Tribunal Criminal Tribunal for the Former Yugoslavia

Page 558

 1                           Monday, 14 September 2009

 2                           [Judgement]

 3                           [Open session]

 4                           --- Upon commencing at 9.30 a.m.

 5             JUDGE MOLOTO:  Good morning to everybody in and around the

 6     courtroom.

 7             Mr. Registrar, will you please call the case.

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

 9     IT-02-54-R77.5, the case against Florence Hartmann.

10             JUDGE MOLOTO:  Thank you very much, Mr. Registrar.

11             Could we have appearances for today, starting with the

12     Prosecution.

13             MR. MacFARLANE:  Thank you, Your Honours.  My name is

14     Bruce MacFarlane, and I have been appointed the amicus curiae in these

15     proceedings.

16             JUDGE MOLOTO:  Thank you very much, Mr. MacFarlane.

17             And for the Defence.

18             MR. METTRAUX:  Good morning, Your Honours.  Guenael Mettraux on

19     behalf of Florence Hartmann.  I would like to apologise on the part of

20     Mr. Khan who is unable to attend for a prior professional commitment.

21             JUDGE MOLOTO:  Thank you very much, Mr. Mettraux.

22             The Specially Appointed Chamber sits today to deliver its

23     Judgement in the case against Florence Hartmann.  For this purpose, it

24     will briefly summarise the procedural history of the case, the applicable

25     law, and the main submissions of the parties, and finally, the Chamber's

Page 559

 1     findings.  The Chamber emphasises that the authoritative account of its

 2     findings in this case is the written Judgement, which will be available

 3     at the close of the session.

 4             I will start with the procedural history and the indictment.

 5             The operative order in lieu of an indictment was filed on the

 6     27th of October, 2008.  It alleges that Florence Hartmann, the accused,

 7     knowingly and wilfully interfered with the administration of justice by

 8     disclosing the contents, purported effect and confidential nature of the

 9     two Appeals Chamber decisions from the Slobodan Milosevic case in a book,

10     as well as in an article authored by her.  Based on the foregoing, the

11     accused has been charged with two counts of contempt punishable under

12     Rule 77(A)(ii) of the Rules of Procedure and Evidence of this Tribunal.

13             The trial was conducted on the 15th to the 17th June and

14     concluded on the 1st of July, 2009.  The parties submitted final briefs

15     on the 2nd of July, and closing arguments were heard on the

16     3rd of July, 2009.  The Chamber has heard the live testimony of two

17     Prosecution witnesses, and two Defence witnesses.  A statement of one

18     Prosecution witness was submitted as part of a joint filing.

19             I will now summarise the relevant law applicable to this case.

20             It has been firmly established that the Tribunal possesses an

21     inherent jurisdiction to prosecute and punish contentious conduct.  This

22     inherent jurisdiction derives from the Tribunal's judicial power to

23     ensure that it is not frustrated in the exercise of the jurisdiction in

24     accordance with its Statute.  And that its basic judicial functions are

25     safeguarded.

Page 560

 1             The accused is charged pursuant to Rule 77(A)(ii) of the Rules,

 2     which provides that:

 3             "The Tribunal in the exercise of its inherent power may hold in

 4     contempt those who knowingly and wilfully interfere with the

 5     administration of justice, including any person who ... (ii) discloses

 6     information relating to those proceedings in knowing violation of an

 7     order of a Chamber."

 8             The elements of this form of contempt are the revelation of

 9     confidence information to a third party or to the public in breach of an

10     order of the Tribunal.  The person responsible for revealing such

11     information must have done so in knowing violation of a Chamber's order.

12             I shall now move to the parties' submissions and the Chamber's

13     discussion as to whether the requisite elements have been met in this

14     case.

15             The Defence has argued that the factual allegations in this case

16     are not serious enough to warrant the initiation of criminal proceedings

17     pursuant to Rule 77 of the Rules.  It has also asserted that the Tribunal

18     has no jurisdiction to proceed under Rule 77 unless "a real risk" to the

19     administration of justice exists.  The Chamber has found, however, that

20     any knowing and wilful conduct which interferes with the administration

21     of justice may be properly tried as contempt.  As discussed in more

22     detail in the written Judgement, the Chamber has found that these are

23     factors that are more appropriately considered in the context of

24     sentencing.

25             Turning now to the actus reus.  It is an agreed fact between the

Page 561

 1     parties that the accused was the sole author of both the book and the

 2     article which are the subject of the charges against her.

 3             The Prosecution has submitted that the actus reus has been

 4     established in this case for both counts.  The Defence has submitted,

 5     inter alia, that the actus reus cannot be established because the

 6     Tribunal as well as the applicant for the protective measures subject to

 7     the two Appeals Chamber decisions had already made public the same

 8     information the accused is alleged to have disclosed.  Supported by the

 9     jurisprudence of this Tribunal, the Chamber has emphasised that a

10     decision remains confidential until a Chamber explicitly decides

11     otherwise.  As discussed in further detail in the written Judgement, the

12     Chamber has thus found that the Defence argument that the confidentiality

13     of the two Appeals Chamber decisions was lifted either by an

14     actus contrarius of the Tribunal, or by the applicants's waiver of

15     confidentiality, lacks merit.

16             Moreover, many of the Defence's arguments in this respect are

17     premised on a misconceived interpretation of the scope of the charges

18     against the accused by limiting them to four facts; namely, 1, the

19     existence and date of the Appeals Chamber decisions; 2, the of

20     confidential character of the Appeals Chamber decisions; 3, the identity

21     of the applicant for protective measures for specific documents; and, 4,

22     the fact that the protective measures requested by the applicant were

23     granted with respect to those documents.

24             The Defence further argued that the accused is not charged with

25     disclosing the legal reasoning contained in the text of the two Appeals

Page 562

 1     Chamber decisions, arguing in this respect that there is no valid legal

 2     basis upon which to punish disclosure of the Chamber's legal reasoning.

 3     The wording of the indictment, however, is clear.  The accused is charged

 4     with disclosing the content, purported effect and confidential nature of

 5     the two Appeals Chamber decisions.  This does not, as discussed in detail

 6     in the written Judgement, exclude the legal reasoning of the Appeals

 7     Chamber.  In addition, the Chamber found that the accused published more

 8     than just the four facts which the Defence alleges the indictment is

 9     limited to.

10             The Chamber has found that the accused, in her book, has

11     disclosed confidential information contained in the Appeals Chamber

12     decisions.  The information contained in the relevant pages of her book

13     is also contained in the article authored by the accused, which, in her

14     own words, was an English version of passages in the book.  The Chamber

15     has found that the Appeals Chamber decisions that are the subject of the

16     charges against the accused were confidential at the time the accused --

17     the accused's publication and indeed remain so currently.  While the

18     Chamber has found that some information disclosed by the accused in the

19     publications was indeed in the public domain, this fact does not in and

20     of itself negate the actus reus of the charges against the accused.  The

21     Chamber having thoroughly reviewed the available evidence was satisfied

22     beyond a reasonable doubt that by writing and publishing the book and the

23     article, the accused revealed confidential information contained in the

24     Appeals Chamber decisions and thereby disclosed information in violation

25     of an order of the Chamber.

Page 563

 1             With respect to the mens rea, the Prosecution has submitted that

 2     the accused possessed actual knowledge with respect to both counts, on

 3     the basis, that, 1, she made express reference to the confidential nature

 4     of the Appeals Chamber decisions in her book; 2, she received a letter

 5     from the Registrar of the Tribunal after the publication of her book but

 6     prior to her publication of the article, which "fixed her with knowledge"

 7     that there was an issue concerning the improper disclosure of

 8     confidential information; and, 3, there is contextual information which

 9     supports such a finding.

10             The Defence has submitted that the Prosecution has failed to

11     prove that the accused had the specific intent to interfere with the

12     administration of justice.  As discussed in greater detail in the

13     Judgement, the Chamber has rejected the definition of mens rea proposed

14     by the Defence.  The Defence has further asserted that the accused may

15     have been mistaken in fact and/or in law, when publishing the alleged

16     information.  For reasons set out in the written Judgement, the Chamber

17     has found that this argument must fail on the basis of the accused's own

18     words and deeds.  The Chamber has also considered the fact that the

19     accused, in her capacity as spokesperson for the former Prosecutor of the

20     Tribunal, Carla Del Ponte, from 2000 to 2006 was well aware what the

21     confidentiality of a decision entailed.  In sum, the Chamber was

22     satisfied beyond a reasonable doubt that the accused had the requisite

23     mens rea for the form of contempt she is charged with; namely, that she

24     revealed confidential information in knowing violation of a court order.

25             As a result, the Chamber is satisfied that the Prosecution proved

Page 564

 1     beyond a reasonable doubt that the accused knowingly and wilfully

 2     interfered with the administration of justice and thereby committed the

 3     crime of contempt of the Tribunal on both counts as charged in the

 4     indictment.

 5             I will now turn to considerations relevant to sentencing.

 6             Pursuant to Article 24 of the Statute and Rule 101 of the Rules,

 7     the Chamber took into account several factors in its determination of the

 8     appropriate penalty for the accused, as set out in greater detail in the

 9     written Judgement.  In particular, the Chamber has assessed the risk of

10     interference with the Tribunal's administration caused by the accused's

11     conduct.  It has found that this risk is real and that it is serious.

12     The Chamber has found the accused's conduct may deter sovereign states

13     from cooperating with the Tribunal where the provision of evidentiary

14     material is concerned.  This in turn necessarily impacts upon the

15     Tribunal's ability to exercise its jurisdiction to prosecute and punish

16     serious violations of humanitarian law as prescribed by its mandate.

17     Public confidence in the effectiveness of protective measures, orders and

18     decisions is vital to the success of the work of the Tribunal.  In the

19     determination of the appropriate penalty, the Chamber has also considered

20     the need to deter future wrongful disclosure of confidential information

21     by the accused or any other person.

22             However, the Chamber has also considered the fact that some of

23     the information published by the accused was already in the public

24     domain.  It also took into account that the accused's book has not been a

25     commercial success and than she is indebted to her publisher Flammarion

Page 565

 1     for approximately 10.000 euros.  The accused has cooperated with the

 2     Tribunal throughout the investigation and trial, and does not, to the

 3     knowledge of the Chamber, have a previous criminal record.

 4             The Prosecution has submitted that a term of imprisonment would

 5     not be justified in the circumstances of this case and recommends a fine

 6     between 7.000 and 15.000 euros.  The Defence has submitted that should

 7     the accused be convicted, she could be ordered to "keep the peace and be

 8     of good behaviour," and not "to publicly discuss the Appeals Chamber

 9     decisions or their content."

10             Pursuant to Rule 77(G) of the Rules, the maximum penalty that may

11     be imposed on a person found to be in contempt of the Tribunal shall be a

12     term of imprisonment for 7 years or a fine of 100.000 euros, or both.

13             Ms. Hartmann, please stand up.

14             For the foregoing reasons, having considered all the evidence and

15     the arguments of the parties, the Chamber, pursuant to the Statute of the

16     Tribunal and Rules 77 and 77 bis of the Rules, finds the accused guilty

17     of:  One, Count 1, knowingly and wilfully interfering with the Tribunal's

18     administration of justice by disclosing information in violation of an

19     order of the Appeals Chamber dated the 20th of September, 2005, and an

20     order of the Appeals Chamber dated the 6th of April, 2006, by means of

21     authoring for publication a book entitled "Paix et Chatiment," published

22     by Flammarion on the 10th of September, 2007; and, two, Count 2,

23     knowingly and wilfully interfering with the Tribunal's administration of

24     justice by disclosing information in violation of an order of the Appeals

25     Chamber dated the 20th of September, 2005, and an order of the Appeals

Page 566

 1     Chamber dated the 6th of April, 2006, by means of authoring for

 2     publication an article entitled "Vital Genocide Documents Concealed,"

 3     published by the Bosnian Institute on the 21st of January, 2008.

 4             The accused is hereby sentenced to pay of a fine of 7.000 euros,

 5     to be paid by two installments of 3.500 euros each, the first to be paid

 6     by the 14th of October, 2009, and the second to be paid by the

 7     14th of November, 2009.

 8             That concludes the Judgement.

 9             Court adjourned.

10                            --- Whereupon the hearing adjourned at 9.50 a.m.