Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Thursday, 18 July 2013

 2                           [Judgement]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 4.01 p.m.

 6             JUDGE BAIRD:  A very good afternoon to you all.

 7             Today, Thursday, the 18th of July, 2013, this Trial Chamber

 8     consisting of Judges Melville Baird, O-Gon Kwon, Howard Morrison, and

 9     Flavia Lattanzi sitting as reserve Judge, pronounces its judgement on

10     allegations of contempt against the accused Radislav Krstic pursuant to

11     Rule 77(A)(i) of the Rules of Procedure and Evidence of the Tribunal.

12     This is only a summary, which does not form part of the judgement

13     delivered by the Trial Chamber.  The authoritative account of the

14     Trial Chamber's findings is contained in the written judgement, copies of

15     which will be made available after the hearing.  The accused will be

16     given a confidential version of the judgement, and a public redacted

17     version will also be made available to the public.

18             On 27 March 2013, the Chamber issued an Order in Lieu of

19     Indictment in which it charged the accused with contempt of the Tribunal,

20     punishable under Rule 77 of the Rules, for knowingly and wilfully

21     interfering with the administration of justice by refusing to testify in

22     the Karadzic case on several occasions as ordered in a subpoena dated 23

23     October 2012 and an addendum to this subpoena dated 7th November 2012 or

24     to show good cause why he could not so comply.

25             On 4 April 2013, the accused pleaded not guilty to the charge of

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 1     contempt.  The trial was held on 28 May 2013.  At trial, the Defence

 2     called one expert witness, and the Chamber admitted six Defence exhibits

 3     into evidence.

 4             Rule 77(A) of the Rules provides the Chamber with the inherent

 5     power to hold in contempt those who knowingly and wilfully interfere with

 6     its administration of justice, including any person who, being a witness

 7     before the Chamber, contumaciously refuses or fails to answer a question.

 8     This includes individuals who have been subpoenaed by a Chamber of the

 9     Tribunal, who appear before it, and then refuse to testify.

10             Turning now to the elements of contempt, the Chamber noted that

11     the accused was subpoenaed in the Karadzic case and that is not disputed

12     that he has persistently refused to testify before the Karadzic Chamber.

13     The accused has consistently contended, however, that he was refusing to

14     testify because he was suffering from post-traumatic stress syndrome, to

15     which I shall refer to hereinafter as PTSD, and if he were to testify

16     there would be a high likelihood that his health would be jeopardised and

17     it could deteriorate to such an extent that it would be difficult to

18     treat.  The Chamber therefore considered whether the accused's refusal to

19     testify was "without reasonable excuse."

20             From the medical testimony and various reports before it, the

21     Chamber is satisfied that the accused is suffering from PTSD.  The

22     Chamber also considered that the evidence of the expert witness called by

23     the Defence, Ms. Ana Najman, supported in material particulars other

24     evidence of a medical nature before the Chamber.  The Chamber further

25     considered that the testimony of the expert witness demonstrates that

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 1     since the accused has received the subpoena requiring him to testify in

 2     the Karadzic case, his mental state has deteriorated.  The Chamber is of

 3     the opinion therefore, by majority, Judge Kwon dissenting, that the

 4     additional evidence, set against the backdrop of the other evidence,

 5     reveals the existence of a reasonable excuse.  Thus on a consideration of

 6     the entirety of the evidence before it, the Chamber is of the opinion, by

 7     majority, Judge Kwon dissenting, that the severity of the mental

 8     condition of the accused and the possible aggravation of that medical

 9     condition testifying before the Karadzic Chamber might occasion would

10     amount to a reasonable excuse for the refusal of the accused to so

11     testify.  Put in the converse, having regard to the evidence in its

12     plenitude, the Chamber by majority, Judge Kwon dissenting, cannot be

13     satisfied beyond reasonable doubt that the above-mentioned factors do not

14     amount to a reasonable excuse for the refusal by the accused to testify

15     before the Karadzic Chamber.

16             In light of the above finding, the Chamber will not address the

17     remaining legal requirement under Rule 77(A)(i) of the Rules.

18             Mr. Krstic, would you please stand.

19             Having considered all the evidence, the Chamber, by majority,

20     Judge Kwon dissenting, finds that the accused Radislav Krstic is not

21     guilty of contempt of the Tribunal pursuant to Rule 77(A)(i) of the

22     Rules.

23             Judge Kwon appends a dissenting opinion to this judgement.

24             You may sit.

25             Mr. Visnjic, the Chamber thanks you very much indeed.

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 1             MR. VISNJIC:  Thank you.

 2             JUDGE BAIRD:  The Chamber stands adjourned.

 3                           --- Whereupon the hearing adjourned at 4.11 p.m.