THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA

Case No. IT-02-54-R77.5

BEFORE THE SPECIALLY-ASSIGNED TRIAL CHAMBER

Before: Judge Mehmet Güney

Judge Liu Daqun Judge Bakone Justice Moloto

Acting Registrar: Mr. John Hocking

Filed: 21 April 2009

IN THE CASE OF

FLORENCE HARTMANN

PUBLIC

MOTION PERTAINING TO THE NULLIFICATION OF TRIAL CHAMBER’S ORDERS AND DECISIONS

Amicus:

Mr. Bruce MacFarlane, QC

On behalf of Ms Hartmann:

Mr. Karim A. A. Khan, Lead Counsel Mr. Guénaël Mettraux, Co-Counsel

1943IT-02-54-R77.5D1943 - D191821 April 2009 SF

Procedural background

1. The procedural background in this matter has already been included in the “Defence

Motion for Disqualification of Two Members of the Trial Chamber and of Senior Legal

Officer in Charge of the case” of 3 February 20091 and its “Addendum” of 10 February

2009. The Defence refers to that procedural background and adopts it by reference. The

Defence will merely complement it with procedural incidents that have occurred since

then.

2. On 3 February 2009, the Trial Chamber ordered the postponement of the trial sine die.2

3. On 3 February 2009, the Trial Chamber gave its reasons for its decisions regarding the

Defence Motions for stay of proceedings and for the issuance of subpoena to the amicus

prosecutor, rendered during the status conference.3

4. On 4 February 2009, the Chamber issued an order varying time limits for filing of

applications for certifications.4

5. On 7 February 2009, the Defence filed the Defence Motion Pursuant to Rule 65ter,

providing additional set of agreed facts between parties.

6. On 9 February 2009 the Defence filed a number of motions for leave to appeal:

(i) Defence Motion for Leave to Appeal Trial Chamber’s Decision on

Defence Motion for Reconsideration dated 14 January 2009;

(ii) Defence Motion for Leave to Appeal Trial Chamber’s Decision regarding

Stay of Proceedings for Abuse of Process;

1 A public version was filed on 6 February 2009:Defence Motion for Disqualification of Two Members of the

Trial Chamber and of Senior Legal Officer in Charge of the Case (public), 6 February 2009.

2 Order Postponing Commencement of Trial (public),3 February 2009.

3 Reasons for Decision on the Defence Motion for Stay of Proceedings for Abuse of Process (public), 3

February 2009; Reasons for Decision on Urgent Defence Motion for the Issuance of Subpoena to Amicus

Curiae Prosecutor (public), 3 February 2009.

4 Order Varying Time Limits for Filings of Applications for Certification (public), 4 February 2009.

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(iii)Defence Motion for Leave to Appeal Trial Chamber’s Decision regarding

Prosecution Witness Statements;

(iv) Defence Motion Seeking Certification of Trial Chamber’s “Reasons for

Decision on Urgent Defence Motion for the Issuance of Subpoena to

Amicus Curiae Prosecutor” dated 03 February 2009.5

7. On 18 February 2009, the President of the Tribunal, acting pursuant to Rule 15(B)(ii),

appointed a panel of three judges to provide their opinion on the merits of the issue of the

disqualification. On 25 March 2009, the panel reported to the President. The majority of

the panel granted the Defence Motion for disqualification in part with respect to the

recusal of two members of the Trial Chamber and invited the President to assign two

new judges to the specially appointed Trial Chamber. These Judges have now been

replaced by order of the President.

8. The following Defence motions were pending at the time of the Decision of

Disqualification:

• Defence Motion for Binding Orders to the Registry, filed 2 February 2009;

• Defence Motion pursuant to Rule 65ter, filed 7 February 2009;

• Defence Motion for Leave to Appeal Trial Chamber’s Decision on Defence

Motion for Reconsideration dated 14 January 2009, filed 9 February 2009;

• Defence Motion for Leave to Appeal Trial Chamber’s Decision regarding Stay

of Proceedings for Abuse of Process, filed 9 February 2009;

• Defence Motion for Leave to Appeal Trial Chamber’s Decision regarding

Prosecution Witness Statements, filed 9 February 2009;

• Defence Motion Seeking Certification of Trial Chamber’s “Reasons for

Decision on Urgent Defence Motion for the Issuance of Subpoena to Amicus

Curiae Prosecutor” dated 03 February 2009, filed 9 February 2009.

5 Public version filed on 12 February 2009.

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Motion for leave for extension of word-limit 9. Because of the importance of the present matter and the number of issues (legal and

factual) that are at stake, the Defence hereby seeks leave for a 6000-word extension so as

to permit the Defence to fully outline the nature and scope of its submissions and so as to

ensure that the President is adequately briefed in relation to each and all of these. The

issues raised therein are numerous, complicated and are supported by many legal

authorities. Furthermore, the resolution of this matter by the Trial Chamber would have

the effect of resolving many issues that would otherwise pertain to several separate

applications.

10. Should the amicus Prosecutor need a similar extension of words for the purpose of his

response, the Defence would have no objection to such a request.

Nullity of Trial Chamber’s decisions and orders

11. In accordance with the Panel’s decision of 25 March, all decisions and orders issued by

the impugned Trial Chamber have been rendered null and must be set aside.

12. In Karemera, for instance, the ICTR made it clear that decisions rendered by a Trial

Chamber that was later found to have fallen short of the requisite standard of impartiality

and independence would be voided by such a finding:

“14. The Chamber is of the view that the rehearing of the proceedings, as stated

in Rule 15bis (C) of the Rules and consequent upon the Appeals Chamber

Decisions of 28 September 2004 and 22 October 2004, relates to that proceedings

before the Trial Chamber and, therefore, to the presentation of evidence. The

Chamber concludes also that all previous interlocutory orders or decisions

previously related to the evidence presented during the trial which started in 27

November 2003 have to be disregarded and have no more effect.

[...]

20.This jurisprudence explains that, pursuant to the Rules, the appearance of bias

affects the jurisdiction of the judge to adjudicate in a particular case. In applying

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this principle to the instant case where the Appeals Chamber ruled after decision

making power had been exercised, not only in the Trial stage but also in the Pre-

Trial stage of the proceedings, the Chamber has to be cognizant of the need to

avoid any “appearance of bias”. Even if there is no suggestion of actual bias,

where appearances may give rise to doubts about impartiality, this alone may

amount to an inadmissible jeopardy of the confidence which a Tribunal must

inspire.6 Justice must not only be done, but also should manifestly and

undoubtedly be seen to be done.7

21. The Chamber notes that all the Defence teams for each of the accused

contended that the Decision of 13 February 2004 granting in part the Prosecution

Motion for leave to amend the Indictment was affected by an appearance of bias.

The Chamber concludes that in the interests of justice, and as a consequence of

the ruling of the Appeals Chamber Decision of 22 October 2004, that decision

should no longer have effect.

22.The Chamber also considers that it has the power to make such a ruling

independently of the Appeals Chamber ruling, where it concludes that it is

required in the interests of justice. The Chamber is endowed with inherent powers

to make judicial findings that are necessary to achieve the primary obligation to

guarantee a fair trial to the accused.8

6 The European Court of Human Rights has generated a large amount of jurisprudence on the right to be tried by

an independent and impartial tribunal and on the notion of “objective impartiality”. See Eur.Ct.H.R., Piersack v.

Belgium, Judgment of 1 October 1982, par. 30; Eur.Ct.H.R., Thomann v. Switzerland, Judgment of 10 June

1996, par. 30; Eur.Ct.H.R., Ferrantelli and Santangelo v. Italy, Judgment of 7 August 1996, par. 58;

Eur.Ct.H.R., Incal v. Turkey, Judgment of 9 June 1998, par. 65; Eur.Ct.H.R., Castillo Algar v. Spain, Judgment

of 28 October 1998, par. 45; Eur.Ct.H.R., Pescador Valero v. Spain, Judgment of 17 June 2003, par. 23

(Judgments available at < http://www.echr.coe.int/>).

7 See Sesay Case, par. 16.

8 See Prosecutor v. Blaskic, Case No. IT-95-14-A, Judgment on the Request of the Republic of Croatia for

Review of the Decision of Trial Chamber II of 18 July 199 (AC), 29 October 1997, par. 25, footnote 27:

Consonant with the case-law of the International Court of Justice, the Appeals Chamber prefers to speak of

"inherent powers" with regard to those functions of the International Tribunal which are judicial in nature and

not expressly provided for in the Statute, rather than to "implied powers". The "implied powers" doctrine has

normally been applied in the case-law of the World Court with a view to expanding the competencies of

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As Judge David Hunt stated:

It is the fundamental obligation of this Tribunal, imposed by Articles 20 and 21 of its Statute,

to ensure the fair and expeditious trial of those indicted before it. […] The Tribunal also has an

inherent power, deriving from its judicial function, to control its proceedings in such a way as

to ensure that justice is done.9

23. Accordingly, in the interests of justice and the rights of the accused, the

Chamber concludes that the Decision of 13 February 2004 has to be given no

more effect. The Chamber considers therefore that the only operative indictment

in the present case is the amended Indictment filed on 21 November 2001.”10

13. The above position, which may be said to represent a general principle of law, has also

been adopted, inter alia, in the Pinochet case.11 In that case, the House of Lords, having

found merit in the Defence application of an appearance of bias on the part of one of its

members (Lord Hoffmann), the Court set aside its previous decision which had been

political organs of international organisations. […] As is well known, reference to the Court's "inherent powers"

was made by the International Court of Justice in the Northern Cameroons case (I.C.J. Reports 1963, p. 29) and

in the Nuclear Tests case. In the latter case the Court stated that it "possesses an inherent jurisdiction enabling it

to take such action as may be required, on the one hand to ensure that the exercise of its jurisdiction over the

merits, if and when established, shall not be frustrated, and on the other, to provide for the orderly settlement of

all matters in dispute… Such inherent jurisdiction, on the basis of which the Court is fully empowered to make

whatever findings may be necessary for the purposes just indicated, derives from the mere existence of the

Court as a judicial organ established by the consent of States, and is conferred upon it in order that its basic

judicial functions may be safeguarded" (Nuclear Tests case, I.C.J. Reports 1974, pp. 259-60, para. 23).

9 Prosecutor v. Simic et al., Case No. IT-95-9-PT, Separate Opinion of Judge David Hunt on Prosecutor’s

Motion for a Ruling Concerning the Testimony of a Witness (TC), 27 July 1999, par. 25. See also Prosecutor v.

Tadic, Case No. IT-94-1-A, Judgment (AC), 15 July 1999, par. 322.

10 Karemera, Decision on Severance of Andrew Rwamakuba and Amendments of the Indictment, Article 20(4)

of the Statute, Rule 82(B) of the Rules of Procedure and Evidence 7 Dec 2004 (emphasis added).

11 See Regina v Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte [2001] 1

AC 119, at 125, 137, 139, 143, 146 (“Pinochet Judgment”).

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adopted with Lord Hoffmann participating.12 Other jurisdictions, such as Australia13 or

South Africa14 have applied the same principle.

14. This reasoning that sustains this position is the logical consequence of the impact that a

Chamber’s lack of impartiality (or a lack of appearance thereof) will necessarily have on

the validity and legitimacy (or perceived validity and legitimacy) of decisions rendered

by such a Chamber.

15. Where the impartiality of a judge is in question “the appearance of the matter is just as

important as the reality”.15 The absolute need for public confidence in the integrity of the

administration of justice demands that only these courts whose impartiality is beyond

dispute can take decisions that will impact upon the rights, position and interests of a

defendant in criminal proceedings. Where such guarantee is not present, the tribunal’s

actions fall short of internationally-recognised standards and must be set aside.

16. This view is further supported by the terms of Rule 15bis, which provides that in the

absence of a Judge, and in the interests of justice, the other two members of a Trial

Chamber may decide to continue with the proceedings in the absence of that judge. The

power to continue with the proceedings in such a case would seem to include, arguably, a

power by the remaining two judges to render decisions where necessary and appropriate.

However, that provision does not allow for the continuation of proceedings where more

than one Judge is absent or unable to attend and decisions rendered by a single Judge in

such a situation would be invalid. Whilst the present case is not one pertaining to the

“Absence of a Judge” in the sense of Rule 15bis, the terms of that provision further

emphasis the fact that under no circumstance could a decision of a Trial Chamber be

validly rendered with only one of three judges being present or qualified to take part in

12 Ibid. See also e.g. Dimes v Proporietors of Grand Junction Canal, 3 HL Case. 759 (in particular per Lord

Campbell, at 793-794); Sellar v Highland Railway Co., 1919 SC (HL) 19;Bradford v McLeod, 1986 SLT 244;

Reg v Altrincham Justices, ex parte N Pennington [1975] QB 549, at 552 (per Lord Widgery CJ).

13 See e.g. Antoun v R [2006] HCA 2; Gassy v The Queen [2008] HCA 18.

14 See e.g. S v Dube and Others (523/07) [2009] ZASCA 28 (30 March 2009), in particular pars 18-21.

15 Pinochet Judgment, at 139, per Lord Nolan.

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the proceedings.16 In the present case, at least two of the members of the Trial Chamber

(including the Presiding Judge) have been impugned so that none of the decisions and

orders rendered by the Chamber to which they belong could be or remain binding in

these proceedings.

17. In this instance, for the reasons explained in the panel’s decision, the Trial Chamber did

not meet the requisite element of objective impartiality as was necessary for the Chamber

to be able to validly decide the course of proceedings against Ms Hartmann.

18. In view of the above, all the orders and decisions rendered by the Trial Chamber in these

proceedings must be disregarded as being without effect. With a view to assist the Trial

Chamber, these have been listed in confidential Annex C.

Trial Chamber’s discretion and re-initiation of contempt proceedings against Ms

Hartmann

Effect and consequence of the above onto the pre-trial record and discretionary authority of

the Trial Chamber

19. As a result of the panel’s report of 25 March and subsequent President’s decision, and for

the reasons outlined above, all Trial Chamber’s orders and decisions are null and must be

set aside. This includes the Order in lieu of indictment (first issued on 27 August 2008

and amended on 27 October 2008). In other words, at this point, there are no charges

validly pending against Ms Hartmann.

20. The Trial Chamber is, therefore, required to exercise its discretion pursuant to Rule 77

and the Practice Direction17 in deciding whether or not to initiate new proceedings

against Ms Hartmann.

21. The Defence submits that all circumstances militate against the re-initiation of

proceedings. 16 The only exception(s) to that Rule is provided for in Rule 65ter insofar as decisions could be rendered by a

single Judge in his capacity as pre-trial Judge. See also Rule 65ter(A) concerning the authority of the Presiding

Judge to designate the pre-trial Judge.

17 Practice Direction on the Procedure of the Investigation and prosecution of Contempt before the International

Tribunal, in particular pars 7 and 13.

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22. For the reasons given below, the Defence submits that the Trial Chamber should exercise

its discretion by deciding not to re-initiate proceedings to investigate or prosecute this

matter.

23. In the alternative, the Trial Chamber could exercise its authority to reconsider the Order

in lieu of an indictment and adopt the view – supported in law and evidence – that in

light of all circumstances that are now known to the Trial Chamber the initiation of

contempt proceedings against Ms Hartmann is both unnecessary and unjustified.

Incompleteness and unreliability of the investigative record

24. The Defence submits that the material presently in possession of the Trial Chamber

would not allow – and would not be sufficient – to warrant the exercise of its discretion

in favour of initiating new proceedings in relation to allegations against Ms Hartmann.

Reasons are as follows:

(i) The material put before then President Pocar CONFIDENTIAL based on which the

Trial Chamber was initially appointed was inaccurate, incomplete and

misleading;

(ii) The material later collected by the amicus investigator would not provide a valid

basis upon which the present Trial Chamber could rely to exercise its discretion

in such a way as to re-initiate proceedings since this material has been shown to

be unreliable, incomplete, one-sided and misleading. The material collected by

the Defence and which forms part of the record demonstrates the general lack of

merit of the allegations made by the amicus CONFIDENTIAL. The Defence

submits that no reasonable Trial Chamber could decide to indict a person on the

basis of information that has now been positively shown to have one-sided,

incomplete and unreliable.

(iii) Insofar as the information now available would allow for any reasonable decision

to be taken in this matter, it would be one to the effect that the Trial Chamber

IT-02-54-R77.5 9 21 April 2009

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should exercise his discretion in such a way as to decide not to re-initiate

proceedings in this matter.18

25. First, as noted above, the information contained in the material provided to then

President Pocar based on which he appointed a Trial Chamber has now been shown to

have been inaccurate, incomplete and misleading.

26. CONFIDENTIAL

27. As is clear from the Defence submissions and from the information that now forms part

of the record, this assertion was patently wrong, inaccurate and misleading.19 All of it

was already public and none of it has been shown to have been acquired “by reason of

her former position”.

28. CONFIDENTIAL

29. Therefore, and for the reasons given above, it would not be reasonable, the Defence

submits, for the Trial Chamber to exercise its discretion by initiating or continuing the

prosecution of Ms Hartmann based on the information provided to President Pocar.

30. Secondly, the material that was collected by the amicus as part of his investigation would

not provide a sufficient nor adequate basis on which the present Trial Chamber could

reasonably exercise its discretion to order new contempt proceedings.

31. This is so because the material collected by the amicus is unreliable, incomplete, one-

sided and misleading. Any decision based on the amicus’ flawed investigation would be

infected by its deficiencies.

32. CONFIDENTIAL

18 The Defence invites the Chamber in particular to consider the annexes to its Motion of Reconsideration dated

14 January 2009.

19 See Motion for Reconsideration, 14 January 2009, pars 19 et seq. See also Defence Pre-Trial Brief, 15

January 2009, pars 23 et seq. Because of the importance of the Defence Motion of 14 January, and because it is

several times referred to in the present application, it has been included (without its annexes) as confidential

Annex A.

IT-02-54-R77.5 10 21 April 2009

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33. The Defence has already described the serious flaws of the investigative process and

only need to refer and adopt its submissions by reference.20 What matters for the present

purpose is the fact that, seen as a whole, the material that has now been relied upon by

the Defence clearly demonstrates the flaws of the investigation as well as the

unreliability and one-sidedness/incompleteness of the material relied upon by the amicus

prosecutor. Of particular interest here are the following considerations:

(i) First, the material obtained by the amicus is itself impugned by the

panel’s decision insofar as it is material that resulted, not from an

independent/impartial investigation, but from one conducted by or at

the behest of the Trial Chamber. Such conduct has been found to fall

short of the relevant human rights guarantees.

(ii) Secondly, the material collected by the amicus is itself unreliable. In

the absence of statements of any of the persons whom he intends to

call as witnesses, the reliability or otherwise of the information

provided by the proposed witnesses may not be properly assessed by

the present Trial Chamber. In Nyiramasuhuko, the ICTR has pointed

out that before initiating criminal proceedings, the Tribunal would

have to consider the “quality” and reliability of the material put before

it, in particular the hearsay or unsworn nature of the material relied

upon by a party to request the initiation of contempt proceedings and

requiring that such allegations should only be brought “on the basis of

properly prepared and substantiated submissions”.21 In this case, there

is simply no reliable evidence – as would be admissible under the

Rules – at the disposal of the Trial Chamber to exercise his discretion

in such a way that would be both reasonable and fair to Ms Hartmann.

In the circumstances, the Defence submits that such a course would be

unreasonable.

20 See, in particular, Motion for Stay of Proceedings for Abuse of the Process, 23 January 2009 (included

(without its annexes in confidential Annex B); see also Motion for Reconsideration, 14 January 2009 (Annex

A).

21 Nyiramasuhuko (Kanyabashi case), Decision on Prosecutor’s Allegations of Contempt, the Harmonisation of

the Witness Protection Measures and Warning to the Prosecutor’s Counsel, 10 July 2001, pars 8 and 12.

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(iii) Thirdly, the amicus Prosecutor has persistently refused to be

interviewed by the Defence as would have allowed the Defence to

establish the extent and nature of the abuses committed as part of the

investigation and the consequences thereof onto these proceedings.22

In those circumstances, the grand extent of the flaws and shortcomings

of the investigation cannot be fully explored. The Defence submits that

the Trial Chamber should draw the necessary inferences from the

amicus’s refusal to cooperate in this matter, in particular as regard the

reliability of the material that has been provided by him.

34. Fourthly, much information relevant to these proceedings have now been put forward by

the Defence.23

35. The Defence submits that justice and fairness demand that a decision whether to re-

initiate proceedings should not be taken without considering all information now

available on record. The ad hoc Tribunals have already pointed out that –

“bearing in mind the principle of the presumption of innocence, any

allegations of contempt are to be handled with due care”.24

36. Setting aside the flaws of the investigative process, it is clear that, should the Trial

Chamber take into consideration all the information now on record, it could not

reasonably come to the view that contempt proceedings are necessary and justified in the

22 Requests to that effect were made on the following dates: 14 and 30 January, 2 and 3 February. The request

was renewed on 8 April 2009 and again rejected on 16 April 2009. At the time of the decision of

disqualification, a motion for leave to appeal the Trial Chamber’s decision not to grant a subpoena against the

amicus was pending (Defence motion seeking certification of Trial Chamber’s “Reasons for decision on urgent

Defence motion for the issuance of subpoena to amicus curiae Prosecutor” dated 3 February 2009, 9 February

2009).

23 The Defence refers, in particular, to the material attached to its Motion for Reconsideration, 14 January 2009

and to the submissions and material contained in its Pre-Trial Brief of 15 January 2009.

24 Nyiramasuhuko (Kanyabashi case), Decision on Prosecutor’s Allegations of Contempt, the Harmonisation of

the Witness Protection Measures and Warning to the Prosecutor’s Counsel, 10 July 2001, par 6. See also Seselj,

Decision on Certain allegations made in Motion Number 23, 18 November 2003.

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circumstances. Most relevant in that regard is the material that was annexed to or refer to

the Defence Motions for Reconsideration and Abuse of the Process respectively.25

37. Finally, as will be discussed next, in this instance, all relevant circumstances militate

against the renewal of proceedings against Ms Hartmann.

Factors pertaining to the allegations against Ms Hartmann

38. The Defence submits that all relevant factors militate against a decision to re-start

proceedings and thus suggests that the Trial Chamber should exercise his discretion in

such a way as not to re-initiate contempt proceedings against Ms Hartmann.

(i) Public character of the information allegedly disclosed in violation of

confidential orders

39. In its filings of 14 January 2009, the Defence has established that all four facts in

relation to which Ms Hartmann was being prosecuted had been made public by

the Tribunal, by the Applicant and were openly discussed in the media.26 The

amicus Prosecutor did not take issue with these submissions, but maintained his

position that, despite this fact, Ms Hartmann could be prosecuted for contempt.

40. Although the Trial Chamber need not decide upon the question of whether this

would constitute a defence to contempt charges, it is a fact that is directly relevant

to the exercise of its discretion to initiate proceedings pursuant to Rule 77 and

Practice Direction. The Defence submits that initiating contempt proceedings in

those circumstances would not be reasonable.

41. Considerations of good sense, opportunity and proper allocation of Tribunal

resources all militate, the Defence submits, against the view that new proceedings

should be re-initiated.

25 Motion for Reconsideration, confidential, 14 January 2009;Motion for Stay of Proceedings for Abuse of

Process, confidential, 23 January 2009.

26 Motion for Reconsideration, 14 January 2009, pars 14 et seq.

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(ii) Insufficient gravity or seriousness of the impugned conduct to warrant

contempt proceedings

42. The jurisprudence (and practice) of this Tribunal recognizes that not all instances

of disclosure of information in violation of a confidential order are such as to

warrant contempt proceedings.27

43. First, the Tribunal does not criminalise conducts that are merely negligent.28

44. In fact, and thus far, the Tribunal has only criminalized serious breaches of court

orders which had effectively interfered with the administration of justice. Where

this could not be established, the court has generally regarded such conduct as

falling below the threshold relevant to the Tribunal’s contemptuous jurisdiction.

In Ntakirutimana, for instance, the ICTR found that the disclosure in violation of

the witness protection order was not sufficiently serious to be tantamount to

contempt.29

45. And even within the category of conduct that might have interfered with the

administration of justice, the Tribunal has been careful to prosecute only the most

serious among them as only those are capable of interfering with the Tribunal’s

ability to fulfill its primary mandate, i.e., to prosecute serious violations of

humanitarian law. In Furundzija, for instance, the Tribunal took the view that the

pattern of violations of court’s order by the Prosecution was not sufficiently

serious to amount to a crime of contempt since only the most serious interferences

with the administration of justice were intended to be prosecuted under that

heading.30

46. Revealingly for the present purpose, in the Brdjanin case, the Trial Chamber

found that one of the counts of contempt raised against Ms Maglov did not meet

27 See, for illustrations, Defence Pre-Trial Brief, 15 January 2009, par 58.

28 Aleksovski, Judgment on Appeal by Anto Nobilo,30 May 2001.

29 Ntakirutimana, Decision on Prosecution Motion for Contempt of Court and on two Defence Motions for

Disclosure, 16 July 2001, pars 10-12.

30 Furundzija, The Trial Chamber’s Formal Complaint to the Prosecutor concerning the conduct of the

Prosecution, 5 June 1998,par.11.

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that threshold as the information which she was said to have disclosed in violation

of a court order related to disclosure of a fact that was already publically known.31

The application of that jurisprudence for the present purpose would lead the Trial

Chamber to conclude that it would be unreasonable to initiate or continue

contempt proceedings in this matter.

47. Prior to the President’s Decision, Ms Hartmann was being prosecuted, not for

disclosing the content of any of the documents that were the subject of the

protective measures. No one, prior to her, has been prosecuted before this

Tribunal for disclosing the existence of a confidential order, its date, its

confidential nature or its subject-matter as opposed to the actual content of the

documents or person that was protected by a confidential order. This, the Defence

submits, is further evidence of the a priori insufficient seriousness of the matter to

warrant contempt proceedings.

48. Under the nullified indictment, Ms Hartmann was being prosecuted for allegedly

disclosing the four following facts in breach, the amicus Prosecutor said, of two

confidential orders:32

(a) the existence (and dates) of the two impugned decisions;

(b) the confidential character of these decisions;

(c) the identity of the moving party/applicant;

(d) the subject, namely, the fact that protective measures were granted in relation

to CONFIDENTIAL.

49. Up until the Trial Chamber queried this issue with the amicus Prosecutor,33 the

amicus Prosecutor had not taken issue with the understanding of the Defence that

31 Brdjanin (Maglov), Decision on Motion for Acquittal pursuant to Rule 98bis, 19 March 2004, pars 9-10 (in

relation to count 3).

32 See Motion for Reconsideration of 14 January 2009 (pars 14-18) and in Defence Pre-Trial Brief of 15 January

2009 (par 7).

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these were in fact the four facts that were the subject of the charges that he was

prosecuting.34 He thus waived his right to take issue with these or should be

regarded as being estopped to do so.

50. The Tribunal’s jurisprudence provides that in some cases disclosure of a fact

already known is not serious enough in principle to warrant a conviction for

contempt.35 The Defence submits that this would be the case, for instance, where,

as in the present case, the trial in question had been terminated, there is no

demonstrated effect (or even possible effect) on the course or the administration of

justice, and the facts in question had been extensively discussed in the media

without any steps being taken to prevent further disclosure of these.36

51. Also, and as already noted, the Tribunal itself –and the Applicant– had publically

and officially acknowledged and disclosed these four facts.37 Although the Trial

Chamber need not decide at this stage whether this would provide a full defence to

the charges, it is certainly a fact that would weigh heavily against any decision to

initiate contempt charges against Ms Hartmann.

52. As noted by the Defence in a previous filing, as a result of the amicus’

investigative failure to elicit these facts, Ms Hartmann was being prosecuted for

disclosing facts that neither the Tribunal, nor the Applicant, thought were covered

by the impugned confidential orders that form the basis of the charges.38

33 Transcript of the Status Conference, 30 January 2009, pp.53-57; Defence Motion for Disqualification of Two

Members of the Trial Chamber and of Senior Legal Officer in Charge of the Case with Annexes (confidential), 3

February 2009,pars.51-56.

34 On at least two occasions, in its Motion for Reconsideration of 14 January 2009 (pars 14-18) and in its Pre-

Trial Brief of 15 January 2009 (par 7), the Defence had outlined its understanding of the charges in this manner.

The amicus Prosecutor did not take issue with it. He, therefore, may be said to have agreed with the Defence or,

if he has later changed his mind, he would be estopped from seeking to present a different case.

35 Brdjanin, Maglov.Decision,19 March 2004,pars.9-10.

36 Motion for Reconsideration, pars 38-46.

37 Motion for Reconsideration, pars 22-37.

38 Motion for Reconsideration, par 8.

IT-02-54-R77.5 16 21 April 2009

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53. In light of this, the Defence submits that the only reasonable course open would

be to decide not to re-initiate proceedings for contempt.

54. Also relevant to the exercise of discretion are the following considerations:

(a) No prejudice has been demonstrated to the applicant: Ms Hartmann was being

prosecuted for acts that have had no proven consequences.

(b) No actual interference with the course/administration of justice has been

established: Ms Hartmann was being prosecuted for an alleged interference

with the course of justice when none was established.

(c) There has been no disclosure/revelation of the content of the

material/documents that were the subject of the protective measures: Ms

Hartmann was being prosecuted not for disclosing any protected information

but for disclosed the fact that an order exists that protects these documents.

(d) Facts which are said to have been disclosed were already in the public domain:

Ms Hartmann was being prosecuted for saying what everyone already knew.

And she is the only one to be prosecuted for these facts.

(e) There is no evidence of an intention on the part of Ms Hartmann to damage

the reputation of the Tribunal (nor did the amicus Prosecutor so allege): Ms

Hartmann was being prosecuted despite the absence of an intention to interfere

with the administration of justice.

(f) No witness was endangered as a result of the conduct of Ms Hartmann: Ms

Hartmann was being prosecuted despite the fact that victims of the conflict in

Bosnia have all called for and supported the view that the facts for which she

is being prosecuted should be made public.39

(g) Ms Hartmann is the mother of two children, which she still supports

financially. She does not have a regular paid job so that a new prosecution

39 Annexes.35-38. See also further below.

IT-02-54-R77.5 17 21 April 2009

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and any conviction as could result from it would have dramatic consequences

on her family.40

(h) To the extent that any prejudice might have been caused by the conduct of Ms

Hartmann, the stigma that resulted from the initiation of proceedings against

her and the distress that this has caused to both Ms Hartmann and her family

would have constituted more than an adequate sanction. In that sense, no other

good purpose could be served by a new or renewed prosecution in this matter.

(iii) Abuse of process in the investigation which will require the annulment of

any finding made during that process and could require the Tribunal to

appoint a new amicus investigator to look once again into this matter

55. In its Motion of 23 January 2009, the Defence had outlined many of the

shortcomings, failings and abuses that marred the amicus investigation.41 In

particular, the Defence had put forward the following shortcomings and violations

as, it submits, occurred during the amicus investigation of this matter (see

confidential Annex B):42

(a) Complete failure on the part of the amicus to investigate à décharge;

(b) Violations by the amicus of United Nations immunities and Tribunal Statute;

(c) Violation by the amicus of Court orders;

(d) Failure by the amicus to abide by basic standards of investigative diligence in

the process of collecting evidence;

(e) Failure by the amicus to provide the specially-assigned Chamber with a

reliable factual foundation on which to decide to initiate contempt

proceedings;

40 Decision (regarding indigence),13 November 2008.

41 See confidential Annex B.

42 Motion for Stay of Proceedings for Abuse of Process, 23 January 2009 (see confidential Annex B);

Prosecution Response to the Motion of the Stay of Proceedings, 29 January 2009; Reasons for Decision on the

Defence Motion for Stay of Proceedings for Abuse of Process, 3 February 2009; and Defence Motion for Leave

to Appeal Trial Chamber’s Decision re Stay of proceedings for Abuse of Process, 9 February 2009.

IT-02-54-R77.5 18 21 April 2009

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56. The specially-assigned Trial Chamber rejected, disregarded or failed to address

many of these complaints and the Defence had sought leave to appeal that

Decision.43 The Defence reserves its right to ask the Chamber to consider these

matters on their merit.

57. These factors, which the Chamber can consider in confidential Annex B, would

warrant the stay of proceedings for abuse of the process. Although the Chamber

need not decide the merit of this submission for the present purpose, there is the

very real possibility that should new proceedings be initiated against Ms

Hartmann, they should later have to be stayed based on the abuses that have

occurred in the context of the investigation. The Defence submits that it would be

a safer and more economical course that proceedings should not re-start, rather

than being halted later.

(iv) Lack of reliability of the material collected as part of the investigation

58. The amicus Prosecutor took no statements from any of the persons whom he

interviewed during the investigative process nor from any of the persons whom he

listed as proposed witnesses. This fact has given rise to litigation already, and was

the subject of a Defence Motion for leave to appeal the specially-assigned Trial

Chamber’s decision on that point.44 The Defence has submitted (unsuccessfully

thus far) that such practice constitutes a direct violation of the Appeals Chamber’s

jurisprudence and of the Rules.45

59. What matters for the present purpose, however, is the fact that, as noted above, the

material collected by the amicus is unreliable and that further investigative steps

would be necessary to assess even the prima facie reliability of that information.

43 Defence Motion for Leave to Appeal Trial Chamber’s Decision re Stay of proceedings for Abuse of Process,

9 February 2009.

44 Defence Motion for Leave to Appeal Trial Chamber’s Decision regarding Prosecution Witness Statements, 9

February 2009.

45 Motion for Stay of Proceedings for Abuse of Process, 23 January 2009; Defence Motion for Leave to Appeal

Trial Chamber’s Decision regarding Prosecution Witness Statements, 9 February 2009.

IT-02-54-R77.5 19 21 April 2009

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60. Also relevant is the fact that, as noted by Judge Flügge, the material that was

collected by the amicus investigator (now amicus prosecutor) was sought and

obtained at the behest and under the direction of the Trial Chamber whose

impartiality has now been impugned. As a result, the fruit of the investigation is

itself suspect of the lack of impartiality that attached to members of the Chamber

in charge of the matter at the time. In those circumstances, and as a minimum, an

amicus should be appointed to conduct an investigation à décharge, which the

present amicus completely failed to carry out. Only then would the Trial Chamber

be able to confidently assume that it has been provided with a full and fair record

of the investigation for the purpose of deciding on the continuation of

proceedings.

61. A new investigation as would be necessary in the present circumstances could

take many more months and would require the Tribunal to allocate vast resources

to such a process, which might be better used to allow the Tribunal to fulfill its

primary mandate.

(v) Need to comply with and guarantee the fundamental rights of Ms Hartmann

62. In its Motion for Reconsideration, the Defence had put forth arguments that the

initiation of contempt proceedings would be contrary to internationally-recognised

standards of international human rights law.46 The impugned Trial Chamber failed

to address these arguments. Because they are directly relevant to the Chamber’s

exercise of discretion, the Defence renews those submissions verbatim below:

63. In two parallel cases pertaining to the publication of Spycatcher, British

newspapers complained of a violation of Article 10 of the ECHR caused by the

actions of the Attorney-General who sought to restrain the publication of extracts

of that book.47 The Court of Appeal had issued injunctions against The Observer

46 Motion for Reconsideration, pars 49-52.

47 Observer and Guardian v United Kingdom,Judgment,26 November 1991,Series.A,No216;(1992) 14 EHHR

153;Sunday Times v United Kingdom (no 2),Judgment of 26 November 1991,Series.A,No217;(1992) 14

EHHR,229.

IT-02-54-R77.5 20 21 April 2009

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and The Guardian which also bound all media within the jurisdiction of English

courts and held that any publication or broadcast of the Spycatcher material would

constitute a criminal contempt of court.48 Copies of the books were imported from

outside the UK. However, the court order remained in force until October 1998.

The European Court of Human Rights distinguished between two time-periods:

for the first period (July 1986-July 1987), the Court held by a narrow majority that

the risk of material prejudice to the national security existed justifying the

imposition of the above-mentioned injunction. Concerning the later period, by

contrast, and unanimously, the Court held that Article 10 of the ECHR had been

violated. The basis of its reasoning on that point was that the material could no

longer be regarded as likely to prejudice the national security of the country since

the book had become freely available in the United States.

64. The same reasoning, if applied to the present circumstances, would lead to the

necessary conclusion that the enforcement of the confidential orders contained in

the impugned decision –and to do so through the criminal prosecution of a

journalist– would constitute a violation of the rights guaranteed in the ECHR and

the Statute.

65. Again, the Chamber need not decide this issue on its merit. But these are factors

that are directly relevant to the exercise of its discretion as to whether to initiate or

continue proceedings in this matter.

66. The prosecution of journalists for allegedly disclosing facts of public interest is

likely to undermine the freedom of the press, hinder public discussion of

important matters and is unlikely to contribute to a frank and open discussion

about those events which interest the Tribunal and the public at large.49

48 Ibid.

49 See e.g. D. Feldman, Civil Liberties and Human Rights in England and Wales (OUP, 1993), in particular,547-

552.

IT-02-54-R77.5 21 21 April 2009

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67. The oppressive and overreaching interpretation of contempt that would result in

the initiation of criminal proceedings would thus infringes on Ms Hartmann’s

fundamental right to information and expression.50

68. Finally, the Defence has already pointed out that it is the position under

international law that because of the “dominant position” that they occupy,

authorities (judicial or otherwise) must display restraint in sanctioning freedom of

expression and show prudence in choosing measures that are the least restrictive

of this protected interest.51 Criminal proceedings for contempt, if allowed to

proceed in the present case, would fall short of that standard and would have a

“chilling effect” on the work of journalists as regard the activities of this

Tribunal.52

69. A second prosecution – particularly in light of the relatively minor nature of the

charges – could be regarded as oppressive or, as has been suggested in the media,

as “spiteful”.53

70. Although the Tribunal cannot decide whether to initiate criminal proceedings on

the basis of the way in which those are perceived in the public, the mandate of the

Tribunal is duly circumscribed to those cases that are capable of contributing to

peace and reconciliation in the former Yugoslavia whether directly (in the case of

those prosecuted in relation to alleged violations of Article 2-5 of the Statute) or

indirectly (in the case of Prosecution for contempt of those whose actions have

threatened the Tribunal’s ability to fulfill its primary mandate).

71. In this context, the role of the Tribunal vis-à-vis the victims should be taken into

consideration. The Tribunal has rightly taken the view that as part of its mandate it

50 See the recent Judgment of the ECHR (14 April 2009) in Tarsasag A Szabadsagjogokert v Hungary (Appl No

37374/05) regarding the scope and importance of that right.

51 See e.g. Castells, Judgment of 23 April 1993, par 46; Goodwin, Judgment of 27 March 1996, par 39; Wille

Judgment of 28 October 1999, par 50; Cumpana and Mazare, Judgment of 17 December 2004, par 114.

52 Regarding the doctrine of “chilling effect”, see also P. van Dijk, Theory and Practice of the European

Convention on Human Rights (Intersentia, 4th ed., 2006), 340-342, in particular 342.

53 Book Review of The Economist, 22 January 2009, Carla del Ponte “Madame Prosecutor”, see ANNEX D.

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should attempt to “bring justice to the victims”.54 In this case, there is no

identifiable victim: the applicant did not complain of Ms Hartmann’s conduct and

its representatives in fact disclosed to the public the very same facts for which Ms

Hartmann is being prosecuted. More, those victims to whom the Tribunal owes its

mandate – i.e. those who suffered the consequences of serious violations of

humanitarian law – have made their view known that they do not support the

Prosecution of Ms Hartmann and, in fact, regard it as contrary to their interests.55

In that sense, the prosecution could be said, not only to be inconsistent with the

Tribunal’s mandate vis-à-vis the victims, but in fact plainly contradictory with it.

Again, whilst the Tribunal may not be held hostage to the views of others, be they

the victims of the Yugoslav wars, their opinion merits due consideration when

deciding whether to initiate criminal proceedings that are seen as contrary to their

interests.56

72. Instead of setting a precedent which might come to be viewed as a violation of

generally-recognised human rights and a plain contradiction of the Tribunal’s role

and mandate, the Defence submits that the Trial Chamber should clearly and

undoubtedly uphold these standards by deciding this matter in such a way that, in

the circumstances, criminal proceedings for contempt of court is inappropriate and

inadequate.

54“Bringing war criminals to justice; bringing justice to victims” at www.icty.org; Carla del Ponte: “Peace

without justice is not sustainable. It is terrible mistake to think that people will simply forget. Even after a

hundred years, sometimes even several hundreds of years, unpunished crimes continue to represent huge

stumbling blocks in establishing peaceful, normal relations between some states.” at

http://www.icty.org/sections/LegalLibrary.

55 The Defence is informed that a number of applications to be heard as amicus curiae have been made by

victims groups. Several such groups have voiced their disapproval of these proceedings.

56 Ibid.

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Other factors pertaining to the interests of the justice

73. The discretion of the Trial Chamber in this matter would also require it, the

Defence submits, to consider the opportunity of new proceedings against Ms

Hartmann.

74. Considering the limited resources at the disposal of the Tribunal and the time

available to terminate its mandate, it would seem that the Tribunal should focus on

and allocate its resources to those cases which fall within its primary jurisdiction

and, as far as allegations of contempt are concerned, on those cases that are so

serious as to impact on the Tribunal’s ability to carry out its primary jurisdiction.

75. Punishing a person who might have been no more than negligent or mistaken and

who, in good faith, believed that she was acting in pursuance of the Tribunal’s

ultimate search for truth and justice would serve no valid purposes and would

undermine the stigma that should attach to a criminal conviction.

76. As discussed above, considerations of cost and efficiency in the administration of

justice are relevant to the Chamber’s exercise of discretion in this matter.

Although the amount already spent on this matter may not be recovered, it would

seem wise, and a judicious use of the Tribunal’s resources, to put an end to the

mounting costs of these unnecessary proceedings.

77. Should these proceedings be re-initiated, the cost of an externally-contracted

amicus Prosecutor as well as the cost of a Defence team (not to mention all

judicial and support staff) would have to be born by the Tribunal. Because of the

nullifying effect of the panel’s Decision, all Defence applications will have to be

renewed and decided anew, which might have the effect of extending these

proceedings by several months. In view of the complete – and unchallenged -

failure of the amicus to carry out an investigation à décharge, further Defence

investigations might also be necessary in this instance. This, in turn, would mean

that additional resources would have to be allocated to the Defence and further

expenses be incurred by the Tribunal. The Defence submits that these might be

better used with a view to fulfill the Tribunal’s primary mandate.

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Motion for voir-dire hearing or status conference

78. Should the Trial Chamber take the view that additional submissions are necessary

in this matter or if he wishes to hear the parties in relation to any of the matters

outlined above, the Defence submits that Chamber could order a voir-dire hearing

(or status conference) during which any outstanding matter (of law or fact) could

be addressed by either or both parties.

79. The procedure of voir-dire is available under Rule 89(B)57 and such a hearing

may be ordered where one is “necessary”58 or “where employing the procedure

would best favour a fair determination of the matter before it”.59 The Appeals

Chamber has held the voir-dire could be ordered where one was “appropriate” in

the circumstances.60

80. Should the Trial Chamber decide to call a voir-dire hearing, the Defence submits

that this could eventually result in an important saving of time and resources for

the Tribunal.

Conclusions and relief sought

81. In view of the above, and for the reasons given and in the interests of justice, the

Defence submits that –

(i) The Defence submits that the Trial Chamber should exercise its discretion in

such a way as to not re-initiate nor continue contempt proceedings against Ms

Hartmann.

(ii) In the alternative, and should the Chamber take the view that Order in Lieu is

still in force, the Defence submits that it should reconsider its decision to

57 Delalic,Decision on the Motions for the Exclusion of Evidence by the Accused, Zejnil Delalic, 25 September

1997, par 28.

58 See e.g. Ibid, par 17.

59 Ibid, par 28.

60 Celebici Appeal Judgment, par 543.

IT-02-54-R77.5 25 21 April 2009

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indict Ms Hartmann in light of the above – and with a view to prevent an

abuse of the process as would result from such proceedings61 – and decide that

Ms Hartmann should not be indicted in relation to the facts that formed the

basis of the charges.

(iii) Finally, the Defence seeks leave to be heard in relation to the continuation or

otherwise of these proceedings. The Defence submits that the most practical

course in this matter would be for the Trial Chamber to order a status

conference or a voir-dire hearing during which the parties could expose their

views as to the continuation or otherwise of these proceedings and so that the

Trial Chamber can make inquiries as to any outstanding matter in relation to

which it wishes to receive the assistance of the parties.

Respectfully submitted,

_______________________ Karim A. A. Khan

Lead-counsel for Florence Hartmann

____________________________

Guénaël Mettraux

Co-counsel for Florence Hartmann

Word count: 8,263 Words

Done the 21 April 2009

61 Bobetko, Decision on Challenge by Croatia to Decision and Orders of Confirming Judge, 29 November

2002,par 15.

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