31 January 2000
Judges Shahabuddeen (Presiding), Cassese, Nieto-Navia, Mumba and Hunt

The Issue:

Pursuant to Rule 77 of the Tribunal's Rules of Procedure and Evidence, Mr Milan Vujin, Attorney of Belgrade, was called upon by the Appeals Chamber to respond to allegations that he had acted "in contempt of the Tribunal in that he knowingly and wilfully intended thereby to interfere with the administration of justice". Mr Vujin (hereinafter, "the Respondent") had acted for Dusko Tadic (hereinafter, "Tadic") in different capacities during proceedings in the Tribunal until November 1998 - as non-assigned co-counsel during the pre-trial stages of his prosecution, and as assigned lead counsel in the preparation of his appeal against his conviction and in the hearing of related proceedings before the Appeals Chamber . The allegations of contempt arose out of the Respondent's conduct as lead counsel on behalf of Tadic in connection with the appeal.

The allegations of contempt were characterised by the Appeals Chamber under the following headings¹:

(1) Putting forward to the Appeals Chamber in support of an application pursuant to Rule 115 to present additional evidence in the Tadic appeal a case which was known to the Respondent to be false -

(a) in relation to the weight to be given to statements made by one Mlado Radic, and
(b) in relation to the responsibility of one Goran Borovnica for the killing of two Muslim policemen.

(2) Manipulating proposed witnesses -

(a) by seeking to avoid any identification by them of persons who may have been responsible for the crimes for which Tadic had been convicted, and
(b) by persuading them to tell lies or to withhold the truth from Witness D (as co-counsel for Tadic) when taking their statements to be used in the Rule 115 application.

(3) Bribing a witness to tell lies to or to withhold the truth from Witness D.

The Decision:

The Appeals Chamber unanimously found that the allegations characterised under headings (1)(a) and (b) and (2)(a) had been made out, but that those under headings (2)(b) and (3) had not been. Milan Vujin was found guilty of contempt accordingly².

The Reasoning:

With regard to the allegations contained in sub-heading (1)(a), the Appeals Chamber found (i) that a statement which purported to have been given by Radic in Prijedor before his arrest and to the Respondent as a lawyer had, in fact, been given by Radic at the UN Detention Unit in The Hague, after his arrest, and to Tadic, a fellow inmate; (ii) that the Respondent knew that the statement was false in all such respects, and that the timing of the statement and the fact that it had been given to a lawyer were significant matters in the appeal; and (iii) that the Respondent put the statement forward in support of the Rule 115 application with knowledge of its falsity and emphasised the timing of the statement in his submissions³.

Concerning the allegation in sub-heading (1)(b), the Appeals Chamber found that the Respondent put forward a statement by a witness as to the identity of the person he had seen kill the two policemen, while knowing that the statement had been repudiated by the person who made it⁴.

As to sub-heading (2)(a), the Appeals Chamber found that the Respondent had instructed two proposed witnesses that, if they were asked by co-counsel to identify the persons who committed the criminal acts for which Tadic had been convicted, they should not disclose that identity⁵.

The Appeals Chamber declared that courts and tribunals necessarily rely very substantially upon the honesty and propriety of counsel in the conduct of litigation⁶. The Appeals Chamber described the conduct of the Respondent in this case as striking at the very heart of the criminal justice system, and as requiring punishment which served not only as retribution for what has been done but also as deterrence of others who may be tempted to act in the same way⁷. However, the Appeals Chamber did not consider the extent to which the interests of the accused had been impaired by the conduct in question⁸. The Appeals Chamber concluded that the contempt in this case remained a very serious one "no matter what disadvantage was or was not in fact caused to Tadic."

The Appeals Chamber expressed the opinion that the Registrar had a general power to strike the Respondent from the list of assigned counsel because of his serious professional misconduct as demonstrated by its findings⁹. A direction was given to the Registrar to consider striking the Respondent from the list and reporting his conduct to the professional body of which he is a member. The Appeals Chamber then determined the punishment to be imposed upon the Respondent on the basis that, in the reasonable exercise of her power, the Registrar would necessarily strike him off the list and report his conduct.

The Chamber decided that a term of imprisonment would be inappropriate in the present case¹⁰. A substantial fine was nevertheless necessary to achieve the purposes for which punishment is imposed¹¹.

With regard to the values and interests protected by the law of contempt, the Appeals Chamber held that this body of law "is not designed to buttress the dignity of the judges or to punish mere affronts or insults to a court or tribunal; rather, it is justice itself which is flouted by a contempt of court, not the individual court or judge who is attempting to administer justice." The law of contempt has been described as a means whereby the courts may act to prevent or punish conduct which tends to obstruct, prejudice or abuse the administration of justice either in relation to a particular case or generally¹².

In the course of its Judgement, the Appeals Chamber examined the Tribunal's power to punish for contempt and concluded that power to punish conduct which tends to obstruct, prejudice or abuse its administration of justice is necessary in order to ensure that its exercise of the jurisdiction expressly given to it by its Statute is not frustrated and that its basic judicial functions are safeguarded. The power to deal with contempt was thus clearly within its inherent jurisdiction¹³. The Appeals Chamber stated that:

(a) the inherent power of the Tribunal as an international criminal court to deal with contempt is for the present purposes adequately encompassed by the wording of the reservation in Rule 77(E) - that the Tribunal has the power "to hold in contempt those who knowingly and wilfully interfere with its administration of justice"; and

(b) each of the formulations in the current Rules 77(A) to (D), when interpreted in the light of the statement of the Tribunal's inherent power, falls within - but does not limit - that inherent power, as each clearly amounts to knowingly and wilfully interfering with the Tribunal's administration of justice¹⁴.

In addition, the Appeals Chamber made some observations about the rule making powers of the Judges. It pointed out that Article 15 of the Tribunal's Statute empowers Judges to adopt only "[…] rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters." (emphasis added)

The Appeals Chamber held that that power does not permit rules to be adopted which constitute new offences but does permit the Judges to adopt rules of procedure and evidence for the conduct of matters falling within the inherent jurisdiction of the Tribunal as well as matters within its statutory jurisdiction¹⁵. The content of these inherent powers may be discerned by reference to the usual sources of international law but not by reference to the wording of the rule. The Appeals Chamber went on to state that, where rules do contain statements of what the Judges at the Plenary considered to reflect the jurisprudence upon those aspects of the law as are applicable to the Tribunal, those statements do not invalidate the underlying law, and that both the Tribunal and the parties remain bound by that underlying law.

The Appeals Chamber also made some observations concerning the taking of statements of witnesses by counsel in the former Yugoslavia. The Respondent claimed that counsel in the former Yugoslavia are not permitted to contact witnesses¹⁶. The Appeals Chamber said that it had not been placed in a position where it could determine exactly what the law on this point was in the former Yugoslavia, but it did go on to say:

"163. […] However, whatever the law may be in the various parts of the former Yugoslavia, it must clearly be understood by counsel appearing in matters before this Tribunal that they are bound by the law of the Tribunal to act freely when seeking out witnesses. They are bound by the Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal, which (by Article 19) prevails where there is any inconsistency between it and any other code which counsel may be bound to honour. International law does not recognise any prohibition upon counsel such as asserted by the Respondent to exist in the former Yugoslavia, and States could not effectively legislate to frustrate the proper workings of the Tribunal in that way. 164. […] it should again clearly be understood that counsel appearing before the Tribunal are not obliged to have statements taken from prospective witnesses in police stations or in courts or through any other official organs. Indeed, in most cases it would be unwise, and potentially counter-productive, to follow such procedures, because of the intimidating effect they may have on the witnesses themselves, and the perceptions which such procedures may create as to the influence of the State upon statements which are made in that way."¹⁷

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1. Para. 41.
2. See the Remarks of the Presiding Judge at: http://www.un.org/icty/pressreal/tad-vujin_941r77.htm
3. See paras. 42ff and paras. 132-4.
4. Paras. 46-50 and 135-7.
5. Paras. 52ff and 140-150.
6. See The Prosecutor v. Aleksovski, Finding of Contempt of the Tribunal, 11 December 1998.
7. Para. 167-8.
8. Para. 167: "That is a matter which would require substantial investigation, and no such investigation was either suggested or undertaken in these proceedings."
9. The Code of Professional Conduct for Defence Counsel Appearing Before the Tribunal defines professional misconducts and sets professional standards. See paras. 171-2 concerning the general power of the Registrar to strike a counsel off the list.
10. The maximum penalty prescribed by Rule 77 at the time of the contempt was a term of imprisonment not exceeding six months, or a fine of twenty thousand guilders, or both.
11. The Appeals Chamber fixed that fine at Dfl 15,000.
12. Report of the (UK) Committee on Contempt of Court, 1974, quoted in the Judgement, para. 16.
13. Paras. 17-19. Concerning contempt as a prerogative of the Chambers, see The Prosecutor v. Delalic et al., Decision of the President on the Prosecutor's Motion for the Production of Notes Exchanged between Zejnil Delalic and Zdravko Mucic, 11 November 1996, in which President Cassese stated, obiter dicta, that contempt of Tribunal was the prerogative of the Chambers since it derived from the inherent power of the court to control its own proceedings.
14. Para. 28: "The inherent power of the Tribunal to deal with contempt has necessarily existed ever since its creation, and the existence of that power does not depend upon a reference being made to it in the Rules of Procedure and Evidence. As the Appeals Chamber is satisfied that the current formulation of Rules 77(A) to (D) falls within that inherent power, the amendments made in December 1998 did not increase the nature of the conduct which amounts to contempt to the prejudice of the Respondent's rights."
15. Para. 24.
16. According to the Respondent, statements were permitted to be taken only by "lawyers personally via the investigating judge of the military court", by "lawyers via an order to the Republika Srpska", which took place at the request of a lawyer in a police station with a police typist, and by policemen.
17. Para. 163 and 164.