Croatian Contempt Cases: Issues and Analysis

The indictments against six Croatian nationals charged with contempt of the Tribunal for their roles in the publication of a protected witness’ identity have generated much controversy about the extent of the ICTY’s judicial power and the rights and duties of journalists.  This report will examine some of the legal, procedural and practical issues involved.   Ultimately, the final analysis rests on balancing the need to enforce witness protection measures to safeguard the lives of those testifying before the Tribunal, against the desire by the accused to publish what they consider newsworthy information. 

Factual Background

In the case against General Tihomir Blaskic, a high-ranking Croatian political figure gave a statement to the Office of the Prosecutor in 1997 and testified in closed-session before the Tribunal in 1998.  In June of 1997, the Trial Chamber had ordered protective measures for all witnesses in the case after the statement was leaked to, and published by Croatian newspapers.  The Trial Chamber ordered that "the accused, his counsels and their representatives not disclose to the public or to the media the name of the witnesses residing in the territory of the former Yugoslavia or any information which would permit them to be identified, unless absolutely necessary for the preparation of the defence".  The identity of the protected witness who testified in 1998 was, admittedly, well-known and considered somewhat of a “public” or “open” “secret.”   

Stjepan Seselj and Marijan Krizic were charged with one count of contempt for allegedly publishing excerpts of testimony by the protected witness and revealing the witness’ name in a 26 November 2004 edition of Hrvatsko Slovo where Seselj was publisher and Krizic editor-in-chief.   The published extracts included publication of the Trial Chamber’s oral orders stating that the testimony was in closed session.  On 2 December 2004, a duty judge at the ICTY ordered Hrvatsko Slovo to cease and desist and publication of the statement or testimony of any protected witness.  The cease and desist order was transmitted from the ICTY to authorities in Croatia who served the accused.  The accused subsequently published an article identifying the protected witness along with the cease and desist order.  Seselj was indicted on one count of contempt in April of 2005.  Krizic was indicted on one count of contempt in August of 2005.

Another editor of the Hrvatsko Slovo, Domagoj Margetic, wrote a 4 December 2004 letter to the President of the Tribunal stating that he did not recognize the tribunal and refused to follow its orders.  He also stated he would publish, in a venue known as “Novo Hrvatsko Slovo,” the closed session testimony of the protected witness.  On 10 December 2004, Domagoj Margetic in Novo Hrvatsko Slovo published further excerpts of the protected witness’ testimony.  Margetic was indicted on two counts of contempt in April of 2005.

Ivica Marijacic was editor of Hrvatski List and Markica Rebic was former head of the Security Information Service in Croatia.   On 18 November 2004, the Hrvatski List published an interview with Rebic in which he revealed the name of the protected witness, along with copies of the witness’ statement to Prosecutors and excerpts of his closed-session testimony.  Rebic was charged with disclosing the identity of the protected witness and Marijacic with publishing that information.

In November 2000, the Slobodna Dalmacija  (where Josip Jovic served as editor-in-chief)  printed excerpts of the same protected witness’ statement, given to the OTP in 1998.  On 1 December 2000, the Trial Chamber ordered that Slobodna Dalmacija cease publication of the identities of any protected witness and warned that noncompliance would expose the publishers to contempt charges.  Upon receipt of the cease and desist order (served by the Government of Croatia) Slobodna Dalmacija published the order, again revealed the protected witness’ identity and printed further closed session transcripts of the protected witness’ testimony.   Throughout December 2000 the Slobodna Dalmacija continued to publish excerpts of the witness’ testimony.   Jovic was charged with one count of contempt in August of 2005.

They are charged under Rule 77(A) and 77(A)(ii) and (iv) which states that:

77(A) 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

(ii) discloses information relating to those proceedings in knowing violation of an order of a Chamber; (Amended 4 Dec 1998)

(iv) 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;

An issue of witness protection rather than free speech

The principal issues involved in these contempt cases concern protection of witnesses and the ability of the court to function.  Trials cannot be conducted and evidence cannot be presented if protected witnesses fear having their names revealed in public.  This affects the ability of both the Office of the Prosecutor and defense counsel to call witnesses to testify in future cases and is not prejudicial to a particular side.  

Safeguards against the revelation of protected witnesses' identities are designed to protect the dignity of witnesses (such as in case of sexual violence) and to protect the lives of witnesses. 

Witness protection is a critical and real problem for the Tribunal.  A substantial number (sources at the ICTY have estimated more than a hundred) of protected witnesses have been relocated for their own safety.  In Kosovo, at UNMIK (United Nations Mission in Kosovo) trials, potential witnesses have been murdered and a climate of fear prevails when it comes to testifying.  Many witnesses have been intimidated and the ICTY has already held one Kosovar Albanian in contempt for tampering with a witness in an ICTY trial.  Reports from the region have indicated that both Serbians and Croats fear testifying in domestic prosecutions across the borders for fear of intimidation and witness intimidation in Bosnia has been cited by defense counsel opposing transfer of some indictees to face trial in Sarajevo under Rule 11 bis.

Protective measures are ordered only when a concrete threat exists to the safety of witness

In issuing protective measures, judges are not making determinations intended to stifle access to information, but rather have decided that protective measures are necessary to protect the lives of witnesses, or are necessary to induce witnesses to come before the tribunal to testify.  According to Tribunal jurisprudence (from both the ICTY and ICTR), decisions on protective measures are to be made narrowly – that is, in response to real, specific threats, and should not be based on some generalized fear.   (Protections are issued by the bench when witnesses are “seriously threatened should their identity be disclosed to the public and the media” or where there is a “real threat attaching to the witness.” Blaskic, IT-95-14-T, Decision of Trial Chamber I on the Prosecutor’s Motion for Video Deposition and Protective Measures, 13 November 1997 (emphasis added)).   In a recent Appeals Decision in the Bagasora case, the ICTR Appeals Chamber reiterated that “a Trial Chamber’s decision on granting protective measures for witnesses” draws on its “understanding of particular threats posed to specific witnesses and the practical demands of the case.”  (Bagasora, Case No. ICTR-98-41-AR73 & ICTR-98-41-AR73(B)  Decision on Interlocutory Appeal of Decision on Witness Protection Orders, 6 October 2005) (emphasis added).

Some observers have argued that the contempt indictments are not warranted because there was no “real harm” to the witness in this particular case. This reasoning, however, places the calculation of harm in the hands of journalists, and not judges who have been given concrete information (in many cases by both prosecution and defense).  

There does not appear to be an issue of selective prosecution

This does not appear to be an issue of selective prosecution.  In fact the Office of the Prosecutor (OTP) has little to do (procedurally) with bringing these indictments forward.  According to Rule 77(c) the process of bringing contempt charges can be initiated by the judges who want to see that their binding orders are enforced.  The trial bench may instruct the Office of the Prosecutor to conduct and investigation and draw up an indictment for contempt, which, (according to sources both in the OTP and Chambers) is the method by which the current allegations against the Croatian defendants came about. 

Prior to the indictment of these 6 Croatian nationals, the Tribunal had charged 12 other individuals (from various nations) including other journalists and attorneys with contempt for revealing protected information or interfering with witnesses. For example, Dusko Jovanovic, editor-in-chief of daily “Dan” from Montenegro, was the first journalist to be charged by the ICTY with contempt in an analogous situation.  Jovanovic had revealed the identity of a protected witness, known as “K-32” who testified against Slobodan Milosevic. After initially fighting the charges, Jovanovic finally acknowledged his personal and professional responsibility in violating the court orders and published  an apology for revealing the witness’ identity. Consequently, the Tribunal dropped its charges against Jovanovic.  Jovanovic was later murdered in unrelated circumstances, which demonstrates the real level of violence in the region that witnesses as well as journalists do face.

The defense of a journalistic obligation to inform the public has been diminished by the indictee’s open snubbing of the Tribunal’s orders

The identity of the protected witness, who is a prominent public figure in Croatia might be considered a newsworthy story.  When the judges consider all of the evidence, however, they may likely focus on the fact that Jovic, Margetic, Seselj and Krizic, also published the cease and desist orders alongside the identity of the witness.  From this action, the intent of the indictees might be inferred by the judges: not as intent to disseminate information for the public good, but rather, intent to violate the orders of tribunal.   In fact, the argument of newsworthiness is one of diminishing returns.  That is to say, it may have worked the first time the name was published, but not in subsequent publications in violation of the court’s orders.  Note that the charges are for continued, repeated publication of the identity of the protected witness.  Consider that the original publication of the witness’ identity did not produce an indictment.  In the cases of Jovic, Margetic, Seselj and Krizic, after initial publication of the protected information, the Tribunal first issued a warning to cease and desist.  It was only after the indictees publicly refused to heed the order by the court that they were indicted. 

Council of Europe media principles balance the “public’s right to know” against witness safety

Recently the OSCE Representative on Freedom of the Media, Miklos Haraszti, asked the ICTY to change its rules dealing with contempt of court so that internationally acknowledged principles of press freedom are upheld.  Haraszti stated, that while he understood the witness protection issues involved, “I believe that the ICTY should operate in accordance with the principles of freedom of the press and, as a result, apply the same safeguards in its procedures that are usually expected in national jurisdictions. In particular, I believe the ICTY should respect the public's right to know, and its interest in an uninhibited debate about past crimes and present leaders.”  (http://www.osce.org/fom/item_1_16565.html)

An examination of the two European codes of journalistic ethics however reveals that the “public’s right to know” as elaborated by Mr. Haraszti is always balanced against protection of the lives of witnesses.   In 2003, the Council of Europe released its “Recommendation [Rec(2003)13] of the Committee of Ministers to member states on the provision of information through the media
in relation to criminal proceedings.”  The first principle enunciated is that journalists must be able to report information about judicial proceedings to the public, but this principle is expressly balanced against security and privacy concerns of witnesses.

“Principle 1 - Information of the public via the media

The public must be able to receive information about the activities of judicial authorities and police services through the media. Therefore, journalists must be able to freely report and comment on the functioning of the criminal justice system, subject only to the limitations provided for under the following principles.” 

Note that this principle is not absolute and is subject to further limitation.  

Principle 8 - Protection of privacy in the context of on-going criminal proceedings

The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.  (Emphasis added).

Principle 16 - Protection of witnesses

The identity of witnesses should not be disclosed, unless a witness has given his or her prior consent, the identification of a witness is of public concern, or the testimony has already been given in public. The identity of witnesses should never be disclosed where this endangers their lives or security. Due respect shall be paid to protection programmes for witnesses, especially in criminal proceedings against organised crime or crime within the family. (Emphasis added).

The Council of Europe principles offer specific mention of paying respect to “protection programmes” which the Tribunal’s orders (both the original protective measures and the cease and desist orders) fall under.

The European Convention on Human Rights defines the contours of the freedom of expression, noting, in Article 10 (2) that, “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Notably, the Croatian Journalists’ Union expressly subscribes to Council of Europe regulations.  The Croatian Journalists’ Union’s own “Honor Code” states  that, “Journalists should observe the Constitution and all existing laws of the Republic of Croatia, Statute and documents of the International Federation of Journalists, as well as all regulations of the Council of Europe regarding freedom of expression and information and human rights.”   Furthermore, the Croatian Journalists’ Union Honor Code provides that a journalist is obliged “take moral, material and criminal responsibility for published information” and that “a journalist is obliged to respect the legal obligation of protection of the state secret” (See “KODEKS ČASTI HRVATSKIH NOVINARA” (HND “Honor Code”) available at the website for the Croatian Journalists’ Association, http://www.hnd.hr/).  The Tribunal’s orders and the indictments do not appear to be inconsistent with the contours of press freedoms enunciated by these documents.

Is the arrest of Jovic a sign of an encroaching power of international courts on sovereign states?

The ICTY has no powers of arrest and relies on sovereign states, such as Croatia, to carry out its orders.  When a sovereign state upholds a “binding” order of the Tribunal, it actually does so as an exercise of its own sovereignty; in other words, when a state complies with the Tribunal’s orders, it does so because it chooses to fulfill its duties under international law.  These are obligations, to be sure, but obligations that come with membership in the United Nations.