090703IT

Page 516

1 some of the pages; secondly, does the evidence demonstrate a mens rea

2 with respect to that count as well; thirdly, in connection with the

3 article which is in issue in the order in lieu of indictment, the same

4 two points. Is there an actus reus in respect of an offence of contempt?

5 And, secondly, is a guilty intention or a guilty mind, the mens rea,

6 demonstrated in connection with that count as well. Those are the four

7 critical issues.

8 Throughout the proceedings, there have been various, I'll call

9 them off-ramps, largely attempts to discredit those involved in the

10 proceedings; we're past that. And at issue right now is the merits of

11 the case and the merits of the evidence and whether or not the evidence

12 establishes guilt beyond a reasonable doubt.

13 The evidence, when taken as a whole, demonstrates that the

14 publications in question, the book and the article, were not an accident,

15 they were not through inadvertence. The writings were deliberate, and

16 the writings were willful. And, most importantly, the writings were all

17 the words of the accused. It's my respectful submission that at the end

18 of the evidence, this Chamber will be satisfied that the accused's

19 statements were one of public defiance.

20 I intend to deal briefly with the law, only briefly, because the

21 Chamber is well familiar with the law concerning contempt.

22 And I should also mention, and I will mention a few more times

23 throughout my submission, that attached to the written argument which was

24 filed last night in Annex A and Annex B is a line-by-line analysis of the

25 publications in question and their linkage to the order in lieu of

Page 517

1 indictment. So that is a detailed line-by-line analysis of both the book

2 and the article.

3 First of all, in terms of the law, the accused, of course, has

4 been charged with two counts of contempt of the Tribunal under Rule 77

5 and as well pursuant to the inherent power of the Chamber. The language

6 of the Rule demonstrates that a violation of a court order, as such,

7 constitutes an interference with the Tribunal's administration of

8 justice, and as well the jurisprudence of the Tribunal establishes that

9 it is sufficient to demonstrate a relevant actus reus and mens rea

10 component. And the leading case is Jovic, a decision of the

11 Appeals Chamber in 2006, and I'll be referring to that case on a couple

12 of points. It's my respectful submission that that is the leading case

13 for the purposes of these proceedings, and on some points it's

14 dispositive.

15 In terms of the actus reus in connection with the offence, the

16 jurisprudence generally looks to the physical act of disclosure of the

17 information relating to the proceedings to determine if the disclosure

18 was in violation of an order of the Chamber. And it's my respectful

19 submission that in both instances, that is, the book count and the

20 article count, that the evidence is clear that there is a physical act of

21 disclosure of information relating to proceedings where such disclosure

22 would be in violation of an order of the Chamber.

23 In connection with the mens rea component of the offence, it is

24 clear, based on the case law, that there are at least two forms of

25 mens rea in contempt cases that are sufficient. The one is actual

Page 518

1 knowledge that the publication was in violation of an order, and,

2 secondly, willful blindness to that issue. So there's twin -- there's

3 twin versions of mens rea. And in my respectful submission, the evidence

4 is capable of supporting both or either, actual knowledge or willful

5 blindness.

6 I'd like to move to the four key elements and spend a little bit

7 of time on them, because at the end of the day that's, in my submission,

8 what the Chamber ought to focus on is those four key elements.

9 Key element number 1, the actus reus concerning the book count.

10 The evidence is clear that she is the sole author of the book, published

11 by Flammarion in September of 2007. The Defence has formally admitted

12 that the book was written by her. And in the suspect interview, she

13 conceded that she had written the book alone.

14 In the book, at pages 120 to 122, the accused makes express

15 reference to the existence of two confidential decisions, as well as

16 their contents and the purported effect of those confidential decisions.

17 And as well at page 122, the accused actually makes express reference to

18 the fact that those two decisions were confidential in nature. So in

19 terms of the actus reus on the book count, there can, in my respectful

20 submission, be no doubt that that has been established beyond a

21 reasonable doubt.

22 The second critical element, the actus reus concerning the

23 article. The article was written four months after the book was

24 published. It is entitled "Vital Genocide Documents Concealed," and the

25 accused wrote the article herself, and it was published on-line by the

Page 519

1 Bosnian Institute on the 21st of January, 2008. During the interview,

2 the accused conceded that she had written the article, that it was

3 accurate, and that it was intended to be an English summary of relevant

4 parts of the book.

5 Moving to the third critical element, both of which deal with the

6 concept of mens rea. The evidence, in my respectful submission,

7 establishes a finding of actual knowledge on the book count. At page 122

8 of the book, the accused wrote that the Judges had rendered each of their

9 decisions marked "Confidential." During the suspect interview, she

10 conceded that no media release had been issued in relation to one of the

11 decisions, "because it was a confidential decision." Two points can be

12 inferred from these statements: First, the disclosure was not an

13 accident, but was deliberate; and, secondly, the accused had knowledge of

14 the existence of the order which is rendered confidential.

15 As well, there's contextual information that needs to be

16 considered in relation to the issue of the mens rea on the book count.

17 The accused had worked over 20 years as a journalist, where the

18 verification, as she indicated, of one's sources is important to maintain

19 one's reputation and credibility. The accused, in the suspect interview,

20 indicated that journalistic sources had assisted her in piecing the story

21 together and that she had been told that they were confidential. She

22 accepted that and put that in her book.

23 In addition to that, and of significance, the accused worked in

24 this Tribunal for six years, in a clear environment of confidentiality.

25 No one in a senior position in this building can escape without knowing

Page 520

1 that confidentiality is important, and that was her environment. She

2 indicated that, and it's been conceded, that she was aware of the

3 existence of Rule 77. And during the interview she indicated that she

4 was aware of investigations against other journalists for suspected

5 violations. When all of that evidence is considered together, only a

6 willfully blind or recklessly indifferent individual would not have a

7 suspicion or realisation that an order may exist.

8 So, once again, the mens rea, based on the evidence, can satisfy

9 either actual knowledge or willful blindness. In my respectful

10 submission, it's primarily actual knowledge by virtue of her statements

11 in the book. And I'm now referring to the third critical element.

12 The fourth and final critical element concerns the mens rea in

13 respect of the article count. I submit as well, in connection with the

14 article count, that the evidence supports a finding of actual knowledge.

15 In the book which she had had published four months earlier, she

16 noted that the decisions were confidential. She doesn't say that in the

17 article, but her statements in the book are tantamount to a public

18 admission, and on that basis are admissible on both counts, that is, the

19 book count and the article count.

20 Once again, the accused worked in that environment of

21 confidentiality within the Tribunal, and that has to be taken into

22 account on the fourth and final element; that is, the article count. But

23 in addition, there's one further point that arises uniquely in connection

24 with the article count and the fourth element, namely, mens rea, and that

25 was in between the publication of the book and the publication of the

Page 521

1 article, the accused received a letter from the Registrar. The letter

2 was a warning to her that the book had contained confidential

3 information. So what happened was she received the letter and decided to

4 go ahead anyway. All that she really did was she eliminated a reference

5 to the fact that the decisions were rendered confidentially. But aside

6 from that, the article is essentially the same as in the book. The point

7 is she made a conscious decision to proceed and publish, even in the face

8 of that warning from the Registrar. So as of the date of receiving that

9 letter in October, the accused was fixed with knowledge that there was a

10 live issue, and decided to proceed anyway.

11 There are two parts of the Prosecution's case that I would like

12 to comment on, in terms of probative value, because at this stage, while

13 both have been admitted, weight and probative value are live issues

14 before the Chamber. The two areas of the Prosecution's case are the

15 suspect interview and the letter from the Registrar, and I'll try to keep

16 this brief because I really already commented on both. But as the

17 Chamber will be well aware, a pre-indictment suspect interview is often

18 quite helpful, in terms of understanding what was in the mind of the

19 accused at the time.

20 The accused, during the suspect interview, indicated that she was

21 alive to the sensitivity of confidential information when she was

22 employed, but she was often not privy to the contents of confidential

23 decisions, but that she took care, when she was spokesperson - that's the

24 key - when she was the spokesperson, she took care to ensure that

25 confidential information was protected. What she said was this:

Page 522

1 "My replies were given in consultation with the Office of the

2 Prosecutor, so, in general, we knew what questions were coming at us and

3 prepared for them. I knew exactly what the framework of my replies would

4 be, without taking the risk of infringing upon any decisions, and you can

5 see for yourself that such problems never arose during my period in

6 office."

7 So she knew about the need for care, she did take care, and she

8 was proud of the fact that for six years she ensured that there were no

9 problems in terms of the disclosure of confidential information. So what

10 happened? Did all of that knowledge all of a sudden disappear when she

11 returned to be a journalist? She knew the rules of the game. She had

12 worked within the rules of the game for six years.

13 And as Mr. Ruxton noted in his jointly-agreed-upon evidence, he

14 confirmed that Ms. Hartmann was very much aware of the need for care when

15 he said:

16 "It was an essential part of the spokesperson's job to know what

17 information was confidential or could not be given to the media or the

18 public."

19 In the suspect interview, the accused also discussed the writing

20 of the book. She said it was started in January of 2007, after leaving

21 the Tribunal, and was published in September of 2007. She confirmed, as

22 I mentioned earlier, she did it alone, and it was essentially a

23 reconstruction of events based on her own experiences and information

24 provided by a number of unnamed sources, but it was a reconstruction.

25 And in terms of the critical issue, it is evidence she was told the

Page 523

1 decisions were confidential, she accepted that and decided to write about

2 it.

3 And to note that very fact, when confronted with the confidential

4 decisions in question, her response was, Well, it appeared I had good

5 sources. When she was asked if there was any media releases issued at

6 the time, as spokesperson, she said, No, I don't think so, because it was

7 a confidential decision.

8 In terms of the interview as a whole, it's my submission that all

9 of the safe-guards were in place, the accused had an opportunity to set

10 out her perspective, and it's my submission that on all of the essential

11 elements, the interview itself establishes the offence, including the

12 mens rea on both counts.

13 With respect to the Registrar's warning letter, just a couple of

14 brief comments. As I noted earlier, it was sandwiched in between the two

15 publications. As of that date, if not earlier, the Chamber is entitled

16 to find that she was fixed with knowledge on the 19th of October, 2007,

17 that there was a live issue concerning confidentiality arising from her

18 book. And as she said, The book is simply a reflection -- pardon me, the

19 article is simply a reflection of what I put in the book, with that one

20 exception, and that is she took out reference to confidential decisions,

21 perhaps because of the warning letter, thinking that that would be

22 sufficient.

23 There has been a fair bit of discussion and evidence concerning

24 this notion of waiver and whether and to what extent documents and

25 information entered into the public domain. I don't propose to go into

Page 524

1 private session, so I'll keep my comments fairly general. The detail can

2 be found in my written brief. But at the end of the day, my submission

3 is this: that it is clearly a doubtful proposition that an applicant for

4 protective measures, in this case a state, can unilaterally waive any

5 protective measures. That is a very doubtful proposition, in my

6 submission. In addition to that, factually in this case, it's my

7 submission that the evidence does not demonstrate any sort of waiver,

8 whether it's express or implied, and that the documents --

9 JUDGE MOLOTO: May I just interrupt you, sir.

10 Is Madam Hartmann charged with revealing what the applicant in

11 the confidential decisions sought to have protected, or is she charged

12 with revealing the contents of the Appeal Chamber's decision?

13 MR. MacFARLANE: The order in lieu of indictment, in my

14 submission, focuses on the contents.

15 JUDGE MOLOTO: And not the underlying documents?

16 MR. MacFARLANE: That's correct.

17 JUDGE MOLOTO: Would it then be -- do you find it helpful to go

18 to that direction of the waiver? The applicant waives what he sought to

19 have protected. The accused is not charged with that.

20 MR. MacFARLANE: At the end of my comments, and perhaps I could

21 move directly to that point, it was my submission that the whole area of

22 waiver took us off on an off-ramp, and it's irrelevant to the case.

23 But --

24 JUDGE MOLOTO: Are you jumping off the off-ramp, yourself?

25 That's my question, actually.

Page 525

1 MR. MacFARLANE: No. I felt -- I felt the need to at least

2 address the point.

3 JUDGE MOLOTO: If you want to off-ramp, go ahead.

4 MR. MacFARLANE: No, I don't think it's necessary for me to do

5 that, because for -- perhaps I could move right to the -- to my main

6 points in relation to that, because we did spend a fair bit of time

7 dealing with waiver and the fact that the information was in the public

8 domain or it was alleged to be.

9 It is my submission that, as a matter of law, that doesn't --

10 it's not available to an accused; secondly, it doesn't arise on the facts

11 of this case; and, thirdly, the documents, in any event, demonstrated

12 that there have been no waiver. So I'll just simply leave it at that.

13 JUDGE MOLOTO: Thanks.

14 MR. MacFARLANE: There are a couple of cases that I feel the need

15 to comment on because they come close to being dispositive in this

16 particular case. One is Marijacic in 2006 from the Appeals Chamber,

17 which holds quite simply that a court order remains in force until a

18 Chamber decides otherwise. That's a very straightforward proposition.

19 In my submission, it's controlling in this case.

20 The second case that I'd like to rely upon, in part, because of

21 this notion of information and documents being in the public domain, and

22 we spent a fair bit of time on that, but once again the Jovic decision is

23 directly on point, and in my submission it is dispositive of the issue.

24 And this is the only quotation that I will be quoting to the Chamber this

25 morning, because it is so important:

Page 526

1 "As the Trial Chamber correctly recognised, the actus reus of

2 contempt under Rule 77 is the disclosure of information relating to

3 proceedings before the International Tribunal --"

4 THE INTERPRETER: Thank you for reading slowly.

5 MR. MacFARLANE: Thank you:

6 " ... where such disclosure would be in violation of an order of

7 a Chamber. In such a case, the language of Rule 77 shows that a

8 violation of a court order, as such, constitutes an interference with the

9 International Tribunal's administration of justice. Any defiance of an

10 order --"

11 JUDGE MOLOTO: Excuse me, Mr. MacFarlane. I'm told there is no

12 French translation coming to Judge Guney's earphones. Excuse me.

13 Okay, it's restored now.

14 You may proceed.

15 MR. MacFARLANE: Thank you.

16 "Any defiance of an order of a Chamber, per se, interferes with

17 the administration of justice for the purposes of a conviction for

18 contempt. No additional proof of harm to the International Tribunal's

19 administration of justice is required."

20 Then the next statement is critically important here:

21 "Moreover, an order remains in force until a Chamber decides

22 otherwise. The fact that some portions of the witness's written

23 statement or closed-session testimony may have been disclosed to another

24 third party does not mean that this information was no longer protected,

25 that the court order had been de facto lifted, or that its violation

Page 527

1 would not interfere with the Tribunal's administration of justice."

2 On that basis, there can be no other conclusion aside from the

3 fact that the two orders, the two decisions in issue that are outlined in

4 the order in lieu of indictment, are in -- are in force and are

5 unaffected by they're having been leaked or emerging in some public fora.

6 One or two comments very briefly on the evidence of Ms. Kandic.

7 I dealt with this in a bit more detail in my written argument. Suffice

8 it to say at this point today, given the time-limits, it's my respectful

9 submission that the Chamber will need to examine very closely her

10 evidence, in terms of the weight to be given to it. And I've outlined

11 the number of times where the witness was non-responsive to questions and

12 launched into a speech to advance her agenda. Weight is very much a live

13 issue in connection with her evidence.

14 On the issue of freedom of expression, which appears to be a live

15 issue in this particular case, the leading cases, once again, are

16 Marijacic and Jovic. In Jovic, the Trial Chamber made a finding that is

17 quite helpful. That Chamber said:

18 "It is undeniable that legal instruments relevant to the work of

19 this Tribunal protect freedom of expression. All the instruments on

20 freedom of the press have qualifications in relation to court

21 proceedings. The Tribunal has further noted that having chosen to ignore

22 valid orders, an accused cannot invoke the principle of freedom of

23 expression to excuse his or her conduct."

24 That's directly on point. If you choose to ignore a valid order,

25 you cannot invoke the principle of freedom of expression to excuse your

Page 528

1 own conduct.

2 There is also a decision called case of Dupuis from the European

3 Court of Human Rights which is to the same effect. And I'll simply leave

4 it there because it is set out in my written argument.

5 There are limits to all rights, and particularly here the

6 critical limitation is to ensure that the administration of justice is

7 not frustrated by the broad application of the right to freedom of

8 expression.

9 The last point I would like to make, in a very summary way, is in

10 relation to sentencing considerations, on the assumption that there is a

11 finding of guilt, and only on that assumption.

12 The Prosecution agrees that the accused's motives in undertaking

13 the two publications was not reprehensible, but I've already put forward

14 the proposition that her words are one of public defiance.

15 Mr. Vincent, in his testimony, outlined the dangers associated

16 with publication of state-protected information. The danger, quite

17 simply, is that the information and the sources could dry up. The state

18 providing them may decide, and it would be open to them, to say, I'm not

19 going to provide any further information to the Tribunal, not if they

20 allow these sorts of leaks and then don't enforce breaches.

21 I set out the legislative framework for the sentencing

22 considerations. The Chamber is well aware of them. It involves a

23 balancing between aggravating and mitigating, and I'd like to quickly run

24 through both sides of the coin, because there are, as usual, a number on

25 both sides, and in fairness, I want to outline both.

Page 529

1 On the aggravating circumstances side, there were two separate

2 and distinct publications, separated by four months. In between was the

3 warning from the Registrar. The first one, the book, did involve a

4 commercial venture, with a view to obtaining royalties and an advance.

5 The accused had formerly been a senior employee of the Tribunal who knew

6 and understood the importance of confidentiality. And, finally, the

7 scope of the publications was significant. The first one was a book

8 issued by a major publisher in France. The second was placed on the

9 internet for the world to see.

10 On the mitigating circumstances side, and I'm sure that my

11 learned friend will have more to say on this, but I want to be fair and

12 outline my perception of mitigating circumstances, I do want to indicate

13 to the Chamber that the accused did cooperate during the course of the

14 investigation and allowed herself to be interviewed on two separate

15 occasions in her counsel's office. The second point is that the

16 distribution of the first publication, her book, was more limited than

17 perhaps she wanted. The book was not successful. Her motives were not

18 reprehensible, as I mentioned.

19 The accused is a mother of two children. And while this is not

20 evidence, has not the subject of admission with -- or even discussion

21 with counsel. The Prosecution wishes to advise the Chamber that to the

22 best our knowledge, the accused has not previously been charged or

23 convicted with anything. And, finally -- I'll leave it at that.

24 It's my respectful submission that based on the facts in this

25 case, and the mitigating --

Page 530

1 JUDGE MOLOTO: Your 30 minutes are actually over.

2 MR. MacFARLANE: I can do this in 15 seconds, if that's --

3 JUDGE MOLOTO: Thank you.

4 MR. MacFARLANE: Thank you.

5 It's my respectful submission that a term of imprisonment is not

6 called for, would not be justified, and that the issue is a monetary

7 penalty, and the issue is quantum. I've set out the cases in my written

8 argument. It's my respectful submission that a fine in the vicinity of

9 7.000 to 15.000 Euros would be appropriate and consistent with previous

10 decisions of the Chamber.

11 Thank you very much.

12 JUDGE MOLOTO: Thank you.

13 Mr. Khan.

14 MR. KHAN: Mr. President, Your Honours, it seems a while back,

15 when this case started, and in the opening remarks that I put before

16 Your Honours for their consideration, I mentioned that one of the

17 distinctive features of this case, in my respectful submission, was the

18 constant erosion that there has been in the Prosecution's assertions. In

19 this regard, Your Honours, I do ask you to look at the report that the

20 amicus investigator put before the originally-composed,

21 specially-appointed Trial Chamber. That provides some context, a

22 background tapestry, if you will, for the genesis of these proceedings.

23 And what struck me, Your Honours, is the number of very general

24 allegations that are made that have not been the subject of evidence.

25 In some systems, of course, it is normal that at committal

Page 531

1 hearings individuals, whose names are detailed on the back of an

2 indictment, are required to attend. Your Honours, I'm not going to go

3 into the confidential report in detail, but what I will say is I would

4 ask Your Honours to consider it and look at the gap between what was

5 alleged therein in relation to the policy of the Prosecution, an attempt

6 to deflect attention and criticism onto the Bench, and actually what

7 arose at trial itself.

8 This erosion continued, in my respectful submission, even in the

9 pre-trial brief. If Your Honours refer in due course to the pre-trial

10 brief of my learned friend on the 8th of January, 2009, it will not

11 escape Your Honours' attention at all that a number of averments are

12 made, regarding which there has not been a scintilla of evidence put

13 forward by the learned amicus prosecutor. He states, for example, that

14 my client was a chief of staff, a chef de cabinet, a principle policy

15 advisor of Carla Del Ponte. Not a word has been spoken or a sentence

16 submitted to Your Honours that would support such a sweeping assertion,

17 which is utterly devoid of merit and is singularly unsupported by the

18 case that my learned friend has put before you. A pre-trial brief is not

19 a redundant document. It is the Prosecution's view of his own case, and

20 he has failed, hasn't even attempted to adduce evidence in support of

21 these completely unmeritorious allegations. It is evidence, in our

22 respectful submission, of a desperate attempt by my learned friend to

23 seek to get a conviction in this case, regardless of the reality of what

24 took place and the conduct of my client. In short and to put it bluntly,

25 it smacks of desperation.

Page 532

1 Your Honours, the other aspect is the rather perplexing, in my

2 respectful submission, or most quixotic selection of witnesses that my

3 learned friend has chosen to put before you. The nature of these

4 witnesses highlights, in my respectful submission, an underlying weakness

5 in the Prosecution's case, fundamental misconceptions. And who he does

6 not call is equally pertinent. His very first witness was Kermarrec, and

7 as Mr. Kermarrec answered to the insightful comment of Judge Guney,

8 Mr. Kermarrec fully accepted from Flammarion Publishers that he didn't

9 sign the contact with Florence Hartmann, he wasn't part of the

10 negotiations with Florence Hartmann. Indeed, he specifies that

11 Giles Haeri is the person who did that, and yet Giles Haeri is not called

12 before Your Honours to explain the negotiations of the contract, what was

13 agreed; but Mr. Kermarrec.

14 Mr. Vincent, of course, Robin Vincent, was the second witness.

15 Now, he was to give -- and of course we didn't have the benefit of

16 statements, but he was to give a general overview as to the need, in

17 abstract terms, of the need of confidentiality, and of course he added

18 some flesh to that assertion when he gave evidence.

19 But what are the charges? It is highly important, and

20 Your Honours cannot turn away from it easily, in my respectful

21 submission, that the Prosecution, charged with the conduct of this case,

22 responsible for its investigation, has failed to call anybody from the

23 applicant state, Serbia, on whose behest the very confidentiality of the

24 decisions was predicated. Neither did he attempt to call them as

25 witness, nor did he obtain a statement from them, nor is there any

Page 533

1 evidence whatsoever in any form, rumour, newspaper, press reports, that

2 the applicant state, Serbia, was at any time in the least troubled by the

3 book written by my client. There is no evidence at all to support the

4 fact that Serbia viewed the book and the article written by Ms. Hartmann

5 as in any way encroaching upon the decision that they asked to be made

6 confidential. Your Honours, this is important for a number of reasons,

7 and I'll touch only upon one. It is relevant, because what it discloses

8 is the parameters of what was viewed as confidential.

9 Serbia, itself, and this is the uncontested evidence of

10 Natasa Kandic, it's been the subject of litigation in the International

11 Court of Justice, all these matters have been gone into at some length in

12 my opening and during the course of examinations of the witnesses. But

13 Serbia, itself, alluded to the fact that these decisions that the ICTY

14 had been seized of a case, seized of an application, that it referred to

15 confidential decisions, that it related to the SDC documents, and certain

16 portions had been redacted. Now, what is so unusual in the book written

17 by my client that would merit the stigma and punishment and chilling

18 effect of a criminal conviction for a woman of previously exceptional

19 character, in my submission? There is no good reason.

20 Once again, my learned friend's position may or may not have

21 evolved; I couldn't quite grasp it. But he said in his opening that

22 actus reus was not in dispute, and in my response, I said, well, it is

23 very much in dispute; it is one of the core elements that we take issue

24 with.

25 And also he made the comment, very much as an aside, as it were,

Page 534

1 that this case is not about the rights of journalists. In fact, if one

2 looks at the opening, it will not escape Your Honours' attention that

3 much more time is spent by my learned friend about what this case is not

4 about than actually what it is about.

5 But going to the actus reus, the client -- the amicus prosecutor

6 has said that this case is about four key issues, and he talks about

7 actus reus and mens rea. And then again in his third and fourth points,

8 to me, Your Honours, and I may be wrong, he again repeats what were the

9 first two elements, actus reus and mens rea. But the way he put his

10 case, and to date, there has not been any contradiction by my learned

11 friend in relation to the Defence understanding, what is being treated as

12 confidential by the Tribunal is the existence and date of the two

13 impugned decisions, the confidential character of these decisions, the

14 identity of the moving party and the applicants, and, fourthly, the

15 subject; namely, that the protective measures were granted in relation to

16 the SDC minutes. And, Your Honours, we made this -- we clarified our

17 position in our motion for reconsideration on the 9th of January, 2009,

18 repeated it on the 14th of January, 2009. We placed that understanding

19 in our pre-trial brief, and it was stated by me in my opening. And there

20 has been no dissent, in my respectful submission, from the amicus

21 prosecutor in relation to this position.

22 Now, what my learned friend states, of course, is that he has

23 prepared a line-by-line analysis in relation to those two pages, page 122

24 and 123 of Florence Hartmann's book and tied it in to the allegations

25 that he must prove. Your Honours, as I am standing here speaking to

Page 535

1 Your Honours, I have not had the benefit of reading that closing brief.

2 Leaving that aside, I would ask Your Honours --

3 JUDGE GUNEY: [Interpretation] Mr. Khan, I've been listening to

4 the French booth. I must say that the interpreter is suffering a lot and

5 is finding it difficult to follow. You are speaking extremely fast.

6 Please slow down to enable the interpreters to do a proper job and to

7 enable us also to understand what your train of thought is.

8 Thank you.

9 MR. KHAN: Your Honour, I'm most grateful. I will endeavour to

10 be even slower. I was endeavouring to keep my eye on the English

11 transcript, and I do apologise to our colleagues that are labouring

12 sisyphusly to translate my utterances into French.

13 Your Honour, in understanding the parameters of this case, the

14 views of the applicant state are not a side issue. They are very far

15 removed from an off-ramp that my learned friend would seek to

16 characterise them as.

17 The Appeals Chamber has made it clear that what was the subject

18 of protective measures in this case were the SDC minutes and the

19 stenographic notes, and that's detailed in the Milosevic decision of the

20 11th of September, 2007. The Appeals Chamber has similarly explained

21 that the confidential status granted to a decision is, and I quote, "in

22 relation to confidential information noted therein for which the

23 protective measures have been ordered under the Rules."

24 Your Honours, when one is looking at the view of Serbia, when one

25 is reviewing what they said about these decisions and their own

Page 536

1 applications before the Appeals Chamber of this Tribunal, it is pertinent

2 to bear in mind that what their primary concern was, in my respectful

3 submission, their only concern, it was to prevent the underlying

4 documents which would prejudice their case in the International Court of

5 Justice from entering the public domain. This is why both in the

6 International Court of Justice and in the roundtable discussion that

7 Natasa Kandic refers to, they draw this fundamental distinction between

8 the underlying documents and the fact of an application, the subject

9 matter of the application, or the confidentiality of a decision.

10 Your Honour, I'm not going to go into detail on this issue

11 because it is dealt with at some length in our pre-trial brief, but of

12 paramount importance, when one is viewing the actus reus and whether or

13 not it has been made out, Your Honours cannot readily ignore the practice

14 of various Chambers of this Court. We made the submission in our

15 pre-trial brief and in our opening that by way of actus contrarius,

16 Benches of this Court can vary the nature of decisions in a number of

17 ways. That averment has not been contradicted by my learned friend for

18 the Prosecution. Indeed, it was his own witness, Robin Vincent, who

19 accepted that reality in cross-examination. Repeatedly, Mr. Vincent made

20 it clear that the nature of a decision could be varied in a number of

21 ways. And Your Honours will just have to look at the transcript. On

22 three separate occasions during his cross-examination, he was shown

23 documents and he accepted that documents could be rendered confidential,

24 absent a written decision of a Trial Chamber or Appeals Chamber by way of

25 their practice. And we cited in our opening Your Honour Judge Moloto's

Page 537

1 own practice in this very case as an example of the way in which what had

2 been rendered confidential, how it could be clarified, the status could

3 evolve, by way of judicial practice, and how a Bench, in public session,

4 treated a decision. And we've detailed that previously. I hope that the

5 point is clear.

6 Your Honour, if you'll just give me a moment.

7 JUDGE MOLOTO: You have a moment.

8 MR. KHAN: Your Honour, the transcript in that regard will speak

9 for itself. I can go into more detail, should that be needed.

10 The Prosecution has failed absolutely to address the mens rea

11 aspect of this case. They would have Your Honours adopt what I can only

12 describe as some kind of legal fundamentalism, that where a decision is

13 entitled "Confidential," any reference to it would give rise to criminal

14 liability for contempt. The extract in Jovic, I think it was, that my

15 learned friend cited in his opening had to do totally with the actus reus

16 of the offence, not the mens rea, but when one is putting oneself in the

17 shoes of the accused, who Your Honours will judge in due course,

18 Your Honours will be alive to the fact that everything she wrote was in

19 the public domain.

20 Now, it is, of course, accepted that the simple fact that

21 something is in the public domain is not dispositive. It doesn't mean

22 just because a fact is in the public domain, there is a license for any

23 individual to repeat it with abandon. But that is not to say that the

24 fact that a decision is in the public domain is irrelevant. To make that

25 quantum leap would be exactly that, a quantum leap that is not justified

Page 538

1 in law or in logic.

2 In contradistinction to the various cases, indeed all the cases

3 that have come before Your Honours and other Chambers of this Tribunal,

4 this case did not involve disclosure of a witness's name. That, of

5 course, would be the matter of the highest concern to a Bench because it

6 could jeopardise their life. This book that is the subject of

7 proceedings, and the article that followed it, had been all in the public

8 domain for years.

9 Your Honours were taken at some length by my learned friend

10 Mr. Mettraux to the International War and Peace report -- special report

11 in 2005, when all these facts were made public. The horse had bolted.

12 Of course, that was prior to a decision, but the fact that these issues

13 were already in the public domain must be factored in when one is seeking

14 to identify what interest it is that the Appeals Chamber was seeking to

15 protect.

16 Six months before her book was published, another report appeared

17 in the Institute of War and Peace Reporting, talking about the

18 Appeals Chamber's decision, and it was followed by reports in "The New

19 York Times" and the "International Herald Tribune," newspapers of world

20 fame, fantastic circulation. And as I mentioned in the opening, and

21 unfortunately I cannot put it better, there was not a whisper or a murmur

22 from the corridors of the Registry. No Rule 33 submission was filed, no

23 public statement was made. These issues were being discussed in

24 Belgrade, they were being discussed in New York, they were being

25 discussed by the Institute of War and Peace Reporting, and how could a

Page 539

1 reasonable individual, looking at that, consider that saying the same

2 things, discussing the same matters, would give rise to criminal

3 responsibility?

4 We have gone into detail about other individuals who have been

5 employees of this Court that have said similar things. No action taken

6 against them. Your Honour, this is relevant to mens rea.

7 However my learned friend seeks to get 'round it, and the way he

8 gets 'round it is by not addressing it, it is relevant to mens rea.

9 There is no guilty mind by my client. As Natasa Kandic put it very

10 clearly, that before she was employed by the Tribunal, she was committed

11 and knowledgeable and an expert in the former Yugoslavia. Indeed, she

12 was an individual -- Ms. Hartmann was the individual that in many ways

13 inspired Natasa Kandic to start the work she started.

14 Now, my learned friend may wish to characterise her evidence as

15 one of giving speeches. Your Honours will decide that. But she is a

16 woman of enormous renown, not just because the "Times," in 2002, named

17 her one of the people of the year, or that in 2007 she was declared one

18 of the heroes of the last 60 years, but because of the work she's done

19 and, more importantly, because of what she knows is the situation on the

20 ground in the former Yugoslavia. As she put it very eloquently, she

21 could not believe how Florence Hartmann could be sitting in that seat for

22 writing about nothing remarkable, simply writing in a book with a

23 circulation of 3.000 only on a topic that had been discussed in detail in

24 Belgrade and in international papers.

25 In deciding whether or not a criminal offence has been committed,

Page 540

1 one must contrast this case with the actions of the authorities of this

2 Court, be they the Prosecution or the Registry, in their supervisory role

3 in relation to issues of confidentiality, or their policing role, not

4 supervisory, their policing role, to the other cases like Haxhiu. In all

5 those cases, there was no gap to speak of between an alleged breach

6 coming to light and action by the Tribunal. Here we have years -- 2005,

7 the facts had been in the public domain, and six months in which

8 newspapers had been talking -- speaking about these issues. These are

9 relevant considerations for Your Honour, and they are matters that need

10 the most careful scrutiny.

11 Your Honour, the other factor the Prosecution fails to address is

12 this: All cases of contempt previously have related to live cases. This

13 case, at the time the alleged contempt was committed, had ceased. He

14 doesn't address this at all. In fact, I noticed, and I stand to be

15 corrected from the transcript, but he didn't address at all the aspect

16 that is most important to mens rea, an intention of Ms. Hartmann to

17 interfere with the administration of justice. Rather Janus-faced,

18 perhaps, he says, Well, she doesn't act out of reprehensible motives, and

19 at the same time, of course, he is seeking to say that there is a guilty

20 mind.

21 Well, Your Honour, there hasn't been an intent to interfere with

22 the administration of justice. The proceedings were dead, there was no

23 specific intent, and indeed such a specific intent needs to be proved, a

24 knowing or willful intent to interfere in the administration of justice.

25 Now, what did the Beqaj Trial Chamber say? My learned friend

Page 541

1 states, well, these cases he cites as dispositive, yet there is no

2 mention of cases that are contradictory to the submission that he puts

3 forward. Well, Beqaj says that there must be proof, and I quote:

4 " ... of a specific intent to interfere with the administration

5 of justice. Thus," and I quote, "the mens rea of contempt is the

6 knowledge and the will to interfere with the administration of justice."

7 The Maglov case, the Maglov decision is in our brief, and I

8 quote:

9 "The Prosecution must establish that the accused had the specific

10 intent to interfere with the Tribunal's administration of justice.

11 In the South African case, the State and van Nieckert, I believe,

12 Mr. President, that may be the leading case in South Africa, that the

13 Court stated, and I quote:

14 "Before a conviction for contempt can result, the act complained

15 of must not only be willful and calculated to bring into contempt, but

16 also be made with the intention of bringing the Judges, in their judicial

17 capacity, into contempt, or casting suspicion on the administration of

18 justice."

19 Your Honours, therefore, I would invite Your Honours to askew a

20 mechanical application of the law, what I described as legal

21 fundamentalism, that any violation, as such, automatically amounts to an

22 interference --

23 JUDGE MOLOTO: Are you considering that there has been a

24 violation?

25 MR. KHAN: Your Honours, not at all. My preliminary remark is

Page 542

1 that there's no actus reus. That was my first primary submission, and

2 the reason for that was the actus contrarius and also the waiver by the

3 state which will delineate that. But as far as the amicus's submission

4 is concerned, it's a very rigid view that a decision is entitled

5 confidential. And if it's revealed, not only is the actus reus made out,

6 and that was the authority he cited, the actus reus, but also there's an

7 interference with the administration of justice. Now, this is a

8 preposterous submission.

9 Your Honours will look at the various cases we've discussed in

10 our motions and the various decisions I put to Robin Vincent. All of

11 those decisions, we constrained ourselves. All the jurisprudence related

12 to the two impugned decisions. They all related to the two decisions

13 subject to the case against Ms. Hartmann. But if Your Honours reviewed

14 the totality of the jurisprudence of this Court, even one or two cases,

15 Your Honours would come to the inescapable conclusion that it is replete

16 with examples where confidential decisions are referred to in public

17 session; not just the title, not just the name, not just the existence of

18 a decision, but the jurisprudence. And, Your Honour, we have shown that,

19 even in relation to the two impugned decisions or the two decisions that

20 are subjects of these proceedings, when I put questions to Robin Vincent

21 and we read out from public decisions the exact quotations and the exact

22 jurisprudence from -- in public session from the decisions that

23 Ms. Hartmann is alleged to have spoken about criminally, in criminal

24 breach of the contempt provisions.

25 As I said, Your Honours, the amicus focuses solely on the fact

Page 543

1 that the heading of these decisions was "Confidential," and, therefore,

2 comes to the conclusion that, therefore, if it's filed confidentially, a

3 breach must have taken place.

4 Your Honour, the other aspect that hasn't really been addressed

5 is the issue of mistake of law or of fact. Now, my learned friend has

6 referred to this warning letter from the Registrar, and I can't pass that

7 topic without expressing my extreme disquiet at the conduct of my learned

8 friend in this regard. It is a matter of significant disappointment,

9 Your Honours, that without giving any good reason, the Prosecutor charged

10 with the conduct of this case, who has a duty under Article 15 of the

11 Practice Direction not to prosecute adversarially, but to prosecute in an

12 impartial manner, that he should renege upon a written undertaking to

13 counsel. And Your Honours, of course, made a ruling, but it's an issue

14 that has to be addressed in relation to the fairness to the Defence, the

15 bid -- and my learned friend has said quite openly, Ms. Hartmann cannot

16 escape. These were his words. Individuals -- no one can escape. Your

17 Honours, this is not the role of a prosecutor, to try to avoid escape.

18 The role of a prosecutor is to put the facts before a Bench and then for

19 the Bench to decide if the actus reus and mens rea are made out. But

20 when we asked for the chain of custody in relation to this document that

21 he now relies upon, his answer was, Well, no, I'm not going to rely upon

22 it in my case in-chief. If I rely upon it at all, it will be in

23 cross-examination, and therefore your request regarding the chain of

24 custody is irrelevant. Now, when I stood up in a matter of candour to

25 the Court, without keeping things under my ample sleeves, I made it clear

Page 544

1 that I didn't have an intention of calling Florence Hartmann. Right at

2 the end, before he sought to close his case, he reneged on that promise,

3 and this is a matter of concern. It hasn't been explained away, other

4 than the fact that we had the document. It's simply not good enough.

5 It's not how a case should have been prosecuted at all.

6 Your Honour, my learned friend has spoken repeatedly about

7 off-ramps, but with the greatest of respect, to choose another metaphor,

8 he has not been slow at all to lead you on highways and byways in order

9 to find a way to convict.

10 Your Honour, it's not your role, and Your Honours don't need any

11 guidance from me in that regard - perish the thought - but of course it's

12 not the role of a Court or of a prudent prosecutor to find a way to

13 convict, to avoid somebody to escape. The principle of in dubio pro reo

14 applies. And we did have significant concerns regarding the motivations

15 of this case. We have tried, and it's a matter of context, to have

16 hearings regarding an abuse of process. It was denied. We sought to

17 question the investigating officer in this case, who happened to be --

18 who happens to be now the prosecutor. That was denied. Your Honours

19 have been prevented from getting beneath -- looking at the skull beneath

20 the skin of this case and looking at the motivations. Like cases must be

21 treated alike. Not rocket science, not another proposition. And the

22 cases my learned friend puts to you are not alike. The issue of

23 revealing a witness's name is fundamentally different from discussing, in

24 a democratic, pluralistic, international community the jurisprudence and

25 reasoning of a bench of Judges. The cases my learned friend cites all

Page 545

1 have to deal with cases where the applicant, the protected person, the

2 witness, never sought to reveal their own name. In this case, the

3 applicant is making no bones about the fact that an application has been

4 made. Speaking at roundtable conferences, speaking at the ICJ. The

5 matter has been discussed on the radio in Belgrade. It's the subject of

6 TV reports. Fundamentally different to the cases cited by my learned

7 friend. Like cases should be treated alike. No action in relation to

8 the "The New York Times", the "International Herald Tribune," the

9 Institute of war and Peace Reporting. Your Honours must have pause for

10 thought and ask why is Florence Hartmann being targeted.

11 The amicus prosecutor, in his opening, said something along the

12 lines of, This is not about whether or not Florence Hartmann deserves

13 special treatment as a former employee of this Court. The converse is

14 also true, Your Honours. Ms. Hartmann does not merit special targeting,

15 particular targeting, simply because she happened to be a servant of this

16 Tribunal for six years. She should not be singled out, when all these

17 other entities, editors, newspapers, and other lawyers have done exactly

18 that, with no reaction. That, itself, is relevant not only to the

19 principle of like cases being treated alike, but whether or not an

20 offence was committed at all. And it goes back, of course, to her

21 mens rea. A reasonable person, looking at that state of affairs, would

22 they consider that the article and the book written by Florence Hartmann

23 would be contemptuous? In my respectful submission, no reasonable person

24 would come to such a conclusion.

25 Your Honours, my learned friend seeks to escape or gloss over, at

Page 546

1 the very least, the welter of international human rights law. In fact,

2 some of the very cases he cites as dispositive are absolutely against

3 him. Now, he -- my learned friend could castigate Natasa Kandic as

4 being -- giving speeches and pursuing an agenda, despite the fact that

5 this lady, the recipient of numerous awards, of good character, was

6 giving evidence under oath. But, Your Honours, at least my learned

7 friend has not sought to castigate or colour the testimony of Mr. Joinet,

8 one of the leading world experts and somebody intimately familiar with

9 the factors and considerations in relation to freedom of expression, a

10 man that has been honoured to serve six French prime ministers. What did

11 he say, Your Honours, in his questioning on the 16th of June? He said he

12 had never been aware of a case of contempt which was focused on the

13 reasoning of a Trial Chamber or an Appeals Chamber being revealed.

14 So my learned friend would ask you to turn away from the

15 accumulated case law of Strasbourg, and in order to take you on his merry

16 dance towards the conviction that he wishes you to reach, be totally

17 blind to the fact that no other courts that he is aware of has found an

18 individual guilty in these circumstances of something similar. The

19 reason, in my respectful submission, such individuals have not -- such

20 courts have not found somebody guilty in similar circumstances is because

21 the offence simply is not made out. And the error is not that of all the

22 other courts. Let's stick to Europe for the time being. It's not the

23 fault of Strasbourg or domestic courts in Europe; the fault is the

24 fundamental misapprehension of the law of contempt of this Tribunal by

25 the amicus prosecutor brought in to conduct this investigation and this

Page 547

1 case.

2 Your Honours, I will touch upon three decisions, the last of

3 which -- or the second of which is Dupuis which my friend relied upon.

4 But in the "Sunday Times" case, it's the "Sunday Times" and the

5 United Kingdom, the 1979 case, the Court made it clear that freedom of

6 expression has a pivotal role in society, and whilst, of course, it is a

7 qualified right, it is not an absolute right. It is clear from all the

8 case studies, both by the United Nations that Mr. Joinet referred to and

9 the case law at Strasbourg, that any restrictions on freedom of

10 expression must be interpreted narrowly. This is the starting point.

11 The presumption is in favour of freedom of expression. The presumption

12 is against restriction.

13 Now, in the "Sunday Times" case, this had to do with thalidomide

14 and the awful effects of that drug on children. Strasbourg said, and I

15 quote from page 61:

16 "In the present case, the families of numerous victims of the

17 tragedy who were unaware of the legal difficulties involved had a vital

18 interest in knowing all the underlying facts and the various possible

19 solutions. They could be deprived of this information, which was

20 crucially important to them, only if it appeared that its diffusion would

21 have presented a threat to the authority of the judiciary."

22 Now, Your Honours will see from my closing brief that there is

23 ample case law stating that the judiciary and the rule of law is robust

24 enough to take care of itself. The law of contempt is not there to

25 buttress the dignity of the Judges. It is not there to save any blushes

Page 548

1 of any judicial institution. It is there to safe-guard the

2 administration of justice. And whilst it's correct that the

3 administration of justice does not have to be shown to have been impeded,

4 it must be established that there is an intent to so impede. It is this

5 intent to impede the administration of justice that has been absolutely

6 not proved by the amicus prosecutor.

7 Your Honour, you will see from our brief and the book of

8 authorities an awful lot of -- the highlighted cases, extracts of the

9 various cases, and I would urge Your Honours in due course to give

10 particularly -- particular care when reading these. It will take a

11 little bit of time, but hopefully they are instructive on this issue.

12 Your Honour, in assessing the -- whether or not the restrictions

13 on freedom of expression are needed, the Prosecution must establish that

14 the law, as he intends it to apply, fulfils a pressing social need, that

15 it is proportionate, and this issue of proportionality is absolutely

16 fundamental.

17 Your Honour, in the same case, and I'll read, Strasbourg European

18 Court of Human Rights held that:

19 "There is a general recognition --"

20 Let me start again:

21 "As the Court remarked in its Handyside judgement, freedom of

22 expression constitutes one of the essential foundations of a democratic

23 society."

24 It goes on to say:

25 "It is applicable not only to information or ideas that are

Page 549

1 favorably received, or regarded as inoffensive, or as a matter of

2 indifference, but also to those that shock, offend, or disturb the state

3 or any sector of the population. These principles are of particular

4 importance as far as the press is concerned."

5 I pause there. My learned friend's opening remarks, of course,

6 seem to diminish any different standard, any different considerations,

7 when one is dealing with journalists and journalistic freedom. That has

8 been rejected by the European Court of Human Rights. A margin of

9 deference is given to journalists in democratic, pluralistic societies,

10 consistent with the principles of the European Court of Human Rights.

11 But whilst this may seem Eurocentric, Your Honours, these principles have

12 found voice in many other international conventions that were alluded to

13 by Professor Joinet in his testimony.

14 The Court continued:

15 "These principles are equally applicable to the field of the

16 administration of justice which serves the interests of the community at

17 large and requires the cooperation," "requires the cooperation," "of an

18 enlightened public. There is general recognition of the fact that the

19 courts cannot operate in a vacuum. Whilst they are the forum for the

20 settlement of disputes, this does not mean that there can be no prior

21 discussion of disputes elsewhere, be it in specialised journals, in the

22 general press, or amongst the public at large.

23 "Furthermore, whilst the mass media must not over-step the bounds

24 imposed in the proper administration of justice, it is incumbent upon

25 them," it is incumbent upon them, a burden of the press, Strasbourg is

Page 550

1 saying, "to impart information and ideas concerning matters that come

2 before the courts, just as in other areas of public interest."

3 Not only do the media have the task of imparting that knowledge;

4 the public have the right to receive it. And it states that the

5 restrictions must be narrowly interpreted.

6 JUDGE MOLOTO: Mr. Khan, we have gone as far as the tape can take

7 us. We've gone for one and a half hours. You are actually left with

8 nine minutes to finish your brief. We just have to take a break.

9 MR. KHAN: I'm most grateful. Thank you.

10 JUDGE MOLOTO: We'll take a break and come back at 11.00.

11 Court adjourned.

12 --- Recess taken at 10.32 a.m.

13 --- On resuming at 11.00 a.m.

14 JUDGE MOLOTO: Yes, Mr. Khan.

15 MR. KHAN: Your Honours, I am most grateful.

16 Your Honour, in the short amount of time left, I will seek to

17 focus on just three issues and rest, then, on the closing brief that is

18 before Your Honours. The first issue is one of clarification, perhaps.

19 We wish to be clear that we are not challenging, in any way,

20 shape, or form, the legality of the appropriateness or the legal

21 foundations of the Appeals Chamber's two decisions that gave rise to this

22 case. Of course, being an apex court, being an apex judge, is never

23 easy. It is more often the case -- more often the case than not that one

24 litigant, one party or the other, will be dissatisfied with the verdicts

25 that are meted out.

Page 551

1 Your Honours, in determining this case, you do not need to find

2 at all -- make any finding at all as to the legality or the

3 appropriateness of those two decisions. What you are simply tasked to

4 focus on is whether or not the elements of contempt are made out. In

5 determining that, Your Honours must consider whether or not my learned

6 friend for the Prosecution has discharged his onerous burden to prove

7 this case beyond reasonable doubt.

8 In establishing the ingredients of this offence, it is our

9 hopefully clear submission that the Prosecution must establish that the

10 conduct of Ms. Hartmann gave rise to a real risk -- a real risk to the

11 administration of justice. Unless such a risk exists, it is our

12 submission that the Tribunal has no jurisdiction. This is because the

13 contempt jurisdiction of this Court does not stand alone. It is there

14 under its implied powers to support the functioning of the Court.

15 Your Honours, I will refer, and it's in our brief, to the

16 Margetic Trial Chamber decision at paragraph 15, and also the Marijacic

17 Trial Chamber decision at paragraph 50.

18 Now, Your Honours, this "real risk" test has not even been -- has

19 not just been referred to by your brethren and sister Judges in this

20 court; it find origins in those system that have been tasked to deal with

21 contempt provisions for decades. Your Honours, the real risk to the

22 prejudice to the administration of justice has, and I'm quoting:

23 "Has, since the European Court of Human Rights era, always --

24 always been used in relation to particular proceedings, not in relation

25 to the administration of justice generally."

Page 552

1 So says Fenwick and Phillipson, which happens to be the leading

2 text in one jurisdiction, namely that of England and Wales. That has

3 been echoed by Mr. Joinet when he stated that when the case is over,

4 there is no problem regarding the administration of justice. So in this

5 focus of mischief, what is the mischief that the Rule is tendered to

6 focus on? It is my submission -- it is our submission that the civil law

7 and the common law stand shoulder to shoulder that this ingredient of

8 real risk must be made out.

9 Your Honour, there are many cases referred to in our closing

10 brief, but let me just read, by way of, hopefully, to illuminate the

11 issue to some extent, the finding of Lord Bridge in the House of Lords in

12 the Lonrho case, a famous case in England and Wales, and His Lordship

13 said, and I quote at page 209 of that judgement:

14 "Whether the course of justice in particular proceedings will be

15 impeded or prejudiced by a publication must depend primarily on whether

16 the publication will bring influence to bear which is likely to divert

17 the proceedings in some way from the course that they would otherwise

18 have followed. The influence may affect the conduct of the witness, the

19 parties, or the Court."

20 No such risk has been made out in the present case.

21 Your Honours, I've already referred to the fact that there's been

22 no evidence at all called by the Prosecutor in an attempt to discharge

23 his burden of proof from the applicant state, but, Your Honours, you've

24 also had put before you earlier this week evidence from the Prosecutor of

25 this Court stating that cooperation from that applicant state, Serbia,

Page 553

1 has improved since the book was published. So there's absolutely no real

2 risk at all that has been shown by the amicus prosecutor.

3 Going to the Dupuis case, it is surprising - surprising is the

4 word I would use - that my learned friend seeks to rely upon it. And I

5 would ask Your Honours to rely upon it because it kicks his case into

6 touch. Your Honours, I will refer to only one paragraph of that case,

7 paragraph 46. It's in our -- an extract is in our book of authorities at

8 page 18. And what the European Court of Human Rights found, and I quote:

9 "The Court further considers that it is necessary to take the

10 greatest care in assessing the need, in a democratic society, to punish

11 journalists for using information obtained through a breach of the

12 secrecy of an investigation, or a breach of professional confidence, when

13 those journalists are contributing to a public debate of such importance

14 and are thereby playing their role as watch-dogs of democracy.

15 Article 10 protects the rights of journalists to divulge information on

16 issues of public interest, provided they are acting in good faith and on

17 an accurate factual basis, and provide reliable and precise information

18 in accordance with the ethics of journalism."

19 You now, Your Honours, my learned friend has stated he doesn't

20 seek incarceration -- I'll be four minutes, Your Honour.

21 My learned friend states --

22 JUDGE MOLOTO: Your four minutes are gone.

23 MR. KHAN: Your Honours, if I could have four minutes to

24 conclude, and I'll be as quick as I can. I would be most grateful.

25 My learned friend has stated he doesn't seek to incarcerate my

Page 554

1 client, but, Your Honours, in that case the European Court held that

2 whilst there'd been no order to destroy or seize the book that had been

3 published, whilst a sentence of imprisonment was not ordered, the fine

4 that was imposed had a chilling effect and therefore constituted a

5 disproportionate interference with the right of freedom of expression.

6 Your Honours, the last case, pivotal case, is the case of Weber

7 and Switzerland. I'll read one paragraph which debunks the theory that

8 my learned friend would have you adopt, the legal fundamentalist position

9 that he would ramrod to Your Honours. There, Strasbourg Court,

10 dismissing the position of the Swiss government, and I quote, the

11 Strasbourg European Court states:

12 "In the government submission, this finding was not decisive

13 because of the formal nature of the confidentiality. According to the

14 relevant Swiss case law and legal literature, the mere fact of

15 communicating a piece of information in a judicial investigation was

16 sufficient for the commission of an offence. Whether it was common

17 knowledge beforehand, and its importance, or its degree of

18 confidentiality, they were relative to the fine."

19 That position is identical -- materially identical to the

20 position advanced by my learned friend, the amicus prosecutor.

21 Strasbourg rejected it totally. The European Court stated:

22 "The Court finds this submission unpersuasive. For the purposes

23 of the convention, the interest in maintaining the confidentiality of the

24 aforementioned facts no longer existed in March 1982. On that date,

25 therefore, the penalty imposed on the applicant no longer appeared

Page 555

1 necessary in order to achieve the legitimate aim pursued."

2 And therefore they had regard to the circumstance and concluded

3 that the conviction and the fine was not necessary in a democratic

4 society.

5 Your Honour, these proceedings have taken a while, they have led

6 to the disqualification of one Bench. They have led to numerous motions

7 being filed. It may well be thought in some quarters that the Defence

8 have been leading you up off-ramps. Your Honours will be the determiners

9 of. But I would caution Your Honours from adopting a view that simply

10 because an individual states in a book a decision is confidential, a

11 conviction will follow.

12 Going back to Vincent, Christiane Amanpour referred to an

13 incident, didn't say it was confidential. That surely cannot be the

14 pivotal issue that will give rise to a conviction, whether or not a book

15 states such and such a decision is confidential or not.

16 For the reasons we have sought to put before you, it is our

17 submission that the actus reus and the mens rea of this offence -- of

18 these two counts are not made out. To the extent that any of our

19 submissions may have been viewed as being robust, Your Honours, we have

20 considered it, Mr. Mettraux and ourselves, necessary to do our best to

21 persuade Your Honours to have pause for thought, not just to jump a step

22 to a conviction that my learned friend thinks is certain and an

23 irresistible conclusion. To the extent that we have done anything wrong,

24 we would ask, of course, that Ms. Hartmann not be penalised by the way

25 that we have sought to defend her interests. And, Your Honours, we are

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1 confident, of course, that that will not be the case.

2 As far as the letter is concerned -- this is my final point. As

3 far as the Rule 77 letter --

4 JUDGE MOLOTO: [Microphone not activated]

5 MR. KHAN: Your Honour, it's my last point.

6 As far as the letter is concerned and from the Registry, I will

7 only say that that letter did not refer to Rule 77, it did not refer to

8 contempt or the two impugned decisions. The amicus prosecutor, himself,

9 has conceded that Ms. Hartmann did not see these two decisions until the

10 time she was interviewed by him. And in my respectful submission, from

11 that interview her reaction at the time was that these -- that letter had

12 nothing to do with the two decisions that are subject of these

13 proceedings.

14 For all of these reasons, it is my respectful submission that

15 Ms. Hartmann -- that Ms. Hartmann must be acquitted, and Your Honours

16 should resist any attempt by the amicus prosecutor to lead you to an

17 alternative conclusion that would have a chilling effect on freedom of

18 speech, the rights of victims, and those that wish to engage and uphold

19 the principles espoused in Security Council Resolution 827, which is the

20 foundational instrument that led to the creation of this Tribunal.

21 Your Honour, those are my submissions, unless I can assist.

22 JUDGE MOLOTO: Thank you very much, Mr. Khan.

23 I think the parties will hear from the Chamber. The matter

24 stands adjourned.

25 Court adjourned.

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1 --- Whereupon the hearing adjourned at 11.16 a.m.