Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Monday, 31 October 2011

 2                           [Judgement]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 8.01 a.m.

 6             JUDGE KWON:  Good morning, everyone.

 7             May I have the appearances, please.

 8             MR. MacFARLANE:  Good morning, Your Honours.  My name is

 9     Bruce MacFarlane.  I'm a barrister from Canada and from Scottsdale and I

10     have been appointed as the Amicus Curiae Prosecutor in these proceedings.

11             JUDGE KWON:  Thank you, Mr. MacFarlane.

12             For the accused, Mr. Seselj.

13             THE ACCUSED:  [Interpretation] Dr. Vojislav Seselj, university

14     professor and the biggest enemy of The Hague Tribunal, and I have to tell

15     you one more thing.  On Friday, the 28th of October, the registrar of the

16     Tribunal prohibited me from having all privileged telephone conversations

17     with my legal assistants and advisors.  Even when I had to serve

18     sentences in gaols in Tito's Communist regime no one dared to prohibit me

19     from having privileged communication with my lawyers from the moment when

20     the indictment was issued until the moment when the judgement became

21     final.  So until my right is reinstated to have private telephone

22     conversations with my legal advisors, I refuse to state my opinion about

23     anything.  I'm not even going to state my opinion about nice weather.

24             JUDGE KWON:  First, I take it by your submission that you are

25     following in the proceedings in the language you understand, Mr. Seselj.

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 1             And second, I believe there's a proper and appropriate forum and

 2     manner in which you can address those problems.

 3             Today, this Trial Chamber, consisting of myself,

 4     Judge Burton Hall and Judge Howard Morrison is delivering its judgement

 5     on the allegation of contempt against the accused, Mr. Vojislav Seselj,

 6     pursuant to Rule 77(A)(ii) of the Rules of Procedure and Evidence of the

 7     Tribunal.  This is only a summary which does not form part of the

 8     judgement delivered by the Trial Chamber.  The only authoritative account

 9     of the Trial Chamber's finding is the written judgement, copies of which

10     will be made available after the hearing.  The amicus curiae and the

11     accused will be given a confidential version of the judgement, and a

12     public redacted version will be available to the public.

13             On 3rd of February, 2010, the Chamber issued an order in lieu of

14     indictment charging the accused with having disclosed information which

15     may identify 11 protected witnesses in violation of orders of a Chamber

16     in a book authored by him.

17             The accused did not enter a plea at either the initial appearance

18     conducted by Judge Hall on 29th of April, 2010, or at the further initial

19     appearance on 6th May 2010, and thus a plea of not guilty was entered on

20     his behalf on the same day pursuant to Rule 62(A)(iv).

21             The trial began on 22nd of February, 2011.  The Amicus Prosecutor

22     did not call any witnesses but tendered into evidence 73 exhibits.  At

23     the close of the Amicus Prosecutor's case, the Chamber granted the

24     accused's request to postpone the start of his case to enable him to

25     prepare his defence.  Between 6th and 8th of June, 2011, the accused

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 1     called five witnesses and tendered four documents into evidence.

 2             Rule 77(A) provides that the Tribunal, in the exercise of its

 3     inherent power, may hold in contempt those who knowingly and wilfully

 4     interfere with its administration of justice.  In the present case, the

 5     accused is charged with contempt of the Tribunal pursuant to

 6     Rule 77(A)(ii) for having disclosed information relating to Tribunal's

 7     proceedings in knowing violation of an order of a Chamber.  Disclosure of

 8     information within the meaning of this Rule includes the publication of a

 9     witness's identity where protective measures have been granted to avoid

10     such a disclosure.  The mens rea element for this form of commission of

11     contempt is the knowledge of the alleged contemnor that his disclosure of

12     a particular piece of information is done in violation of an order of a

13     Chamber.

14             The Chamber shall now turn to its findings and will start with

15     the material elements of the offence.

16             First, the accused has acknowledged that he's the author of the

17     book.

18             Second, in light of the evidence presented, the Chamber is

19     satisfied that at the time the book was published, 10 of the 11 witnesses

20     were the subject of protective measure decisions or orders issued by the

21     Seselj Trial Chamber.

22             Third, the Chamber is also satisfied that the book contains the

23     identifying information of each of the 10 protected witnesses and

24     suggests that they could be involved in the Seselj case.

25             The Chamber is thus satisfied beyond a reasonable doubt that the

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 1     book violates protective measure decisions or orders issued by the Seselj

 2     Trial Chamber.

 3             The Chamber shall now turn to the mental element of the offence,

 4     namely whether the accused knew that the information contained in the

 5     book was subject to protective orders or decisions issued by the

 6     Seselj Trial Chamber at the time of its publication.

 7             The Chamber first considers that the Decisions on Protective

 8     Measures of 1st of June, 2005, 30th of August, 2007, 10th of September of

 9     2007, and 23rd of October, 2007, were all inter partes documents provided

10     to the accused.  He was thus fully informed of the protective measures

11     granted by the Seselj Trial Chamber by the time the book was published.

12             The Chamber also notes that on a number occasions throughout the

13     Seselj case, the accused requested that protective measures previously

14     granted to the witness in that case be altered by requesting their

15     reconsideration or leave to appeal them.  It is thus clear to the Chamber

16     that the accused was aware that protective measures must be varied by the

17     Chamber which orders them and that he could not simply reveal the

18     identity of witnesses who had been granted protective measures as he saw

19     fit.

20             Referring to two orders issued in the Seselj case, the accused

21     submits that the Seselj Trial Chamber decided that each witness can

22     eventually decide for himself whether to testify with protective

23     measures.  The Chamber recalls that these orders pertain to one

24     particular witness and no other.  Had the Seselj Trial Chamber wished to

25     lift the protective measures in place for other witnesses, it would have

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 1     done so.  It did not, and thus the Chamber considers the accused's

 2     contention to be irrelevant to his responsibility pursuant to

 3     Rule 77(A)(ii), where the only relevant consideration is whether he knew

 4     that his disclosure of a particular piece of information was done in

 5     violation of an order of a Chamber.

 6             The Chamber is thus satisfied beyond a reasonable doubt that the

 7     accused knew he was disclosing information which identified ten of the

 8     witnesses and revealed that they could be involved in the Seselj case

 9     when he published the book and that he did so intentionally with the

10     knowledge that by doing so, he was violating decisions of the

11     Seselj Trial Chamber.

12             Accordingly, the Chamber is satisfied beyond a reasonable doubt

13     that the accused is guilty of the offence of contempt pursuant to

14     Rule 77(A)(ii) of the Rules.

15             In its determination of the sentence, the Chamber took into

16     consideration the gravity of the offence, as well as the need for

17     deterrence.  In particular, the Chamber notes with grave concern the

18     deliberate way in which the protective measure decisions imposed by the

19     Seselj Trial Chamber were violated and considers this a serious

20     interference with the administration of justice.  The Chamber has also

21     considered the expanded scope of disclosure given the book's electronic

22     form and availability as well as the accused's lack of remorse.  The

23     Chamber has also given particular consideration given to the potential

24     adverse impact that the accused's conduct may have upon witnesses'

25     confidence in the Tribunal's ability to guarantee the effectiveness of

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 1     protective measures.  Furthermore, the Chamber recognises the need to

 2     discourage this type of behaviour and to take such steps as it can to

 3     ensure that there is no repetition of such conduct on the part of the

 4     accused or any other person.

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

 6     arguments presented by the parties, pursuant to Rule 54 and 77 of the

 7     Rules, the Chamber finds the accused, Vojislav Seselj, guilty of one

 8     count of contempt of the Tribunal, punishable under Rule 77(A)(ii) of the

 9     Rules and sentences the accused to a single term of imprisonment of

10     18 months, to be served concurrently with the sentence of the 15 months

11     imposed by the Chamber on 24th of July, 2009, in case number

12     IT-03-67-R77.2.

13             The hearing is now adjourned.

14                           --- Whereupon the Judgement concluded at 8.15 a.m.