Legal reasoning in a confidential decision

Notion(s) Filing Case
Contempt Appeal Judgement - 19.07.2011 HARTMANN Florence

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] […]

[1] Prosecutor v. Naser Orić, Case No. IT-03-68-A, Decision on Prosecution’s Motion to Seal Defence Appeal Brief, 10 May 2007 (confidential), p. 3.

[2] Marijačić and Rebić Contempt Appeal Judgement [Prosecutor v. Ivica Marijačić and Markica Rebić, Case No. IT-95-14-R77.2-A, Judgement, 27 September 2006], para. 45.

[3] Trial Judgement, para. 39.

[4] Trial Judgement, para. 46.

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ICTR Rule Rule 77 ICTY Rule Rule 77