Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Friday, 24 February 2012

 2                           [Judgement]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 3.38 p.m.

 6             JUDGE KWON:  Good afternoon, everyone.

 7             Yes, can I have the appearances.  Mr. Lazarevic.

 8             MR. LAZAREVIC:  Good afternoon, Your Honours.

 9     Aleksandar Lazarevic, counsel for Mr. Tupajic.

10             JUDGE KWON:  Thank you.

11             Mr. Tupajic, I take it that you are following the proceedings in

12     a language that you understand.  Our usher will assist you.

13             Mr. Tupajic, do you hear me in your language?  Now I will --

14             THE ACCUSED: [Interpretation] It's all right now, Your Honour.

15             JUDGE KWON:  You hear me in a language you understand,

16     Mr. Tupajic?  Thank you, Mr. Tupajic.

17             Today the Trial Chamber is pronouncing its Judgement on

18     allegation of contempt against the accused, Milan Tupajic, pursuant to

19     Rule 77(A)(iii) of the Rules of Procedure and Evidence of the Tribunal.

20     This is only a summary, which does not form part of the Judgement

21     delivered by the Trial Chamber.  The authoritative account of the

22     Trial Chamber's finding is contained in the written Judgement, copies of

23     which will be made available after the hearing.  The accused will be

24     given a confidential version of the Judgement and a public redacted

25     version will be made available to the public.

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 1             On the 30th of November, 2011, the Chamber issued an Order in

 2     Lieu of Indictment against the accused for contempt of the Tribunal

 3     punishable under Rule 77 of the Rules for knowingly and wilfully

 4     interfering with the administration of justice by refusing to comply with

 5     the obligation to appear and testify in the Prosecutor v. Radovan

 6     Karadzic case, as indicated in two subpoenas dated the 23rd of September,

 7     2011, and the 3rd of November, 2011, respectively, or to show good cause

 8     why he could not so comply.

 9             On the 16th of December, 2011, the accused pleaded not guilty to

10     the charge of contempt.  The trial was held on 3rd of February, 2012.  At

11     the trial, the accused testified himself without calling any other

12     witnesses, and the Chamber admitted 20 Defence exhibits into evidence.

13             Rule 77(A) of the Rules provides the Chamber with inherent power

14     to hold in contempt those who knowingly and wilfully interfere with its

15     administration of justice, including any person who, without a just

16     excuse, fails to comply with an order to attend before a Chamber.

17             The Chamber shall now turn to the material element of the

18     offence.

19             The accused did not appear before the Chamber in the Karadzic

20     case as ordered in two subpoenas dated 23rd September, 2011, and

21     3rd of November, 2011, respectively.  Therefore, the Chamber finds that

22     the accused failed to comply with its order as set forth in the

23     subpoenas.

24             In the First and Second Memorandum of Service, the accused stated

25     that he was unwilling to testify before the Chamber in the Karadzic case

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 1     and that his primary reason for refusing to appear before the Chamber

 2     related to his health concerns.

 3             The Chamber reviewed the documents the accused submitted in

 4     support of his health concerns but considers that his health concerns do

 5     not constitute a just excuse for his failure to comply with the orders as

 6     contained in the subpoenas.

 7             At trial, in private session, the accused submitted evidence in

 8     relation to other reasons for refusing to appear before the Chamber.  The

 9     Chamber examined these reasons and considers that they do not constitute

10     a just excuse under Rule 77(A)(iii) of the Rules.

11             Turning now to the mental element of the offence.

12             The Chamber considers that the First and Second Memorandum of

13     Service establish that the accused was aware of the contents of the

14     subpoenas and the obligation contained therein to appear and testify

15     before the Chamber.  The accused was also aware of the consequences of

16     his failure to comply with the subpoenas.  However, the accused acted

17     contrary to the instructions contained in the subpoenas.  The Chamber

18     thus finds that the accused knowingly and willingly interfered with the

19     administration of justice by refusing to comply with the subpoenas.

20             Accordingly, the Chamber is satisfied that the accused is guilty

21     of the offence of contempt pursuant to Rule 77(A)(iii) of the Rules.

22             In making a determination on sentencing, the Chamber first

23     considered the gravity of the offence and the fact that by refusing to

24     comply with the subpoenas and to testify before the Chamber, the accused

25     had deprived the Chamber in the Karadzic case of relevant evidence.

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 1             The Chamber took into account the accused's health and his

 2     current financial and family situation as mitigating factors.  The

 3     Chamber did not consider any aggravating circumstances.

 4             Having considered all the evidence, pursuant to Rule 77 of the

 5     Rules, the Chamber decides as follows.

 6             Mr. Tupajic, will you rise, please.

 7             The accused, Milan Tupajic, is guilty of one count of contempt of

 8     the Tribunal punishable under Rule 77.

 9             The accused, Milan Tupajic, is hereby sentenced to a single

10     sentence of two months of imprisonment.

11             The accused, Milan Tupajic, pursuant to Rule 101(C) of the Rules

12     is entitled to credit for time served in detention thus far.

13             Mr. Tupajic, you may be seated now.

14             The Chamber stands adjourned.

15                           ---  Whereupon the hearing adjourned at 3.48 p.m.