before the Trial Chamber in “knowing violation” of an order which it had made prohibiting the disclosure of the information. The Trial Chamber therefore considered that Mr. Nobilo had acted in contempt of the Tribunal and imposed on him a fine of NLG 10,000, of which payment of NLG 6,000 was suspended for a period of one year on condition that Mr. Nobilo was not found again in contempt of the Tribunal during that period (see Press Release No. 375 of 15 December 1998).
On 18 December 1998, Mr. Nobilo filed a confidential Application for leave to appeal the Decision of the Trial Chamber, which a Bench of the Appeals Chamber (Judges May [Presiding], Wang and Hunt) granted on 22 December 1998.
THE JUDGEMENT OF THE APPEALS CHAMBER
The Appeals Chamber identified the issue as being one of whether the Trial Chamber had erred in either law or fact in finding that Mr. Nobilo’s violation of the witness protection order was a “knowing” one and thus that he was in contempt of the Tribunal.
• It held that actual knowledge of the order was not required before it could be knowingly violated and that it was sufficient that the person charged with its violation acted in wilful blindness of the order. The Appeals Chamber defined wilful blindness as follows: “[p]roof of knowledge of the existence of the relevant fact is accepted in such cases where it is established that the defendant suspected that the fact existed (or was aware that its existence was highly probable) but refrained from finding out whether it did exist because he wanted to be able to deny knowledge of it (or he just did not want to find out that it did exist).” The Appeals Chamber held that wilful blindness is “equally culpable” as actual knowledge.
• It found that there was no evidence of wilful blindness. The Prosecution had accepted that Mr.
Nobilo “had been told that the map in question was a public document presented in open session.” The Appeals Chamber considered that “[t]his may well have given him the impression that all circumstances surrounding the map were public.” It emphasised that “[t]he fact that many protected witnesses give evidence in open court does not readily give rise to either the suspicion or the awareness of the high probability that a witness who gives evidence in open session is the subject of an order granting protective measures.” The Appeals Chamber pointed out that if the witness in question were a victim, it could perhaps be argued that Defence Counsel experienced in the practices of the Tribunal “would be aware of the risk that there will be an order granting protective measures to that witness.” However, it reiterated that the protected witness “was not a victim” and noted that Mr. Nobilo had described him as an expert giving evidence for the Prosecution and that such description had not been disputed. The Appeals Chamber considered that “[a]lthough some such witnesses may have been given the benefit of protective measures orders, it is not immediately apparent why protective measures would usually be needed for them, and there is no reason to suspect that all such witnesses may be the subject of such orders.” The Appeals Chamber stated that “[t]here can be no wilful blindness to the existence of an order unless there is first of all shown to be a suspicion or a realisation that the order exists. It added that “[i]f the Trial Chamber’s description of Mr. Nobilo’s failure to make inquiries as ‘deliberate’ was intended to be a finding of wilful blindness to the existence of the order, then the Appeals Chamber is satisfied that there was no basis in the evidence for such a finding.” It also expressed its satisfaction “that there was no basis in the evidence for the necessary conclusions (which in any event the Trial Chamber did not express) that Mr. Nobilo’s failure to make an inquiry as to the existence of the order resulted from his wish to be able to deny knowledge of its existence or because he just did not want to find out that it did exist.”
• In addition, the Appeals Chamber expressed its opinion on the important issue of whether it is necessary for the Prosecution also to establish an intention to violate or disregard the violated order. It held that it is not necessary to establish an intention to violate the order and that it is sufficient that the person charged “acted with reckless indifference as to whether his act was in violation of the order.”
• Finally, the Appeals Chamber noted that at no time during the hearing did the Trial Chamber formulate a specific charge against Mr. Nobilo which identified the nature of the contempt alleged as being that on which the Prosecution had relied in its Motion. It also noted that the definition of a “knowing” violation of a Trial Chamber’s order was not discussed at any time. The Appeals Chamber added that it is “essential that, where a Chamber initiates proceedings for contempt itself, it formulates at an early stage the nature of the charge with the precision expected of an indictment, and that it gives the parties the opportunity to debate what is required to be proved. It is only in this way that the alleged contemnor can be afforded a fair trial.”
• Judge Patrick Robinson appended a Separate Opinion to the Judgement in which he expressed his
“agreement with the decision of the Chamber in the matter” but stated that he did not believe that “the proceedings should have been instituted in the first place”. Judge Robinson concluded that “although the legal issues raised by the case are very important, much judicial time has been unnecessarily expended in this matter”.
The full text of the Appeals Chamber’s Judgement is available on hard-copy on request.
It is also being released on the Internet site of the Tribunal.
International Criminal Tribunal for the former Yugoslavia
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