Tribunal Criminal Tribunal for the Former Yugoslavia

Page 152

1 Wednesday, 30 August 2006

2 [Judgement]

3 [Open session]

4 [The accused not present]

5 --- Upon commencing at 9.00 a.m.

6 JUDGE ROBINSON: Will the registrar please call the case.

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

8 IT-95-14 & 95-14/2-R77, the Prosecutor versus Josip Jovic.

9 JUDGE ROBINSON: May we have the appearances for the Prosecution?

10 MS. SUTHERLAND: Good morning, Your Honours, Ann Sutherland,

11 Salvatore Cannata, and Sebastiaan van Hooydonk for the Prosecution.

12 JUDGE ROBINSON: Thank you very much, Ms. Sutherland.

13 For the Defence.

14 MR. KRSNIK: [Interpretation] Good morning, Your Honours. Kresimir

15 Krsnik on behalf of the Defence.

16 JUDGE ROBINSON: This is a hearing pursuant to Rule 98 ter of the

17 Tribunal's rules for the Trial Chamber to deliver its judgement in the

18 case against Mr. Josip Jovic charged with contempt punishable under the

19 Tribunal's rules.

20 Mr. Jovic has waived his right to be present at this hearing but

21 he's represented by counsel. Copies of the written judgement will be made

22 available to the parties and the public at the end of this hearing.

23 I now give a summary of the judgement.

24 In November and December 2000, Mr. Jovic was the editor-in-chief

25 of Slobodna Dalmacija a Croatian daily newspaper. During that period,

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1 Slobodna Dalmacija published a number of articles related to Mr. Stjepan

2 Mesic, the president of Croatia, and his testimony in closed session

3 before this Tribunal in March 1998 in the Blaskic trial. The first

4 article was published on the 27th of November, 2000, on the front page of

5 Slobodna Dalmacija. It claimed to contain Mr. Mesic's testimony before

6 the Tribunal in the Blaskic trial. In fact, it contained excerpts from a

7 written statement which Mr. Mesic provided to the Prosecution one year

8 prior to his testimony in the Blaskic trial. Similar articles were

9 published by the newspaper on the 28th, the 29th and the 30th of November,

10 2000.

11 On the 1st of December, 2000, the Prosecution brought these

12 articles to the attention of the Blaskic Trial Chamber which that day

13 issued an order in the following terms: The publication of statements or

14 testimonies of the witness concerned and generally of any protected

15 witness shall cease immediately. Any publication of these statements or

16 testimonies shall expose its author or authors and those responsible to be

17 found in contempt of the Tribunal. Within the terms of the order, the

18 Registrar was requested to send the order by telefax to Slobodna Dalmacija

19 as soon as practicable, and Mr. Jovic acknowledged at the trial that he

20 received the order on the 1st of December, 2000.

21 On the 3rd of December, 2000, Slobodna Dalmacija printed this

22 cease and desist order of 1st December 2000 describing it as arrogant and

23 aggression on a legal state. The next day, the newspaper's front page

24 article quoted Mr. Jovic as saying he would take a decision on further

25 publication of the text after studying all legal aspects of the ban.

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1 By the 6th of December, 2000, Mr. Jovic had made his decision.

2 The front page of his newspaper announced "Slobodna reveals The Hague

3 secret." It expressly stated, exclusive, transcript of the secret

4 testimony of the protected witness Stjepan Mesic and contained an excerpt

5 of Mr. Mesic's closed session testimony.

6 In an accompanying article, Mr. Jovic wrote of his reasons for

7 choosing to publish the testimony and stated: "Despite the order from the

8 Tribunal in The Hague, which threatens Slobodna Dalmacija with penalties,

9 we decided, notwithstanding the risk, to publish instalments of the whole

10 contents of Mesic's mysterious testimony given before the Tribunal in

11 The Hague from the 16th to the 19th of March, 1998."

12 And indeed, this is just what Mr. Jovic went on to do. Between

13 the 7th and the 29th of December, 2000, Slobodna Dalmacija published 21

14 additional excerpts of Mr. Mesic's closed session testimony.

15 Following an investigation, an indictment was filed against

16 Mr. Jovic on 29th August 2005 and confirmed on the 12th of September,

17 2005. This indictment was later amended on the order of this Trial

18 Chamber.

19 The amended indictment charges Mr. Jovic with contempt under both

20 Rule 77(A) and Rule 77(A)(ii). More particularly, it charges him with

21 knowingly and wilfully interfering with the administration of justice by

22 publishing the identity of a protected ICTY witness, the fact that the

23 witness testified in closed session at the Tribunal and excerpts of that

24 testimony as well as directly violating the order to cease such

25 publication.

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1 The amended indictment refers to three orders issued in the course

2 of the Blaskic trial. The first order is a decision on the protection of

3 witnesses dated 6 June 1997. The second order is the oral order of

4 16th March 1998 that Mr. Mesic would testify in closed session. The third

5 order is the written cease and desist order dated 1st December 2000.

6 The trial of Mr. Jovic was held on the 11th of July, 2006 before

7 this Trial Chamber. In the course of the trial, the Chamber heard

8 submissions from the Prosecution and the Defence, also heard oral

9 testimony from Mr. Jovic and examined a number of documents. At, trial

10 the Prosecution did not substantively pursue the allegations in relation

11 to the first order, nor those in relation to publication of Mr. Mesic's

12 identity and the fact of his testimony. Accordingly, the Trial Chamber

13 will not consider the charges in relation to those matters.

14 It is clear that the Tribunal has an inherent power to hold

15 individuals in contempt. Furthermore, Rule 77(A) provides for a number of

16 situations in which contempt is committed. Rule 77(A)(ii) refers

17 specifically to the Tribunal's power to punish anyone who discloses

18 information relating to those proceedings in a knowing violation of an

19 order of a Chamber. Given that the instances of contempt alleged in this

20 case are said to have been knowing violations of the Blaskic Trial

21 Chamber's orders, Rule 77(A)(ii) more specifically applies to the

22 circumstances of this case.

23 The physical element of this form of contempt is the act of

24 disclosure of information relating to proceedings before the Tribunal

25 where such disclosure would breach an order of a Chamber.

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1 As this Trial Chamber has explained in a previous case, an oral

2 order that a witness shall testify in closed session renders everything

3 that transpires within the session confidential and applies to all persons

4 coming into possession of protected information. In addition, where the

5 content of a written witness statement is largely the same as the content

6 of oral testimony given in closed session, that content must also be

7 considered protected by the terms of the closed session order; otherwise,

8 the protection granted would be ineffectual. From its examination of the

9 relevant articles and Mr. Jovic's testimony at trial, the Trial Chamber

10 has no doubt that Mr. Jovic published transcripts which violated both the

11 oral order for Mr. Mesic to testify in closed session and the 1st December

12 2000 cease and desist order.

13 Additionally, because the content of Mr. Mesic's written witness

14 statement is largely the same as the content of his oral testimony given

15 in closed session, Mr. Jovic's publication of the written statement in

16 November 2000 also violated the orders of the Blaskic Trial Chamber.

17 The mental element of this form of contempt was the central issue

18 at trial. This Trial Chamber has described the requisite mens rea as the

19 knowledge of the alleged contemner of the fact that his disclosure of

20 particular information is done in violation of an order of a Chamber.

21 There may be actual knowledge or knowledge may be inferred from the

22 circumstances. Mr. Jovic conceded knowledge of the cease and desist order

23 dated 1st December 2000.

24 His knowledge of the oral order for closed session can be

25 inferred from his testimony that since early 2000, he possessed and went

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1 on to publish transcripts of that testimony which were marked "closed

2 session," as well as transcripts of counsel's submissions as to the need

3 for closed session which were marked "private session." This inference

4 extends to knowing that the closed session transcripts reflected the

5 substance of Mr. Mesic's written witness statement. In the Chamber's

6 view, Mr. Jovic clearly possessed the requisite mens rea with regard to

7 the November and December publications.

8 At trial, counsel for Mr. Jovic put forward an alternative

9 mens rea standard, being knowledge of the order and its applicability to

10 oneself as a matter of law. It was submitted that although Mr. Jovic knew

11 that the Tribunal had ordered him not to publish protected material, he

12 did not believe that he was bound by the Tribunal's orders and therefore

13 cannot be held in contempt of the Tribunal.

14 Even assuming Mr. Jovic was genuine as to his mental state, it is

15 settled that an error of law is no answer to this charge. If mistake of

16 law were a defence, orders would become suggestions and a Chamber's

17 authority to control its proceedings from which the power to punish

18 contempt derives would be hobbled. Furthermore, potential witnesses need

19 to have confidence in the Tribunal's ability to guarantee the

20 confidentiality of their identities and testimony, should this be

21 necessary in order for the Tribunal to function.

22 Likewise, other arguments that Mr. Jovic's counsel sought to raise

23 at trial do not assist him. The fact that the Blaskic Trial Chamber had

24 concluded by the time Mr. Jovic published the protected material is

25 irrelevant, as protective measures for witnesses continue after the

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1 conclusion of trial.

2 The possibility that the protected witness who at the time of

3 publication was the president of the Republic of Croatia was better

4 protected than other witnesses is not dispositive, as it is for the

5 Tribunal alone to amend or withdraw the orders it issues.

6 Finally, Mr. Jovic is unable to invoke the principle of freedom of

7 the press to excuse his conduct. Clearly, legal instruments relevant to

8 the work of the Tribunal protect freedom of expression but it is equally

9 clear that there are qualifications in relation to court proceedings. As

10 the instruments provide, a court's restriction of press freedom is

11 permissible if authorised by law and necessary for the maintenance of an

12 interest such as the protection of the reputation or the rights of others,

13 for preventing the disclosure of information received in confidence or for

14 maintaining the authorities and impartiality of the judiciary.

15 In light of Article 20, paragraph 4 of the Statute of the

16 Tribunal, which authorises a Trial Chamber to order that certain evidence

17 be confidential, the orders at issue in this case were valid limitations

18 of Mr. Jovic's right to publish information about Tribunal proceedings.

19 It is not for individuals, including journalists, to choose to

20 publish information in defiance of such an order on the basis of their own

21 assessment of the public interest in that information. Mr. Jovic was free

22 to request clarification or modification of the Blaskic Trial Chamber's

23 orders but chose not to do so.

24 In conclusion, the Trial Chamber has found, beyond a reasonable

25 doubt, that Mr. Jovic committed the offence of contempt described in

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1 Rule 77(A)(ii) for violating both the 16th of March 1998 closed session

2 and the 1st December 2000 cease and desist orders.

3 A mitigating factor in this case is Mr. Mesic's public

4 acknowledgements that he had produced a written statement for and

5 testified as a witness in the Blaskic case. This can be interpreted as

6 his implicit assertion that the protective measures are no longer

7 necessary. Nevertheless, the contemptuous behaviour here was particularly

8 egregious. Mr. Jovic published a protected witness's evidence, and after

9 being ordered to cease disclosing confidential material, compounded this

10 contempt by publishing in each of 22 consecutive newspaper editions the

11 transcripts of the witness's closed session testimony while boasting that

12 the transcripts were secret.

13 He treated the orders of the Blaskic Trial Chamber with utter

14 disregard.

15 His actions not only were contemptuous but also stymied the

16 Tribunal's ability to safeguard the evidence of a protected witness and

17 risked undermining confidence in the Tribunal's ability to grant effective

18 protective measures.

19 The Trial Chamber therefore finds Mr. Jovic guilty of contempt and

20 imposes on him a fine of 20.000 euros, to be paid to the Registrar of the

21 Tribunal within 30 days of this judgement.

22 The hearing is adjourned.

23 --- Whereupon the hearing adjourned at 9.19 a.m.