1 Thursday, 11 September 2008
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 1.14 p.m.
6 JUDGE ANTONETTI: [Interpretation] Madam Registrar, please call
7 the case.
8 THE REGISTRAR: Good afternoon, Your Honours. This is case
9 number IT-03-67-R77.1-T, In the Matter of Ljubisa Petkovic.
10 JUDGE ANTONETTI: [Interpretation] Today is Thursday, the 11th of
11 September, 2008. Good afternoon, Mr. Petkovic; good afternoon to your
12 Defence counsel, and good afternoon to everyone assisting us in this
13 courtroom. The registrar, the court deputy, and everyone else.
14 The Trial Chamber is now going to deliver its Judgement in the
15 case of contempt against Mr. Ljubisa Petkovic. Mr. Petkovic, would you
16 please stand whilst I read out the Judgement in your case.
17 Today, Thursday, 11th of September 2008, the Trial Chamber,
18 consisting of Jean-Claude Antonetti, president, Frederik Harhoff and
19 Flavia Lattanzi is delivering its judgement on the allegations against
20 Ljubisa Petkovic, the accused, pursuant to Article 77(A)(iii) of the
21 Rules of Procedure and Evidence of the Tribunal. This is only a summary
22 which does not form part of the Judgement delivered by the Trial Chamber.
23 The only authorative account of the Trial Chamber's findings is in the
24 written Judgement, copies of which will be available after the hearing.
25 The accused and the Defence will be given a confidential version
1 of the Judgement while a public redacted version will be available to the
3 77(A)(iii) reads, and I quote: "(A) The Tribunal, in the
4 exercise of its inherent power, may hold in contempt those who knowingly
5 and willfully interfere with its administration of justice, including any
6 person ... who without just excuse fails to comply with an order to
7 attend before or produce documents before a Chamber."
8 The accused is charged with having knowingly and willfully
9 interfered with the administration of justice by refusing to comply with
10 the subpoena issued on 7th of April, 2008, proprio motu and
11 confidentially by the Trial Chamber in the case against Vojislav Seselj.
12 This subpoena ordered Ljubisa Petkovic to appear before the Trial Chamber
13 as of 13th of May, 2008, as a "chamber witness." The accused having
14 failed to do so, the Trial Chamber decided to initiate the proceedings
16 The trial was held on the 3rd of September, and the Defence put
17 forward two witnesses, the accused and his wife.
18 The Defence of Ljubisa Petkovic acknowledged that the actus reus
19 of the offence of contempt as described in 77(A)(iii) of the Rules was
20 constituted by the mere fact that the accused failed to appear at the
21 time and location indicated by the Trial Chamber. The Trial Chamber
22 equally considers that the actus reus
23 constituted by the absence of the accused at the hearing of 13 May 2008
24 The Trial Chamber thereafter considered whether the circumstances
25 surrounding the notification of the subpoena and the deterioration of the
1 state of health of the accused could amount to "just excuse" pursuant to
2 Rule 77(A)(iii) of the Rules, as submitted by the Defence in support of
3 its contention that the accused should be acquitted.
4 The Trial Chamber considers that the accused has not established
5 the existence of just excuses pursuant to 77(A)(iii) of the Rules.
6 First, considering all the elements in its possession, or his possession,
7 the accused could not reasonably doubt that he was the addressee of the
8 subpoena. Secondly, though psychologically fragile, the accused was not
9 in a state of health which prevented him from informing the Trial Chamber
10 that he could not comply with the subpoena.
11 Moreover, the Trial Chamber considers that the mens rea of the
12 offence is constituted by the fact that the accused, instead of complying
13 with the obligations imposed on him by the subpoena, voluntarily failed
14 to execute it by choosing to escape, without just excuses. As a
15 consequence, he knowingly and willfully interfered with the
16 administration of justice.
17 Therefore, the Trial Chamber is satisfied beyond reasonable doubt
18 that the accused is guilty of the offence of contempt, pursuant to
19 77(A)(iii) of the Rules.
20 In its determination of the sentence, the Trial Chamber took into
21 account the gravity of the offence, the general sentencing practice of
22 the courts of the former Yugoslavia
23 Tribunal, as well as the aggravating circumstance constituted by the
24 failure of the accused to comply, for the second time, with an order of
25 the Trial Chamber. Due consideration was also given to the following
1 mitigating circumstances: The absence of any prior criminal history; the
2 facts that the accused voiced excuses for his conduct and the family; and
3 personal circumstances of the accused. In that regard, when determining
4 the sentence, the Trial Chamber took into account the financial situation
5 of the accused.
6 Before reading the disposition, the Trial Chamber wishes to
7 underline the gravity of the offence for which the accused is found
8 guilty. In that regard, the Trial Chamber wishes to recall that
9 witnesses are not the property of the parties and that when the Trial
10 Chamber decides, by way of a subpoena, that their testimony is necessary
11 to establish the truth, they have to comply with it. When ordered to
12 appear as a Trial Chamber witness, pursuant to Rule 98 of the Rules, the
13 accused could not refuse to comply with the subpoena by stating that he
14 was, and I quote, "'a Defence witness."
15 For the reasons summarized above, having taken into consideration
16 the totality of the arguments and evidence presented by the Defence, the
17 Trial Chamber decides that, pursuant to Rule 77 of the Rules: (i) the
18 accused Ljubisa Petkovic is guilty of contempt of the Tribunal,
19 punishable pursuant to 77(A)(iii) of the Rules; (ii) the accused Ljubisa
20 Petkovic is sentenced to four months of imprisonment, credit being given
21 to the three months and 14 days spent in detention at the United Nations
22 Detention Unit; (iii) the registry shall take all necessary measures for
23 the accused to serve his sense.
24 The summary of the Judgement in this case has been read out, and
25 we are now going to adjourn.
1 Thank you very much.
2 --- Whereupon the hearing adjourned at 1.27 p.m.