Risk to the administration of justice

Notion(s) Filing Case
Contempt Appeal Judgement - 19.07.2011 HARTMANN Florence
(IT-02-54-R77.5-A)

108. It also follows from the above that the issue of whether there was a real risk to the administration of justice was not a jurisdictional matter. The Appeals Chamber is therefore of the view that the Trial Chamber did not err by refusing to treat this issue as such during the trial.

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ICTR Rule Rule 77 ICTY Rule Rule 77
Notion(s) Filing Case
Contempt Appeal Judgement - 03.07.2009 JOKIĆ Miodrag
(IT-05-88-R77.1-A)

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.

[1] Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T-R77, Trial Chamber Finding in the Matter of Witness K12, Dissenting Opinion of Judge Kwon, 21 November 2002 (“Judge Kwon’s Dissenting Opinion in the Matter of Witness K12”), para. 2.

[2] See Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T-R77, T. 18-34 (18 November 2002); Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T-R77, Trial Chamber Finding in the Matter of Witness K12, 21 November 2002 (“Trial Chamber in the Matter of Witness K12”); Prosecutor v. Slobodan Milošević, Contempt Proceedings against Kosta Bulatović, Case No. IT-02-54-R77.4, Decision on Contempt of the Tribunal, 13 May 2005 (“Bulatović Trial Decision on Contempt”); Prosecutor v. Slobodan Milošević, Contempt Proceedings against Kosta Bulatović, Case No. IT-02-54-R77.4, Separate Opinion of Judge Bonomy on Contempt of the Tribunal (“Separate Opinion of Judge Bonomy in Bulatović Trial Decision on Contempt”); Prosecutor v. Slobodan Milošević, Contempt Proceedings against Kosta Bulatović, Case No. IT-02-54-A-R77.4, Decision on Interlocutory Appeal on Kosta Bulatović Contempt Proceedings, 29 August 2005 (“Bulatović Appeal Decision on Contempt”).

[3] Bulatović Trial Decision on Contempt, para. 16.

[4] In the Trial Chamber in the Matter of Witness K12, the Trial Chamber interpreted “contumaciously” to mean “perverse”; T. 33 (18 November 2002) (closed session)); However, Judge Kwon dissented on this interpretation, arguing that “Rule 77 may be interpreted in such a way that the terms ‘knowingly’, ‘wilfully’ and ‘contumaciously’ all have legal significance, but that, taken together, they should be interpreted as meaning an obstinate refusal to answer without reasonable excuse.” (Judge Kwon’s Dissenting Opinion in the Matter of Witness K12, para. 2). In the contempt proceedings against Kosta Bulatović also in the Slobodan Milošević case, the Trial Chamber referred to “the test of ‘knowingly and wilfully’ interfering with the Tribunal’s administration of justice by ‘contumaciously’ refusing to answer questions” and concluded that this test was met when the accused “deliberately refused to comply with an order of the Trial Chamber to answer questions and persisted in that refusal when fully advised of the position and given an further opportunity to respond.” (Bulatović Trial Decision on Contempt, para. 16). Meanwhile Judge Bonomy’s separate opinion appended to that decision stated that the plain meaning of “contumacious” as “stubbornly or wilfully disobedient to authority” should be preferred over defining it as “perverse” (Separate Opinion of Judge Bonomy in Bulatović Trial Decision on Contempt, para. 1). 

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ICTR Rule Rule 77 ICTY Rule Rule 77
Notion(s) Filing Case
Contempt Appeal Judgement - 15.03.2010 NSHOGOZA Léonidas
(ICTR-07-91-A)

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.

[1] Prosecutor v. Josip Jović, Case No. IT-95-14 & 14/2-R77-A, Judgement, 15 March 2007, para. 30 (“Jović Appeal Judgement”). See also Prosecutor v. Ivica Marijačić and Markica Rebić, Case No. IT-95-14-R.77.2-A, Judgement, 27 September 2006, para. 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 has already been established in the jurisprudence that any defiance of an order of the court interferes with the administration of justice.”) (“Marijačić and Rebić Appeal Judgement”).

[2] Jović Appeal Judgement, para. 30.

[3] Jović Appeal Judgement, para. 30 (using “defiance” and “violation” interchangeably in describing the actus reus of a violation of Rule 77(A) of the Rules). See also Marijačić and Rebić Appeal Judgement, para. 44.

[4] Jović Appeal Judgement, para. 41 (noting that the Trial Chamber correctly considered in mitigation the fact that some of the witness protection measures which were violated were unnecessary). Cf. also Blagojević and Jokić Appeal Judgement, para. 202; Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgement, 15 July 1999, para. 269.

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ICTR Rule Rule 77 ICTY Rule Rule 77