Case No. IT-99-36-R77
IN THE TRIAL CHAMBER
Before:
Judge Carmel Agius, Presiding
Judge Ivana Janu
Judge Chikako Taya
Registrar:
Hans Holthuis
Date:
19 March 2004
PROSECUTOR
v.
RADOSLAV BRDJANIN
CONCERNING ALLEGATIONS AGAINST MILKA MAGLOV
___________________________________________
DECISION ON MOTION FOR ACQUITTAL PURSUANT TO RULE 98 BIS
___________________________________________
Amicus Curiae Prosecutor:
Ms. Brenda J. Hollis
The Respondent:
Ms. Milka Maglov
Defence:
Mr. Jonathan Cooper
CONTENTS
I. INTRODUCTION
A. Procedural Background
B. Rule 98 bis : The Law and Standard of Proof
C. Acts that the Amicus Curiae Prosecutor Concedes Have
not Been Proven
(a) Disclosure of the Whereabouts of the Witness
(b) Joint Criminal Enterprise
II. THE LAW ON CONTEMPT OF THE TRIBUNAL
A. Introduction
B. Intimidation of a witness
(a) Submissions by the Respondent
(b) Submissions by the Amicus Curiae Prosecutor
(c) The Trial Chamber’s Position
C. Otherwise Interfering with a Witness
(a) Submissions by the Respondent
(b) Submissions by the Amicus Curiae Prosecutor
(c) The Trial Chamber’s Position
D. Attempt to Intimidate or Otherwise Interfere with a Witness
(a) Submissions by the Respondent
(b) Submissions by the Amicus Curiae Prosecutor
(c) The Trial Chamber’s Position
E. Disclosing the Identity of a Witness to a Member of the
Public in Violation of an Order of a Chamber
(a) Submissions by the Respondent
(b) Submissions by the Amicus Curiae Prosecutor
(c) The Trial Chamber’s Position
III. FACTUAL SUBMISSIONS
A. Arguments of the Respondent
B. Arguments of the Amicus Curiae Prosecutor
C. Conclusions of the Trial Chamber
IV. DISPOSITION
I. INTRODUCTION
A. Procedural Background
- This Trial Chamber (“the Trial Chamber”) in the case Prosecutor v. Radoslav Brdjanin 1 issued on 15 April 2003, an “Order
Concerning Allegations Against Milka Maglov (“the Respondent”)”2,
finding that facts before this Trial Chamber, if believed, could lead to the
conclusion that: 1) the Respondent approached a potential Prosecution witness
(“the Witness ”) and intimidated the Witness; and/or 2) the Respondent revealed
the identity of the Witness to a member of the public in violation of an order
of a Chamber; and on the basis of this there were sufficient grounds to proceed
against the Respondent for contempt of the Tribunal on the basis of Rule 77(A)(iv)
and Rule 77(A)(ii) of the Rules of Procedure and Evidence (“Rules”). On 8
May 2003, the Trial Chamber issued an “Order Instigating Proceedings Against
Milka Maglov”3, directing the Registrar to appoint
an Amicus Curiae (“Amicus Curiae Prosecutor”) and ordering
the Amicus Curiae Prosecutor to prosecute the Respondent for: 1. the
alleged intimidation of the Witness, and 2. the alleged disclosure of the
identity of the Witness to a member of the public in violation of an order
of a Chamber.
- On 6 February 2004, the Trial Chamber granted the motion by the Amicus Curiae Prosecutor to amend the allegations for contempt of the Tribunal,4
ordering the Amicus Curiae Prosecutor to prosecute the Respondent for
the following allegations (“Allegations”):
1. Intimidating, or otherwise interfering with the Witness,
pursuant to Rule 77(A)( iv); or, alternatively,
2. Attempting to intimidate, or otherwise interfere
with the Witness, pursuant to Rule 77(B); and
3. Disclosing the identity and whereabouts of the Witness
to a member of the public, in violation of an order of a Chamber, pursuant
to Rule 77(A)(ii).
- Trial proceedings against the Respondent commenced on 16 February 2004.
The Amicus Curiae Prosecutor closed her case on 19 February 2004, after
four days of trial, during which five witnesses were called to testify and
seventeen documents were tendered into evidence. The Respondent tendered five
documents into evidence.
- On 24 February 2004, the Respondent confidentially filed a “Motion for
Judgement of Acquittal – Rule 98 bis ”.5
The Amicus Curiae Prosecutor confidentially filed a “Response to The
Respondent’s Motion for Judgement of Acquittal – Rule 98 bis ” on 26
February 2004,6 and a “Corrigendum to Confidential
Response to The Respondent’s Motion for Judgement of Acquittal – Rule 98 bis ”
on 27 February 2004.7 On 4 March 2004, the Respondent
confidentially filed “Milka Maglov’s Reply to the Prosecutor’s Response to
Ms. Maglov’s Motion for Judgement of Acquittal Pursuant to Rule 98 bis ”
8
- The Respondent represented herself until 18 March 2004, when Registry appointed
Mr. Jonathan Cooper to represent the Respondent in the proceedings concerning
the allegations of contempt against her.
B. Rule 98 bis : The Law and Standard of
Proof
- Rule 98 bis (Motion for Judgement of Acquittal) of the Rules of
Procedure and Evidence (“Rules”) states that:
(A) An accused may file a motion for the entry of judgement
of acquittal on one or more offences charged in the indictment within
seven days after the close of the Prosecutor’s case and, in any event,
prior to the presentation of evidence by the defence pursuant to Rule
85 (A)(ii).
(B) The Trial Chamber shall order the entry of judgement
of acquittal on motion of an accused or proprio motu if it finds
that the evidence is insufficient to sustain a conviction on that or those
charges.
- The Respondent and the Amicus Curiae Prosecutor agree9
that the Rule 98 bis standard of review to be applied is correctly
set out in the Jelisic Appeals Judgement:
The Appeals Chamber considers that the reference in
Rule 98 bis to a situation in which “the evidence is insufficient
to sustain a conviction” means a case in which, in the opinion of the
Trial Chamber, the prosecution evidence, if believed, is insufficient
for any reasonable trier of fact to find that guilt has been proved beyond
reasonable doubt. In this respect, the Appeals Chamber follows its recent
holding in the Delalic appeal judgement, where it said: “?tghe
test applied is whether there is evidence (if accepted) upon which a reasonable
tribunal of fact could be satisfied beyond reasonable doubt of
the guilt of the accused on the particular charge in question”. The capacity
of the prosecution evidence (if accepted) to sustain a conviction beyond
reasonable doubt by a reasonable trier of fact is the key concept; thus
the test is not whether the trier would in fact arrive at a conviction
beyond reasonable doubt on the prosecution evidence (if accepted ) but
whether it could. At the close of the case for the prosecution, the Chamber
may find that the prosecution evidence is sufficient to sustain a conviction
beyond reasonable doubt and yet, even if no defence evidence is subsequently
adduced, proceed to acquit at the end of the trial, if in its own view
of the evidence, the prosecution has not in fact proved guilt beyond reasonable
doubt. 10
- Both the Respondent and the Amicus Curiae Prosecutor make various
submissions with respect to the manner in which the Trial Chamber is to exercise
its powers and jurisdiction in carrying out the Rule 98 bis exercise.
These need not be repeated here in any detail because the jurisprudence of
the Tribunal on this Rule already deals with them. However, there are some
issues raised that the Trial Chamber needs to re-assert in light of the approach
taken by the Respondent in her submissions on the evaluation of evidence.
- The Trial Chamber agrees with the following submissions of the Amicus Curiae Prosecutor, which are in line with the jurisprudence of the Tribunal:
a) In applying the test, the Trial Chamber should not
assess the credibility and reliability of the Prosecution evidence unless
the “evidence is so manifestly unreliable or incredible that no reasonable
tribunal of fact could credit it”, i.e., unless the Prosecution case can
be said to have ‘completely broken down’ in that no trier of fact could
accept the evidence relied upon by the Prosecution to maintain its case
on a particular issue.11
b) In that regard, inconsistencies in the Prosecution
evidence are matters for consideration in assessing credibility and reliability
of the evidence, and, thus, are matters for consideration at the conclusion
of the case, not at this stage.12
c) The Trial Chamber should not consider evidence favourable
to the Respondent. It is at the conclusion of the proceedings, not at
this midway point, that the Trial Chamber should consider the extent to
which any evidence is favourable to the Respondent, and the overall effect
of such evidence in light of the other evidence of the case.13
9. All this is being re-stated because the Respondent in her written submissions
has adopted an approach that would require the Trial Chamber to go well
beyond what is now the established law and practice of the Tribunal in dealing
with Rule 98 bis motions. The factual findings of this decision are
thus reached using the “Rule 98 bis standard”, explained above, namely
whether a reasonable trier of fact could be satisfied beyond reasonable
doubt that the evidence adduced, if believed, could sustain a finding of
guilt of the Respondent as charged.
C. Acts that the Amicus Curiae Prosecutor
Concedes Have not Been Proven
(a) Disclosure of the Whereabouts of the Witness
- By her own admission,14 the Respondent disclosed
the whereabouts of the Witness to witness R77-B. This would constitute a violation
of the plain language of the order of the Trial Chamber dated 3 July 2000.
However, it appears that witness R77-B knew the whereabouts of the Witness
prior to that disclosure, as did many of the people in their community.15
For this reason, the Amicus Curiae Prosecutor concedes that it is the
disclosure of the identity of the Witness as a witness in the Brdjanin
case, and not the disclosure of the Witness’ whereabouts, that allegedly
violates both the letter and spirit of the Trial Chamber’s order. She therefore
requests that in the circumstances of this case, the allegation of disclosure
of the whereabouts of the Witness be dismissed.16
- Accordingly, the Trial Chamber holds that in relation to Count 3 of the
Allegations, there is no case to answer with respect to the alleged disclosure
of the whereabouts of the Witness to a member of the public in violation of
an order of a Chamber pursuant to Rule 77(A)(ii).
(b) Joint Criminal Enterprise
- The Amicus Curiae Prosecutor also concedes that there is no evidence
from which a reasonable trier of fact could conclude beyond reasonable doubt
that a joint criminal enterprise has been proven, and requests that the Trial
Chamber dismiss this form of liability.17
- In considering the pleading practices before the Tribunal18
and the specificity of pleading required in proceedings pursuant to Rule 77,19
the Trial Chamber is of the view that the Respondent has not been charged
for participating in a joint criminal enterprise to commit any of the alleged
offences. Regardless of the evidence presented by the Amicus Curiae Prosecutor,
the Trial Chamber opines that it would be unfair to the Respondent to allow
the Amicus Curiae Prosecutor to invoke a joint criminal enterprise
for whatever purpose.20 The question of the potentiality
of this form of criminal responsibility does not arise in any case; the matter
and the submissions of the Amicus Curiae Prosecutor can thus be of
no relevance and will not be considered by the Trial Chamber.
II. THE LAW ON CONTEMPT OF THE TRIBUNAL
A. Introduction
- Historically, the law of contempt originated as, and has remained, a creature
of common law. The general concept of contempt is said to be alien to civil
law, but many civil law systems have legislated to provide offences that produce
a similar result.21
- Contempt of court is an act or an omission intended to interfere with the
due administration of justice.22 The Tribunal
possesses an inherent power to hold in contempt those who knowingly and wilfully
interfere with the Tribunal’s due administration of justice.23
Each of the formulations in the current Rule 77(A)(i) to (v), when interpreted
in the light of the statement of the Tribunal’s inherent power, fall within
this inherent power, as each clearly amounts to knowingly and wilfully interfering
with the Tribunal’s due administration of justice.24
The content of this inherent power must be discerned by reference to the usual
sources of international law, and exists independently from the terms of Rule 77.
Amendments made to Rule 77 do no limit this inherent power.25
- There are differences in the states of mind required for each of the various
types of conduct envisaged in Rule 77(A).26 The
mens rea has to be established on a case by case basis in relation
to each of the conducts referred to in Rule 77(A)(i) to (v). For each form
of criminal contempt, the Prosecution must establish that the accused acted
with specific intent to interfere with the Tribunal’s due administration of
justice.27
B. Intimidation of a witness
(a) Submissions by the Respondent
- With respect to the alleged offence of intimidating or attempting to intimidate
a witness or a potential witness, the Respondent submits that the clear and
unambiguous language of Rule 77 requires that for criminal contempt to be
established, the offending conduct must be committed knowingly and wilfully.28
Regarding the specific intent required to prove criminal contempt under Rule
77, she refers to the pronouncement of the Appeals Chamber in Prosecution
v. Aleksovski.( footnote 29 ) With respect to the actus
reus , the Respondent refers to the recommendations of the Committee of
Experts on Intimidation of Witnesses and the Rights of the Defense of the
Council of Europe (“Committee of Experts”), which defines intimidation as
“SaCny direct, indirect or potential threat to a witness, which may lead to
interference with his/her duty to give testimony free from influence of any
kind whatsoever.”30
- The Respondent objects to the use of the Merriam Webster Dictionary as
proposed by the Amicus Curiae Prosecutor in her pre-trial brief to
the extent that the definition proffered allows a finding of intimidation
solely on the basis of the subjective point of view of the witness, i.e. “to
make timid or fearful.”31 However, she does not
object to the more precise portion of the definition: “especially to compel
or deter by or as if by threats; to intimidate through threats, insults or
aggressive behaviour.”32
(b) Submissions by the Amicus Curiae Prosecutor
- The Amicus Curiae Prosecutor submits that the elements of the intimidation
or other interference with the Witness are as follows:
a) The accused, alone or with others, by act or omission,
intimidated or otherwise interfered with a witness;
b) The accused’s act or omission was knowing and wilful.
- The Amicus Curiae Prosecutor submits that “intimidate” should be
considered in the normal usage of the term, i.e., “to make timid or fearful;
inducing fear or a sense of inferiority into another; frighten; especially
to compel or deter by or as if by threats; to intimidate through threats,
insults, or aggressive behaviour.”33 In so far
as the Respondent relies on the definition of intimidation recommended by
the Committee of Experts, the Amicus Curiae Prosecutor submits that
the dictionary definition is more consistent with the Tribunal’s statutory
mandate to provide for the protection of victims and witnesses. She argues
that the Respondent’s definition does not require a direct verbal or physical
threat; nor does it require actual interference with the duty to give testimony
free from influence. According to the Amicus Curiae Prosecutor, it
is sufficient if the conduct of the accused, alone or with others, was an
indirect or potential threat to a witness, which may have led to interference
with the witness’ duty to give testimony free from any influence.34
- Regarding the second element, namely that the accused’s act or omission
was knowing and wilful, the Amicus Curiae Prosecutor submits that accused’s
conduct was knowing if the evidence showed any of the following: actual knowledge
of the nature and effect of the conduct, wilful blindness (deliberate ignorance)
to the nature and effect of the conduct, or reckless indifference to the nature
and effect of the conduct. The Amicus Curiae Prosecutor also submits
that wilful intimidation or other interference with a witness includes that
the accused specifically intended the conduct, or that the conduct was deliberate,
and not accidental. According to the Amicus Curiae Prosecutor, proof
of either would be sufficient to prove wilful intimidation or other interference.35
(c) The Trial Chamber’s Position
- Intimidation of a witness as contempt of court requires proof that: a)
the accused engaged in conduct that is likely to intimidate a witness; and
b) the accused acted knowingly and wilfully.36
- The actus reus of the offence of intimidating a witness as contempt
of court consists of acts or culpable omissions that are likely to constitute
direct, indirect, or potential threats to a witness or a potential witness.
In order for the conduct in question to amount to contempt of court, said
conduct must be of sufficient gravity to be likely to intimidate a witness.37
These acts or omissions must be evaluated in the context of the circumstances
of each particular case.38 Intimidation of a
witness as contempt of court is crime of conduct, which does not require proof
of a result. Whether the witness was actually intimidated is immaterial; the
Prosecution need only prove that the conduct in question was intended to interfere
with the Tribunal’s due administration of justice.39
- As to the mens rea of the offence of intimidation of a witness as
contempt of court, the Prosecution must establish that the accused had knowledge
that his conduct is likely to intimidate a witness. Proof is also required
that the accused acted with the specific intent to interfere with the Tribunal’s
due administration of justice.40
C. Otherwise Interfering with a Witness
(a) Submissions by the Respondent
- Regarding otherwise interfering with a witness, the Respondent makes reference
to the following finding by the International Criminal Tribunal for Rwanda
(“ICTR”): “[i]nterference with a witness as contempt is to be construed as
prohibiting only undue influence with a witness. Undue interference […] could
have occurred […] if the individuals concerned […] tried to induce them to
change their testimony.”41
(b) Submissions by the Amicus Curiae Prosecutor
- The Amicus Curiae Prosecutor submits that in the circumstances of
this case, “otherwise interfere with” relates to undue interference, and would
include conduct that influences or induces the witness to change his testimony.42
(c) The Trial Chamber’s Position
- The following must be proven in order for a person to be held responsible
for otherwise interfering with a witness as a form of contempt of court: a)
the accused engaged in conduct that is likely to deter a witness or a potential
witness from giving evidence, or to influence the nature of the witness’ or
potential witness’ evidence; and b) the accused acted knowingly and wilfully.43
- The actus reus for the offence of otherwise interfering with a witness
may take one of a number of different forms. Such forms include, but are not
limited to, keeping a witness out of the way, by bribery or otherwise, so
as to avoid or prevent service of a subpoena;44
assaulting, threatening or intimidating a witness or a person likely to be
called as a witness;45 endeavouring to influence
a witness against a party by, for instance, disparagement of the party;46
or endeavouring by bribery to induce a witness to suppress evidence.47
The Trial Chamber is of the view that interference with a witness by threatening,
intimidating, causing an injury, or by offering a bribe ought to be so charged
specifically, while “otherwise interfering with a witness” refers to other
acts or conduct of a similar gravity that equally seek to influence the outcome
of a pending case by interfering with a witness or a potential witness. The
acts or omissions of the accused, viewed in light of the circumstances of
the case, have to be likely to deter a witness or a potential witness from
giving evidence, or to influence the nature of the evidence. As in the case
of intimidation of a witness as a form of contempt of court, it is not necessary
for the Prosecution to prove that the witness was actually deterred or influenced.48
- The mens rea for otherwise interfering with a witness requires proof
of the accused’s knowledge that his conduct is likely to deter a witness or
a potential witness from giving evidence, or that his conduct is likely to
influence the nature of the evidence.49 The Prosecution
must also prove the accused’s specific intent to interfere with the Tribunal’s
due administration of justice.50
D. Attempt to Intimidate or Otherwise Interfere
with a Witness
(a) Submissions by the Respondent
- The Respondent, neither in the Rule 98 bis Motion, nor in the Reply
to Amicus Curiae Prosecutor Response, makes any legal submissions in
relation to the “attempt” to intimidate or otherwise interfere with a witness,
charged in Count 2 of the Allegations. However, in her “Response of the Accused
to the Motion by Amicus Curiae Prosecutor to Amend Allegations of Contempt
of the Tribunal ”, the Respondent objects to the admissibility of Count 2
of the Allegations on the ground that an attempt to intimidate is not feasible.
She contends that each intimidating act would amount to a completed intimidation.
The Respondent argues that the amendments proposed by the Amicus Curiae Prosecutor would cause her unfair prejudice, since no one can be found
guilty of an act or of an omission that did not constitute a criminal offence
under national or international law at the time it was committed.51
(b) Submissions by the Amicus Curiae Prosecutor
- The Amicus Curiae Prosecutor argues that an attempt to intimidate
or otherwise interfere with a witness materializes if an accused’s conduct
constitutes a substantial step commencing the intimidation or other interference
with a witness, and that, despite said conduct, the crime did not occur because
the witness was not put in fear or otherwise interfered with.52
(c) The Trial Chamber’s Position
- The Trial Chamber is coming to the conclusion that the Rule 98 bis standard
has been met in relation to Count 1 of the Allegations, namely intimidating
or otherwise interfering with the Witness. A discussion on the legal issues
pertinent to the alternative charge of attempting to intimidate or otherwise
interfere with the Witness pursuant to Count 2 of the Allegations, is superfluous
at this stage considering that in any event, the attempt of a crime is a constituent
part of its commission.53 The Trial Chamber will
deal with the details of this alternative charge at a later stage of the proceedings
in the event that the case of the Amicus Curiae Prosecutor in relation
to the charges in Count 1 should fail, and after hearing detailed arguments
from the parties.
E. Disclosing the Identity of a Witness to a Member
of the Public in Violation of an Order of a Chamber
(a) Submissions by the Respondent
- The Respondent’s submissions on the elements that the Amicus Curiae Prosecutor must be proven beyond reasonable doubt are almost entirely
dedicated to factual submissions. The Trial Chamber is unable to notice any
submission of a legal nature by the Respondent on the law relating to this
charge.
(b) Submissions by the Amicus Curiae Prosecutor
- With regard to the charge of the violation of an order of a Chamber by
disclosing the identity of the Witness to a member of the public, the Amicus Curiae Prosecutor submits that the elements of this offence are the following:
1. The accused, alone or jointly, by act or omission, disclosed the
identity (and whereabouts) of a witness to member of the public;
2. The disclosure was in violation of an order of a Chamber;
3. The violation was knowing
- The Amicus Curiae Prosecutor submits that the definition of “knowing
” applies to knowing violations of an order of a Chamber: actual knowledge
of the order violated, wilful blindness (deliberate ignorance) to the existence
of the order violated, or reckless indifference to the existence of the order
violated. With regard to the definition of “wilful” for purposes of a knowing
violation of an order, the Amicus Curiae Prosecutor submits that it
is necessary to establish that either the accused specifically intended the
conduct or that his conduct was deliberate and not accidental.
(c) The Trial Chamber’s Position
- In order to hold a person in contempt of the Tribunal for disclosing the
identity of a witness to a member of the public in violation of an order of
a Chamber, the Prosecution must establish that: a) the accused disclosed the
identity of a witness to a member of the public; b) the disclosure was in
violation of an order of a Chamber; and c) the violation was knowingly and
wilfully committed.54
- In determining whether an order of a Chamber has been violated, reference
must be made to the exact content of the order that is subject to the alleged
contempt of court. The relevant order in this case is that issued by the Trial
Chamber on 3 July 2000 in the Brdjanin case (“Protective Measures Order”),
which allows the Brdjanin Defence55 to
disclose the identity of a witness or a potential witness identified to them
by the Prosecutor, if it is directly and specifically necessary for the preparation
and presentation of the Brdjanin case.56
For the Amicus Curiae Prosecutor to prove the alleged violation of
the Protective Measures Order, she must establish not only that the Respondent
disclosed the identity of a witness or a potential witness to a member of
the public, but also, that such disclosure was not directly and specifically
necessary for the preparation and presentation of the Brdjanin case.
The Trial Chamber emphasises that the burden of proof remains with the Amicus Curiae Prosecutor.
- The Prosecution must also establish that the accused’s violation of an
order of a Chamber was both knowingly and wilfully committed. Actual knowledge
of the allegedly breached order is not required before it can be knowingly
violated, in the event that the person charged with violating an order of
a Chamber acted in wilful blindness of said order.57
Wilful blindness (also called deliberate ignorance) is considered to be as
equally culpable as actual knowledge of a particular fact in question.58
With respect to wilful blindness, proof of knowledge of the existence of the
relevant fact is accepted in cases where the Prosecution establishes that
the accused suspected that the fact existed (or was aware that its existence
was highly probable), but refrained from finding out whether it did exist,
so as to be able to deny knowledge of it.59
- The jurisprudence of the Tribunal does not answer the question if other
states of mind, such as reckless indifference to the existence of an order,
are sufficient to constitute a “knowing” violation of an order.60
The Trial Chamber notes the submission of the Amicus Curiae Prosecutor
that reckless indifference to the existence of an order is sufficient to establish
a “knowing” violation of an order.61 At this
stage of the proceedings, however, the Trial Chamber does not determine whether
reckless indifference to the existence of an order would be sufficient to
constitute contempt. It will make a finding in relation to this issue only
in its final judgement, should it arise for determination.
- Mere negligence in failing to ascertain whether an order had been made
does not amount to contempt. Such conduct could be dealt with sufficiently,
and more appropriately, by way of disciplinary action; it could never justify
imprisonment or a substantial fine, even though the unintended consequence
of reckless indifference or negligence may amount to an interference with
the Tribunal’s due administration of justice.62
- A finding that the accused intended to violate an order would almost necessarily
follow in most cases where the Prosecution establishes that the accused had
knowledge of the existence of an order (either actual knowledge or
a wilful blindness at to its existence). There may, however, be cases where
an accused acted with reckless indifference as to whether his conduct was
in violation of an order of a Chamber. This Trial Chamber notes that this
is not equivalent to reckless indifference to the existence of an order of
a Chamber.63 In the opinion of the Appeals Chamber,
such conduct is sufficiently culpable to warrant punishment as contempt, regardless
of whether or not the Prosecution established a specific intent to violate
an order of a Chamber. According to the Appeals Chamber, it is sufficient
to establish that the conduct that constituted the violation was deliberate
and not accidental.64 The Trial Chamber is of
the opinion that, even though no specific intent to violate an order is required
for an accused to be held in contempt, the Prosecution must nevertheless establish
that the accused had the specific intent to interfere with the Tribunal’s
due administration of justice.65
III. FACTUAL SUBMISSIONS
A. Arguments of the Respondent
- The Respondent in her Rule 98 bis Motion argues that the evidence
presented thus far, even when viewed most favourably to the Amicus Curiae Prosecution, fails to establish any of the offences charged, and moves
for an acquittal on all charges.66
- The Respondent argues that the evidence before the Trial Chamber shows
that the Witness was treated politely throughout the interview at issue in
this case, and that threats were not made either during or after said interview.
The Respondent maintains that she introduced herself, that her demeanour was
correct, and that the Witness’ concerns were not due to any kind of misconduct
on her part. She maintains that the Witness himself stated that she did nothing
to intimidate or interfere with the Witness. The Respondent argues that the
fact that the Witness apparently became afraid is due to the failure of the
Office of The Prosecutor to advise the Witness of the Witness’ true position
under the Protection Order, including the fact that the defence is entitled
to interview witnesses. According to the Respondent, there is no evidence
suggesting that, before she visited the Witness on 13 September 2001, she
knew that the Witness had given a statement to the Prosecution. The Respondent
argues that the evidence suggests that the aim of the meeting was to ask the
Witness if the Witness would agree to testify for the Defence in the Brdjanin
case.67 The Respondent also argues that no
reasonable Trial Chamber can infer from the evidence that a defence counsel
knowingly and wilfully intimidated a witness by simply interviewing a potential
witness and asking that he testify for the defence.68
- The Respondent maintains that according to the evidence before the Trial
Chamber, when she visited the Witness on 19 December 2001, she did not disclose
to witness R77-B that the Witness had given a statement to the Prosecution,
or that the Witness planned to testify for the Prosecution. Instead, she asked
the Witness a second time whether the Witness would consider testifying for
the Brdjanin Defence. In addition, the Respondent claims that the same
evidence does not establish when the lead counsel in the Brdjanin case
gave her access to the Protective Measures Order.69
B. Arguments of the Amicus Curiae Prosecutor
- The Amicus Curiae Prosecutor argues that there is sufficient evidence
before the Trial Chamber, upon which, if believed, a reasonable trier of fact
could conclude beyond reasonable doubt that the Respondent knowingly and wilfully
intimidated or attempted to intimidate the Witness, or attempted to otherwise
interfere with the Witness, and that the Respondent disclosed the identity
of the Witness in violation of an order of a Chamber. She therefore requests
that the Rule 98 bis Motion be denied.70
- According to the Amicus Curiae Prosecutor, the conduct of the Respondent
should be seen in the context of the hostile environment in which the Witness
lived and worked, and of the Witness’ vulnerability within this environment.71
The Amicus Curiae Prosecutor argues that the Respondent, alone or with
Mr. Peric, committed the intimidation or attempted intimidation and other
interference through her conduct. As for the Respondent acting with deliberate
ignorance or with reckless disregard, the Amicus Curiae Prosecutor
argues that the Respondent committed the intimidation or other interference
through her omissions, namely in her failure to avail herself of the material
in her possession or to which she had access. The Amicus Curiae Prosecutor
submits that the Rule 98 bis standard is reached in that the Respondent
acted knowingly and wilfully.72
- In addition, the Amicus Curiae Prosecutor submits that assuming,
arguendo , the Witness was not intimidated, the evidence sufficiently
establishes that the Respondent attempted to intimidate the Witness because
the Respondent’s conduct constituted a substantial step that commenced the
intimidation. The Amicus Curiae Prosecutor submits that despite the
Respondent’s conduct, the crime of intimidation did not occur because the
Witness was not actually in fear.73
- The Amicus Curiae Prosecutor concedes there is no evidence that
the Respondent’s conduct caused the Witness to change his testimony before
the Tribunal. Nevertheless, she moves that the evidence before the Trial Chamber,
if believed, is sufficient to allow a reasonable trier of fact to conclude
that the Respondent attempted to interfere with the Witness’ evidence. The
Amicus Curiae Prosecutor argues that the Respondent’s conduct could
be reasonably characterized as constituting a substantial step to influence
the Witness to change the Witness’ testimony despite the fact that the Witness
was not influenced and did not change his testimony.74
- In relation to Count 3, the Amicus Curiae Prosecutor argues that
the evidence before the Trial Chamber sufficiently establishes that the Respondent
disclosed the identity of the Witness to a member of the public in knowing
violation of an order of a Chamber.75 The Amicus Curiae Prosecutor submits that on 13 September 2001, the Respondent was
aware that the Witness gave a statement to the Prosecution and that protective
measures were in place for potential Prosecution witnesses.76
C. Conclusions of the Trial Chamber
- Considering the above legal definitions of the crimes in question, and
regardless of the concession of the Amicus Curiae Prosecutor that the
evidence does not sufficiently establish that the Respondent’s conduct caused
the Witness to change the Witness’ testimony before the Tribunal,77
the Trial Chamber concludes that a reasonable trier of fact could be satisfied
beyond reasonable doubt that the evidence adduced, if believed, could sustain
a finding of guilt of the Respondent for contempt of the Tribunal for:
1. Intimidating or otherwise interfering with, the Witness, pursuant
to Rule 77 (A)(iv); or alternatively,
2. Attempting to intimidate or otherwise interfere with, the Witness,
pursuant to Rule 77(B); and
3. Disclosing the identity of the Witness to a member of the public,
in violation of an order of a Chamber, pursuant to Rule 77(A)(ii).
- The Trial Chamber concludes that a reasonable trier of fact could not be
satisfied beyond reasonable doubt that the evidence adduced, if believed,
could sustain a finding of guilt of the Respondent for contempt of the Tribunal
for disclosing the whereabouts of the Witness to a member of the public in
violation of an order of a Chamber pursuant to Rule 77(A)(ii).
- The Rule 98 bis Motion thus fails with respect to Counts 1 and 2
of the Allegations. It also fails with respect to Count 3 of the Allegations
in relation to the alleged disclosure of the identity of the Witness to a
member of the public in violation of an order of a Chamber. The Rule 98 bis
Motion is granted only with respect to Count 3 of the Allegations regarding
the alleged disclosure of the whereabouts of the Witness to a member of the
public in violation of an order of a Chamber.
IV. DISPOSITION
For the foregoing reasons, the Trial Chamber, pursuant to Rule 98 bis :
(1) GRANTS the Rule 98 bis Motion only with respect to Count 3
of the Allegations regarding the alleged disclosure of the whereabouts of
the Witness to a member of the public in violation of an order of a Chamber,
and declares that with regards to this specific part of the Charge, that
there is no case to answer on the part of the Respondent; and
(2) DISMISSES the Rule 98 bis Motion with respect to all other
issues raised by the Respondent, and rejects her motion for acquittal for
Counts 1 and 2, and for the remaining part of Count 3.
Done in French and English, the English version being authoritative.
____________________
Judge Carmel Agius
Presiding
____________________
Judge Ivana Janu
____________________
Judge Chikako Taya
Dated this 19th day of March 2004
At The Hague
The Netherlands
[Seal of the Tribunal]
1 - Prosecutor v. Radoslav Brdjanin,
IT-99-36-T.
2 - Prosecutor v. Radoslav Brdjanin, IT-99-36-T, Order
Concerning Allegations Against Milka Maglov, 15 April 2003.
3 - Prosecutor v. Radoslav Brdjanin, IT-99-36-R77, Order
Instigating Proceedings Against Milka Maglov, 8 May 2003.
4 - Prosecutor v. Radoslav Brdjanin, IT-99-36-R77, Decision
on Motion by Amicus Curiae Prosecutor to Amend Allegations of Contempt
of the Tribunal, 6 February 2004.
5 - Prosecutor v. Radoslav Brdjanin, Concerning Allegations
Against Milka Maglov, Confidential Motion for Judgement of Acquittal – Rule 98
Bis, 24 February 2004 (“Rule 98 bis Motion”).
6 - Prosecutor v. Radoslav Brdjanin, Concerning Allegations
Against Milka Maglov, Confidential Response to The Respondent’s Motion for Judgement
of Acquittal – Rule 98 Bis, 26 February 2004 (“Amicus Curiae Prosecutor
Response”).
7 - Prosecutor v. Radoslav Brdjanin, Concerning Allegations
Against Milka Maglov, Corrigendum to Confidential Response to The Respondent’s
Motion for Judgement of Acquittal – Rule 98 Bis, 27 February 2004 (“Amicus
Curiae Prosecutor Corrigendum”).
8 - Prosecutor v. Radoslav Brdjanin, Concerning Allegations
Against Milka Maglov, Confidential Milka Maglov’s Reply to the Prosecutor’s Response
to Ms. Maglov’s Motion for Judgement of Acquittal Pursuant to Rule 98 Bis, 4 March 2004,
(“Reply to Amicus Curiae Prosecutor Response”).
9 - Rule 98 bis Motion, pp. 12-13; Amicus Curiae
Prosecutor Response, paras 5-9.
10 - Prosecutor v. Goran Jelisic, Case No. IT-95-10-A,
Judgement, 5 July 2001 (“Jelisic Appeal Judgement”), para. 37 (emphasis
added).
11 - See Prosecutor v. Dario Kordic and Mario Cerkez,
Case No. IT-95-14-2, Decision on Defence Motions for Judgement of Acquittal, 6
April 2000, para. 28; Prosecutor v. Galic, Case No. IT-98-29-T, Decision
on the Motion for the Entry of Acquittal of the Accused Stanislav Galic, 3 October
2002, para. 11.
12 - Prosecutor v. Zoran Kupreskic et al., Case No.
IT-95-16, Judgement, 23 October 2001 (“Kupreskic Appeal Judgement”), paras
332 – 334.
13 - See Prosecutor v.Radoslav Brdjanin, Case No. IT-99-36-T,
Decision on Motion for Acquittal Pursuant to Rule 98 Bis, 28 November 2003,
para. 62.
14 - Ex P 10.
15 - R77-B (T 192 - closed session, and T 105 – private session).
16 - Amicus Curiae Prosecutor Response, para. 10.
17 - Amicus Curiae Prosecutor Response, para. 11.
18 - See, Kupreskic Appeal Judgement, paras 88 and 116;
see also: Prosecutor v. Miroslav Kvocka et al., Case No.: IT-98-30-PT,
Decision on Defence Preliminary Motions on the Form of the Indictment, 12 April
1999, para. 23; Prosecutor v. Milorad Krnojelac, Case No.: IT-97-25-PT,
Decision on Preliminary Motion on Form of Amended Indictment, 11 February 1999,
para. 18; Prosecutor v. Milorad Krnojelac, Case No.: IT-97-25-PT, Decision
on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999,
paras 11-20; Radoslav Brdanin and Momir Talic, Case No.: IT-99-36-PT, Decision
on Objections by Momir Talic to the Form of the Amended Indictment, 20 February
2001, para. 13.
19 - Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR77,
Judgement on Appeal by Anto Nobilo Against Finding of Contempt 30 May 2001, (“Aleksovski
Contempt Decision”), para. 56. See also Prosecutor v. Blagoje Simic et al.,
Case No. IT-95-9-R77, Scheduling Order in the Matter of Allegations Against Accused
Milan Simic and his Counsel, 7 July 1999.
20 - See Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A,
Judgement, 21 September 2001, paras 124-144. See also Kupreskic Appeal
Judgement, para. 114.
21 - Prosecutor v. Dusko Tadic, Case No. IT-94-1-A-R77,
Judgement on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 January
2000 (“Tadic Contempt Decision”), para. 15. In footnote 20 of the Tadic
Contempt Decision, the Appeals Chamber examined a number of respective criminal
statues in civil law systems, stating: “For example, the German Penal Code punishes
as a principal offender anyone who incites a witness to make a false statement
(§§ 26, 153). The Criminal Law of the People’s Republic of China punishes anyone
who entices a witness to give false testimony (Article 306). The French Nouveau
Code Pénal punishes those who pressure a witness to give false evidence or to
abstain from giving truthful evidence (Article 434-15). More general statutory
provisions exist which deal with such things as the control of the hearing (police
de l’audience), “affronts” (outrages), offences committed during the hearings
(for example, delits d’audience) and the publication of comments tending to exert
pressure (pression) on the testimony of witnesses or on the decision of any court.
The Russian Criminal Code punishes interference in any form whatsoever with the
activities of the court where the purpose is to obstruct the effectuation of justice
(Article 294), and also provides more specific offences such as the falsification
of evidence (Article 303).”
22 - Att.-Gen. v. Butterworth (1963) 1 Q.B. 696; The
St James’s Evening Post, 2 Atk. 469 at 471; Bahama Islands, re a special reference
from (1893) A.C. 138. For a modern summary of contempt of court, see Att.-Gen.
v. Times Newspapers Ltd (1992) 1 A.C. 191, HL. See in this respect also the
Judgement of the European Court of Human Rights, in Sunday Times v United Kingdom,
Series A Vol 30 at paras 18 and 55 (1979) 2 EHRR 245 at 256 274 (accepting this
statement as a correct assessment of the purpose and scope of the law of contempt).
23 - Tadic Contempt Decision, para. 26; Aleksovski Contempt
Decision, para. 30.
24 - Tadic Contempt Decision, para. 26, which made reference
to the version of Rule 77 as applicable on 31 January 2000.
25 - Tadic Contempt Decision, para. 24; Aleksovski Contempt
Decision, para. 30; Prosecutor v. Blagove Simic et al, IT-95-9-R77, Judgement
in the Matter of Contempt Allegations Against an Accused and his Counsel, 30 June
2000, para. 91.
26 - Aleksovski Contempt Decision, para. 40 and 42.
27 - R. v. Almon (1770) 20 St. Tr. 803 at 839; Ahnee
v. DPP (1999) 2 A.C. 294, PC (publication of matter scandalizing court); Att.-Gen.
v. Butterworth (1963) 1 W.B. 696, CA (hostile action against witness committed
with the intent to punish him for giving evidence); Att.-Gen. v. Judd (1995)
C.O.D. 15 DC (harassment of former juror); R. v. Schot and Barclay (19972
Cr.App.R. 383, CA (juror’s stubborn refusal to return a verdict); Att.-Gen.
v. News Group Newspapers plc (1989) Q.B. 110, DC; Re Lonrho plc (1990) 2 A.C.
154, HL; Att.-Gen. v. Times Newspapers Ltd (1992) 1 A.C. 191, HL; Att.-Gen.
v. Newspaper Publishing plc (1997) 1 W.L.R. 926, CA. (publications); Att.-Gen.
v. Sport Newspapers Ltd (1991) 1W.L.R. 1194 at 1200, CA (Civ. Div.).
28 - Rule 98 bis Motion, p. 14.
29 - Aleksovski Contempt Decision, paras 45-46.
30 - Committee of Experts on Intimidation of Witnesses and
the Rights of the Defense of the Counsel of Europe, Intimidation of Witnesses
and the Rights of the Defense: Recommendation No. R (97) 13, adopted by the Committee
of Ministers of the Council of Europe on 10 September 1997, and explanatory memorandum,
at p. 7. See Rule 98 bis Motion, p. 15.
31 - Prosecutor v. Radoslav Brdjanin, Case. No. IT-99-36-R77,
Pretrial Brief of Amicus Curiae Prosecutor, para. 42.
32 - Id. See Rule 98 bis Motion, p. 15.
33 - See Merriam Webster Dictionary.
34 - See, Amicus Curiae Prosecutor Response, paras 14,
20.
35 - See, Amicus Curiae Prosecutor Response, paras 17-18.
36 - Att.-en. v. Sport Newspaper Ltd (1991) 1 W.L.R.
1194 at 1200, CA (Civ. Div.). The proposed definition of the present crime is
further clarified in the following paragraphs.
37 - R. v.Kellet (1976) 1 Q.B. 372, 61 Cr. App.R. 240.
See, for example, 18 U.S.C.§ 1512 (2004) Federal Obstruction of Justice Statute.
The following supports this proposition and constitutes the opinion juris of States:
Intimidation of Witnesses and the Rights of the Defence: Recommendation No. R
(97) 13, adopted by the Committee of Ministers of the Council of Europe on 10
September 1997, and explanatory memorandum, at p. 7.
38 - See, for example, R. v. Clemente, wherein the Supreme
Court of Canada held in relation to section 264.1 of the Criminal Code of Canada
(Offences Against the Person and Reputation), that the question of whether the
accused had the intent to intimidate, or that his words were meant to be taken
seriously will, in the absence of any explanation by the accused, usually be determined
by the words used, the context in which they were spoken, and the person to whom
they were directed (R. v. Clemente (1994) 2 S.C.R. 758).
39 - Shaw v. Shaw (1861) 2 Sw. & Tr. 517; Bromilow
v. Phillips (1891) 40 W.R. 220; R. v. Greenberg (1919) 121 L.T. 288.
40 - Wong Yeung Ng v. Secretary for Justice (1999) 2
HKC 24. See also ante, para. 15.
41 - Prosecutor v. Kajelijeli, Case No. ICTR-98-44A-T,
Decision on Kajelijeli’s Motion to hold members of the Office of the Prosecutor
in Contempt of the Tribunal, 15 November 2002, (“Kajelijeli Contempt Decision”),
para. 9.
42 - See Kajelijeli Contempt Decision, para. 9.
43 - The proposed definition of the present crime derives from
the discussion in the following paragraphs.
44 - Clement v. Williams (1836) 2 Scott 814; Lewis
v. James (1887) 3 TLR 527.
45 - Partridge v. Partridge (1639) Toth 40; Shaw
v. Shaw (1861) 2 Sw & Tr 517; Bromilow v. Phillops (1891) 40 W.R. 220;
R v Castro, Onslow’s and Whalley’s Case (1873) LR 9 QB 219; Re B (A) (1965)
Ch 1112, (1965) 2 All ER 168; see also the County Courts Act 1959, s. 157 (I)(a)
(“willfully insults a witness”).
46 - Welby v. Still (1892) 66 LT 523.
47 - Re Hooley, Rucker’s Case (1898) 79 LT 306. With respect
to the different forms that interference with a witness may take, see also: R.
v. Kellet (1976) 1 Q.B. 372, 61 Cr.App.R. 240; Martin’s case (1747) 2 Russ.
& My. 674; Macgill’s case (1848) 2 Fowler’s Exch. Prac., 2nd ed., p 404; R.
v. Gurney (1867) 10 Cox C.C. 550; Ex p. Jones (1806) 13 Ves. 237; Re Ludlow
Charities; Lechmere Charlton’s case (1837) 2 My. & Cr. 316 at 229; Kajelijeli
Contempt Decision,, para. 9; and Prosecutor v. Kanyabashi et al, Decision
on Prosecutor’s Further Allegations of Contempt, 30 November 2001.
48 - Re B (J.A.) (an infant) (1965) Ch 1112, (1965) 2 All ER.
49 - See Judgement of Lord Denning MR and Donovan LJ in Re
A-G’s Application, A-G v Butterworth (1963) I QB 696, (1962) 3 All ER 326,
CA. In this context, see also: Re Johnson (1887) 20 Q.B.D. 68; Gariboldo v.
Gagnoni (1704) 6 Mod. 90; Purdin v. Roberts, 74 J.P. 88; Re de Court,
The Times, November 27 1997, Ch D.
50 - See ante, para. 15.
51 - Prosecutor v. Radoslav Brdjanin Concerning
Allegations Against Milka Maglov, IT-99-36-R77, Response of the Accused to the
Motion by Amicus Curiae Prosecutor to Amend Allegations of Contempt of
the Tribunal, 24 January 2004, pp. 3-4.
52 - Amicus Curiae Response, para. 38.
53 - Prosecutor v. Radoslav Brdjanin, Concerning
Allegations Against Milka Maglov, IT-99-36-R77, Decision on Motion by Amicus
Curiae Prosecutor to Amend Allegations of Contempt of the Tribunal, 6 February
2004, p. 4.
54 - The proposed definition of the present crime derives from
the discussion in the following paragraphs.
55 - The Trial Chamber notes that the evidence before it shows
that at the time relevant to the Allegations, the Respondent was a member of the
Brdjanin Defence.
56 - Prosecutor v. Radoslav Brdjanin and Momir Talic,
IT-99-36-PT, Decision on Motion by Prosecution for Protective Measures, 3 July
2000, (“Protective Measures Order”), admitted into evidence as Ex P 4, para. 65(4).
57 - Aleksovski Contempt Decision, para. 45.
58 - Aleksovski Contempt Decision, para. 43.
59 - Aleksovski Contempt Decision, para. 43.
60 - The Appeals Chamber in the Aleksovski Contempt Decision
left the issue to be decided by other Chambers (para. 45).
61 - Amicus Curiae Prosecutor Response, para. 17. The
Amicus Curiae Prosecutor adopts and incorporates by reference the arguments
set forth in her Confidential Pre-Trial Brief at paras 44-46 (Prosecutor
v. Radoslav Brdjanin, Concerning Allegations Against Milka Maglov, Confidential
Pre-Trial Brief of Amicus Curiae Prosecutor, 18 January 2004).
62 - Aleksovski Contempt Decision, para. 45.
63 - This is a reckless indifference to the consequences of
the act by which the order is violated, rather than a reckless indifference to
the existence of the violated order, to which reference was made in para. 45 of
the Aleksovski Contempt Decision.
64 - Aleksovski Contempt Decision, para. 54.
65 - See ante, para. 15.
66 - Rule 98 bis Motion, p. 2.
67 - Rule 98 bis Motion, pp. 2-7.
68 - Reply to Amicus Curiae Prosecutor Response, pp.
2-4.
69 - Rule 98 Bis Motion, pp. 7-12; Reply to Amicus
Curiae Prosecutor Response, pp 2, 5-7.
70 - Amicus Curiae Prosecutor Response, para. 52.
71 - Amicus Curiae Prosecutor Response, paras 16, 19-27
and 35. The related evidence is listed on pp. 6-13.
72 - Amicus Curiae Prosecutor Response, paras 17-18
and 28-29. The related evidence is listed on pp. 14-17.
73 - Amicus Curiae Prosecutor Response, paras 37-40.
The related evidence is listed on pp. 6-13.
74 - Amicus Curiae Prosecutor Response, paras 38-39.
75 - Amicus Curiae Prosecutor Response, paras 42-49.
The related evidence is listed on pp. 14-17 and 24-27.
76 - Amicus Curiae Prosecutor Response, paras 17-18
and 30-36.
77 - See para 27 of this decision defining otherwise interfering
with a witness as a conduct crime, which does not require proof that the witness
was actually deterred or influenced.