Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Thursday, 28 June 2012

 2                           [Judgement]

 3                           [Open session]

 4                           --- Upon commencing at 9.01 a.m.

 5             JUDGE TRECHSEL:  Can the accused be brought in.

 6                           [The accused entered court]

 7             JUDGE TRECHSEL:  Good morning.

 8             Mr. Registrar, will you please read the case.

 9             THE REGISTRAR:  Thank you and good morning, Your Honours.

10             This is case number IT-03-67-R77.4, In the Matter of

11     Vojislav Seselj.

12             JUDGE TRECHSEL:  Thank you.

13             Today, the Trial Chamber, consisting of Judges, Stefan Trechsel,

14     presiding; O-Gon Kwon and Melville Baird delivers its judgement on the

15     allegations of contempt of the Tribunal against the accused

16     Vojislav Seselj.

17             What follows is a summary, which does not form part of the

18     Trial Chamber's judgement.  The only authoritative account of the

19     Trial Chamber's findings is the written, confidential judgement.  This

20     will be provided to the accused after the hearing.  A B/C/S translation

21     will be provided subsequently.  A public redacted version of the

22     judgement will be available to the public.

23             In this case, it is the Trial Chamber itself which prosecutes the

24     accused for contempt of the Tribunal, punishable under the Tribunal's

25     inherent power and Rule 77 of the Rules of Procedure and Evidence.  The

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 1     initial indictment was issued on 9 May 2011 and was amended on

 2     21st October, 2011, and, again, on 29 March 2012.

 3             The accused is charged with one Count of contempt for knowingly

 4     and wilfully interfering with the administration of justice by failing to

 5     comply with the following Chamber's orders to remove from his web site

 6     material revealing confidential information about a number of protected

 7     witnesses:

 8             On 16 December 2009, the Appeals Chamber ordered the removal of a

 9     book the accused had authored and his Notice of Appeal and appeal brief

10     filed confidentially in a previous contempt case;

11             On 31st of January of 2011, Trial Chamber II ordered the accused

12     to remove a second book and two confidential submissions;

13             On 17 February 2011, Trial Chamber II ordered the accused to

14     remove a third book and a confidential submission;

15             On 15 July 2011, Trial Chamber II ordered the accused to remove a

16     fourth book;

17             And on 3rd November, 2011, Trial Chamber II ordered the accused

18     to remove a confidential submission.

19             These orders were issued in several cases, including in the main

20     trial against Vojislav Seselj and in previous contempt proceedings where

21     he was found guilty for having published confidential information.

22             At the initial appearance on 6 July 2011, and the further

23     appearance on 17 April 2012, the accused pleaded not guilty to the

24     charges.  At the further appearance on 4 November 2011, the accused did

25     not enter a plea; wherefore a plea of not guilty was entered on his

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 1     behalf, pursuant to Rule 62 at a further appearance on 11 November 2011.

 2             Several pre-trial matters arose in this case, which have bearing

 3     on the trial itself.  The Chamber will describe them briefly, before

 4     coming to its substantive findings.

 5             At a Status Conference on 19 March 2012, the accused stated that

 6     he would testify himself and that a legal associate of his, assigned to

 7     the accused's main trial, would conduct the examination-in-chief.  The

 8     accused also stated that he intended to request the disqualification of

 9     Judge Kwon.  In a written decision of 24 April 2012, the Chamber ordered

10     the accused to file his request for disqualification of Judge Kwon in

11     writing within seven days of reception of the translation of the

12     Chamber's 24 April decision.  By the same deadline, the accused was also

13     to file his witness an exhibit lists.

14             On 15 May 2012, and in compliance with the deadline set, the

15     accused filed a witness list.  However, he did not file any written

16     request for the disqualification of Judge Kwon.  According to the witness

17     list, the accused would be the only witness in the case.

18             On 30 May 2012, the Chamber was informed that the Registry's

19     Office of Legal Aid and Detention Matters, OLAD, had granted the

20     accused's request that a legal associate of his from the main trial be

21     allowed a privileged visit to the Detention Unit in preparation for the

22     trial in this case.  OLAD had, however, denied the accused's request for

23     his Case Manager in the main trial to participate.

24             The Chamber scheduled the pre-trial conference for 12 June 2012,

25     with trial to be held immediately thereafter.  It also ruled that the

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 1     legal associate could conduct the examination-in-chief of the accused.

 2     At the pre-trial conference, the accused submitted, inter alia, that he

 3     had been denied the right to legal assistance due to OLAD's denial of his

 4     request regarding the Case Manager.  The accused requested

 5     reconsideration of the Chamber's decision so as to allow the Case Manager

 6     to appear.  Having adjourned to deliberate, the Chamber ruled that it

 7     would not reconsider its decision.  The accused then stated that in the

 8     absence of his legal advisor and Case Manager, he would not be able to

 9     present a Defence because there was no one to conduct the

10     examination-in-chief.

11             The Chamber held that this concluded the pre-trial conference and

12     moved to trial.  It noted that the accused had received the indictment

13     and the supporting material in the case.  The Chamber then invited the

14     accused to present a Defence by taking the stand, stating that it would

15     conduct the examination.  The accused repeated that he was unable to

16     present a Defence and that he did not wish to participate in the

17     proceedings until he was given the possibility of having both the legal

18     associate and the Case Manager present.

19             After another adjournment to consider the accused's submissions,

20     the Chamber ruled that the trial would be adjourned, one week, until the

21     18th of June, 2012.  The Chamber also repeated that the legal associate

22     was welcome but that the use of a Case Manager was not warranted.  It

23     also gave the accused a warning to the effect that if he persisted in his

24     attitude, the Chamber would go on with the trial.

25             On 18 June 2012, the legal associate was not present.  The

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 1     Chamber invited the accused to take the stand, noting that it would give

 2     him the possibility to state his view on the facts of the case rather

 3     than question him.  The accused stated that he refused to mount a

 4     Defence, submitting that he had been denied his procedural rights to have

 5     a legal associate and a Case Manager present.

 6             Following this, the Chamber noted that all material germane to

 7     the trial was on the record and thereafter invited the accused to make

 8     final submissions.  In his final submissions, the accused argued,

 9     inter alia, that the proceedings were biased and noted that the Case

10     Manager had been assigned by OLAD to the accused's main trial and to

11     previous contempt proceedings.  The accused also submitted that the

12     Chamber had prevented him from mounting a Defence.  The Chamber

13     thereafter closed the trial proceedings.

14             I will now turn to the merits of this case.

15             The Tribunal possesses an inherent jurisdiction to ensure that

16     its exercise of the jurisdiction given to it by the Statute is not

17     frustrated and that its basic judicial functions are safe-guarded.

18     Rule 77(A) provides that the Tribunal, in the exercise of this inherent

19     power, may hold in contempt those who knowingly and wilfully interfere

20     with its administration of justice.

21             The material element of the crime of interfering with the

22     administration of justice includes any deliberate conduct which creates a

23     real risk that confidence in the Tribunal's ability to grant effective

24     protective measures would be undermined.  A violation of a court order,

25     as such, constitutes an interference.  The mental element is established

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 1     where an accused wilfully and knowingly interfered with the

 2     administration of justice.

 3             The Chamber has examined the case under Rule 77(A) as opposed to

 4     Rule 77(A)(ii) because the accused is charged with contempt for failing

 5     to comply with the Chamber's orders to remove confidential material from

 6     the web site, not with disclosing the confidential material as such.

 7             With respect to the material element, the Chamber has found that

 8     by virtue of the orders issued by various Chambers, the accused was

 9     obliged to remove the books and confidential submissions from his web

10     site.  It has been established that he failed to comply with these

11     orders.  It is not disputed that the accused has been in a position to

12     take positive measures to remove, or cause to be removed, the material in

13     question.  In this respect, the Trial Chamber has noted his statements

14     regarding certain submissions made at a hearing in the main Seselj trial

15     and his written submissions filed before Trial Chamber II, that he did

16     not intend to remove one of the books.  The Chamber had also considered

17     statements of the accused during the trial in the second contempt case

18     against him, which show that he controls what is placed on the web site.

19     Lastly, the Chamber has considered a submission filed before the Chamber

20     by the web site's registrant that the accused is the "sole owner of the

21     web site and exclusively decides what will appear."

22             With respect to the mental element, the Chamber has noted the

23     numerous receipts which the accused has submitted confirming receipt both

24     of the orders with which he has failed to comply, and underlying

25     decisions and submissions.  The Chamber has noted that the accused

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 1     explicitly stated with respect to one of his books that he did not intend

 2     to comply with the relevant order to remove it.  The Chamber has also

 3     noted his statement to Trial Chamber III in the main Seselj trial, that

 4     he had confidential material on the web site pertaining to a protected

 5     witness.

 6             For these reasons, the Chamber is satisfied that the material

 7     element of contempt, pursuant to Rule 77(A), has been proved beyond a

 8     reasonable doubt and that the accused was aware of the orders and his

 9     obligation to remove the confidential material from the web site.

10     Therefore, the Chamber has found the accused guilty of contempt of the

11     Tribunal for knowingly and wilfully interfering with its administration

12     of justice by failing to comply with Chamber's orders.

13             Turning now to the issue of sentencing, pursuant to Rule 77(G).

14     The maximum penalty that may be imposed on a person found to be in

15     contempt is a term of imprisonment not exceeding seven years or a fine

16     not exceeding 100.000 euros, or both.  Factors to be taken into account

17     in determining sentence are the gravity of the contempt and the need to

18     deter repetition and similar conduct by others.  The Chamber had also

19     considered whether there are any aggravating or mitigating circumstances.

20             This trial concerns a grave case of contempt of court arising out

21     of failure to comply with Tribunal orders.  The orders and decisions of

22     which the accused is aware impose upon him an obligation to remove, or

23     cause to be removed, the confidential material from the web site.

24     Non-compliance with such orders is a serious matter, which not only

25     interferes with the administration of justice but risks undermining

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 1     public confidence in the Tribunal and, thereby, the effectiveness of its

 2     judicial function, including its ability to grant effective protective

 3     measures where necessary.

 4             The Chamber has considered the accused's repeated defiance of the

 5     Tribunal's authority to be an aggravating factor.  The repetitious nature

 6     of his conduct is demonstrated by his continuing refusal to obey the

 7     orders requiring him to remove confidential material which he has

 8     disclosed on many occasions over the course of several years.  This

 9     flagrant disregard for Chamber's orders amounts to a direct attack upon

10     the judicial authority of the Tribunal.

11             The accused has two previous convictions for contempt of court.

12     In both cases, he was convicted for revealing confidential information

13     and evidence relating to protected witnesses in two of the books at issue

14     in the present case.  These convictions have been considered as

15     aggravating factors.

16             The Trial Chamber has considered whether there exist any

17     mitigating circumstances, such as a indication of remorse, but it holds

18     that there are none.

19             For these reasons, the Trial Chamber will impose a penalty which

20     recognises the gravity of the accused's crime in this case and the need

21     for deterrence.

22             Mr. Seselj, would you please stand up.

23             THE ACCUSED: [Interpretation] Me to get up for you?  You're not

24     normal.  You are the scum of this world.  Why would I stand up for you?

25     I'm a duke, after all.

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 1             JUDGE TRECHSEL:  Having found you guilty of one Count of contempt

 2     of the Tribunal, pursuant to Rules 54 and 77 of the Rules, the Chamber,

 3     by majority, Judge Trechsel dissenting, sentence you to a single term of

 4     imprisonment of two years.

 5             I have appended a dissenting opinion concerning the sentence

 6     imposed.  I would have favoured a punishment considerably less severe.

 7             The hearing is adjourned.

 8                            --- Whereupon the hearing adjourned at 9.27 a.m.