Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Friday, 9 December 2011

 2                           [Judgement]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 2.00 p.m.

 6             JUDGE FLUEGGE:  Good afternoon.  Good afternoon to everybody in

 7     the courtroom.  Could the Court Officer call the case, please.

 8             THE REGISTRAR:  Good afternoon, Your Honours.  This is the

 9     contempt case of Dragomir Pecanac, case number IT-05-88/2-R77.2.

10     Thank you, Your Honours.

11             JUDGE FLUEGGE:  Thank you very much.

12             Mr. Pecanac can you hear the proceedings in your own language?

13             THE ACCUSED PECANAC: [Interpretation] Yes, I can, Your Honour.

14             JUDGE FLUEGGE:  Thank you very much.

15             And I should like to ask the appearances for the accused.

16             MR. DIECKMANN:  Thank you very much.  Good afternoon,

17     Your Honours.  This is Jens Dieckmann, from Germany, for the accused as

18     Defence counsel, together with Ms. Marie O'Leary as assigned legal

19     assistant.  Thank you.

20             JUDGE FLUEGGE:  Thank you very much.  The Chamber, consisting of

21     myself Judge Christoph Fluegge as Presiding Judge,

22     Judge Antoine Kesia-Mbe Mindua, and Judge Prisca Matimba Nyambe, will now

23     pronounce the judgement in the contempt case of Dragomir Pecanac.  The

24     Chamber is sitting pursuant to Rule 15 bis because Judge Mindua is absent

25     this afternoon for urgent reasons.  I shall read the summary of the

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 1     Chamber's findings.  The authoritative account of the Chamber's findings

 2     is contained in the written judgement.  Copies of it will be made

 3     available after this hearing.  The accused will be given a confidential

 4     version of the judgement and a public redacted version will be available

 5     to the public.

 6             First, I should outline the case against the accused.  In the

 7     Order in Lieu of Indictment, the Chamber ordered the Prosecution of the

 8     accused for contempt of the Tribunal, which is punishable under Rule 77

 9     of the Rules of Procedure and Evidence of the Tribunal.  The accused is

10     prosecuted for, and I quote:

11             "Having been informed on the 2nd of September, 2011, of the

12     contents of the subpoena ad testificandum dated 31st of August, 2011, and

13     of his obligation to appear before the Chamber, obstructing all attempts

14     by the VWS," that is the Victims and Witnesses Section of the Tribunal,

15     "to implement the decision on safe conduct and make arrangements for his

16     travel to The Hague, thereby failing to appear before the Chamber as

17     ordered or to show good cause why he could not comply with the subpoena,

18     and, therefore, knowingly and wilfully interfering with the

19     administration of justice by refusing to comply with the subpoena."

20             The charge against the accused rests on Rule 77(A) which provides

21     in the relevant part:

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

23     contempt those who knowingly and wilfully interfere with its

24     administration of justice, including any person who ... without just

25     excuse fails to comply with an order to attend before ... a Chamber."

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 1             To satisfy the material element of contempt under Rule 77(A), an

 2     order by a Chamber, whether oral or written, must be objectively breached

 3     and to satisfy the mental element for contempt, there must be a knowing

 4     and wilful conduct in violation of a Chamber's order.

 5             I turn now to the findings by the majority of the Chamber on the

 6     material element of the offence of contempt.

 7             It is necessary to determine whether during the period from the

 8     service of the subpoena on the accused on the 2nd of September, 2011, to

 9     his arrest on the 27th of September, the accused failed to appear before

10     the Chamber as ordered or to show good cause why he could not comply with

11     the subpoena.

12             First, it should be noted that the accused did not appear as

13     ordered before he was arrested on the 27th of September.

14             A Memorandum of Service of the subpoena records what the accused

15     said when he was served with the subpoena on the 2nd of September.  He

16     indicated that he was, "willing to appear but unable to give testimony

17     for reasons of health."  This without further specifics or substantiation

18     cannot amount to showing good cause why he should not testify.

19             He is also recorded as having stated that as a former member of

20     the armed forces he has an obligation to keep state official and military

21     secrets.  Again, this cannot amount to showing good cause why he should

22     not testify.  It is certainly no impediment to his appearance or to his

23     giving testimony on matters not covered by this obligation.

24             The other points that the accused mentioned when he was served

25     with the subpoena are simply practical matters that he and the relevant

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 1     authorities needed to resolve before he could testify.

 2             Of the various issues that the accused raised when he was served

 3     with the subpoena, only the reasons of health, if properly substantiated,

 4     could constitute a good cause for not complying with the subpoena.  After

 5     service of the subpoena, the accused took no steps to substantiate these

 6     reasons of health.

 7             The subpoena imposed an obligation on the accused to appear

 8     before the Tribunal during the week of the 5th of September or on a

 9     further date to be specified.  It also alerted him to the manner in which

10     this was to be facilitated.  Irrespective of the practical arrangements

11     to be made by the Victims and Witnesses Section and the Serbian

12     authorities for his travel to the Tribunal, in the entire period from the

13     moment of service of the subpoena until his arrest on the

14     27th of September, the accused took none of the multiplicity of actions

15     necessary either to facilitate his attendance at the Tribunal or to show

16     good cause why he should not attend.

17             The Chamber, by majority with Judge Nyambe dissenting, concludes

18     that the accused neither appeared before the Chamber as ordered nor

19     showed good cause why he could not comply with the subpoena.

20             I shall now move to the findings by the majority of the Chamber

21     on the mental element of the offence.

22             On the basis of medical reports and the Memorandum of Service,

23     the Chamber, by majority with Judge Nyambe dissenting, finds that the

24     accused was fully able to comprehend not only the subpoena and its

25     implications but also the obligations it imposed on him from its service

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 1     on the 2nd of September until his arrest on the 27th of September.

 2             Therefore, the Chamber, by majority with Judge Nyambe dissenting,

 3     finds that the accused knowingly and willfully interfered with the

 4     administration of justice and, therefore, the requisite mental element

 5     for contempt is proven.

 6             Accordingly, the Chamber, by majority with Judge Nyambe

 7     dissenting, is satisfied beyond reasonable doubt that the accused

 8     committed an act of contempt of the Tribunal punishable under Rule 77.

 9             Will the accused Dragomir Pecanac please rise.

10             For all the reasons I have summarised, the Trial Chamber by

11     majority, Judge Nyambe dissenting, finds you, Dragomir Pecanac to be

12     guilty of contempt of the Tribunal punishable under Rule 77.  The

13     contempt of the Tribunal is a serious offence, which goes to the essence

14     of the administration of justice.  By your failure to comply with the

15     subpoena and to appear at the seat of the Tribunal and testify, you have

16     acted against the interests of justice.  Having considered all of the

17     relevant factors, the majority of the Chamber sentence you to a single

18     sentence of 3 months of imprisonment.  Subject to credit being given for

19     the 74 days that you have spent in detention.  You may sit down.

20             As I said at the beginning.  Copies of the written judgement will

21     be made available after the hearing.  The dissenting opinion of Judge

22     Nyambe is appended to the written.

23             I have to address one final matter which was raised by the

24     Defence during the closing arguments.  The Defence requested an

25     Order for Safe Conduct if the accused were to be acquitted and released.

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 1     Since the accused has been convicted, the request is now moot.  But also,

 2     the Chamber would draw the attention of the Defence to the provisions

 3     regarding immunity in Article 20 of the headquarters agreement between

 4     the United Nations and the host state.

 5             The hearing is now adjourned.

 6                           --- Whereupon the hearing adjourned at 2.13 p.m.