Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon

Mr. Hans Holthuis

Decision of:
21 November 2002





Office of the Prosecutor:

Mr. Geoffrey Nice
Ms. Cristina Romano

Counsel for Witness K12:

Ms. Rebecca Heemskerk


THIS TRIAL CHAMBER of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("International Tribunal"),

HAVING made a summary finding of contempt pursuant to Rule 77 (A)(i) of the Rules of Procedure and Evidence of the International Tribunal ("Rules") in respect of Witness K12 in public session on 4 June 2002,

HAVING HEARD the parties and pronounced its final determination on the matter at a closed session hearing held on 18 November 2002,

PURSUANT to Rules 54 and 77 of the Rules of Procedure and Evidence of the International Tribunal

BY A MAJORITY, Judge Kwon dissenting,

HEREBY CONFIRMS its finding of 18 November 2002, RELEASES the relevant portion of the transcript of that hearing as attached hereto, and VACATES the finding of contempt.


Done in both English and French, the English text being authoritative.

Richard May

Dated this twenty-first day of November 2002
At The Hague
The Netherlands

Judge Kwon appends a Dissenting Opinion to this Decision.

[Seal of the Tribunal]

Judge Kwonís Dissenting Opinion to Oral Decision on K12

  1. Since the decision of the Trial Chamber was delivered orally, I will only set out my reasons for dissenting from the decision of the majority in summary form.
  2. My colleagues have opined that the contumacious nature of K12ís refusal to answer questions has not been established. As to the legal meaning of that word, it was expressed that the refusal to testify must be "perverse"1. Having regard to the French version of Rule 77, "Outrage au Tribunal", one can see that there is no term that equates to "contumaciously". The language of the French Rule is rather simpler than its English counterpart, and it appears that all that is required to be established is that a witness before a Chamber must refuse to answer a question despite the request made by the Chamber to that effect2. There is no additional element to be established relating to the witnessís conduct other than the requirements set out in the chapeau of the Rule: that he or she interferes with the administration of justice knowingly and wilfully. A requirement that the conduct of a witness must also be perverse sets a high threshold in order for the Trial Chamber to make a finding of contempt. Notwithstanding the differences between the two versions of the Rule, in my view Rule 77 may be interpreted in such a way that the terms "knowingly", "wilfully" and "contumaciously" all have legal significance, but that, taken together, they should be interpreted as meaning an obstinate refusal to answer without reasonable excuse.
  3. As to the Prosecutionís submissions, I am essentially in agreement. K12 is fit to testify: he has been granted assistance in various ways by the Tribunal and other organizations; and the Prosecution was unable to confirm K12ís story due to lack of cooperation by various persons. Even if K12ís explanation for his refusal to give evidence is true, in my opinion, his excuse is not a reasonable one. The Trial Chamber suggested ways that he could give evidence without his identity being revealed, which he refused. What K12 is refusing to do is simply give evidence in front of the accused upon an ungrounded belief that the accused will leak his identity.
  4. For the above reasons, I would not vacate the finding of contempt.


Done in both English and French, the English text being authoritative.

Judge O-Gon Kwon

Dated this twenty-first day of November 2002
At The Hague
The Netherlands

1 - Transcript of Hearing, 18 Nov 2002, T. 12975.
2 - In fact there appear to be at least three significant differences between the French and English versions of Rule 77. Article 77 (A)(i) provides: "étant témoin devant une Chambre refuse de répondre à une question malgré la demande qui lui en est faite par la Chambre." Thus there is no equivalent of the term "contumaciously", no reference to "fails to answer" a question, and contempt can apparently only arise from a failure to answer a Chamber's question and not questions from parties to the proceedings, such as the Prosecution.


3 JUDGE MAY: This has been -- or turned into a complex matter. The

4 history was that this witness appeared before the Trial Chamber earlier in

5 the summer. There was an exchange, and as a result of the attitude which

6 the witness was perceived to show, the Trial Chamber made a summary

7 finding of contempt, acting under its inherent powers under Rule 77,

8 holding in contempt a witness who contumaciously refuses or fails to

9 answer a question.

10 There was then some doubt about the correct procedure which should

11 be followed, having regard to the terms of the Rule, and the Trial Chamber

12 invited the Registrar to appoint counsel to represent the witness in the

13 contempt proceedings. The history of the matter thereafter, involving, as

14 it does, or did, a further hearing, and also various motions, were not set

15 out. There was a psychiatric report. That report suggested that the

16 witness was capable of understanding the proceedings and was fit to give

17 evidence. But more significantly, there was a threat assessment by the

18 Victims and Witnesses Section.

19 Now, as the assessment makes plain, the report, there was no

20 cooperation from , it being the witness's case that

21 had been threatened in Serbia and, as a result, he himself

22 was in fear when giving evidence, in fear particularly as to what might

23 happen when evidence was given. As I say, there was no cooperation, and

24 the Prosecution point out that in those circumstances, no real result

25 could have been occasioned by the threat assessment.

1 However, the assessment, as Judge Robinson has pointed out, ends

2 with this comment: "Given the extreme nature of the testimony the witness

3 could give, the possibility for retribution on the family,

4 , cannot be ruled out."

5 Thus, although it's not an assessment which has

6 contributed to in any way, rather than the reverse, nonetheless it is an

7 assessment which states that there could be a risk of retribution to the

8 family.

9 In those circumstances, we have to reconsider the matter as to

10 whether the refusal to give evidence by the witness was contumacious or

11 not. "Contumacious" I take to be in the sense of perverse.

12 Ms. Heenskerk points out when dealing with the definition of

13 "contumacious" that there was a reason for the witness's refusal, namely,

14 his fears for . In any event, having regard to the assessment

15 of the Victims and Witnesses Section, it is the view of the majority of

16 the Trial Chamber, Judge Kwon dissenting, that it is not established that

17 this refusal was contumacious; and having reconsidered the matter, it is

18 the view of the majority that the finding of contempt should be removed,

19 vacated. It is not to be taken as any indication as to how other cases

20 will be treated. Each case will have to be treated on its merits. But in

21 this case, as I say, by a majority of 2:1, the finding of contempt is

22 vacated.

23 Witness K12, you've heard what I've said. There's no longer a

24 finding of contempt against you. It's a matter for you whether you give

25 evidence or not.

1 We're grateful, Ms. Heenskerk, to your assistance in the matter.

2 Yes. We'll adjourn now. Tomorrow morning.

3 --- Whereupon the Ex Parte Hearing

4 adjourned at 3.55 p.m.