"Judgment on Appeal by Anto Nobilo against Finding of Contempt"

30 May 2001
Judges Hunt [Presiding], May, Robinson, Pocar and Fassi Fihri

Procedural Background

• In September 1998, one of General Blaskic's Defence Counsel, Mr. Anto Nobilo, sought to tender during the re-examination of a Defence witness in the Blaskic trial a map prepared by a witness who had testified for the Prosecution in the associated Aleksovski trial. He named the Aleksovski witness and described him. During re-examination, he had the Blaskic witness disclose the professional position of the Aleksovski witness who had been granted protective measures by the Aleksovski Trial Chamber in respect of his identity, face and profession.

• On 25 September 1998, the Prosecution filed a confidential Motion in which it complained to the Trial Chamber that the protective Order had been violated. The Trial Chamber, pursuant to Rule 77(A)1 and (F)2 of the Rules of Procedure and Evidence, then called upon Mr. Nobilo to explain what had happened.

• On 11 December 1998, Trial Chamber I found that Mr. Nobilo had disclosed information relating to proceedings in the trial of Zlatko Aleksovski in "knowing violation" of its Order prohibiting the disclosure of the information. Accordingly, the Trial Chamber found Mr. Nobilo in contempt of the Tribunal and fined him NLG 10,000, of which payment of NLG 6,000 was suspended for a period of one year on condition that Mr. Nobilo not again be found in contempt of the Tribunal during that period3.

• On 18 December 1998, Mr. Nobilo filed a confidential Application for leave to appeal the Decision of the Trial Chamber which a Bench of the Appeals Chamber granted on 22 December 1998.

• Mr. Nobilo submitted that he had consulted Defence Counsel for the accused Zlatko Aleksovski who had informed him that the evidence had been given in the Aleksovski trial in open session. Mr. Nobilo added that he had had no motive to reveal the witness's identity and that he had acted bona fide. He acknowledged that protection is the rule for witnesses rather than the exception and stated that he had assumed that this witness, whom he described as an expert for the Prosecution, did not fit into the category of persons to whom protective measures were granted, i.e. usually victims.

The Decision

The Appeals Chamber allowed the appeal by Mr. Nobilo and directed the Registrar to reimburse him the sum of NLG 4,000 which he had paid as his fine.

The Reasoning

The Appeals Chamber reiterated that in its Judgement on Allegations of Contempt Against Prior Counsel, Milan Vujin, rendered on 27 February 2001 in the case The Prosecutor v. Dusko Tadic4 it had held that the Appeals Chamber ruling in the first instance had clearly set out the Tribunal's power to prosecute and punish contempt in its Judgement on Allegations of Contempt Against Prior Counsel, Milan Vujin, dated 31 January 20015.

The Appeals Chamber further identified the issue as one of whether the Trial Chamber had erred in either law or fact in finding that Mr. Nobilo's violation of the witness protection Order was "knowing" and that he was thus in contempt of the Tribunal.

• It held that actual knowledge of the Order was not required before it could be knowingly violated and that it was sufficient that the person charged with its violation acted in wilful blindness of the Order. In respect of wilful blindness, the Appeals Chamber held that "[p]roof of knowledge of the existence of the relevant fact is accepted in such cases where it is established that the defendant suspected that the fact existed (or was aware that its existence was highly probable) but refrained from finding out whether it did exist because he wanted to be able to deny knowledge of it (or he just did not want to find out that it did exist)." The Appeals Chamber also held that wilful blindness is "equally culpable" as actual knowledge.

• It found no evidence of wilful blindness. The Prosecution had accepted that Mr. Nobilo "had been told that the map in question was a public document presented in open session." The Appeals Chamber considered that "[t]his may well have given him the impression that all circumstances surrounding the map were public." It emphasised that "[t]he fact that many protected witnesses give evidence in open court does not readily give rise to either the suspicion or the awareness of the high probability that a witness who gives evidence in open session is the subject of an order granting protective measures." The Appeals Chamber pointed out that if the witness in question were a victim, it could perhaps be argued that Defence Counsel experienced in the practices of the Tribunal "would be aware of the risk that there will be an order granting protective measures to that witness." However, it reiterated that the protected witness "was not a victim" and noted that Mr. Nobilo had described him as an expert giving evidence for the Prosecution and that such description had not been disputed. The Appeals Chamber considered that "[a]lthough some such witnesses may have been given the benefit of protective measures orders, it is not immediately apparent why protective measures would usually be needed for them, and there is no reason to suspect that all such witnesses may be the subject of such orders." The Appeals Chamber stated that "[t]here can be no wilful blindness to the existence of an order unless there is first of all shown to be a suspicion or a realisation that the order exists." It added that "[i]f the Trial Chamber's description of Mr. Nobilo's failure to make inquiries as 'deliberate' was intended to be a finding of wilful blindness to the existence of the order, then the Appeals Chamber is satisfied that there was no basis in the evidence for such a finding." It also expressed its satisfaction "that there was no basis in the evidence for the necessary conclusions (which in any event the Trial Chamber did not express) that Mr. Nobilo's failure to make an inquiry as to the existence of the order resulted from his wish to be able to deny knowledge of its existence or because he just did not want to find out that it did exist."

• In addition, the Appeals Chamber expressed its opinion on the important issue of whether the Prosecution also must establish an intention to violate or disregard the violated Order and held that it is not necessary to establish an intention to violate the Order and that it is sufficient that the person charged "acted with reckless indifference as to whether his act was in violation of the order."

• Finally, the Appeals Chamber noted that at no time during the hearing did the Trial Chamber formulate a specific charge against Mr. Nobilo which identified the nature of the contempt alleged as being that on which the Prosecution had relied in its Motion. It also noted that the definition of a "knowing violation" of a Trial Chamber's Order had not been discussed at any time. Lastly, the Appeals Chamber noted that under the procedure laid down by Rule 77(F), "it is for a Chamber, proprio motu, to initiate the proceedings whereby a person is called upon to answer the allegations against him when the Chamber has reason to believe he may be in contempt."6 It emphasised that "a Chamber being both the prosecutor and the judge in relation to a charge of contempt" represents a danger and that in such a case the ordinary procedures and protections for the parties might be overlooked. The Appeals Chamber added that it is "essential that, where a Chamber initiates proceedings for contempt itself, it formulates at an early stage the nature of the charge with the precision expected of an indictment, and that it gives the parties the opportunity to debate what is required to be proved. It is only in this way that the alleged contemnor can be afforded a fair trial."

Separate Opinion of Judge Patrick Robinson

Judge Patrick Robinson appended a Separate Opinion to the Judgement in which he expressed his agreement with the Decision of the Chamber in the matter and stated that he did not believe that "the proceedings should have been instituted in the first place". Judge Robinson regretted that "much judicial time has been unnecessarily expended in this matter", "although the legal issues raised by the case are very important".

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1. "Any person who
(i) being a witness before a Chamber, contumaciously refuses or fails to answer a question,
(ii) discloses information relating to those proceedings in knowing violation of an order of a Chamber, or
(iii) without just excuse fails to comply with an order to attend before or produce documents before a Chamber,
commits a contempt of the Tribunal."
2. "When a Chamber has reason to believe that a person may be in contempt of the Tribunal, it may, proprio motu, initiate proceedings and call upon that person that he or she may be found in contempt, giving notice of the nature of the allegations against that person. After affording such person an opportunity to appear and answer personally or by counsel, the Chamber may, if satisfied beyond reasonable doubt, find the person to be in contempt of the Tribunal."
3. See Press Release No. 375 of 15 December 1998.
4. The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-A-AR77, Appeals Chamber, Appeal Judgement on Allegations of Contempt Against Prior Counsel, Milan Vujin, 27 February 2001 (summarised and analysed in Judicial Supplement No. 23).
5. The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-A-AR77, Appeals Chamber, Judgement on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 January 2000 (summarised in Judicial Supplement No. 11).
6. See The Prosecutor v. Zejnil Delalic et al. ("Celebici"), Case No. IT-95-21-A, President Antonio Cassese, Decision of the President on the Prosecutor's Motion for the Production of Notes Exchanged Between Zejnil Delalic and Zdravko Mucic, 11 November 1996, in which the President commented that "[t]he Prosecutor may investigate and bring to the Chamber's attention such interference with or intimidation of a witness as may come within the terms of Sub-rule 77(A), but equally, so may the Defence or the Chamber, proprio motu, and it remains the prerogative of the Chambers whether or not to convict someone of contempt."