No right to a public judgement

Notion(s) Filing Case
Contempt Appeal Judgement - 19.05.2010 ŠEŠELJ Vojislav

32. The Appeals Chamber notes that it is the established practice of the Tribunal to publish redacted public versions of documents that “[contain] information which, if disclosed, might cause prejudice, concerns about safety, or serious embarrassment to a party or a witness”.[1] This practice extends to judgements.[2] Insofar as Šešelj contends that the established practice of the Tribunal violates the Statute, Rules or the ICCPR, he is incorrect. None of these states that the right to a public judgement is absolute. They recognize that it needs to be balanced against other interests.[3] In fact, publication of confidential witness or victim information would run counter to the explicit protection of witnesses and victims required by the Tribunal’s Statute and implemented in the Rules.[4] […]

[1] Prosecutor v. Milomir Stakić, Case No. IT-97-24-A, Decision on the Defence Motion for Extension of Time, 26 April 2004, para. 6. See, e.g., Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-T, Order Issuing a Public Redacted Version of the Confidential “Decision on Motion for Provisional Release of Ivan Čermak” of 14 December 2009, 14 January 2010; Prosecutor v. Jadranko Prlić et al. Case No. IT-04-74-AR65.19, Order Issuing a Public Redacted Version of the “Decision on Prosecution’s Appeal of the Trial Chamber’s Decision to Provisionally Release Accused Praljak” Issued 17 December 2009, 11 February 2010.

[2] Compare Contempt Proceedings Against Dragan Jokić, Case No. IT-05-88-R77.1-A, Judgement on Allegations of Contempt, 25 June 2009 (confidential version), with Contempt Proceedings Against Dragan Jokić, Case No. IT-05-88-R77.1-A, Judgement on Allegations of Contempt, 3 July 2009 (public redacted version).

[3] See Article 23 of the Statute; Rules 78 and 98ter of the Rules; Article 14(1) of the ICCPR. Indeed, Article 14(1) of the ICCPR, providing for the right to a public judgement, enshrines certain exceptions. In interpreting this article, the Human Rights Committee stated that “the judgement must, with certain strictly defined exceptions, be made public”. See CCPR General Comments, No. 13, 13 April 1984, para. 6 (emphasis added). Manfred Nowak writes in his commentary on the ICCPR that "[i]f, for example, the public was excluded from [a] trial in the interest of the private lives of the parties, then there is a legitimate need in keeping certain parts of the judgment secret, which can be accomplished by making the judgment anonymous or by publishing an abbreviated version". See Manfred Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary, 1993, p. 253. The Appeals Chamber opines that the same logic must be applied to cases of witness protection. Further support for this position can be drawn from the jurisprudence of the ECtHR. The ECtHR held in Campbell and Fell v. United Kingdom, that "in each case the form of publication given to the 'judgment' under the domestic law of the respondent State must be assessed in the light of the special features of the proceedings in question and by reference to the object pursued by Article 6 para. 1 (art. 6-1) [of the European Convention on Human Rights] in this context, namely to ensure scrutiny of the judiciary by the public with a view to safeguarding the right to a fair trial". ECtHR, Campbell and Fell v. The United Kingdom, Application No. 7819/77; 7878/77, Judgment, 28 June 1984, para. 91.

[4] See Articles 15, 22 of the Statute [of the Tribunal]; Rule 75 of the Rules [of Procedure and Evidence of the Tribunal]. 

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ICTR Rule Rule 78;
Rule 88(A)
ICTY Rule Rule 78;
Rule 98ter(A)