国际判例
IN THE APPEALS CHAMBER
Before:
President Claude Jorda
Judge Mohamed Bennouna
Judge Patricia Wald
Judge Fausto Pocar
Judge Liu Daqun
President Claude Jorda
Judge Mohamed Bennouna
Judge Patricia Wald
Judge Fausto Pocar
Judge Liu Daqun
Registrar:
Mr. Hans Holthuis
Mr. Hans Holthuis
Judgement of: 27 February 2001
PROSECUTOR
v.
DUSKO TADIC
_____________________________________________________________________
APPEAL JUDGEMENT ON ALLEGATIONS OF CONTEMPT
AGAINST PRIOR COUNSEL, MILAN VUJIN
AGAINST PRIOR COUNSEL, MILAN VUJIN
_____________________________________________________________________
Counsel for the Appellant:
Mr. Vladimir Domazet for Milan Vujin
Counsel for the Interested Party:
Mr. Anthony Abell for Dusko Tadic
THE APPEALS CHAMBER of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (hereinafter "the International Tribunal"),
NOTING the Judgement on allegations of contempt against prior counsel, Milan Vujin (hereinafter "the Appellant") issued by the Appeals Chamber, ruling in the first instance, on 31 January 2000 (IT-94-1-A-R77) (hereinafter "the Judgement");
NOTING that the Appeals Chamber, ruling in the first instance, found the Appellant guilty of contempt of the International Tribunal pursuant to Rule 77 of the Rules of Procedure and Evidence of the International Tribunal (hereinafter "the Rules") and, accordingly, fined the Appellant Dfl 15,000 and directed the Registrar to consider striking him off the list of assigned counsel kept pursuant to Rule 45 of the Rules;
NOTING the Application for leave to appeal against the Judgement on allegations of contempt against prior counsel, Milan Vujin (IT-94-1-A-AR77), filed by the Appellant on 7 February 2000 (hereinafter "the Application");
NOTING the Response by the interested party, Dusko Tadic, to the Application for leave to appeal filed on 17 February 2000, (hereinafter "the Interested Party" and "the Response" respectively);
NOTING the Respondent’s Reply to the Response by the Interested Party, Dusko Tadic, to the Application for leave to appeal filed confidentially on 22 February 2000;
NOTING the Order of the President assigning Judges to a bench of the Appeals Chamber (hereinafter "the Bench") issued in French on 8 March 2000;
NOTING the Decision on the Application for leave to appeal issued in French on 25 October 2000 whereby the Bench granted leave to appeal having concluded that "the arguments advanced in support of the Application for leave to appeal justify a more thorough review by the Appeals Chamber";
NOTING the Order of the President assigning Judges to the Appeals Chamber issued in French on 26 October 2000;
NOTING the Appellant’s Brief filed confidentially on 3 November 2000, in which the Appellant submits,
inter alia, that: (i) the Tribunal does not have the power to set up a procedure for contempt and to punish such contempt; (ii) that Rule 77 of the Rules does not provide for the striking off the list of eligible counsel by the Registrar; and (iii) that the Appeals Chamber, ruling in the first instance, incorrectly found him guilty in relation to the allegation that he had: (a) put forward to the Appeals Chamber in support of an application pursuant to Rule 115 of the Rules a case which was known to the Appellant to be false in relation to the weight to be given to statements made by one Mladjo Radic and in relation to the responsibility of one Goran Borovnica for the killing of the two Muslim policemen, and (b) manipulated the proposed testimony of witnesses A and B;
CONSIDERING the Response by the Interested Party, Dusko Tadic, to the Appellant’s Brief filed on 5 December 2000 (hereinafter "the Response");
NOTING that Rule 77 of the Rules does not expressly provide for the right to appeal a contempt conviction of the Appeals Chamber;
CONSIDERING, however,
that the Rules must be interpreted in conformity with the International Tribunal’s Statute which, as the United Nations Secretary-General states in his report of 3 May 1993 (S/25704) must respect the "internationally recognized standards regarding the rights of the accused" including Article 14 of the International Covenant on Civil and Political Rights (hereinafter "the International Covenant");
CONSIDERING that Article 14(5) of the International Covenant on Civil and Political Rights guarantees that "SeCveryone convicted of a crime shall have the right to have his conviction and sentence reviewed by a higher tribunal according to law";
CONSIDERING moreover that Article 14 of the International Covenant reflects an imperative norm of international law to which the Tribunal must adhere;
CONSIDERING that the procedure established under Rule 77 of the Rules is of a penal nature, and that a person convicted pursuant to Rule 77 of the Rules faces a potential custodial sentence of up to 7 years’ imprisonment;
CONSIDERING that this means that a person found guilty of contempt by the Appeals Chamber must have the right to appeal the conviction;
CONSIDERING that the preferred course in this case would have been for the contempt trial to have been initially referred to a Trial Chamber, thereby providing for the possibility of appeal, rather than being heard by the Appeals Chamber, ruling in the first instance;
CONSIDERING however that it is the duty of the International Tribunal to guarantee and protect the rights of those who appear as accused before it;
DECIDES therefore that due to the special circumstances of this case, it is appropriate for the Appeals Chamber to consider the merits of the Appellant’s complaints;
CONSIDERING paragraphs 12 to 29 of the Judgement in which the basis of the International Tribunal’s power to prosecute and punish matters of contempt is clearly set out;
CONSIDERING that Article 15 of the Tribunal’s Statute instructs the Judges of the International Tribunal to "adopt rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and
other appropriate matters" (
emphasis added);
CONSIDERING that in order to function effectively and fairly, the International Tribunal must have the power to prosecute and punish contempt;
CONSIDERING that the adoption of rules to prosecute and punish contempt falls within the purview of "other appropriate matters" as required by Article 15 of the Statute;
DECIDES that the Appellant’s submission regarding the International Tribunal’s lack of power to prosecute and punish contempt is without merit;
NOTING that Rule 77 of the Rules does not provide for the striking off the list of eligible counsel as punishment following a conviction for contempt;
NOTING also that the Judgement of the Appeals Chamber did not order that the Appellant be struck off the list of eligible counsel but merely directed the Registrar to "consider" striking the Appellant off the list;
CONSIDERING that when convicted of contempt pursuant to Rule 77 of the Rules, counsel can expect to be either suspended or struck off the list of assigned counsel kept by the Registrar pursuant to Rule 45 of the Rules;
DECIDES that the Appellant’s submission regarding the direction of the Appeals Chamber, ruling in the first instance, to the Registrar to consider striking him off the list is without merit;
CONSIDERING that the Appeals Chamber may only overturn a Chamber’s finding of fact, when ruling in the first instance, "where the evidence relied on could not have been accepted by any reasonable tribunal or where the evaluation of evidence is wholly erroneous"
1;
CONSIDERING that it was not submitted during the contempt proceedings before the Appeals Chamber, in the first instance, that the allegations made against the Appellant, if established, would not constitute contempt of the International Tribunal in the sense of knowingly and wilfully interfering with the administration of justice;
CONSIDERING that the Appeals Chamber, ruling in the first instance, heard twelve witnesses who testified as to events which were capable of supporting the allegations of contempt, heard eight witnesses called by the Appellant, and heard the Appellant’s testimony;
CONSIDERING the detailed and careful analysis of the evidence as set out by the Appeals Chamber, ruling in the first instance, in its Judgement;
NOTING that the Appellant sought to admit additional evidence for consideration, namely the statement of Vlado Krckovski, taken in Prijedor on 4 February 2000 (hereinafter "the Statement");
CONSIDERING that, pursuant to Rule 115 of the Rules, a party may present additional evidence to the Appeals Chamber only if such proof was not available to it during the trial;
CONSIDERING that the Appellant has not made any submissions regarding the availability or otherwise of the Statement at trial;
DECIDES therefore that the Statement is inadmissible for the purposes of the present appeal;
DECIDES that the evidence relied upon for the Judgement would have "been accepted by any reasonable tribunal" and that the evaluation of the evidence was not "wholly erroneous" and, accordingly, that there is no basis to consider overturning the findings of fact;
DECIDES that the Appellant’s submissions regarding the Appeals Chamber’s findings of fact, ruling in the first instance, are wholly without merit;
CONSIDERING that, pursuant to Rule 116
bis (A) of the Rules, an appeal of a Decision rendered pursuant to Rule 77 may be determined entirely on the basis of the parties’ written briefs;
CONSIDERING also that, pursuant to Rule 116
bis (D) of the Rules, the Presiding Judge, after consulting members of the Appeals Chamber, may decide not to pronounce the judgement in public in the presence of the parties;
DECIDES that, pursuant to Rule 116
bis (A) and (D) of the Rules, this Appeal will be determined entirely on the basis of the written briefs and that the judgement will not be pronounced in public in the presence of the parties;
FOR THE FOREGOING REASONS,
ORDERS that:
(i) the Judgement of the Appeals Chamber, ruling in the first instance, is upheld;
(ii) the Appellant’s appeal is dismissed;
(iii) the Appellant is to pay a fine of Dfl 15,000 to the Registrar of the Tribunal within twenty one days;
(iv) the Registrar may consider, bearing in mind the factual findings against the Appellant by the Appeals Chamber ruling in the first instance and in accordance with his powers, to strike off or suspend the Appellant for a set period from the list of assigned counsel kept pursuant to Rule 45 of the Rules and to report his conduct as found by the Appeals Chamber, ruling in the first instance, to the professional body to which he belongs.
(ii) the Appellant’s appeal is dismissed;
(iii) the Appellant is to pay a fine of Dfl 15,000 to the Registrar of the Tribunal within twenty one days;
(iv) the Registrar may consider, bearing in mind the factual findings against the Appellant by the Appeals Chamber ruling in the first instance and in accordance with his powers, to strike off or suspend the Appellant for a set period from the list of assigned counsel kept pursuant to Rule 45 of the Rules and to report his conduct as found by the Appeals Chamber, ruling in the first instance, to the professional body to which he belongs.
Done in English and French, the English French text being authoritative.
Done this twenty-seventh day of February 2001
At The Hague
The Netherlands
At The Hague
The Netherlands
/signed/
____________________________
Claude Jorda
President
Appeals Chamber
____________________________
Claude Jorda
President
Appeals Chamber
Judge Wald has appended to this Judgement a Separate Opinion dissenting from the finding of jurisdiction.
[Seal of the Tribunal]
1. Judgement,
The Prosecutor v. Zlatko Aleksovski, Case no.: IT-95-14/1-A, Appeals Chamber, 24 March 2000, para. 63.
SEPARATE OPINION OF JUDGE WALD DISSENTING FROM THE FINDING OF JURISDICTION
I fully agree with my colleagues that the International Criminal Tribunal for the Former Yugoslavia (hereafter "Tribunal") has, as all courts must have, the power to punish contempt, and that the Appeals Chamber decision
1 finding contempt under the circumstances of this case is entirely supportable. I am, however, unable to agree that the Appeals Chamber has jurisdiction under the ICTY Statute (hereafter "Statute") or the Rules of Procedure and Evidence adopted thereunder (hereafter "Rules")
2 to entertain an appeal from one of its own decisions.
Like my colleagues, I am concerned to ensure that proceedings before the Tribunal are conducted in accordance with fundamental human rights guarantees. However, I do not agree that human rights considerations require the creation of a two-tiered system of appeal in cases such as the one before us, where a finding of contempt has been initially made by the Appeals Chamber. Such an interpretation goes against the plain language of the Statute and Rules, and I do not believe that we can reasonably construe our governing documents to permit such an appeal. The laudable aim of allowing someone cited for contempt by the Appeals Chamber to obtain a review of any subsequent conviction in the same way as if the conviction had been rendered by a trial chamber can only be accomplished by an amendment to the Statute, or perhaps to the Rules.
However, in the present case the Tribunal, as a court of law, must abide by its existing Statute and the Rules it has adopted to govern the exercise of its lawful powers. I must therefore dissent from the finding of jurisdiction for this appeal. My reasons in brief are set out below.
First, the Statute lays down the organization and jurisdiction of the Tribunal. In Article 12 it specifies the number of judges who shall serve in each Trial Chamber and in the Appeals Chamber
3. Article 25 states "(t)he Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor…" and "…may affirm, reverse or revise the decisions taken by the Trial Chambers". It nowhere states that an appeal may be taken from one duly constituted Appeals Chamber to another duly constituted Appeals Chamber, and I do not think we have the power to create such a two-level process in that Chamber on our own.
4
It is true that Rule 73 allows an interlocutory appeal only with leave of an appointed bench of three judges of the Appeals Chamber. However, this provides merely a gate-keeping provision for early appeal of what can later be appealed as a matter of right at the time of final judgement and is not a decision on the merits. Thus it falls securely within the authority of Article 15 of the Statute governing the adoption of rules of procedure for appeals. That is a very different thing to creating a full right of appeal on the merits from one Appeals Chamber bench to another.
5
Second, the Tribunal has never attempted in its Rules to create the two-tiered appeal system accepted by the majority in this case. Rule 77 regulating contempt authorizes any Chamber, including the Appeals Chamber, to find a person in contempt and prescribes the applicable penalties. Rule 77 (J) states that "(a)ny decision rendered by a Trial Chamber under this Rule shall be subject to appeal…"
6. At the 1998 Plenary Session in conjunction with the amendment of Rule 77 specifically to include contempt actions by the Appeals Chamber, no action was taken as to any right to appeal therefrom. The Appeals Chamber judgement now before us acknowledges that at the December 1998 Plenary Session "the right to appeal was limited to decisions made by a Trial Chamber."
7.
Thus I can find no basis in our Rules any more than in our Statute for an appeal from one Appeals Chamber bench to another. Nor do I believe this fatal omission can be rectified by declaring that the Judgement of the Appeals Chamber was a ruling "in the first instance". The Judgement is clearly labeled as one "In the Appeals Chamber". The Statute has established that Chamber as an Appeals Chamber and defined its jurisdiction; we have no power to add or to subtract from that definition. As Judge Sidhwa recognized in his separate opinion in
Prosecutor v.
Tadic:
8
The courts have no inherent powers to create appellate provisions or acquire jurisdiction where none is granted … It is thus clear that a tribunal or court cannot assume appellate powers under any concept of inherent jurisdiction or by expanding its jurisdiction through any amendment to its rule.
9
Lastly my colleagues justify their ruling because to deny someone convicted of contempt by the Appeals Chamber any further appeal would violate human rights norms such as those contained in Article 14 (5) of the International Covenant on Civil and Political Rights (ICCPR) which declares that "(e)veryone convicted of a crime shall have the right to have his conviction and sentence reviewed by a higher tribunal according to law".
In my view, the failure to provide a right of appeal for convictions that originate in the highest tribunal is not a fundamental violation of this right. Indeed, a number of Western European States have submitted reservations to Article 14 (5) to make it clear that an appellate court may impose an aggravated sentence, without giving rise to a further right of appeal, although there was no consensus that such a reservation was strictly necessary.
10 Admittedly, one commentator has expressed the view that, pursuant to Article 14 (5), where a conviction arises for the first time at the appellate level a further right of appeal must be provided.
11 However, various states recognise exceptions to this principle. For example, in some countries the criminal responsibility of supreme organs of state can be determined by a constitutional court, or other supreme court, from which there is no appeal. Reservations to Article 14 (5) have been made to accommodate this.
12 If such reservations were considered to be "incompatible with the object and purpose of the treaty", they would be impermissible.
13 Furthermore, Article 2 to the Seventh Protocol of the European Convention for the Protection of Human Rights and Fundamental Freedoms specifically provides an exception to the right of appeal to a higher tribunal in "cases in which the person concerned was tried in the first instance by the highest tribunal…"
14 Accordingly, I am unable to conclude that there yet exists a universal principle that a right of appeal must be afforded even when a conviction first arises in the highest tribunal, as is the case here. The absence of such a right in Article 21 of the Statute setting out the rights of an accused person thus does not present an unacceptable departure from agreed human rights principles.
Moreover, the right in Article 14 (5) of the ICCPR relates to persons who have been convicted of "crimes". Although contempt is a crime in the sense that it is potentially punishable by imprisonment, it is a
sui generis offence. This is reflected in the fact that various procedural safeguards that apply in relation other criminal offences do not apply in the case of contempt. For example, contempt proceedings may be conducted by the very court that is alleged to have been the victim of the contempt. Various national judicial systems, including the United Kingdom and the United States, recognise convictions for contempt before the highest tribunal without any appeal therefrom. Thus, I cannot conclude that the creation of a new right to appeal an Appeals Chamber judgement is necessary so as to avoid a flagrant violation of accepted human rights norms.
Nonetheless the goal of providing an appeal from all convictions for criminal contempt is an eminently worthy one. However, it must be accomplished without wrenching all meaning from the constraints on the jurisdiction of the Appeals Chamber as set out in the Statute and Rules. There are acceptable ways to do this. Summary punishment by the Chamber in the form of removal from the court room or fines could be limited to those extreme violations that challenge the ability of the court to conduct its business,
i.e. willful disobedience of an order, or insults to the dignity of the court.
15 Where convictions are sought for more distant offenses such as interfering with witnesses, or inciting misleading testimony, the matter could be referred to the Prosecutor who would bring charges in the Trial Chamber as is done under Rule 91 false testimony. Conviction could then be appealed in the ordinary fashion.
16
If that kind of compromise does not prove adequate, the Statute might be amended to address the unique demands of contempt. However, I do not think the right solution is to transform the Appeals Chamber into a two-level entity for contempt only, or even for this case only. As the learned judges of the Appeals Chamber in this very case put it:
The rule of law, which lies at the heart of society, is necessary to ensure peace and good order, and that rule is directly dependent upon the ability of courts to enforce their process and to maintain their dignity and respect.
17
That is why we must recognize the Tribunal’s inherent power to punish contempt or its proceeds. But the rule of law also requires that courts acknowledge the statutes and rules that bind them in the exercise of their powers, even when those restraints interfere with understandable aspirations to maximize human rights norms. Courts must lead the way in following the law if there is to be a rule of law. That is why I dissent only from the jurisdictional aspect of the judgement.
Done in English and French, the English text being authoritative.
_________________
Patricia Wald
Patricia Wald
Dated this 27
th day of February 2001
At the Hague
The Netherlands
At the Hague
The Netherlands
(Seal of the Tribunal)
1.
Prosecutor v
Tadic, Case No. IT-94-1-A-R77, ‘Judgement on Allegations of Contempt against Prior Counsel Milan Vujin’, (31 Jan. 2000) (hereafter
Contempt Judgement).
2. Art. 15 ICTY Statute (specifying that the judges shall adopt rules of procedure and evidence to govern proceedings before it).
3. I note that a specific amendment to the Statute was required to accommodate the authorization by the U.N. Security Council of ad litem judges to assist the Tribunal with its workload, and to specify the assignment and duties of these judges. The ad litem judges will sit in "sections" of Chamber. See Article 12 (2) of the Statute, as amended by S/RES/ 1329 (30 Nov. 2000). Appropriate rule changes are also in progress.
4. Let us assume that the Appeals Chamber consisted of the same members at all times, as indeed was undoubtedly intended by the drafters. Could these same persons hear an appeal from their own judgement? Or would the President have to appoint all Trial Chamber members as temporary Appeals Chamber judges to hear the appeal? I note that three of the five members of the instant Appeals Chamber are assigned from the Trial Chamber.
5. Article 14 of the Statute also states that a judge may only serve in the Chambers to which he or she was assigned and that a Presiding Judge shall conduct all of the proceedings of the Trial Chamber as a whole. Because of the necessities of maximizing judicial resources and taking account of disqualifications, trial chamber judges are often assigned to particular appeals and, in some cases, the function of Presiding Judge will be assigned to another judge in that chamber. In both instances the Statute may be reasonably interpreted to allow for those variations, i.e. the President of the Tribunal may make such special assignments of trial chamber judges to the Appeals Chamber and a Trial Chamber may select a Presiding Judge for a particular trial who is not the usual Presiding Judge of the Chamber. See Rules 15 and 27. Similarly, Rule 108 bis allows a State affected by an interlocutory decision of a Trial Chamber to file a request for review by the Appeals Chamber. Again a liberal reading of Article 25 brings this under the Article’s grant of authority to the Appeals Chamber to "affirm, reverse or revise the decisions taken by the Trial Chamber".
6. This wording was an amendment to Rule 77 adopted in 1998 after the case had commenced.
7. Contempt Judgement, para 22. Moreover there are many other instances in which it can be said that the Appeals Chamber rules "in the first instance" as for example when it hears and evaluates additional evidence on Appeal under Rule 115, but no appeal from these types of decisions are allowed. That is because such first instance decisions are auxiliary to the exercise of its principle appellate jurisdiction, as indeed is contempt.
8. Prosecutor v Tadic, Case No. Case No. IT-94-1-AR72 ‘Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction’, (2 Oct. 1995), Separate Opinion of Judge Sidhwa, para 6.
9. The power to hear and decide a contempt that occurs in the course of its proceedings is the necessary exception to the otherwise exclusive appellate jurisdiction of the Appeals Chamber, an exception dictated by universal custom and tradition. However, the division of the Appeals Chamber into a trial and appellate level is not so dictated and has, to my knowledge, no precedent in such widescale custom or practice. It appears to be purely a judicial creature, however meaningfully motivated, and one I think unwarranted without specific statutory authorization.
10. See M. Nowak, UN Covenant on Civil and Political Rights : CCPR Commentary, (1993), at 268.
11. Ibid.
12. Ibid (referring to reservations of this nature submitted by Belgium, Italy and the Netherlands).
13. Vienna Convention on the Law of Treaties, 1969, Article 19 (c) (although there are many problems associated with the application of the test of ‘compatibility’. See I. Brownlie, Principles of Public International Law (4 th ed, 1990), 608-611).
14. The exception also covers cases (as can happen in this Tribunal) where an acquittal is reversed on appeal.
15. See, e.g.18 US Code, Section 401 (misbehaviour in its presence or so near thereto as to obstruct the administration of justice may be punished summarily by the court). See also US Fed. Rules of Criminal Procedure 42; (summary punishment for contempt committed in the presence of the court). In that situation an amendment to the Statute would be required to permit an appeal from one appeal panel judgement to another.
16. Such a procedure has been devised for contempt proceedings before the International Criminal Court ( ICC). See Articles 70 and 71 of the Rome Statute of the ICC, and Rules 162-171, of the Finalized Draft Text of the Rules of Procedure and Evidence, Report of the Preparatory Commission for the International Criminal Court, UN Doc. PCNICC/2000/1/Add.1 (2 Nov. 2000).
17. Contempt Judgement, para 16.
2. Art. 15 ICTY Statute (specifying that the judges shall adopt rules of procedure and evidence to govern proceedings before it).
3. I note that a specific amendment to the Statute was required to accommodate the authorization by the U.N. Security Council of ad litem judges to assist the Tribunal with its workload, and to specify the assignment and duties of these judges. The ad litem judges will sit in "sections" of Chamber. See Article 12 (2) of the Statute, as amended by S/RES/ 1329 (30 Nov. 2000). Appropriate rule changes are also in progress.
4. Let us assume that the Appeals Chamber consisted of the same members at all times, as indeed was undoubtedly intended by the drafters. Could these same persons hear an appeal from their own judgement? Or would the President have to appoint all Trial Chamber members as temporary Appeals Chamber judges to hear the appeal? I note that three of the five members of the instant Appeals Chamber are assigned from the Trial Chamber.
5. Article 14 of the Statute also states that a judge may only serve in the Chambers to which he or she was assigned and that a Presiding Judge shall conduct all of the proceedings of the Trial Chamber as a whole. Because of the necessities of maximizing judicial resources and taking account of disqualifications, trial chamber judges are often assigned to particular appeals and, in some cases, the function of Presiding Judge will be assigned to another judge in that chamber. In both instances the Statute may be reasonably interpreted to allow for those variations, i.e. the President of the Tribunal may make such special assignments of trial chamber judges to the Appeals Chamber and a Trial Chamber may select a Presiding Judge for a particular trial who is not the usual Presiding Judge of the Chamber. See Rules 15 and 27. Similarly, Rule 108 bis allows a State affected by an interlocutory decision of a Trial Chamber to file a request for review by the Appeals Chamber. Again a liberal reading of Article 25 brings this under the Article’s grant of authority to the Appeals Chamber to "affirm, reverse or revise the decisions taken by the Trial Chamber".
6. This wording was an amendment to Rule 77 adopted in 1998 after the case had commenced.
7. Contempt Judgement, para 22. Moreover there are many other instances in which it can be said that the Appeals Chamber rules "in the first instance" as for example when it hears and evaluates additional evidence on Appeal under Rule 115, but no appeal from these types of decisions are allowed. That is because such first instance decisions are auxiliary to the exercise of its principle appellate jurisdiction, as indeed is contempt.
8. Prosecutor v Tadic, Case No. Case No. IT-94-1-AR72 ‘Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction’, (2 Oct. 1995), Separate Opinion of Judge Sidhwa, para 6.
9. The power to hear and decide a contempt that occurs in the course of its proceedings is the necessary exception to the otherwise exclusive appellate jurisdiction of the Appeals Chamber, an exception dictated by universal custom and tradition. However, the division of the Appeals Chamber into a trial and appellate level is not so dictated and has, to my knowledge, no precedent in such widescale custom or practice. It appears to be purely a judicial creature, however meaningfully motivated, and one I think unwarranted without specific statutory authorization.
10. See M. Nowak, UN Covenant on Civil and Political Rights : CCPR Commentary, (1993), at 268.
11. Ibid.
12. Ibid (referring to reservations of this nature submitted by Belgium, Italy and the Netherlands).
13. Vienna Convention on the Law of Treaties, 1969, Article 19 (c) (although there are many problems associated with the application of the test of ‘compatibility’. See I. Brownlie, Principles of Public International Law (4 th ed, 1990), 608-611).
14. The exception also covers cases (as can happen in this Tribunal) where an acquittal is reversed on appeal.
15. See, e.g.18 US Code, Section 401 (misbehaviour in its presence or so near thereto as to obstruct the administration of justice may be punished summarily by the court). See also US Fed. Rules of Criminal Procedure 42; (summary punishment for contempt committed in the presence of the court). In that situation an amendment to the Statute would be required to permit an appeal from one appeal panel judgement to another.
16. Such a procedure has been devised for contempt proceedings before the International Criminal Court ( ICC). See Articles 70 and 71 of the Rome Statute of the ICC, and Rules 162-171, of the Finalized Draft Text of the Rules of Procedure and Evidence, Report of the Preparatory Commission for the International Criminal Court, UN Doc. PCNICC/2000/1/Add.1 (2 Nov. 2000).
17. Contempt Judgement, para 16.
IN THE APPEALS CHAMBER
Before:
Judge Mohamed Shahabuddeen, Presiding
Judge Antonio Cassese
Judge Rafael Nieto-Navia
Judge Florence Ndepele Mwachande Mumba
Judge David Hunt
Judge Mohamed Shahabuddeen, Presiding
Judge Antonio Cassese
Judge Rafael Nieto-Navia
Judge Florence Ndepele Mwachande Mumba
Judge David Hunt
Registrar:
Mrs Dorothee de Sampayo Garrido-Nijgh
Mrs Dorothee de Sampayo Garrido-Nijgh
Judgment of: 31 January 2000
PROSECUTOR
v
DUSKO TADIC
_______________________________________________________
JUDGMENT ON ALLEGATIONS OF CONTEMPT
AGAINST PRIOR COUNSEL, MILAN VUJIN
AGAINST PRIOR COUNSEL, MILAN VUJIN
_______________________________________________________
Counsel for the Respondent
Mr Vladimir Domazet for Milan Vujin
Counsel for the Interested Parties
Mr Upawansa Yapa, Ms Brenda Hollis and Mr Michael Keegan for the Prosecutor
Mr Anthony Abell for Dusko Tadic
Mr Anthony Abell for Dusko Tadic
I Introduction
1. On 10 February 1999, the Appeals Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991 (“Tribunal”) called upon Mr Milan Vujin, Advocate of Belgrade, to respond to allegations that he had acted “in contempt of the International Tribunal in that he knowingly and wilfully intended thereby to interfere with the administration of justice”.
1 This was done in accordance with Rule 77 of the Tribunal’s Rules of Procedure and Evidence.
2. Mr Vujin (“Respondent”) had acted for Duško Tadic (“Tadic”) in different capacities in proceedings in the Tribunal – as non-assigned co-counsel during the pre-trial stage of his prosecution, and as assigned lead counsel in the preparation of his appeal against his conviction and in the hearing of related proceedings before the Appeals Chamber – until November 1998. He had worked with the defence team during the pre-trial stage for a year without remuneration, and paying his own expenses . The allegations of contempt arose out of the Respondent’s conduct as lead counsel on behalf of Tadic in connection with the appeal. They were made in statements annexed to the Scheduling Order, which described the statements as appearing –
[…] to disclose grave allegations of contempt of the International Tribunal against Mr Milan Vujin, lead counsel for [Tadic] at the time of the events complained of , including:
(i) telling persons about to give statements to co-counsel for [Tadic] what they should or should not say before they were interviewed by [Witness D], and in effect instructing them to lie to [Witness D];
(ii) nodding his head to indicate to witnesses, during witness interviews with [ Witness D], when to say yes and when to say no;
(iii) interfering with witnesses in a manner which dissuaded them from telling the truth;
(iv) knowingly instructing a witness to make false declarations in a statement to the International Tribunal; and
(v) paying a person giving a statement money when pleased with the information provided , but not paying him when he did not answer as instructed […].
(i) telling persons about to give statements to co-counsel for [Tadic] what they should or should not say before they were interviewed by [Witness D], and in effect instructing them to lie to [Witness D];
(ii) nodding his head to indicate to witnesses, during witness interviews with [ Witness D], when to say yes and when to say no;
(iii) interfering with witnesses in a manner which dissuaded them from telling the truth;
(iv) knowingly instructing a witness to make false declarations in a statement to the International Tribunal; and
(v) paying a person giving a statement money when pleased with the information provided , but not paying him when he did not answer as instructed […].
The Scheduling Order specified that these acts were alleged to have occurred between September 1997 and April 1998.
3. Witness D had been co-counsel for Tadic (with the Respondent) during the preparations for his appeal. He gave evidence in closed session, having been granted protective measures in relation to his identity for reasons unassociated with his position as counsel.
4. The five numbered paragraphs in the Scheduling Order did not purport to be an exclusive definition of the “grave allegations of contempt” to which that Order required the Respondent to respond. From the outset of the hearing, the parties concentrated upon the events which were related in the statements rather than upon the five numbered paragraphs. This Judgment deals with those events in Sections V and VI.
5. The time frame from September 1997 to April 1998 was intended to be based upon the events described in the statements. It is not completely accurate. For example , in one matter in which it was alleged that the Respondent put forward to the Appeals Chamber a case which was known to him to be a false one, the relevant document was in fact filed on 1 May 1998, although it is clear from the statements that the decision to do so is alleged to have been made prior to that date. The Respondent was at all times made aware of the case which he had to meet in relation to that matter . The Appeals Chamber considers the fact that the document was filed on that date was not material in the circumstances.
6. Evidence was also admitted in relation to events which occurred outside that period. However, this was not for the purpose of increasing the content of the allegations against the Respondent; the purpose was merely to demonstrate a particular course of conduct or to explain the events which took place within that period. Also, the Respondent was again at all times made aware of the case which he had to meet.
II The hearing
7. The allegations of contempt against the Respondent came to the attention of the Appeals Chamber in a somewhat indirect fashion. In support of Tadic’s appeal, the Appeals Chamber had granted him an
ex parte Order to the Republika Srpska to assist those representing him to take statements from potential witnesses. Those witnesses were interviewed by the Respondent and Witness D at the Prijedor police station on 14 March 1998.
8. In October 1998, the prosecution filed a motion alleging (1) that those interviews had been conducted in a way that amounted to intimidation and a violation of fundamental rights, in particular of persons indicted by the Tribunal, and (2) that an interpreter with the Tadic legal team had made telephone calls to a potential witness which the witness had perceived to be threatening. It was also alleged by the prosecution that “Defence Counsel” or their agents had attempted “to shape the statements of potential witnesses”.
2 The Appeals Chamber scheduled a closed session hearing of that motion for 9 October, but the prosecution called no witnesses at the hearing in support of its allegations. On 4 November, the Appeals Chamber dismissed the prosecution’s complaint upon the basis that the evidence did not support the allegations.
3
9. Shortly after those allegations were dismissed, Witness D brought to the attention of the Deputy Registrar certain conduct alleged on the part of the Respondent in connection with (a) the interviews at the Prijedor police station in March 1998 and (b) the submission to the Appeals Chamber in May 1998 of the statement of a proposed witness (and indicted person), Mlado Radic. Witness D was requested by the Deputy Registrar to produce any material in support of his allegations; and Witness D did so. On 10 February 1999, the Appeals Chamber issued the Scheduling Order to which reference has already been made, which required the Respondent to respond to the allegations of contempt and which fixed 30 March for an initial hearing . Pursuant to Rule 69 of the Rules of Procedure and Evidence, certain protective measures were put into place for potential witnesses to be called in the case against the Respondent. Both the prosecution and Tadic were granted leave to appear in the contempt proceedings as interested parties. On 24 March, the Appeals Chamber made an order as to the procedure to be followed at the hearing, and this order was made public. The Respondent filed a document formally denying the allegations against him.
4
10. On 30 March, the Respondent filed a motion seeking an adjournment, explaining that, in view of the NATO attack on the Federal Republic of Yugoslavia (Serbia and Montenegro) which had just commenced, he had been unable to obtain a visa to travel . The hearing was postponed until 26 April. On that date, the hearing commenced in public. The allegations of contempt were read, and the Respondent confirmed his previous written submission denying the allegations. Four witnesses were heard (one part-heard) during the three days before the Respondent was required to return to his country, and the proceedings were adjourned. Throughout the case against the Respondent, the witnesses were called by the Appeals Chamber in accordance with Rule 77, but the burden of proving that case was effectively assumed by counsel appearing for Tadic.
11. Due to scheduling difficulties and the involvement of various judges in other cases, the evidence of the part-heard witness was not completed until a one day hearing on 28 June. The hearing resumed for a two week period commencing on 31 August, immediately following the Tribunal’s Summer recess.
5 Eight further witnesses were heard (one by video conference link), completing the case against the Respondent. Six of the witnesses called in that case were assigned pseudonyms, and their evidence was heard in closed session because of concerns of possible retribution if their identity were disclosed in public.
6 The Respondent elected to call his witnesses before giving evidence himself.
7 Four of the Respondent’s witnesses were heard during that two week period, and four more were heard in the week commencing 11 October. At the request of the Respondent , and with the partial support of the prosecution, the whole of the Respondent’s case was heard in closed session.
8 At the request of all parties, the final addresses were also heard in closed session .
9 The hearing concluded on 18 November , when the Appeals Chamber reserved its judgment.
III Contempt
12. Contempt of the Tribunal is dealt with in Rule 77 of the Tribunal’s Rules of Procedure and Evidence. That Rule identifies a number of specific situations which are stated to constitute contempt of the Tribunal, but Rule 77(E) provides:
Nothing in this Rule affects the inherent power of the Tribunal to hold in contempt those who knowingly and wilfully interfere with its administration of justice.
It has not been submitted in this case that, if established, the allegations against the Respondent in the present case would not constitute contempt of the Tribunal in that general sense. There was, however, argument as to whether the various changes made to Rule 77 over the relevant period qualified such an inherent power and increased the extent of the conduct which amounts to contempt, to the prejudice of the Respondent’s rights.
10 Reference will be made to that argument later, as it is necessary, first, to consider generally the Tribunal’s jurisdiction to deal with contempt.
13. There is no mention in the Tribunal’s Statute of its power to deal with contempt . The Tribunal does, however, possess an inherent jurisdiction, deriving from its judicial function, to ensure that its exercise of the jurisdiction which is expressly given to it by that Statute is not frustrated and that its basic judicial functions are safeguarded.
11 As an international criminal court, the Tribunal must therefore possess the inherent power to deal with conduct which interferes with its administration of justice. The content of that inherent power may be discerned by reference to the usual sources of international law.
14. There is no specific customary international law directly applicable to this issue. There is an international analogue available, by way of conventional international law, in the Charter of the International Military Tribunal (an annexure to the 1945 London Agreement)
12 which gave to that tribunal the power to deal summarily with “any contumacy” by “imposing appropriate punishment, including exclusion of any Defendant or his Counsel from some or all further proceedings, but without prejudice to the determination of the charges”.
13 Although no contempt matter arose before the International Military Tribunal itself , three contempt matters were dealt with by United States Military Tribunals sitting in N黵nberg in accordance with the Allied Control Council Law No 10 (20 December 1945), whereby war crimes trials were heard by the four Allied Powers in their respective zones of occupation in Germany. That Law incorporated the Charter of the International Military Tribunal. The US Military Tribunals interpreted their powers as including the power to punish contempt of court.
14
15. It is otherwise of assistance to look to the general principles of law common to the major legal systems of the world, as developed and refined (where applicable ) in international jurisprudence.
15 Historically, the law of contempt originated as, and has remained, a creature of the common law. The general concept of contempt is said to be unknown to the civil law, but many civil law systems have legislated to provide offences which produce a similar result.
16. In a passage widely accepted as a correct assessment of the purpose and scope of the law of contempt at common law as developed over the centuries, the Report of the (UK) Committee on Contempt of Court, published in 1974, described it as:
[…] a means whereby the courts may act to prevent or punish conduct which tends to obstruct, prejudice or abuse the administration of justice either in relation to a particular case or generally.
16
The rule of law, which lies at the heart of society, is necessary to ensure peace and good order, and that rule is directly dependent upon the ability of courts to enforce their process and to maintain their dignity and respect. To maintain their process and respect, the common law courts have, since the twelfth century, exercised a power to punish for contempt.
17 In order to avoid any misconception, it is perhaps necessary to emphasise that the law of contempt as developed at common law is not designed to buttress the dignity of the judges or to punish mere affronts or insults to a court or tribunal; rather , it is justice itself which is flouted by a contempt of court, not the individual court or judge who is attempting to administer justice.
18
17. Although the law of contempt has now been partially codified in the United Kingdom ,
19 the power to deal with contempt at common law has essentially remained one which is part of the inherent jurisdiction of the superior courts of record, rather than based upon statute. On the other hand, the analogous control exercised in the civil law systems over conduct which interferes with the administration of justice is based solely upon statute, and the statutory provisions, in general, enact narrow offences dealing with precisely defined conduct where the jurisdiction of the courts has been or would be frustrated by that conduct.
20
18. A power in the Tribunal to punish conduct which tends to obstruct, prejudice or abuse its administration of justice is a necessity in order to ensure that its exercise of the jurisdiction which is expressly given to it by its Statute is not frustrated and that its basic judicial functions are safeguarded. Thus the power to deal with contempt is clearly within its inherent jurisdiction.
21 That is not to say that the Tribunal’s powers to deal with contempt or conduct interfering with the administration of justice are in every situation the same as those possessed by domestic courts, because its jurisdiction as an international court must take into account its different setting within the basic structure of the international community.
22
19. This Tribunal has, since its creation, assumed the right to punish for contempt . The original Rules of Procedure and Evidence, adopted on 11 February 1994, provided by Rule 77 (“Contempt of Court”) for a fine or a term of imprisonment where – subject to the provisions of what is now Rule 90(F), which permits a witness to object to making any statement which may tend to incriminate him or her – a witness “refuses or fails contumaciously to answer a question relevant to the issue before a Chamber ”. In January 1995, such punishment was also made applicable to a person who attempts to interfere with or intimidate a witness, and any judgment of a Chamber under Rule 77 was made subject to appeal.
23 In July 1997, such punishment was also made applicable to any party, witness or other person participating in proceedings before a Chamber who discloses information relating to the proceedings in violation of an order of the Chamber. Both of these additions expressly identified the relevant conduct as “contempt”.
20. In November 1997 – that is, shortly after the relevant period in this case commenced in September 1997 – Rule 77 was recast in a different form. The effect of the alterations was:
(a) to elaborate the references to an interference with or intimidation of a witness to include a witness who is giving, has given, or is about to give evidence before a Trial Chamber,
(b) to include within the conduct which amounts to contempt the failure of any person without just excuse to comply with an order to attend or to produce documents before a Chamber,
(c) to provide a detailed procedure whereby a person may be called upon to answer an allegation that he or she is in contempt (where the Chamber has good reason to believe that the person may be in contempt),
(d) to provide for counsel to be assigned where the person called upon is indigent , and
(e) to require leave before an appeal could be brought.
(b) to include within the conduct which amounts to contempt the failure of any person without just excuse to comply with an order to attend or to produce documents before a Chamber,
(c) to provide a detailed procedure whereby a person may be called upon to answer an allegation that he or she is in contempt (where the Chamber has good reason to believe that the person may be in contempt),
(d) to provide for counsel to be assigned where the person called upon is indigent , and
(e) to require leave before an appeal could be brought.
It was also expressly stated for the first time that nothing in Rule 77 affects “the inherent power of the Tribunal to hold in contempt those who knowingly and wilfully interfere with its administration of justice”.
21. In July 1998, the time within which leave to appeal had to be sought was varied so as to take into account the absence of the party challenging a determination of contempt where that determination had been made orally.
22. In December 1998&nb