43. […] The Appeals Chamber recalls that for conduct to entail criminal liability it must be possible for the individual to determine ex ante, based on the facts available to him, that the act is criminal. Both Appellants knew that the information was given by a witness with protective measures in place. Thus, the Trial Chamber correctly held that the Appellants had the necessary mens rea.

44. The language of Rule 77 shows that a violation of a court order as such constitutes an interference with the International Tribunal’s administration of justice. It is not for a party or a third person to determine when an order “is serving the International Tribunal’s administration of justice”. It has already been established in the jurisprudence that any defiance of an order of the court interferes with the administration of justice.[1]

15. Article 25 of the Statute provides for appeals on the ground of an error of law that invalidates the decision or an error of fact that has occasioned a miscarriage of justice. The settled standard of review applicable for appeals against judgements also applies to appeals against convictions for contempt. A party alleging an error of law must identify the alleged error, present arguments in support of its claim and explain how the error allegedly invalidates the decision.[1]

26. The Appeals Chamber underscores that the requisite mens rea for a violation of Rule 77(A)(ii) of the Rules is knowledge that the disclosure in question is in violation of an order of a Chamber.[1] Such knowledge may be proven by evidence other than the accused’s statement expressing a particular intent to disclose protected witness identities. […]

9. […] The settled standard of review for appeals against judgements also applies to appeals against convictions for contempt.[1]

16. The Appeals Chamber considers that in finding that it did not have sufficient elements “to determine” whether Vučič committed contempt of the Tribunal, based on the conclusions of the amicus curiae that the mental element of contempt had not been “establish[ed]” and that it would have to be “proven” that Vučič had effective knowledge that [redacted] was a protected witness, the Trial Chamber required a final finding of contempt. The Appeals Chamber recalls, however, that the “sufficient grounds” standard under Rule 77(D) of the Rules requires the Trial Chamber only to establish whether the evidence before it gives rise to a prima facie case of contempt of the Tribunal and not to make a final finding on whether contempt has been committed.[1] The Appeals Chamber accordingly finds that the Trial Chamber applied an incorrect legal standard when considering the Prosecution Request, which amounts to a discernible error.

The Appeals Chamber granted the Appeal in part and remanded the Impugned Decision to consider whether sufficient grounds existed to proceed against Vučič for contempt in light of the correct legal standard.

51. The legal reasoning in a confidential decision on protective measures characteristically contains references to the information or documents directly subject to an order of protective measures under the Rules, as well as references to related information or surrounding circumstances that tend to identify the documents or information directly subject to protective measures. The legal reasoning integrates such references, together with the law relevant to the determination of the issues, and the analysis of both by the Chamber in question. It therefore follows that the legal reasoning of a decision on protective measures necessarily falls within the ambit of the confidential status ordered in respect of such a decision. Similarly, the confidential submissions of parties concerning an application for protective measures and information regarding the purported effect of a decision on protective measures typically contain information tending to identify the documents or information subject to the protective measures ordered in the relevant decision. Thus, the confidentiality order respecting such a decision necessarily encompasses information concerning the purported effect of that decision and the confidential submissions of the parties regarding the application for protective measures.

52. The confidential issuance of a decision by a Chamber constitutes an order for the non-disclosure of the information contained therein, and it is not for a party to decide which aspects of a confidential decision may be disclosed.[1] This principle equally applies to third parties. The discretion as to whether the confidential status of a decision may be lifted in whole or in part belongs exclusively to a competent Chamber of the Tribunal with its intimate knowledge of all the facts, information, and circumstances surrounding the relevant case. Furthermore, “[a] court order remains in force until a Chamber decides otherwise.”[2] Accordingly, in the instant case, in the absence of an order of a competent Chamber varying or lifting the confidential status of the two Appeal Decisions, the content of both Decisions remained subject to an order of non-disclosure.

53. Regarding Hartmann’s submission that Rule 77(A)(ii) of the Rules does not encompass the particular information that Hartmann was found to have disclosed, the Appeals Chamber notes that Rule 77(A)(ii) of the Rules does not purport to restrict liability in terms of any specific kind of information that might be disclosed. Rather, the focus of Rule 77(A)(ii) of the Rules is the fact of deliberate disclosure in knowing violation of an order prohibiting disclosure. […]

76. The Appeals Chamber considers that the Trial Chamber set forth its explanation for the difference between a general legal principle, which should always be available to the public (i.e., “applicable law”), and “legal reasoning”, which is the result of a Chamber applying that “applicable law” to the facts before it and which can sometimes be withheld from the public.[3] The Appeals Chamber finds no error in the distinction drawn by the Trial Chamber between “applicable law” and “legal reasoning”, a distinction that is a regular feature of decisions issued by Chambers of the Tribunal. The Appeals Chamber also rejects Hartmann’s contention that the distinction between “applicable law” and “legal reasoning” must be provided for in Rule 77 of the Rules or international law in order for it to be employed at the Tribunal. Hartmann has therefore failed to demonstrate that the Trial Chamber erred.

92. In the present case, the filings by the Applicant and the Appeal Decisions that resulted therefrom were confidential; therefore, the content of this material was confidential until a competent Chamber of the Tribunal decided otherwise, and it was not within the authority of a party or a third party to reveal any of the confidential information. The Appeals Chamber is of the clear view that no actions on the part of associated officials or representatives of the Applicant—or any other third-parties (whether acting as agents of the Applicant or not)—could have unilaterally lifted the confidentiality of the information contained within the Appeal Decisions that Hartmann was convicted for revealing to the public. The Appeals Chamber therefore finds that the Trial Chamber did not err when it held that a decision remains confidential until a Chamber explicitly decides otherwise, and rejects sub-grounds 5.1 and 5.2.[4] […]

107. Hartmann is incorrect in her argument that “[w]hilst the Prosecutor need not prove an actual interference with the administration of justice, proof must be made that the impugned conduct created a real risk for the administration of justice”.[1] When a court order has been violated, the Trial Chamber does not need to assess whether any actual interference took place or whether a real risk to the administration of justice has taken place because such a violation per se interferes with the administration of justice. The Appeals Chamber in the Jović case held that “[t]he language of Rule 77 shows that a violation of a court order as such constitutes an interference with the International Tribunal’s administration of justice.”[2] Thus, “[n]o additional proof of harm to the International Tribunal’s administration of justice is required”.[3]

9. The Appeals Chamber recalls that the International Tribunal, pursuant to Rule 77 of the Rules and in accordance with the International Tribunal’s consistent jurisprudence, possesses the inherent power to address conduct interfering with its administration of justice. The International Tribunal has both the subject matter and personal jurisdiction to prosecute contempt.

28. The Appeals Chamber recalls that Rule 77(A)(i) of the Rules states:

The Tribunal in the exercise of its inherent power may hold in contempt those who knowingly and wilfully interfere with its administration of justice, including any person who

(i) being a witness before a Chamber, contumaciously refuses or fails to answer a question; […]

The Trial Chamber found that Rule 77(A)(i) of the Rules imposes criminal liability “where a witness knowingly and wilfully interferes with the Chamber’s administration of justice by persistently refusing or failing to answer a question without reasonable excuse while being a witness before the Chamber.”[1] Its ensuing discussion covered two main points: “Whether the Accused persistently refused or failed to answer a question without reasonable excuse while being a witness before the Chamber”[2] and “[w]hether by refusing to testify the Accused knowingly and wilfully interfered with the Tribunal’s administration of justice”.[3] While the Trial Chamber did not explicitly state what it considered to be the actus reus and mens rea of the offence, the Appeals Chamber understands from this structure that the Trial Chamber considered the actus reus to be persistently refusing or failing to answer a question without reasonable excuse while being a witness before the Chamber and the mens rea to be knowingly and wilfully interfering with the Tribunal’s administration of justice by refusing to testify. Accordingly, the Appeals Chamber turns to consider whether the Trial Chamber erred in so defining the actus reus and mens rea of contempt under Rule 77(A)(i).

29. In defining the actus reus as “persistently refusing or failing to answer a question without reasonable excuse while being a witness before the Chamber” the Trial Chamber went beyond the language found in the Rule by adding the phrase “without reasonable excuse” and replacing the word “contumaciously” with “persistently”. The Appeals Chamber notes that the additional language of “without reasonable excuse” appears to have been taken from Judge Kwon’s dissenting opinion in the Matter of Witness K12 in the Slobodan Milošević case, in which he made reference to “obstinate refusal to answer without reasonable excuse”,[1] but neither appears in the language of the Rule nor elsewhere in the jurisprudence on the interpretation of this Rule.[2] However the Appeals considers that, in any event, such an addition cannot be considered as going to the detriment of the Accused for the reason that it is an addition pro reo, i.e. it narrows the scope of the crime under this Rule.

30. The Appeals Chamber now turns to the Trial Chamber’s replacement of the word “contumaciously” with “persistently”. This follows the reasoning in the contempt proceedings against Kosta Bulatović in the Slobodan Milošević case in which the Trial Chamber referred to the accused “deliberately refus[ing] to comply with an order of the Trial Chamber to answer questions and persist[ing] in that refusal when fully advised of the position and given a further opportunity to respond.”[3] Although discussion in the jurisprudence of the meaning of “contumacious” has tended to be undertaken in the context of the mens rea,[4] if “contumacious” is defined as “persistent”, it is in fact more relevant to the actus reus than the mens rea in the sense of it being a repeated or continuous refusal. This interpretation is the most consistent with the French version of Rule 77(A)(i) which does not contain the word “contumacious” or any direct equivalent but rather states:

Dans l’exercice de son pouvoir inhérent, le Tribunal peut déclarer coupable d’outrage les personnes qui entravent délibérément et sciemment le cours de la justice, y compris notamment toute personne qui: i) étant témoin devant une Chambre refuse de répondre à une question malgré la demande qui lui en est faite par la Chambre [...]

In light of the phrase “malgré la demande qui lui en est faite par la Chambre” (despite the Chamber’s request), the crime under  Rule 77(A) of the Rules must be consider committed not when the witness merely refuses to answer a question put by one of the parties, but rather when it is a refusal maintained in the face of the Chamber’s request to answer the question of a party or a question put by the Chamber itself. Accordingly, the Appeals Chamber finds no error in the Trial Chamber’s reference to “persistently refusing or failing to answer a question” in defining the actus reus.

30. As the Trial Chamber correctly recognized, the actus reus of contempt under Rule 77(A)(ii) is the disclosure of information relating to proceedings before the International Tribunal where such disclosure would be in violation of an order of a Chamber.[1] […] Moreover, an order remains in force until a Chamber decides otherwise.[2] The fact that some portions of the Witness’s written statement or closed session testimony may have been disclosed by another third party does not mean that this information was no longer protected, that the court order had been de facto lifted or that its violation would not interfere with the Tribunal’s administration of justice. […]

11.     Pursuant to Rule 90(J) of the Rules of Procedure and Evidence of the Mechanism (“Rules”), a decision disposing of a contempt case rendered by a Single Judge is subject to appeal as of right. The Appeals Chamber notes that in the Impugned Decision, the Single Judge dismissed Kamuhanda’s request for the appointment of an amicus curiae Prosecutor to complete the investigations into contempt identified in the ICTR Oral Decision, thus effectively disposing of the contempt case before the Mechanism. Accordingly, the Appeals Chamber finds that an appeal as of right lies from the Impugned Decision under Rule 90(J) of the Rules, and recognizes the Appeal as validly filed.

43. The prosecution’s submission that wilful blindness as to the existence of the order is sufficient is based upon the common law’s acceptance of such a state of mind (also called deliberate ignorance) as being equally culpable as actual knowledge of the particular fact in question in certain areas of the criminal law. […] Proof of knowledge of the existence of the relevant fact is accepted in such cases where it is established that the defendant suspected that the fact existed (or was aware that its existence was highly probable) but refrained from finding out whether it did exist because he wanted to be able to deny knowledge of it (or he just did not want to find out that it did exist).  In some cases, it has been suggested that such a state of mind is capable of giving rise to the inference of actual knowledge, but in most cases it is merely said to be sufficient to prove knowledge.

44. It is, of course, important to emphasise that common sense propositions of fact are not transformed into propositions of law. It can never be said that a requirement of actual knowledge may be established by anything less than actual knowledge.  But the acceptance in certain areas of the law of wilful blindness as establishing knowledge is of some assistance in determining whether, in any particular case, a “knowing” violation implies a requirement of actual knowledge of what has been violated. What must be identified in the present context is the type of conduct which can properly be described as “knowing and wilful”, which interferes with the Tribunal’s administration of justice and which is appropriately dealt with as contempt, with its liability for imprisonment or a substantial fine.

45. Mere negligence in failing to ascertain whether an order had been made granting protective measures to a particular witness could never amount to such conduct.  It is unnecessary in this appeal to determine whether any greater degree of negligence could constitute contempt. Negligent conduct could be dealt with sufficiently, and more appropriately, by way of disciplinary action, but it could never justify imprisonment or a substantial fine even though the unintended consequence of such negligence was an interference with the Tribunal’s administration of justice.  At the other end of the spectrum, wilful blindness to the existence of the order in the sense defined is, in the opinion of the Appeals Chamber, sufficiently culpable conduct to be more appropriately dealt with as contempt. Whether other states of mind, such as reckless indifference to the existence of the order, constitute contempt by a knowing violation of the order can be left to the cases in which they arise for determination.

54. In most cases where it has been established that the alleged contemnor had knowledge of the existence of the order (either actual knowledge or a wilful blindness of its existence), a finding that he intended to violate it would almost necessarily follow.  There may, however, be cases where such an alleged contemnor acted with reckless indifference as to whether his act was in violation of the order.[1]  In the opinion of the Appeals Chamber, such conduct is sufficiently culpable to warrant punishment as contempt, even though it does not establish a specific intention to violate the order.  The Appeals Chamber agrees with the prosecution that it is sufficient to establish that the act which constituted the violation was deliberate and not accidental. […]

56. The Appeals Chamber is equally unconvinced by Nshogoza’s argument that the actus reus of contempt requires a certain threshold of gravity. As the ICTY Appeals Chamber has stated, “[a]ny defiance of an order of a Chamber per se interferes with the administration of justice for the purposes of a conviction for contempt.”[1] No additional proof of harm to the Tribunal’s administration of justice is required.[2] The Appeals Chamber is not convinced that the defiance of a Chamber’s order conveys any different connotation than a knowing and wilful violation of one.[3]

57. Considerations of the gravity of an accused’s conduct or his underlying motivations are rather to be assessed in connection with the decision to initiate proceedings or in sentencing.[4] Bearing this in mind, the Appeals Chamber considers that the various statements by Trial Chambers, cited by Nshogoza, which take into account the minimal gravity surrounding a violation of a Chamber’s order should be understood, not as a finding that the conduct was not contempt, but as an exercise of the discretion of the Chamber not to initiate proceedings in such circumstances. The fact that other persons might also have engaged in similar conduct is not a defence.

12. The Appeals Chamber recalls the applicable standards of appellate review pursuant to Article 24 of the Statute of the Tribunal (“Statute”). The Appeals Chamber reviews errors of law which invalidate the decision of the Trial Chamber and errors of fact which have occasioned a miscarriage of justice. This standard of review, applicable for appeals against judgements, also applies to appeals against convictions for contempt.[1]

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.[1] 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)[2] 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”.[3] Although no contempt matter arose before the International Military Tribunal itself, three contempt matters were dealt with by United States Military Tribunals sitting in Nurnberg 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.[4]

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.[5] 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.

See also paras. 16-17.

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.[6] 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.[7]

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.[8] 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”.

24. Care must be taken not to treat the considerable amount of elaboration which has occurred in relation to Rule 77 over the years as if it has produced a statutory form of offence enacted by the judges of the Tribunal, notwithstanding the form in which Sub-rules (A) to (D) may be expressed. Article 15 of the Tribunal’s Statute gives power to the judges to adopt only-

[…] 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.[9]

That power does not permit rules to be adopted which constitute new offences, but it does permit the judges to adopt rules of procedure and evidence for the conduct of matters falling within the inherent jurisdiction of the Tribunal as well as matters within its statutory jurisdiction.[10] As stated earlier, the content of these inherent powers may be discerned by reference to the usual sources of international law, but not by reference to the wording of the rule.

25. Sub-rules (A) to (D) are statements of what was seen by the judges at Plenary meetings of the Tribunal to reflect the jurisprudence upon those aspects of the law of contempt as are applicable to the Tribunal. Those statements do not displace the underlying law; both the Tribunal and the parties remain bound by that underlying law.[11]

26. In the opinion of the Appeals Chamber:

(a) the inherent power of the Tribunal as an international criminal court to deal with contempt is for present purposes adequately encompassed by the wording of the reservation inserted in Rule 77 in November 1997 — that the Tribunal has the power “to hold in contempt those who knowingly and wilfully interfere with its administration of justice” — as such conduct would necessarily fall within the general concept of contempt, being “conduct which tends to obstruct, prejudice or abuse the administration of justice”;[12] and

(b) each of the formulations in the current Rules 77(A) to (D), when interpreted in the light of that statement of the Tribunal’s inherent power, falls within — but does not limit — that inherent power, as each clearly amounts to knowingly and wilfully interfering with the Tribunal’s administration of justice.

28. […] The inherent power of the Tribunal to deal with contempt has necessarily existed ever since its creation, and the existence of that power does not depend upon a reference being made to it in the Rules of Procedure and Evidence. As the Appeals Chamber is satisfied that the current formulation of Rules 77(A) to (D) falls within that inherent power, the amendments made in December 1998 did not increase the nature of the conduct which amounts to contempt to the prejudice of the Respondent’s rights.[13]

See also paras. 20-23.

NOTE: IN NOVEMBER 1997 SHORTLY AFTER THE BEGINNING OF THE RELEVANT PERIOD IN THIS CASE, RULE 77 WAS AMENDED AND IT PROVIDED AS FOLLOWS:

(A) Any person who

(i) being a witness before a Trial Chamber, contumaciously refuses or fails to answer a question,

(ii) interferes with or intimidates a witness who is giving, has given, or is about to give evidence before a Trial Chamber,

(iii) discloses information relating to those proceedings in knowing violation of an order of the Chamber, or

(iv) without just excuse fails to comply with an order to attend before or produce documents before a Chamber,

commits a contempt of the Tribunal.

(B) When a Chamber has good reason to believe that a person may be in contempt of the Tribunal it may call on that person that he or she may be found to be in contempt. After affording such person an opportunity to appear and answer personally or by counsel, the Chamber may, if satisfied beyond reasonable doubt, find the person to be in contempt of the Tribunal and impose a fine not exceeding Dfl. 20,000 or a term of imprisonment not exceeding six months, to be served as provided in Rule 103.

(C) Any person so called upon shall, if that person satisfies the criteria for determination of indigency established by the Registrar, be assigned counsel in accordance with Rule 45.

(D) Any decision rendered under this Rule shall be subject to appeal in cases where leave is granted by a bench of three Judges of the Appeals Chamber, upon good cause being shown. Applications for leave to appeal shall be filed within seven days of the impugned decision.

(E) Payment of a fine shall be made to the Registrar to be held in a separate account.

(F) 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.

AT THE TIME OF THIS JUDGMENT, FOLLOWING AMENDMENTS IN DECEMBER 1998 RULE 77 (A) TO (E) PROVIDED:

(A) Any person who

(i) being a witness before a Chamber, contumaciously refuses or fails to answer a question,

(ii) discloses information relating to those proceedings in knowing violation of an order of a Chamber, or

(iii) without just excuse fails to comply with an order to attend before or produce documents before a Chamber,

commits a contempt of the Tribunal.

(B) Any person who threatens, intimidates, causes any injury or offers a bribe to, or otherwise interferes with, a witness who is giving, has given, or is about to give evidence in proceedings before a Chamber, or a potential witness, commits a contempt of the Tribunal.

(C) Any person who threatens, intimidates, offers a bribe to, or otherwise seeks to coerce any other person, with the intention of preventing that other person from complying with an obligation under an order of a Judge or Chamber, commits a contempt of the Tribunal.

(D) Incitement to commit, and attempts to commit, any of the acts punishable under this Rule are punishable as contempts of the Tribunal with the same penalties.

(E) 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.

FURTHER AMENDMENTS WERE MADE TO RULE 77 IN DECEMBER 2000, DECEMBER 2001, JULY 2002 AND JULY 2009.

25. The Appeals Chamber considers that, similarly to proceedings for false testimony pursuant to Rule 91 of the Rules, discussed above, investigations and proceedings pursuant to Rule 77 of the Rules are independent of the proceedings out of which they arise and can be undertaken contemporaneously with those proceedings.[1] As separate proceedings, they give rise neither to concerns regarding inconsistent findings, nor to concerns regarding the expeditiousness of the trial. […]

Pages 2-3:

CONSIDERING that, pursuant to Rule 90 of the Rules, the Mechanism in the exercise of its inherent power may hold in contempt those who knowingly and wilfully interfere with the administration of justice;

CONSIDERING, however, that in matters pertaining to State obligations, it is well-established that State officials “are mere instruments of a State and their official action can only be attributed to the State”,[1] that, subject to certain limited exceptions,[2] “[t]hey cannot be the subject of sanctions or penalties for conduct that is not private but undertaken on behalf of a State”, and “cannot suffer the consequences of wrongful acts which are not attributable to them personally but to the State on whose behalf they act”;[3]

CONSIDERING that “[i]t is the State which is bound by [the obligation to cooperate with the Mechanism under Article 28 of the Statute] and it is the State for which the official or agent fulfils his function that constitutes the legitimate interlocutor of the [Mechanism] and “shall therefore incur international responsibility for any serious breach of that provision by their officials”;[4]

CONSIDERING that the Mechanism “is endowed with the inherent power to make a judicial finding concerning a State’s failure to observe the provisions of the Statute or the Rules” and “also has a power to report this judicial finding to the [United Nations] Security Council”;[5]

CONSIDERING, however, that the Mechanism “is not vested with any enforcement or sanctionary power vis-à-vis States” and that “[i]t is primarily for its parent body, the [United Nations] Security Council, to impose sanctions, if any, against a recalcitrant State”; [6]

[…]

CONSIDERING that the Mechanism has, therefore, taken appropriate measures provided for in the Statute and the Rules to address Republic of Turkey’s non-compliance with the Order of 31 January 2017 and that the procedure envisaged under Rule 90 of the Rules is not applicable in this case;

18. […] While the public interest of protecting the integrity of proceedings through the effective prosecution of offences against the administration of justice cannot be underestimated, it cannot be allowed to undermine the Accused’s rights guaranteed by the principle of legality, which requires sufficient precision and clarity in prescribing modes of criminal liability.[1]

[…]

21. […] [I]n the absence of clear evidence that the doctrine of joint criminal enterprise applies to contempt in customary international law or as a general principle of international law, [the Single Judge] was not satisfied that the Mechanism has jurisdiction over this form of liability for crimes committed in violation of Rule 90 of the Rules.[2] […] [T]he Prosecution’s submissions […] fail to demonstrate the existence of a general principle of law common to all major legal systems or otherwise show error in the Single Judge’s finding.[3]

19. […] [T]he Appeals Chamber considers that it was reasonable for the Single Judge to find that the interests of justice were best served by referring the case to Serbia because there appeared to be a far greater likelihood that the case would be brought to trial in Serbia than at the Mechanism.

20. […] The Appeals Chamber observes that […] if the Accused are not brought to trial within a reasonable time, or if a competent Serbian court determines that it does not have jurisdiction to prosecute the Accused for contempt of the ICTY […], a deferral may be sought in the interests of justice.[74] […] [T]he Appeals Chamber considers that it was reasonable […] to have taken into account the availability of revocation procedures under Rule 14 of the Rules when deciding whether or not to refer the case to Serbia.[75]

[…]

23. […] [G]iven the importance to the trial process of ensuring that witnesses will appear to give evidence when called and of facilitating the attendance of witnesses through the provision of appropriate protective measures,[87] the Appeals Chamber considers these to be important factors […] in the determination of whether it is in the interests of justice to refer this case to Serbia for trial.[88]

77.  The Appeals Chamber notes that there is no requirement in the jurisprudence that unauthorised disclosure of protected information must take place in a public domain or be accessible to the general public in order to amount to an interference with the administration of justice under Rule 90(A)(ii) of the Rules.[1] In addition, the Rules and previous contempt jurisprudence do not sustain the proposition that release of protected information does not amount to “disclosure” in circumstances where the recipient is already in possession of such information. To the contrary, the ICTY Appeals Chamber in the Jović case expressly confirmed that the fact that protected information may have been previously disclosed by a third party does not mean that such information is no longer protected or that its subsequent disclosure will not be in violation of a court order.[2]The Appeals Chamber considers that the Jović Contempt Appeal Judgement and the Nshogoza Contempt Appeal Judgement both support the principle that release, whether in a public or private domain, of protected information may constitute unauthorised disclosure, irrespective of whether the intended recipient of such information was already aware of it due to previous disclosure by another person.

93. The Appeals Chamber recalls that the Rules are to be interpreted in accordance with their ordinary meaning in their context and in light of the object and purpose of the Statute and the Rules.[1] Under Rule 104 of the Rules, upon completion of the presentation of the parties’ cases, a single judge must deliberate and decide separately on each charge contained in the indictment on whether he is satisfied that guilt has been proven beyond reasonable doubt, and shall impose a sentence in respect of each finding of guilt if he finds the accused guilty on one or more of the charges contained in the indictment.[2] The Appeals Chamber considers that the textual and contextual interpretation of the Rules supports the principle that once a charge is proven beyond reasonable doubt, a finding of guilt follows. Considering that the Rules apply mutatis mutandis to proceedings under Rule 90 of the Rules,[3] this principle similarly applies to contempt proceedings.

94. In addition, it is well established in the jurisprudence that “a trial chamber is bound to enter convictions for all distinct crimes which have been proven in order to fully reflect the criminality of the convicted person”.[4] While this principle emanates from jurisprudence concerning the crimes covered by Article 1(1) of the Statute, the Appeals Chamber sees nothing to suggest that the obligation of a single judge to enter a conviction does not equally apply to the crime of contempt, once all the elements of the crime have been proven. The Appeals Chamber further finds unpersuasive Munyeshuli’s argument that the language of Rule 90(A) of the Rules vests in a single judge the discretion not to enter a conviction for a proven crime. While a single judge has discretion to decide whether to initiate contempt proceedings,[5] neither the Rules nor prior jurisprudence support the conclusion that such discretion extends to the decision whether to enter a conviction for contempt, once all the elements of the offence have been proven.