The Prosecutor v. Radoslav Brdjanin - Case No. IT-99-36-R77

“Concerning Allegations Against Milka Maglov / Decision on Motion for Acquittal Pursuant to Rule 98 bis”

19 March 2004
Trial Chamber II (Judges Agius [Presiding], Janu and Taya)

Procedural Background

· On 15 April 2003, the Trial Chamber issued the “Order Concerning Allegations Against Milka Maglov (“Respondent”)”¹, finding that facts before this Trial Chamber, if believed, could lead to the conclusion that: 1) the Respondent approached a potential Prosecution witness (“Witness”) and intimidated the Witness; and/or 2) the Respondent revealed the identity of the Witness to a member of the public in violation of an order of a Chamber; and on the basis of this there were sufficient grounds to proceed against the Respondent for contempt of the Tribunal pursuant to Rule 77(A)(iv) and Rule 77(A)(ii) of the Rules of Procedure and Evidence (“Rules”).²

· On 8 May 2003, the Trial Chamber issued the “Order Instigating Proceedings Against Milka Maglov”³, directing the Registrar to appoint an Amicus Curiae (“Amicus Curiae Prosecutor”) and ordering the Amicus Curiae Prosecutor to prosecute the Respondent for: 1. the alleged intimidation of the Witness, and 2. the alleged disclosure of the identity of the Witness to a member of the public in violation of an order of a Chamber.

· On 6 February 2004, the Trial Chamber granted the motion by the Amicus Curiae Prosecutor to amend the allegations for contempt of the Tribunal,⁴ ordering the Amicus Curiae Prosecutor to prosecute the Respondent for the following allegations (“Allegations”): Intimidating, or otherwise interfering with the Witness, pursuant to Rule 77(A)(iv) (Count 1); or, alternatively, Attempting to intimidate, or otherwise interfere with the Witness, pursuant to Rule 77(B)⁵ (Count 2); and Disclosing the identity and whereabouts of the Witness to a member of the public, in violation of an order of a Chamber, pursuant to Rule 77(A)(ii) (Count 3).

· Trial proceedings against the Respondent commenced on 16 February 2004. The Amicus Curiae Prosecutor closed her case on 19 February 2004, after four days of trial, during which five witnesses were called to testify and seventeen documents were tendered into evidence. The Respondent tendered five documents into evidence.

· On 24 February 2004, the Respondent filed confidentially a “Motion for Judgement of Acquittal – Rule 98 bis⁶”.⁷ The Amicus Curiae Prosecutor filed confidentially a “Response to The Respondent’s Motion for Judgement of Acquittal – Rule 98 bis” on 26 February 2004,⁸ and a “Corrigendum to Confidential Response to The Respondent’s Motion for Judgement of Acquittal – Rule 98 bis ” on 27 February 2004.⁹ On 4 March 2004, the Respondent filed confidentially “Milka Maglov’s Reply to the Prosecutor’s Response to Ms. Maglov’s Motion for Judgement of Acquittal Pursuant to Rule 98 bis”.¹⁰

Decision

The Trial Chamber granted the Rule 98 bis Motion only with respect to Count 3 of the Allegations regarding the alleged disclosure of the whereabouts of the Witness to a member of the public in violation of an order of a Chamber, and declared that there was no case to answer on the part of the Respondent with regards to this specific part of the Charge. It dismissed the Rule 98 bis Motion with respect to all other issues raised by the Respondent and rejected her motion for acquittal for Counts 1 and 2, and for the remaining part of Count 3.

Reasoning

Specific intent requirement for contempt of the Tribunal

The Trial Chamber recalled that the Tribunal has an inherent power to hold in contempt those who knowingly and wilfully interfere with its administration of justice¹¹ and defined contempt of court as an “act or an omission intended to interfere with the due administration of justice”.¹² It noted that Rule 77 (A) envisages various forms of conduct for contempt of court and recalled the finding of the Aleksovski Contempt Decision that there are differences in the states of mind required for each conduct.¹³ It found, however, a common element to all those conducts: “for each form of criminal contempt, the Prosecution must establish that the accused acted with specific intent to interfere with the Tribunal’s due administration of justice”.¹⁴

Intimidation of a witness

The Trial Chamber held that “[i]ntimidation of a witness as contempt of court requires proof that: a) the accused engaged in conduct that is likely to intimidate a witness; and b) the accused acted knowingly and wilfully.¹⁵

Actus reus

The Trial Chamber found that the actus reus of the offence of intimidating a witness as contempt of court “consists of acts or culpable omissions that are likely to constitute direct, indirect, or potential threats to a witness or a potential witness” and that for the conduct in question to amount to contempt of court, the said conduct must be of “sufficient gravity to be likely to intimidate a witness ”.¹⁶ It held that “[i]ntimidation of a witness as contempt of court is a crime of conduct, which does not require proof of a result”, that consequently the fact that the witness was actually intimidated is immaterial, and that therefore the Prosecution need only prove that the conduct in question was intended to interfere with the Tribunal’s due administration of justice.¹⁷

Mens rea

As to the mens rea of the offence of intimidation of a witness as contempt of court, the Trial Chamber held that the Prosecution must establish that the accused had knowledge that his conduct was likely to intimidate a witness and that, as for all forms of conduct underlying the offence of contempt of the Tribunal, proof is also required that the accused acted with the specific intent to interfere with the Tribunal’s due administration of justice.¹⁸

Otherwise interfering with a witness

The Trial Chamber found that otherwise interfering with a witness as contempt of court requires proof that:

“a) the accused engaged in a conduct that is likely to deter a witness or a potential witness from giving evidence, or to influence the nature of the witness’ or potential witness’ evidence; and
b) the accused acted knowingly and wilfully.”¹⁹

Actus reus

The Trial Chamber held that the actus reus for the offence of otherwise interfering with a witness included, but was not limited to the following conducts :

- keeping a witness out of the way, by bribery or otherwise, so as to avoid or prevent service of a subpoena;
- assaulting, threatening or intimidating a witness or a person likely to be called as a witness;
- endeavouring to influence a witness against a party by, for instance, disparagement of the party;
- or endeavouring by bribery to induce a witness to suppress evidence.²⁰

It stated that “[t]he acts or omissions of the accused, viewed in light of the circumstances of the case, have to be likely to deter a witness or a potential witness from giving evidence or to influence the nature of the evidence”.²¹ As in the case of intimidation of a witness as a form of contempt of court, it is not necessary for the Prosecution to prove that the witness was actually deterred or influenced.

The Trial Chamber expressed its view that while “otherwise interfering with a witness ” refers to other acts or conduct of a similar gravity that equally seek to influence the outcome of a pending case by interfering with a witness or a potential witness, “interference with a witness by threatening, intimidating, causing an injury, or by offering a bribe ought to be so charged specifically”.²²

Mens rea

The Trial Chamber held that the mens rea for otherwise interfering with a witness requires proof of the “accused’s knowledge that his conduct is likely to deter a witness or a potential witness from giving evidence, or that his conduct is likely to influence the nature of the evidence”.²³ The Prosecution must also prove the accused’s specific intent to interfere with the Tribunal’s due administration of justice.

Attempt to intimidate or otherwise interfere with a witness

Having found that the Rule 98 bis standard²⁴ had been met in relation to Count 1 of the Allegations, the Trial Chamber decided that it was superfluous at this stage of the proceedings to discuss the legal issues pertinent to the alternative charge of attempting to intimidate or otherwise interfere with the Witness pursuant to Count 2.

Disclosing the identity of a witness to a member of the public in violation of an order of a Chamber

The Trial Chamber found that in order to hold a person in contempt of the Tribunal for disclosing the identity of a witness to a member of the public in violation of an order of a Chamber, the Prosecution must establish that: “a) the accused disclosed the identity of a witness to a member of the public; b) the disclosure was in violation of an order of a Chamber; and c) the violation was knowingly and wilfully committed”.²⁵

Actus reus

The Trial Chamber held that “[i]n determining whether an order of a Chamber has been violated, reference must be made to the exact content of the order that is subject to the alleged contempt of court”.²⁶

Mens rea

In the Aleksovski Contempt Decision, the Appeals Chamber found that actual knowledge of the allegedly breached order is not required before it can be knowingly violated, in the event that the person charged with violating an order of a Chamber acted in wilful blindness of the said order.²⁷ The Appeals Chamber also held that mere negligence in failing to ascertain whether an order had been made granting protective measures to a particular witness could never amount to actual knowledge and, considering the circumstances of the case, did not answer the question as to whether other states of mind, such as reckless indifference to the existence of an order, are sufficient to constitute a “knowing” violation of an order.²⁸ While noting the Amicus Curiae Prosecutor’s submission that reckless indifference to the existence of an order is sufficient to establish a “knowing” violation of an order, the present Trial Chamber did not determine –at this stage of the proceedings - whether reckless indifference to the existence of an order would be sufficient to constitute contempt.

The Trial Chamber found that a “finding that the accused intended to violate an order would almost necessarily follow in most cases where the Prosecution establishes that the accused had knowledge of the existence of an order (either actual knowledge or a wilful blindness as to its existence)”.²⁹ It noted the finding of the Appeals Chamber in the Aleksovski Contempt Decision that there can be cases where an accused acted with reckless indifference as to whether his conduct was in violation of an order of a Chamber.³⁰ The Appeals Chamber clarified that this is not equivalent to reckless indifference to the existence of an order of a Chamber: this is “reckless indifference to the consequences of the act by which the order is violated, rather than a reckless indifference to the existence of the violated order”.³¹ In the opinion of the Appeals Chamber, such conduct is “sufficiently culpable to warrant punishment as contempt, even though it does not establish a specific intention to violate the order”.³² In that case it is “sufficient to establish that the act which constituted the violation was deliberate and not accidental”.³³ The Trial Chamber pointed out that “even though no specific intent to violate an order is required for an accused to be held in contempt, the Prosecution must nevertheless establish that the accused had the specific intent to interfere with the Tribunal’s due administration of justice”.³⁴

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1. Brdjanin, IT-99-36-T, Order Concerning Allegations Against Milka Maglov, 15 April 2003.
2. Rule 77 (“Contempt of the Tribunal”) reads in relevant parts: “(A) The Tribunal in the exercise of its inherent power may hold in contempt those who knowingly and wilfully interfere with its administration of justice, including any person who:
[…]
(ii) discloses information relating to those proceedings in knowing violation of an order of a Chamber;
[…]
(iv) threatens, intimidates, causes any injury or offers a bribe to, or otherwise interferes with, a witness who is giving, has given, or is about to give evidence in proceedings before a Chamber, or a potential witness; or
[…].”
3. Brdjanin, IT-99-36-R77, Order Instigating Proceedings Against Milka Maglov, 8 May 2003.
4. Brdjanin, IT-99-36-R77, Decision on Motion by Amicus Curiae Prosecutor to Amend Allegations of Contempt of the Tribunal, 6 February 2004.
5. Rule 77 (B) reads: “Any incitement or attempt to commit any of the acts punishable under paragraph (A) is punishable as contempt of the Tribunal with the same penalties.” Under Rule 77 (G), the maximum penalty that may be imposed on a person found to be in contempt of the Tribunal “shall be a term of imprisonment not exceeding seven years, or a fine not exceeding 100,000 Euros, or both”.
6. Rule 98 bis (Motion for Judgement of Acquittal) reads: “(A) An accused may file a motion for the entry of judgement of acquittal on one or more offences charged in the indictment within seven days after the close of the Prosecutor’s case and, in any event, prior to the presentation of evidence by the defence pursuant to Rule 85 (A)(ii). (B) The Trial Chamber shall order the entry of judgement of acquittal on motion of an accused or proprio motu if it finds that the evidence is insufficient to sustain a conviction on that or those charges.”
7. Brdjanin, Concerning Allegations Against Milka Maglov, Confidential Motion for Judgement of Acquittal – Rule 98 Bis, 24 February 2004 (“Rule 98 bis Motion”).
8. Brdjanin, IT-99-36-T, Concerning Allegations Against Milka Maglov, Confidential Response to The Respondent’s Motion for Judgement of Acquittal – Rule 98 Bis, 26 February 2004.
9. Brdjanin, IT-99-36-T, Concerning Allegations Against Milka Maglov, Corrigendum to Confidential Response to The Respondent’s Motion for Judgement of Acquittal – Rule 98 Bis, 27 February 2004.
10. Brdjanin, IT-99-36-T, Concerning Allegations Against Milka Maglov, Confidential Milka Maglov’s Reply to the Prosecutor’s Response to Ms. Maglov’s Motion for Judgement of Acquittal Pursuant to Rule 98 Bis, 4 March 2004.
11. See Tadic, IT-94-1-A-R77, Judgement on Allegations of Contempt against Prior Counsel, Milan Vujin (“Tadic Contempt Decision”), 27 February 2001, para. 26, Judicial Supplement No. 23; Aleksovski, IT-95-14/1-AR77, Judgement on Appeal by Anto Nobilo Against Finding of Contempt (“Aleksovski Contempt Decision”), 30 May 2001, para. 30, Judicial Supplement No. 24.
12. Para. 14.
13. Aleksovski Contempt Decision, paras. 40 and 42.
14. Para. 15.
15. Para. 21.
16. Para. 22.
17. Ibid.
18. Para. 23.
19. Para. 27. In Kajelijeli, the Appeals Chamber of the International Criminal Tribunal for Rwanda had found that “[i]nterference with a witness as contempt is to be construed as prohibiting only undue influence with a witness. Undue interference […] could have occurred […] if the individuals concerned […] tried to induce them to change their testimony” (Kajelijeli, ICTR-98-44A-T, Decision on Kajelijeli’s Motion to hold members of the Office of the Prosecutor in Contempt of the Tribunal, 15 November 2002, para. 9).
20. Para. 27 and footnotes accompanying text.
21. Para. 27.
22. Para. 27.
23. Para. 28.
24. According to the Rule 98 bis standard set out in the Jelisic Appeals Judgement (Jelisic, IT-95-10-A, Judgement, 5 July 2001, para. 37, Judicial Supplement No. 26), a Trial Chamber has to decide on whether a reasonable trier of fact could be satisfied beyond reasonable doubt that the evidence adduced, if believed, could sustain a finding of guilt of the Respondent as charged.
25. Para. 35.
26. Para. 36.
27. Aleksovski Contempt Decision, para. 45.
28. The Appeals Chamber in the Aleksovski Contempt Decision left the issue to be decided by other Chambers (para. 45).
29. Para. 40.
30. Aleksovski Contempt Decision, para. 54 (emphasis not in the original).
31. Aleksovski Contempt Decision, footnote 104.
32. Aleksovski Contempt Decision, para. 54.
33. Ibid.
34. Para. 40.