Tribunal Criminal Tribunal for the Former Yugoslavia

Page 203

1 Wednesday, 7 February 2007

2 [Judgement]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 4.09 p.m.

6 JUDGE ORIE: The Trial Chamber is sitting today to deliver its

7 judgement in the case of the Prosecutor versus Domagoj Margetic. Before

8 we continue, I see that for the Prosecution you are present,

9 Ms. Sutherland, accompanied by team members.

10 Mr. Margetic, first of all, can you hear me in a language you

11 understand?

12 THE ACCUSED: [Interpretation] Yes, I do.

13 JUDGE ORIE: Thank you, Mr. Margetic. I notice that you're not

14 accompany by counsel at this moment. I learned that this morning you

15 inform the Registry that Mr. Miljevic is abroad. May I, therefore, take

16 it that you discussed with Mr. Miljevic whether or not he would be

17 present, and that you have decided that you would be alone here,

18 unaccompanied by Mr. Miljevic.

19 THE ACCUSED: [Interpretation] Yes, that's correct. Mr. Miljevic

20 has other commitments. We discussed this the other day when I was in

21 hospital in Zagreb, and he said he had other commitments so I travelled

22 here on my own.

23 JUDGE ORIE: Under those circumstances, then, the Chamber will

24 proceed even if Mr. Miljevic is not present.

25 For the purposes of this hearing, the Trial Chamber will briefly

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1 summarise its findings. We emphasise that this is a summary only and that

2 the authoritative account of the Chamber's findings is to be found in the

3 written judgement which will be made available at the end of this session.

4 Mr. Margetic was born on the 9th of January, 1974, in Zagreb,

5 Croatia. He is a freelance journalist who has been the editor-in-chief of

6 two Croatian publications.

7 Mr. Margetic stood trial for contempt of this Tribunal pursuant to

8 Rule 77 of the Tribunal's Rules of Procedure and Evidence. He's charged

9 with having published on the internet a complete confidential witness list

10 containing the names of witnesses who testified in the case Prosecutor

11 versus Blaskic. Among them, a high number of protected witnesses. He's

12 also charged with authoring accompanying articles which revealed

13 identities of a high number of witnesses from the witness list. All

14 articles were also published on other web sites and hyperlinked to the web

15 site ever Mr. Margetic.

16 Mr. Margetic was previously an accused in another contempt case

17 but against indictment him was withdrawn before trial. In proceedings of

18 this previous case, the witness list at issue in the instant case had then

19 been disclosed to Margetic pursuant to the Tribunal's Rules of Procedure

20 and Evidence.

21 In the instant case, the trial was held in two sessions on the

22 30th of November, 2006, and on the 8th of December of that same year.

23 Mr. Margetic appeared as a witness in his own case.

24 As a preliminary matter, the Trial Chamber notes that the Tribunal

25 has the inherent power to prosecute and punish conduct which interferes

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1 with the administration of justice and, therefore, rejects the challenge

2 of jurisdiction raised by the Defence.

3 As another preliminary matter, the Trial Chamber notes

4 Mr. Margetic claimed that he publish the witness list because he

5 considered himself an investigative journalist. The Trial Chamber states

6 the following: Journalists are free to report and comment on all

7 proceedings before the Tribunal, including the testimony of witnesses.

8 However, they are under an obligation to respect the Tribunal's orders and

9 protective measures granted to witnesses.

10 The Prosecution alleges that by publishing the witness list,

11 Mr. Margetic has violated protective measures orders, interfered with

12 witnesses, and thereby has knowingly and wilfully interfered with the

13 administration of justice and is in contempt of the Tribunal pursuant to

14 Rule 77(A) of the Rules.

15 Rule 77(A) provides for various types of conduct constituting

16 contempt of the Tribunal, among them "disclosing information in violation

17 of an order bay Chamber," and "threatening, intimidating, causing injury

18 to, offering bribes, or otherwise interfering with witnesses or potential

19 witnesses." In general terms, Rule 77(A) provides that the Tribunal may

20 hold in contempt those who knowingly and wilfully interfere with the

21 administration of justice.

22 There was no dispute that Mr. Margetic actually published the

23 witness list on the internet. Neither was it in dispute that the Blaskic

24 Trial Chamber had had issued 48 oral orders and three written orders

25 assigning pseudonyms to 48 witnesses on the list and granting that the

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1 testimony of 21 of these witnesses be given in closed session. These

2 orders rendered the names and identities of the respective witnesses

3 confidential.

4 The Defence argued that Mr. Margetic did not violate these

5 protective measures orders because at the time when he published the

6 witness list it was no longer a confidential document.

7 The witness list was admitted into evidence in another case;

8 namely, the case Prosecutor versus Jovic, shortly before Mr. Margetic

9 published it. On the 3rd of July, 2006, the Jovic Trial Chamber granted a

10 Prosecution motion to admit into evidence several documents, one of which

11 was the witness list. The Defence's argument is that by admitting the

12 witness list into evidence in the Jovic case, it became a public document.

13 All documents that the Jovic Trial Chamber admitted into evidence

14 in early July, including the witness list, were listed in an annex to the

15 Prosecution motion. This annex contained no indication as to the public

16 or confidential status of the documents listed therein.

17 On the 21st of August, 2006 - that is seven weeks after the Jovic

18 Chamber had admitted the witness list as an exhibit without specifying its

19 status - the Prosecution filed another motion with regard to the witness

20 list. It raised the concern that the confidential status of the witness

21 list was not expressly indicated and that the court records do not mention

22 that the witness list is a confidential document. One day later, the

23 Jovic Trial Chamber ordered Registry to assign a new exhibit number to the

24 witness list and rename it as confidential.

25 The Defence argues that up until this last order of the Jovic

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1 Trial Chamber - that is until the 22nd of August, 2006 - the witness list

2 was in the public domain and that Mr. Margetic performed an allowable

3 action when he published it.

4 The Trial Chamber notes that the witness list was from the outset

5 a confidential the document and never lost its status as such. The Jovic

6 Trial Chamber did not reverse the confidential status of the document when

7 it admitted it into evidence without referring to its status. In

8 particular, the decision of the Jovic Trial Chamber did not have the

9 effect of rescinding all the protective measures orders issued in the

10 Blaskic case; rather, Rule 75(F)(i) of the Rules provides that once

11 protective measures have been ordered in respect of certain witnesses,

12 they continue to apply mutatis mutandis in other proceedings until they

13 are rescinded, varied, or augmented in accordance with the procedure in

14 that Rule.

15 In order to rescind protective measures, an actus contrarius is

16 necessary. An application for the rescission of these protective measures

17 has, however, not been submitted either to the Blaskic Chamber during the

18 review proceedings or to any other Chamber.

19 The protective measures -- the protective measures orders issued

20 by the Blaskic Trial Chamber have therefore not been reversed and the

21 witness list at no time became a public document.

22 The Trial Chamber finds that Mr. Margetic disclosed information;

23 namely, the identities of protected witnesses, in violation of orders

24 issued by the Blaskic Chamber.

25 Mr. Margetic also met the relevant mental element requirements

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1 when he published the witness list. The Prosecution sent notification of

2 confidentiality to Mr. Margetic both through post and e-mail. In a letter

3 addressed to Mr. Margetic dated 6th of April, 2006, the accused was warned

4 that the material disclosed to him, which included the witness list, was

5 subject to non-disclosure orders. An electronic version of the letter was

6 also sent by e-mail. Furthermore, the witness list itself was clearly

7 marked as "confidential."

8 The Trial Chamber does not accept Mr. Margetic's claim that he did

9 not receive the letter or the e-mail and that the confidential material

10 arrived unaccompanied by the letter. It also rejects the Defence argument

11 that Mr. Margetic believed that the witness list was or became a public

12 document. To the contrary, in the accompanying articles, Mr. Margetic

13 repeatedly emphasised that he was publishing confidential information.

14 It was submitted that Mr. Margetic found on the internet a

15 decision of the Jovic Trial Chamber which declared the witness list to be

16 a public document and which was allegedly dated the 11th of July of 2006.

17 In fact, there was no such decision of the Jovic Trial Chamber on the 11th

18 of July. Furthermore, in the 3rd of July decision of the Jovic Trial

19 Chamber, the witness list is not explicitly mentioned and nothing is said

20 about the public status of admitted exhibits. It was the decision of the

21 22nd of August that publicly mentioned the status of the witness list for

22 the first time.

23 The Trial Chamber concludes that Mr. Margetic only became aware of

24 the questions about the status of the witness list after he had published

25 it. Indeed, Mr. Margetic did not refer to the purported decision of the

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1 Jovic Trial Chamber any earlier than in September 2006. The contention

2 that Mr. Margetic believed that the witness list, at the time he published

3 it, was a public document is therefore not credible.

4 By publishing the witness list, Mr. Margetic also interfered with

5 witnesses. The fact that Mr. Margetic committed contempt by disclosing

6 information in violation of an order described in Rule 77(A)(ii) does not

7 preclude that he at the same time committed contempt by interfering with

8 witnesses as described in Rule 77(A)(iv).

9 The two sub-Rules different with respect to the interests they

10 seek to protect. Rule 77(A)(ii) focuses on the disrespect of judicial

11 orders, not necessarily with respect to witnesses. Rule 77(A)(iv) focuses

12 on witnesses, not necessarily protected by any judicial order.

13 Rule 77(A)(iv) gives a non-exhaustive list of possible forms of

14 contempt of court which relate to witnesses, among them threatening and

15 intimidating witnesses. It also provides for the conduct of otherwise

16 interfering with witnesses. The indictment does not allege that Mr.

17 Margetic threatened or intimidated witnesses, but that he otherwise

18 interfered with witnesses.

19 The Trial Chamber notes that conduct constitutes otherwise

20 interfering with witnesses if such conduct a likely to have the result of

21 dissuading witnesses or potential witnesses from cooperating with the

22 Tribunal, of influencing the nature of their evidence, or of exposing

23 witnesses or potential witnesses to threats, intimidation, or injury by a

24 third party.

25 The Trial Chamber considers that it is likely that witnesses on

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1 the witness list will be dissuaded from giving evidence in the future due

2 to the publication of their names by Mr. Margetic. The Trial Chamber

3 heard evidence that three witnesses whose names had been disclosed would

4 be reluctant to testify before the Tribunal in the future because of fears

5 for their safety.

6 The Trial Chamber finds that it is also likely that other

7 individuals on the list will be dissuaded from future cooperation with the

8 Tribunal or, should they give further testimony, that this testimony will

9 be influenced. The disclosure of their identities allows other

10 individuals to identify the witnesses, making it likely that these

11 witnesses will be exposed to threats, intimidation, or injury.

12 Mr. Margetic, therefore, interfered with witnesses he published --

13 when he published the witness list. The Trial Chamber is also satisfied

14 that Mr. Margetic knew that he was interfering with witnesses, that many

15 of the witnesses were protected because of their vulnerability, and that

16 it was likely that they would be dissuaded from future cooperation with

17 the Tribunal, that their testimony would be influenced, or that they would

18 be exposed to threats and intimidation.

19 As Mr. Margetic committed contempt by disclosing information in

20 violation of an order and by interfering with witnesses pursuant to the

21 two sub-Rules, he also committed contempt pursuant to the general Rule

22 77(A). Rule 77(A) as such does not contain any legal elements distinct

23 from the sub-Rules; rather, the sub-Rules of Rule 77(A) are non-exhaustive

24 examples of conduct constituting contempt of the Tribunal.

25 The Trial Chamber, therefore, finds that Mr. Margetic has

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1 committed contempt of the Tribunal pursuant to Rule 77(A) by disclosing

2 information in violation of an order and by interfering with witnesses

3 pursuant to Rules -- sub-Rules (ii) and (iv). Mr. Margetic acted in

4 disrespect of both the Tribunal's orders and of the protected witnesses on

5 the witness list.

6 The Trial Chamber now turns to sentencing considerations.

7 The contemptuous conduct of Mr. Margetic was particularly

8 egregious. Mr. Margetic published protected witness information, unlike

9 in other cases, not with regard to just one or a few witnesses. He

10 published protected witness information with regard to a considerable

11 number of protected witnesses. He also made no effort to distinguish

12 between the vulnerability of these witnesses. Mr. Margetic did not only

13 intentionally violate protective measures orders and interfere with

14 witnesses, but did so with reckless disregard for the safety of the

15 witnesses.

16 The Trial Chamber also takes into account the personal and

17 psychological consequences the disclosure had on the lives of at least

18 three of the protected witnesses. These factors make the contemptuous

19 behaviour all the more severe.

20 The Prosecution suggested that Mr. Margetic be sentenced to a term

21 of imprisonment of six months and that, additionally, a fine of 50.000

22 euros be imposed.

23 The Trial Chamber considers that in view of the gravity of the

24 offence and the aggravating circumstance, a combination of a term of

25 imprisonment and a fine is an appropriate punishment.

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1 Mr. Margetic, you have been charged with one count of contempt of

2 the Tribunal pursuant to Rule 77(A) of the Tribunal's Rules of Procedure

3 and Evidence. The Trial Chamber finds that the charge has been proven

4 beyond reasonable doubt.

5 Mr. Domagoj Margetic, you are guilty of contempt of the Tribunal,

6 punishable under Rule 77(A), Rule 77(A)(ii), Rule 77(A)(iv), and Rule

7 77(G).

8 You are hereby sentenced to a term of imprisonment of three

9 months. You are entitled to credit for the 34 days you spent detained in

10 custody in Croatia. You are further sentenced to a fine of 10.000 euros.

11 The full amount of the fine shall be paid to the Registrar of the Tribunal

12 within 30 days of this judgement.

13 This concludes the delivery of the judgement in the case of the

14 Prosecutor versus Domagoj Margetic.

15 Mr. Margetic, in view of the provisions of Rules 102 and 103 of

16 the Rules, the Trial Chamber enjoins the commanding officer of the United

17 Nations Detention Unit of the International Tribunal in The Hague to

18 detain you, and enjoins the Registry of the International Tribunal and the

19 authorities of the host State, as the case may be, to undertake the

20 necessary arrangements for this purpose.

21 Furthermore, in view of the fact that Mr. Margetic's counsel,

22 Mr. Veljko Miljevic, is not in attendance today, the Trial Chamber

23 instructs the Registrar to make the necessary arrangements to ensure that

24 Mr. Margetic is able to contact his counsel to seek legal advice on how to

25 proceed from here; for example, in relation to his right to file notice of

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1 an appeal, the time requirements for filing such a notice, and the impact

2 of such notice upon enforcement of the judgement as well as his right to

3 request provisional release.

4 Should the Registrar be unable to reach counsel for Mr. Margetic

5 to arrange for such communications to take place, then the Registrar is

6 instructed to make the necessary arrangements to ensure that Mr. Margetic

7 is assigned at least temporary legal assistance free of charge in order to

8 provide him advice as how to proceed.

9 The Trial Chamber stands adjourned.

10 --- Whereupon the hearing adjourned at 4.36 p.m.