081027ID

Page 1

1 Monday, 27 October 2008

2 [Initial Appearance]

3 [Open session]

4 --- Upon commencing at 4.32 p.m.

5 JUDGE AGIUS: Good afternoon, ladies and gentlemen, and Madam

6 Registrar to you as well. Could you kindly call the case, please.

7 THE REGISTRAR: Good afternoon, Your Honour. This is

8 case number IT-02-54-R77.5-PT, in the case against Florence Hartmann.

9 JUDGE AGIUS: Okay, thank you.

10 Mr. Bourdon, bonjour. I understand you wish to address me before

11 we proceed with the initial appearance.

12 MR. BOURDON: Yes. I'm counsel.

13 JUDGE AGIUS: Yes. You can speak in French. I can follow,

14 although I prefer not to try to speak French because I might make

15 mistakes.

16 Okay, go ahead.

17 MR. BOURDON: [Interpretation] Thank you very much.

18 I am the counsel representing Ms. Hartmann. She is now seated in

19 a place of this courtroom where she should not be, in my view. The main

20 mission of your Tribunal is to judge those who have been accused because

21 of the heinous crimes they have committed against humanity. Ms. Hartmann

22 is not charged with crimes against humanity. She is charged with

23 contempt of the Court, and if you have a special remit regarding those

24 that have been charged with contempt, it is a marginal competency; and it

25 would be an understatement to say that what Ms. Hartmann is charged has

Page 2

1 anything to do with what is generally charged against the people

2 appearing here. So I think it is perfectly normal, and it would be

3 adequate for Ms. Hartmann, who's only charged for some kind of

4 intellectual offence, she should not be there in a place that is usually

5 occupied by those who have or who are alleged to have committed very

6 serious crimes. She should be closer to her counsel. I do not insist on

7 her sitting right next to me, but for the sake of pragmatism, as it were,

8 and in order to make things easier, I think it would be proper for her to

9 sit as closely as possible to me, be it next to me or behind.

10 Mr. Macfarlane was kind enough to say that he would not oppose my

11 motion, this oral motion I'm now presenting to you. This is the reason

12 why, Mr. President, I may ask you now to authorise Ms. Florence Hartmann

13 to leave the place where she is now, which is unduly offending, and for

14 her to be seated as closely as possible to her counsel.

15 Thank you.

16 JUDGE AGIUS: Thank you, Mr. Bourdon.

17 Mr. Macfarlane, would you wish to comment?

18 MR. MacFARLANE: Your Honour, thank you. I am

19 Bruce MacFarlane -- Your Honour, thank you. My name is Bruce MacFarlane.

20 I've been appointed the amicus curiae Prosecutor in this matter, and it

21 is quite accurate to say that I have no objection to Ms. Hartmann coming

22 forward.

23 JUDGE AGIUS: All right, thank you both.

24 The position of the Trial Chamber or the pre-trial chamber, as

25 far as I am concerned, is as follows. I disagree completely with you,

Page 3

1 especially in the way you've described your client's alleged

2 responsibility. I suggest Mr. Bourdon and also, Madam Hartmann, that you

3 to not underestimate, not even for a second, the gravity of the crime of

4 contempt as envisaged in our setup. And I also wish to state that the

5 power of this Tribunal to try those who are alleged or suspected of

6 having rendered themselves culpable of contempt is an inherent right of

7 this Tribunal and also prescribed in our Rules.

8 However, I am on record as one of the Judges who have repeatedly

9 criticised the distance between accused and counsel, considering the

10 layout of these courtrooms, particularly the bigger courtrooms, Courtroom

11 I and Courtroom III, where I have worked mostly, as against Courtroom I,

12 which was easier; and I have always advocated that there should be more

13 possibility of access also, because sometimes access between accused and

14 counsel has to be procured by the security. In your case there having

15 been no arrest warrant and no order for detention, I understand that your

16 client does not pose any security issue. So what I would suggest you do

17 is you move here on this side of the front row, you move further to your

18 right; and she will sit right behind you, where she can, if necessary, be

19 able to contact you.

20 Is there a problem with the --

21 [Trial Chamber and Registrar confer]

22 JUDGE AGIUS: All right, okay. Mr. Bourdon, there will be a

23 problem with the transcript, so you can remain seated where you were,

24 and, Ms. Hartmann, you can sit right behind Mr. Bourdon.

25 And I also want to make clear that although I have consulted my

Page 4

1 colleagues on this already, this is the arrangement for today, I am

2 hopeful that it is an arrangement that can continue later on, when we

3 come to trial; but I have been unable to have a definitive answer from

4 one of my colleagues. So that's the position for today.

5 Having said that, I'll just introduce myself just for the record.

6 My name is Carmel Agius, I come from the island of Malta, and I will be

7 presiding over your initial appearance today, Madam.

8 I want to begin by making sure that you are able to follow the

9 proceedings, and in a language that you can understand. I know that you

10 both understand both French and English, so I don't think the problem

11 will arise; but if at any moment, having chosen your preferred language,

12 you are not receiving interpretation or there is a problem with the way

13 you are receiving interpretation, please draw my attention straight away.

14 The same applies to you, Mr. MacFarlane, in case you're not receiving --

15 you're not hearing the proceedings well.

16 Having said this, there is an important communication I wish to

17 make at the very outset.

18 Usually, proceedings in this Tribunal are broadcast, when they

19 are broadcast, with a 30-minute delay. There is one exception, and that

20 applies to initial appearances that are normally broadcast live. Earlier

21 on today, when I was informed of the filing of a motion by you,

22 Mr. Bourdon, on behalf of your client; and we'll be coming to that motion

23 very shortly, I decided to order that the broadcast of this initial

24 appearance be delayed by 30 minutes, or any other time that I will decide

25 upon if we are not finished within 30 minutes, during which I will hear

Page 5

1 submissions from you, Mr. Bourdon, and possibly also from you,

2 Mr. MacFarlane, and have the matter raised in the motion finally

3 determined or resolved.

4 Basically, the motion seeks to have my order of the 21st of

5 October, 2008, for the release of audio-visual record and permitting

6 photography suspended and to prohibit the taking of photographs of the

7 respondent during today's or prior to today's initial appearance. We'll

8 come to this shortly, as I said.

9 In the meantime, I am confirming to you that before the sitting,

10 I gave instructions on this matter, namely, that the usual photography

11 session be proceeded with normally, as per my order of the 21st of

12 October, but that no use of such photos taken be made until the matter is

13 finally resolved after that you, Mr. Bourdon, have had a chance to make

14 submissions on your motion. So that is the position.

15 I am also informed on who the photographers were. They are all

16 employed in this Tribunal, so there isn't even the need to take further

17 precautions.

18 Later on in these proceedings, Madam Hartmann, I will be

19 informing you of the allegations against you; and therefore, it is

20 important now that I inform you that you have a fundamental right,

21 recognised by this Tribunal, namely, to remain silent throughout these

22 and also future proceedings, and that such silence will not be held

23 against you.

24 Do you understand this? Okay.

25 So we'll proceed with another formality. Today, prosecuting

Page 6

1 these proceedings is Mr. Bruce MacFarlane, amicus curiae prosecutor. He

2 was appointed by the Deputy Registrar as far back as 3rd March 2008, and

3 as amicus curiae investigator; and we appointed him as amicus curiae

4 prosecutor on the 1st of September.

5 Mr. Bourdon, you are appearing for Madam Hartmann, and you have

6 been regularly appointed by the Registrar to represent the accused. And

7 having said this, I suggest to give you the word now, Mr. Bourdon, to

8 make submissions on the motion that you filed earlier on this morning.

9 Before doing so, how much time would you require for your

10 submissions?

11 MR. BOURDON: [No interpretation]

12 JUDGE AGIUS: Okay, go ahead.

13 MR. BOURDON: [Interpretation] Thank you, Mr. President. Thank

14 you, Mr. President, for allowing my client, Ms. Hartmann, to sit closer

15 to me. Thank you for understanding the meaning and the significance of

16 my motion.

17 Indeed, we wish your decision to be stayed, the decision

18 regarding the audio-visual record regarding the taking of photograph of

19 Ms. Hartmann for the following reasons. These reasons have to do partly

20 with the reasons I've already set forth in support of my motion for her

21 to sit closer to me.

22 I did hear what you said earlier on, Mr. President. You said and

23 you reminded us that you believe that the offence Ms. Hartmann is charged

24 with is of a rather serious nature. We shall return to this issue later

25 on. But as to the taking of photographs in court, it is, in our view,

Page 7

1 something that stigmatizes -- unduly stigmatizes Ms. Florence Hartmann.

2 Ms. Hartmann is not being charged with an offence against

3 humanitarian law. She is not a [indiscernible]. She is a free person,

4 and she has exerted a high-ranking position in this Tribunal. She's a

5 person who's very respectable and very respected. She is able to take up

6 other positions which would necessarily and naturally be of international

7 scope, and if she were to be taken in court -- photographed in court, she

8 would be part of a very restricted club, a circle of people who are

9 photographed every day in such courtrooms; namely, individuals that are

10 prosecuted for crimes against humanity.

11 And in our view, it is not normal for Ms. Hartmann to join this

12 club or family of people who, when they are photographed, show that they

13 allegedly have committed crimes. But, again, we do not insist on this

14 issue. There's nothing obsessive about it in this case, but we think it

15 is proper and normal and totally consistent for you to stay your

16 decision.

17 Once again, we don't want to prevent photographers from doing

18 their work, of course, but being photographed in court is a sign that you

19 cannot get rid of. And in our view, it is not at all proportionate --

20 commensurate to the offence Ms. Hartmann is charged with. This is why,

21 with regard to the motion I filed this morning, I humbly ask you to stay

22 your decision by which you authorised the release, in a court setting, of

23 photographs of Ms. Florence Hartmann.

24 Thank you very much.

25 JUDGE AGIUS: Thank you, Mr. Bourdon.

Page 8

1 Do you wish to comment, Mr. MacFarlane?

2 MR. MacFARLANE: Thank you, Your Honour.

3 I disagree with my learned friend's comments with respect to the

4 seriousness of the offence, and I to not wish to be associated with those

5 comments. Having said that, I have given careful consideration to the

6 motion that was filed by Mr. Bourdon, and in the circumstances I take no

7 position on the motion, and I do not wish to make any submission with

8 respect to it.

9 Thank you.

10 JUDGE AGIUS: I have thought about this since this morning, when

11 I became aware of your motion, and of course I was reserving my position

12 until I heard your submissions, in particular, Mr. Bourdon. I

13 anticipated that Mr. MacFarlane would not take a position because it's of

14 little concern to him. I'll try and motivate my decision as briefly as

15 possible.

16 You mentioned a club, and in your opinion that the ultimate

17 result -- effect of your client being photoed, taken, immortalized, sort

18 of, would just place her as a member of this club; but I disagree with

19 you. The nature of the crime with which she is charged is, in itself,

20 indicative that, if at all, she may be part of a different club; namely,

21 a club of those who have been charged with contempt of court and not the

22 club of those who have been charged with the obviously more serious

23 crimes against humanity and genocide.

24 In reading through your motion this morning, I also noticed that

25 you extricated the element of photography from the rest, and what you are

Page 9

1 basically suggesting and requesting the Court to do is to reverse its

2 decision, its order to have your client photographed, which is a normal

3 procedure before this Tribunal. But you have not, as I understood your

4 motion, asked also for the reversal of the order insofar as visual

5 recording of proceedings is concerned, and that is a part of the

6 essential function of this Tribunal, that all proceedings, insofar as

7 possible, are public; they are audio-visually recorded, they are

8 available, and in some instances they are broadcast, and in almost all

9 instances one can also follow the proceedings on the internet by logging

10 in the web site of this Tribunal.

11 You have kept the two separate, while they were included in the

12 same order. And I noticed that the reason that you gave in your motion

13 essentially was that this violates her right for preservation of her

14 image, that it could be prejudicial for her present and future

15 activities, and I have seriously thought about that because I think that

16 is at the crux of the matter.

17 But even if I were to say, "No photographs," I think there is

18 enough photographs of her already available on the internet that can be

19 made use of by anyone who really wants to prejudice her current and

20 future professional activities. And in addition -- and the fact that

21 there will be audio-visual recordings and broadcasts of the proceedings

22 will return us back to square 1. So even if I were to say, "No

23 photographs," that's not going to give her any remedy or give her the

24 remedy that she would prefer to have. I mean, such remedy would have to

25 include also the banning of audio-visual proceedings, which is something

Page 10

1 that I am definitely not prepared to do, and there has not been one

2 single case where that has happened.

3 So my decision is to reject the motion, and we can therefore

4 proceed.

5 I will now give a summary of the indictment.

6 Madam Hartmann, on the 27th of August of this year, a

7 specially-appointed Chamber, over which I preside, issued an order in

8 lieu of indictment on contempt in the case against you. Your initial

9 appearance was scheduled and then rescheduled to the present day in two

10 orders dated 10th and 26th September, respectively.

11 On the 16th of October, 2008, the amicus curiae prosecutor, and I

12 will be henceforth referring to as "the prosecutor," filed a motion to

13 amend the order in lieu of indictment.

14 On the 21st of October, I signed an order, as Presiding Judge,

15 requiring you, or your counsel on your behalf, to submit a response to

16 the motion, if at all, by the 23rd of October, 2008.

17 In the afternoon of the 23rd of October, 2008, Mr. Bourdon

18 informally communicated to the Chamber that there were no objections to

19 the changes proposed in the motion. A decision on the motion, as well as

20 an amended order in lieu of indictment, which henceforth I'll refer to as

21 "order in lieu of indictment," were filed earlier on today.

22 Madam Hartmann, no arrest warrant was issued in your case, and

23 the Chamber, after consultation, also decided not to file an order for

24 detention on remand. Since we have not ordered detention, and one reason

25 is that we do not consider you to be a security problem, I would still

Page 11

1 request your continued cooperation with the Registry and the Tribunal's

2 security section throughout this and also future proceedings.

3 Madam Hartmann, I would put this question to every woman. I will

4 be now and later referring to your year of birth. Do you want to do that

5 in public or in private session?

6 THE ACCUSED: I request that my address is not mentioned, please.

7 JUDGE AGIUS: All right, okay.

8 The order in lieu of the indictment alleges that you were born in

9 a particular year in France. Later on, I will ask you the date of birth

10 in private session. And that you were formally employed as a spokes --

11 MR. BOURDON: [No interpretation]

12 JUDGE AGIUS: No, no, it's --

13 THE INTERPRETER: Microphone, Your Honour.

14 JUDGE AGIUS: [No interpretation]

15 MR. BOURDON: [Interpretation] Just the address. I think the

16 address only be mentioned in private session. Ms. Hartmann does not mind

17 her date of birth to be mentioned. She's quite happy with her age, and

18 it would be excessive not to mention it.

19 JUDGE AGIUS: Okay, thank you. So the order in lieu of

20 indictment alleges that you were born in 1963 in France and that you were

21 formerly employed as spokesperson of the Prosecutor of this Tribunal.

22 It further alleges that you authored a book for publication

23 entitled "Paix et Chatiment," published by Flammarion on 10th September

24 2007; and that specific pages within that book disclosed information

25 related to two particular decisions of the Appeals Chamber of this

Page 12

1 Tribunal which had been issued and filed confidentially, one on the 20th

2 September 2005 and the other on the 6th of April, 2006.

3 The order in lieu of indictment alleges that in doing so, you

4 included, and in this manner divulged, the contents and purported effect

5 of the two particular decisions of the Appeals Chamber that I have

6 mentioned, as well as specific reference to the confidential nature of

7 these decisions.

8 The order in lieu of indictment also alleges that you authored an

9 article for publication entitled, "Vital Genocide Documents Concealed,"

10 published by the Bosnian Institute on 21st January 2008, and that the

11 article disclosed information relating to the same two confidential

12 decisions of the Appeals Chamber as were disclosed in your book,

13 including the contents and purported effects of these decisions.

14 Finally, the order in lieu of indictment alleges that in both

15 instances, you knew that the information was confidential at the time of

16 your alleged disclosure, you knew that the decisions from which the

17 information was drawn were ordered to be filed confidentially; and,

18 further, you knew that by your disclosure, you were revealing

19 confidential information to the public.

20 Madam Hartmann and Mr. Bourdon, you would have noticed by now

21 that being in open session, I have not specified what the confidential

22 Appeals Chamber decisions are about. Should it become necessary during

23 the course of trial to go into the contents of those decisions and

24 discuss those contents, then the Trial Chamber will move into private

25 session so that it makes it possible for the most open discussion to take

Page 13

1 place.

2 As a result of the allegations contained in the order in lieu of

3 indictment, Madam Hartman, you are charged with two counts of contempt of

4 this Tribunal, to which I will come later, punishable under this

5 Tribunal's inherent powers and Rule 77(A)(ii) of the Rules for knowingly

6 and willfully interfering with the administration of justice by

7 disclosing information in violation of an order of the Appeals Chamber.

8 That concludes my summary.

9 I have a problem with my LiveNote, but I can proceed. It says:

10 "Server connection disabled. Attempt to reconnect." Anyway, I don't

11 have it at all now. Trial Chamber.

12 [Trial Chamber and Registrar confer]

13 JUDGE AGIUS: Okay, thank you.

14 Madam Hartmann, we now arrive -- do you wish to -- it's okay.

15 Madam Hartmann, we arrive at the portion of your initial

16 appearance before this Tribunal which requires, pursuant to Rule 62 of

17 the Rules of Procedure and Evidence, that I inform you of the charges

18 against you and ask you for your entry of a plea. Prior to this,

19 however, I have a few additional questions, especially to identify you

20 for the record.

21 Madam Hartmann, would you please tell the Court your full name

22 for the record? Your microphone. Microphone.

23 THE ACCUSED: [Interpretation] My name is Florence Hartmann.

24 JUDGE AGIUS: Thank you. Let's go into private session now for a

25 moment, please.

Page 15

1 JUDGE AGIUS: Usually, the Tribunal does take steps to inform the

2 relevant respective embassies.

3 Madam Registrar, do you know if this was done in this case?

4 THE REGISTRAR: No, Your Honour.

5 JUDGE AGIUS: You don't know. Okay, thank you.

6 However, if you wish us to formally inform the embassy, we will

7 do so. My information is that the embassy was informed; but again I did

8 not ask for a formal confirmation of it. It's just information that I

9 have.

10 MR. BOURDON: [Interpretation] We do not particularly wish the

11 embassy to be informed.

12 JUDGE AGIUS: Okay, thank you.

13 Madam Hartmann, please make yourself comfortable. You may sit

14 down.

15 One of my obligations as Presiding Judge for this initial

16 appearance is to make sure that your rights are respected today and are

17 guaranteed for the future, when we come to trial. Articles 20 and 21 of

18 the Statute of the Tribunal address the commencement and conduct of trial

19 proceedings and deal with the rights of an accused. The Statute does not

20 distinguish between accused and accused; in other words, accused of

21 crimes against humanity and accused of contempt like we have in this

22 case. So I am going to ask Madam Registrar to read out to you Articles

23 20 and 21 of our Statute.

24 THE REGISTRAR: Your Honour, first I'd like to stand corrected

25 with regards to the government of France being informed. They were

Page 16

1 informed on the 27th of August with respect to the order in lieu of an

2 indictment on contempt. The republic was served.

3 Article 20: "Commencement and conduct of trial proceedings."

4 The Trial Chamber shall ensure that a trial is fair and

5 expeditious and that proceedings are conducted in accordance with the

6 Rules of Procedure and Evidence, with full respect for the rights of the

7 accused and due regard for the protection of victims and witnesses. A

8 person against human indictment has been confirmed shall, pursuant to an

9 order or an arrest warrant of the International Tribunal, be taken into

10 custody, immediately informed of the charges against him, and transferred

11 to the International Tribunal. The Trial Chamber shall read the

12 indictment, satisfy itself that the rights of the accused are respected,

13 confirm that the accused understands the indictment, and instructs the

14 accused to enter a plea. The Trial Chamber then sets a date for trial.

15 The hearing shall be public unless the Trial Chamber decides to close the

16 proceedings in accordance with its Rules of Procedure and Evidence.

17 Article 21: "Rights of the accused."

18 All persons shall be equal before the International Tribunal. In

19 the determination of charges against him, the accused shall be entitled

20 to a fair and public hearing subject to Article 22 of the Statute. The

21 accused shall be presumed innocent until proved guilty according to the

22 provisions of the present Statute. In the determination of any charge

23 against the accused pursuant to the present Statute, the accused shall be

24 entitled to the following minimum guarantees and full equality; to be

25 informed promptly and in detail in a which language which he understands

Page 17

1 of the nature and cause of the charge against him; to have adequate time

2 and facilities for the preparation of his Defence and to communicate with

3 counsel of his own choosing; to be tried without undue delay; to be tried

4 in his presence and to defend himself in person or through legal

5 assistance of his own choosing; to be informed if he does not have legal

6 assistance of his right to have legal assistance assigned to him in any

7 case where the interests of justice so require, and without payment by

8 him in any such case if he does not have sufficient means to pay for it;

9 to examine or have examined the witnesses against him and to obtain the

10 attendance and examination of witnesses on his behalf under the same

11 conditions as witnesses against him; to have the free assistance of an

12 interpreter if he cannot understand or speak the language used in the

13 International Tribunal; not to be compelled to testify against himself or

14 to confess guilt.

15 JUDGE AGIUS: Thank you, ma'am.

16 Ms. Hartmann, do you understand the importance of these rights

17 which were just -- which were read out to you right now, just now?

18 THE ACCUSED: [Interpretation] Yes, I do.

19 JUDGE AGIUS: Do you wish me to explain further any of these

20 rights before we proceed?

21 THE ACCUSED: [Interpretation] No, I don't.

22 JUDGE AGIUS: All right, thank you.

23 Now we come to a stage where you have to make a choice, if you

24 wish so. Earlier on I summarized the order in lieu of indictment. I

25 would like to know, first of all, whether you have received a copy of the

Page 18

1 order in lieu of indictment in your own language.

2 THE ACCUSED: [Interpretation] Yes, I have.

3 JUDGE AGIUS: Did you -- if you wish to consult with your lawyer,

4 please do so.

5 Okay. Do you understand its contents?

6 THE ACCUSED: [Interpretation] I understand the allegations

7 included in that document.

8 JUDGE AGIUS: And the charges, I suppose, as well.

9 THE INTERPRETER: Microphone, please.

10 JUDGE AGIUS: Switch on the microphone and repeat your answer,

11 please. Okay.

12 Madam Hartmann, you have a right to have the order in lieu of

13 indictment read out in its entirety to you here in open court, or you can

14 also, instead of exercising this right, waive this right. It's your

15 choice, and we'll do exactly as you wish.

16 THE ACCUSED: [Interpretation] I waive that right.

17 JUDGE AGIUS: Thank you. So the indictment will not be read, and

18 we come to the question of what kind of plea you wish to enter.

19 Pursuant to Rule 62(A)(iii) of the Rules of Procedure and

20 Evidence, I am now hereby calling upon you to enter a plea of guilty or

21 not guilty on each count in the indictment either today, or if you choose

22 not to enter them today, within a time period that I will specify; and I

23 have the possibility of choosing any time period within 30 days from this

24 initial appearance.

25 So my first question to you is whether you wish to enter a plea

Page 19

1 today.

2 THE ACCUSED: [Interpretation] No, I do not wish to enter a plea,

3 and I would like my counsel to explain why.

4 JUDGE AGIUS: Yes. Mr. Bourdon.

5 MR. BOURDON: [Interpretation] Yes, Your Honour.

6 First of all, we want to avoid any misunderstanding. Neither

7 Ms. Hartmann nor myself do want this -- these proceedings to last forever

8 and needlessly, but there is a very simple practical reason why

9 Ms. Hartmann has just taken the position you've heard.

10 I can represent Ms. Hartmann's interests for three months because

11 the investigations conducted in order to decide whether she can benefit

12 from the status of indigence have not been completed, and since these

13 investigations have not been completed, I'm not sure, Mr. President, I am

14 not sure whether I'll have the opportunity or the pleasure to appear

15 before you again. It may be the last time I have this opportunity. But

16 I don't want to believe that this matter is not going to be dealt with

17 properly. I don't want to believe that. I won't be able to be her

18 counsel until the end of these proceedings.

19 This is all theoretical, but the thing is that officially she has

20 not been identified as indigent, financially speaking; and therefore she

21 may not be able to call on me as her counsel, as such. That's why

22 Ms. Hartmann has decided not to plead today.

23 There is another reason. As I said, we do not want to make these

24 proceedings last forever, but we also do not believe that there is a

25 great deal of urgency in this matter. Let me hear -- speak under the

Page 20

1 control of Mr. MacFarlane. He got in touch with me in June, and he told

2 me that he wanted to organise Ms. Hartmann's initial appearance as

3 quickly as possible. I did my best to accommodate him, and I'd like to

4 thank him for his courtesy, but there's no particular urgency in this

5 case.

6 A technical decision was issued this morning, I discovered it

7 this morning, amending the indictment, and we need to have time to think

8 in order to tell you what Ms. Hartmann's position is.

9 JUDGE AGIUS: Thank you, Mr. Bourdon.

10 I fail to see the connection between the decision of the

11 Registrar to her indigence and right for legal aid with the entering of a

12 plea of guilty or not guilty. However, I respect your wish to defer this

13 matter until later.

14 Do you have an indication as to when it is likely that the

15 Registrar will decide on the matter?

16 MR. BOURDON: [Interpretation] I have to confess that I'm not very

17 familiar with these types of decisions here. I have just seen on the

18 transcript that you do not actually see the connection between the two

19 things. I can spell it out for you.

20 If she is not acknowledged or recognised as being indigent, I

21 won't be able to remain her counsel, and Ms. Hartmann wants me to be her

22 counsel. The decision taken by the accused is taken together with his or

23 her counsel. The connection -- the link is obvious. It's very unlikely

24 that a pragmatic solution won't be found for Ms. Hartmann in due course,

25 but I can't tell you about the time frame, of course. But you can count

Page 21

1 on me to make everything -- to speed things up.

2 JUDGE AGIUS: But let me try and explain something.

3 The Rules prescribe, in a case when the accused chooses not to

4 plead guilty or not guilty in the course of the initial appearance, the

5 Rules prescribe a time limit of 30 days within which then there has to be

6 convened a further initial appearance, during which the accused will

7 also -- will once more be asked the same question, "How do you wish to

8 plead to the charges brought against you?"

9 Assuming that the situation that you have raised does not

10 crystalize and be resolved within these 30 days, the position would be

11 that if your client repeats or maintains her position, namely, saying, "I

12 don't wish to enter a plea," then there cannot be any further

13 adjournments; and I would have to enter a plea of not guilty on her

14 behalf.

15 So I'm just mentioning this because you appear to me, like many

16 other French lawyers that I know, a very pragmatic person; so I don't

17 know what your client stands to gain by having this deferred to maybe

18 another 10 days, or another 15 days, or possibly even 30 days, especially

19 since on record she has already gone on in public saying that she will

20 contest these proceedings. So I will ask the question again, and then if

21 you wish me to defer this matter to later, I will certainly do so.

22 You are adamant that you don't wish to enter a plea today?

23 THE ACCUSED: [Interpretation] Yes, I am. I would like to wait.

24 Today, we'll have a meeting about the matter of indigence, and I suppose

25 that the matter will be resolved very shortly, within the next few days,

Page 22

1 once I've provided a number of documents, well within the time frame of

2 30 days.

3 MR. BOURDON: [Interpretation] You can count on us, Your Honour.

4 We'll do everything at our disposal to resolve matters as quickly as

5 possible. It's not in our interest for things to go on forever.

6 You have just mentioned the fact that Ms. Hartmann's position can

7 be deducted by her public statements. Anyone in the press or the media

8 can say whatever he or she likes, but it's a different matter altogether

9 for Ms. Hartmann to state her official position before the Tribunal.

10 It's a different matter altogether.

11 JUDGE AGIUS: That being so, and since, like you, Mr. Bourdon, I

12 have no intention of letting this case prolong indefinitely, I will be

13 issuing, in due course, a schedule for further initial appearance. My

14 senior legal officer or the Registry will be contacting you both to see

15 whether you have any problems with any dates, so if you can do that piece

16 of homework straight away. My thinking is that it will be within sort of

17 15 days from now, something like that, but please let us know if you are

18 unavailable on any particular day.

19 So we can now approach the end of this initial appearance, but

20 there are a few administrative matters that I would like to address.

21 First, as you would have noticed from public filings in this

22 case, the Trial Chamber composition includes, apart from me as presiding,

23 also Judge Alphonsus Orie from the Netherlands and Judge Christine Van

24 Den Wyngaert from Belgium. The three of us, together, will hear the case

25 at trial.

Page 23

1 Second, it is now necessary to plan for the pre-trial activities

2 in this case, as well as consider the schedule for the trial. In this

3 context, you should be aware that the Rules of Procedure and Evidence for

4 pre-trial and trial proceedings in a contempt case apply mutatis

5 mutandis -- in ordinary case, apply mutatis mutandis to proceedings in a

6 contempt case under Rule 77.

7 Notwithstanding this, a Trial Chamber acting either proprio motu,

8 or on good cause being shown by motion, pursuant to Rule 1 to 6 bis and

9 Rule 1 to 7 respectively, as well, and I suggest that you read this, as

10 well as the practice direction on the procedure to be applied in contempt

11 cases, the Trial Chamber may reduce any time prescribed by or under the

12 Rules, having regard to the complexity of the issues raised in

13 proceedings. The raison d'etre of this is of course a matter of ensuring

14 the expeditious administration of justice.

15 As such, and I wish to make this clear, neither the Prosecution

16 nor the Defence should expect to be allowed the full time specified under

17 any particular rule of the Tribunal for such routine matters as complying

18 with disclosure obligations, filing of motions or responses, or filing of

19 pre-trial briefs. Where any timelines under the Rules are reduced, the

20 parties will, of course, be informed, and the Trial Chamber will consider

21 requests for extensions if good cause is shown.

22 Additionally, other requirements under the Rules and directives,

23 such as the length of pre-trial briefs to be submitted, will be reduced

24 if we deem that to be necessary. Again, you will be informed when such

25 reductions are thought to be fit and proper.

Page 24

1 Finally, I do not anticipate that the pre-trial stage of the

2 proceedings will take so long as to necessitate the holding of status

3 conferences under Rule 65 bis (a) of the Rules of Procedure and Evidence,

4 which would otherwise be required to be held every 120 days. If this is

5 not the case, of course, we will have a status conference pursuant to the

6 said Rule.

7 Absent the possible need for a motion hearing at some point,

8 which is a possibility, I would expect that the next time we will meet,

9 following the further initial appearance, will be to conduct a pre-trial

10 conference, to be followed immediately by the trial itself.

11 Given all of these matters, let me say first to the Prosecution

12 that I would expect you, Mr. MacFarlane, to comply with your disclosure

13 obligations as quickly as possible, most especially the disclosure of

14 materials supporting the orders in lieu of indictment. There is no need

15 to take the full 30 days under Rule 66(A)(i), in my opinion. Seven days

16 was suggested to me, but I am extending it to fourteen days from today,

17 which would seem to be sufficient. If there are problems, if you

18 encounter problems, you will let us know, and we'll consider granting an

19 extension.

20 Related to this, if you intend to file any motion necessary to

21 carry out your disclosure obligations, you should do so immediately. And

22 you, Mr. Bourdon, in such a case, you're kindly asked to respond as

23 promptly as possible. I am referring to such requests as, for example,

24 the lifting of the ex parte status of any filings prior to disclosure and

25 also, for example, motions seeking protective measures which may

Page 25

1 accompany disclosure of confidential information to the Defence.

2 Mr. Bourdon, I would also like to remind you of Rule 72 (a) of

3 the Rules of Procedure and Evidence, which allow for a 30-day period for

4 filing any preliminary motions once you have received all the supporting

5 material from the Prosecution. Again, I would think this could be

6 reduced to 14 days.

7 Given the circumstances, I would suggest, Mr. MacFarlane, that

8 the 14 days that I have given you will start running as of today,

9 irrespective and independently of the fact that we still don't have a

10 plea. But the 14 days which the Defence is being granted will start

11 running from the day of service of the documents disclosed by you, as

12 required by our Rules.

13 If there are problems with disclosure, Mr. Bourdon, please do

14 contact straight away the Trial Chamber.

15 This leads me now to a discussion -- a short, brief discussion on

16 the date for the start of trial, and this is unless, of course, you

17 decide, Ms. Hartmann, to plead guilty, in which case there will be no

18 trial, as such; but there will be a sentencing hearing to be followed by

19 judgement. But I'm assuming that you are contesting the case.

20 Once the date for the start of trial is established, the Trial

21 Chamber will issue a scheduling order which will include such other dates

22 as, for example, the filing of pre-trial briefs. This will follow after

23 the conclusion of what we refer to as the 65 ter process.

24 I would like to hear from the parties now on when you believe it

25 would be best to schedule the trial date. I can already inform you that,

Page 26

1 as Presiding Judge and after consultations with my colleagues, I do not

2 foresee the trial beginning prior to the end of December of this year, so

3 we're talking of possibly early next year. This would be based, of

4 course, upon the schedule and availability of Judges sitting in this

5 case.

6 Mr. MacFarlane, do you wish to comment on this or do you have any

7 concrete suggestions that you could make, especially since you are not

8 residing -- both of you, you're not residing in The Hague and you have to

9 come one from Canada and the other one from France, which is much easier?

10 MR. MacFARLANE: Thank you, Your Honour.

11 I have made special arrangements to free myself up, so I will be

12 available to proceed to trial any time in January, February, March. Any

13 time after December 31st, I am available.

14 JUDGE AGIUS: Okay. And, Mr. Bourdon, on the assumption that you

15 will show up more than once before this Tribunal?

16 MR. BOURDON: [Interpretation] Yes, I would be extremely

17 frustrated if I couldn't appear without you again -- before you again,

18 and I would be extremely frustrated if I couldn't defend Ms. Hartmann,

19 because it is an honour for me to defend her. I forgot to say so. I

20 know it is a ritualistic formula, but I mean it. And you were kind

21 enough to tell me that as far as you could remember, French lawyers were

22 pragmatic ones, I want to pay homage to this courtesy you were kind

23 enough to show us. I can see that there's no extreme urgency in this

24 Tribunal, that we can provide for certain deadlines.

25 There's one thing I would like to convey to this Tribunal,

Page 27

1 Mr. President. The prosecution of Ms. Florence Hartmann, in my view,

2 raises issues of principle, extremely important issues of principle; and

3 these principles and the contradiction shown therein has been a subject

4 matter for many tribunals, as to how to reconcile these principles. I'm

5 not sort of giving you a fore-taste of what is going to be the defence of

6 Ms. Hartmann. I just wanted to convey to you that Ms. Hartmann's will

7 and wish -- her will and her lawyer's wish is for the proceedings to be

8 open and public proceedings. Why so? Just one moment, Mr. President,

9 just half a second.

10 Yes, the case against Ms. Hartmann raises issues of principle,

11 that is, the duty of information, freedom of expression, and this touches

12 to the freedom and the need for the public opinion to know how

13 international justice operates and works. So this is the reason why I

14 will be led to explain to you why we believe that this discussion is to

15 be continued in the interest of the public, and for that to happen it has

16 to be a public debate.

17 JUDGE AGIUS: That was not my question, Mr. Bourdon. My question

18 is: What is your opinion as to the possible date of the trial, whether

19 you agree that we're talking of early next year or -- this is basically

20 what I am asking you to respond.

21 MR. BOURDON: [Interpretation] I understood that your question was

22 trying to elicit a more general comment and not just an issue of

23 scheduling.

24 I will tell you in writing tomorrow, the day after tomorrow, when

25 I am not available in that period as of the month of January. I know

Page 28

1 already now that the entire month of February or, basically, the entire

2 month of February is a month when I'm not available because I'm supposed

3 to defend another party before the Tribunal Correctionnel in Paris, and

4 it is an important case; but I will give you my availabilities because I

5 want it to be transparent and pragmatic, so I will tell you that without

6 delay.

7 JUDGE AGIUS: Okay, thank you.

8 This concludes all of the administrative matters I intended to

9 raise.

10 Prior to adjourning, Mr. MacFarlane, is there any other matter

11 that you wish to raise at this stage before we conclude?

12 MR. MacFARLANE: No, Your Honour. I believe that completes all

13 the issues that I had anticipated today.

14 JUDGE AGIUS: Thank you.

15 And Mr. Bourdon, is there any matter that you would like to raise

16 at this stage?

17 MR. BOURDON: [Interpretation] No, thank you. No further

18 question.

19 JUDGE AGIUS: Ms. Hartmann, is there any matter that you would

20 like to raise at this stage?

21 THE ACCUSED: [Interpretation] No, thank you, Mr. President.

22 JUDGE AGIUS: As you are both lawyers working or appearing before

23 this Tribunal for the first time, and it's an exaltation that I make and

24 invite you to familiarise yourself with the procedure of this Tribunal as

25 much as possible, this is unlike any other procedure that you are used to

Page 29

1 in your domestic jurisdictions. It has got its own peculiarities, and

2 it's very important that you familiarise yourself with them.

3 One recent change that you may not be aware of and which I feel

4 duty-bound to inform you about today is a recent change in the policy of

5 the Registrar governing release of public transcripts for initial

6 appearances. This, contrary to previous practice, requires that the

7 parties request any change to the transcript within two working days. So

8 please bear this in mind, should you wish to effect any changes to the

9 public transcript of this initial appearance.

10 I hereby adjourn the proceedings until further notice, and you

11 will receive a communication of the date for the further initial

12 appearance within a matter of a few days from today.

13 Thank you.

14 --- Whereupon the Initial Appearance adjourned at

15 5.41 p.m.