IN THE TRIAL CHAMBER
Before:
Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon
Registrar:
Mr. Hans Holthuis
Decision of:
21 November 2002
PROSECUTOR
v.
SLOBODAN MILOSEVIC
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TRIAL CHAMBER FINDING IN THE MATTER OF WITNESS K12
_______________________________________
Office of the Prosecutor:
Mr. Geoffrey Nice
Ms. Cristina Romano
Counsel for Witness K12:
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
Presiding
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 Kwon’s Dissenting Opinion to Oral Decision on K12
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.
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