APPEALS CHAMBER

CHAMBRE D’APPEL

The Hague, 30 May 2001
XT/P.I.S./595-E

On 30 May 2001, the Appeals Chamber consisting of Judges Hunt, Presiding, May, Robinson, Pocar and Fassi Fihri, rendered its Judgement on Appeal by Anto Nobilo Against Finding of Contempt.

The Appeals Chamber allowed the appeal by Mr. Nobilo and directed the Registrar to repay to him the sum of NLG 4,000 paid as the fine imposed by the Trial Chamber.

As one of the Defence Counsel for General Blaškić, Mr. Anto Nobilo in September 1998 sought to tender during the re-examination of a Defence witness in the Blaskic trial, a map prepared by a witness who had testified for the Prosecution in the associated Aleksovski trial. He named the Aleksovski witness, describing him as such, and had the Blaskic witness disclose the professional position held by the Aleksovski witness. The Aleksovski Trial Chamber, however, had granted protective measures, inter alia, in respect of that witness’s identity, face and profession.

On 25 September 1998, the Prosecution filed a confidential Motion in which it complained to the Trial Chamber that the protective order had been violated, so that the Trial Chamber might call upon Mr. Nobilo to explain what had happened, pursuant to Rule 77(A) and (F) [Contempt of the Tribunal] of the Rules of Procedure and Evidence.

On 11 December 1998, Trial Chamber I, consisting of Judges Rodrigues, Presiding, Vohrah and Nieto-Navia, found that Mr. Nobilo had disclosed information relating to proceedings in the trial of Zlatko Aleksovski before the Trial Chamber in "knowing violation" of an order which it had made prohibiting the disclosure of the information. The Trial Chamber therefore considered that Mr. Nobilo had acted in contempt of the Tribunal and imposed on him a fine of NLG 10,000, of which payment of NLG 6,000 was suspended for a period of one year on condition that Mr. Nobilo was not found again in contempt of the Tribunal during that period (see Press Release No. 375 of 15 December 1998).

On 18 December 1998, Mr. Nobilo filed a confidential Application for leave to appeal the Decision of the Trial Chamber, which a Bench of the Appeals Chamber (Judges May [Presiding], Wang and Hunt) granted on 22 December 1998.

The Appeals Chamber identified the issue as being one of whether the Trial Chamber had erred in either law or fact in finding that Mr. Nobilo’s violation of the witness protection order was a "knowing" one and thus that he was in contempt of the Tribunal.

• It found that there was no evidence of wilful blindness. The Prosecution had accepted that Mr. Nobilo "had been told that the map in question was a public document presented in open session." The Appeals Chamber considered that "[t]his may well have given him the impression that all circumstances surrounding the map were public." It emphasised that "[t]he fact that many protected witnesses give evidence in open court does not readily give rise to either the suspicion or the awareness of the high probability that a witness who gives evidence in open session is the subject of an order granting protective measures." The Appeals Chamber pointed out that if the witness in question were a victim, it could perhaps be argued that Defence Counsel experienced in the practices of the Tribunal "would be aware of the risk that there will be an order granting protective measures to that witness." However, it reiterated that the protected witness "was not a victim" and noted that Mr. Nobilo had described him as an expert giving evidence for the Prosecution and that such description had not been disputed. The Appeals Chamber considered that "[a]lthough some such witnesses may have been given the benefit of protective measures orders, it is not immediately apparent why protective measures would usually be needed for them, and there is no reason to suspect that all such witnesses may be the subject of such orders." The Appeals Chamber stated that "[t]here can be no wilful blindness to the existence of an order unless there is first of all shown to be a suspicion or a realisation that the order exists. It added that "[i]f the Trial Chamber’s description of Mr. Nobilo’s failure to make inquiries as ‘deliberate’ was intended to be a finding of wilful blindness to the existence of the order, then the Appeals Chamber is satisfied that there was no basis in the evidence for such a finding." It also expressed its satisfaction "that there was no basis in the evidence for the necessary conclusions (which in any event the Trial Chamber did not express) that Mr. Nobilo’s failure to make an inquiry as to the existence of the order resulted from his wish to be able to deny knowledge of its existence or because he just did not want to find out that it did exist."

• Judge Patrick Robinson appended a Separate Opinion to the Judgement in which he expressed his "agreement with the decision of the Chamber in the matter" but stated that he did not believe that "the proceedings should have been instituted in the first place". Judge Robinson concluded that "although the legal issues raised by the case are very important, much judicial time has been unnecessarily expended in this matter".

****