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NATIONS Case No. IT-99-36-R77 Date: 19 March 2004 International Tribunal for the
Prosecution of Persons
Responsible for Serious Violations of
International Humanitarian Law
Committed in the Territory of
Former Yugoslavia since 1991 Original: English IN THE TRIAL CHAMBER Before: Judge Carmel Agius, Presiding
Judge Ivana Janu
Judge Chikako Taya Registrar: Date: Hans Holthuis 19 March 2004 PROSECUTOR v. RADOSLAV BRANIN CONCERNING ALLEGATIONS AGAINST MILKA MAGLOV DECISION ON MOTION FOR ACQUITTAL PURSUANT TO RULE 98 BIS Amicus Curiae Prosecutor: Ms. Brenda J. Hollis The Respondent: Defence: Ms. Milka Maglov Mr. Jonathan Cooper CONTENTS I. INTRODUCTION ..........................................................................................................................1 A. P ROCEDURAL B ACKGROUND ........................................................................................................1 B. R ULE 98 BIS : T HE L AW AND S TANDARD OF P ROOF ......................................................................2 C. A CTS THAT THE A MICUS C URIAE P ROSECUTOR C ONCEDES H AVE NOT B EEN P ROVEN ..................4 (a) Disclosure of the Whereabouts of the Witness ........................................................................ 4
(b) Joint Criminal Enterprise ......................................................................................................... 4 II. THE LAW ON CONTEMPT OF THE TRIBUNAL ................................................................5 A. I NTRODUCTION .............................................................................................................................5 B. I NTIMIDATION OF A WITNESS ........................................................................................................6 (a) Submissions by the Respondent ............................................................................................... 6
(b) Submissions by the Amicus Curiae Prosecutor........................................................................ 7
(c) The Trial Chambers Position .................................................................................................. 8 C. O THERWISE I NTERFERING WITH A W ITNESS .................................................................................8 (a) Submissions by the Respondent ............................................................................................... 8
(b) Submissions by the Amicus Curiae Prosecutor........................................................................ 9
(c) The Trial Chambers Position .................................................................................................. 9 D. A TTEMPT TO I NTIMIDATE OR O THERWISE I NTERFERE WITH A W ITNESS .....................................10 (a) Submissions by the Respondent ............................................................................................. 10
(b) Submissions by the Amicus Curiae Prosecutor...................................................................... 10
(c) The Trial Chambers Position ................................................................................................ 11 E. D ISCLOSING THE I DENTITY OF A W ITNESS TO A M EMBER OF THE P UBLIC IN V IOLATION OF AN O RDER OF A C HAMBER .............................................................................................................11 (a) Submissions by the Respondent ............................................................................................. 11
(b) Submissions by the Amicus Curiae Prosecutor...................................................................... 11
(c) The Trial Chambers Position ................................................................................................ 12 III. FACTUAL SUBMISSIONS .....................................................................................................14 A. A RGUMENTS OF THE R ESPONDENT .............................................................................................14 B. A RGUMENTS OF THE A MICUS C URIAE P ROSECUTOR ....................................................................15 C. C ONCLUSIONS OF THE T RIAL C HAMBER .....................................................................................16 IV. DISPOSITION ...........................................................................................................................17 1 Case No.: IT-99-36-R77 19 March 2004 I. INTRODUCTION A. Procedural Background 1. This Trial Chamber (the Trial Chamber) in the case Prosecutor v. Radoslav Br|anin 1 issued on 15 April 2003, an Order Concerning Allegations Against Milka Maglov (the Respondent) 2 , finding that facts before this Trial Chamber, if believed, could lead to the conclusion that: 1) the Respondent approached a potential Prosecution witness (the Witness) and intimidated the Witness; and/or 2) the Respondent revealed the identity of the Witness to a member of the public in violation of an order of a Chamber; and on the basis of this there were sufficient grounds to proceed against the Respondent for contempt of the Tribunal on the basis of Rule 77(A)(iv) and Rule 77(A)(ii) of the Rules of Procedure and Evidence (Rules). On 8 May 2003, the Trial Chamber issued an Order Instigating Proceedings Against Milka Maglov 3 , directing the Registrar to appoint an Amicus Curiae (Amicus Curiae Prosecutor) and ordering the Amicus Curiae Prosecutor to prosecute the Respondent for: 1. the alleged intimidation of the Witness, and 2. the alleged disclosure of the identity of the Witness to a member of the public in violation of an order of a Chamber. 2. On 6 February 2004, the Trial Chamber granted the motion by the Amicus Curiae Prosecutor to amend the allegations for contempt of the Tribunal, 4 ordering the Amicus Curiae Prosecutor to prosecute the Respondent for the following allegations (Allegations): 1. Intimidating, or otherwise interfering with the Witness, pursuant to Rule 77(A)(iv); or, alternatively, 2. Attempting to intimidate, or otherwise interfere with the Witness, pursuant to Rule 77(B); and 3. Disclosing the identity and whereabouts of the Witness to a member of the public, in violation of an order of a Chamber, pursuant to Rule 77(A)(ii). 3. Trial proceedings against the Respondent commenced on 16 February 2004. The Amicus Curiae Prosecutor closed her case on 19 February 2004, after four days of trial, during which five witnesses were called to testify and seventeen documents were tendered into evidence. The Respondent tendered five documents into evidence. 1 Prosecutor v. Radoslav Br|anin, IT-99-36-T. 2 Prosecutor v. Radoslav Br|anin, IT-99-36-T, Order Concerning Allegations Against Milka Maglov, 15 April 2003. 3 Prosecutor v. Radoslav Br|anin, IT-99-36-R77, Order Instigating Proceedings Against Milka Maglov, 8 May 2003. 4 Prosecutor v. Radoslav Br|anin, IT-99-36-R77, Decision on Motion by Amicus Curiae Prosecutor to Amend Allegations of Contempt of the Tribunal, 6 February 2004. 2 Case No.: IT-99-36-R77 19 March 2004 4. On 24 February 2004, the Respondent confidentially filed a Motion for Judgement of Acquittal Rule 98 bis. 5 The Amicus Curiae Prosecutor confidentially filed a Response to The Respondents Motion for Judgement of Acquittal Rule 98 bis on 26 February 2004, 6 and a Corrigendum to Confidential Response to The Respondents Motion for Judgement of Acquittal Rule 98 bis on 27 February 2004. 7 On 4 March 2004, the Respondent confidentially filed Milka Maglovs Reply to the Prosecutors Response to Ms. Maglovs Motion for Judgement of Acquittal Pursuant to Rule 98 bis 8 5. The Respondent represented herself until 18 March 2004, when Registry appointed Mr. Jonathan Cooper to represent the Respondent in the proceedings concerning the allegations of contempt against her. B. Rule 98 bis : The Law and Standard of Proof 6. Rule 98 bis (Motion for Judgement of Acquittal) of the Rules of Procedure and Evidence (Rules) states that: (A) An accused may file a motion for the entry of judgement of acquittal on one or more offences charged in the indictment within seven days after the close of the Prosecutors case and, in
any event, prior to the presentation of evidence by the defence pursuant to Rule 85 (A)(ii). (B) The Trial Chamber shall order the entry of judgement of acquittal on motion of an accused or proprio motu if it finds that the evidence is insufficient to sustain a conviction on that or those charges. 7. The Respondent and the Amicus Curiae Prosecutor agree 9 that the Rule 98 bis standard of review to be applied is correctly set out in the Jelisi Appeals Judgement: The Appeals Chamber considers that the reference in Rule 98 bis to a situation in which the
evidence is insufficient to sustain a conviction means a case in which, in the opinion of the Trial
Chamber, the prosecution evidence, if believed, is insufficient for any reasonable trier of fact to
find that guilt has been proved beyond reasonable doubt. In this respect, the Appeals Chamber
follows its recent holding in the Delali appeal judgement, where it said: the test applied is
whether there is evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied
beyond reasonable doubt of the guilt of the accused on the particular charge in question. The
capacity of the prosecution evidence (if accepted) to sustain a conviction beyond reasonable doubt
by a reasonable trier of fact is the key concept; thus the test is not whether the trier would in fact 5 Prosecutor v. Radoslav Br|anin, Concerning Allegations Against Milka Maglov , Confidential Motion for Judgement of Acquittal Rule 98 Bis, 24 February 2004 (Rule 98 bis Motion). 6 Prosecutor v. Radoslav Br|anin, Concerning Allegations Against Milka Maglov, Confidential Response to The Respondents Motion for Judgement of Acquittal Rule 98 Bis, 26 February 2004 (Amicus Curiae Prosecutor
Response). 7 Prosecutor v. Radoslav Br|anin, Concerning Allegations Against Milka Maglov, Corrigendum to Confidential Response to The Respondents Motion for Judgement of Acquittal Rule 98 Bis, 27 February 2004 (Amicus Curiae
Prosecutor Corrigendum). 8 Prosecutor v. Radoslav Br|anin, Concerning Allegations Against Milka Maglov, Confidential Milka Maglovs Reply to the Prosecutors Response to Ms. Maglovs Motion for Judgement of Acquittal Pursuant to Rule 98 Bis,
4 March 2004, (Reply to Amicus Curiae Prosecutor Response). 9 Rule 98 bis Motion, pp. 12-13; Amicus Curiae Prosecutor Response, paras 5-9. 3 Case No.: IT-99-36-R77 19 March 2004 arrive at a conviction beyond reasonable doubt on the prosecution evidence (if accepted) but
whether it could. At the close of the case for the prosecution, the Chamber may find that the
prosecution evidence is sufficient to sustain a conviction beyond reasonable doubt and yet, even if
no defence evidence is subsequently adduced, proceed to acquit at the end of the trial, if in its own
view of the evidence, the prosecution has not in fact proved guilt beyond reasonable doubt. 10 8. Both the Respondent and the Amicus Curiae Prosecutor make various submissions with respect to the manner in which the Trial Chamber is to exercise its powers and jurisdiction in carrying out the Rule 98 bis exercise. These need not be repeated here in any detail because the jurisprudence of the Tribunal on this Rule already deals with them. However, there are some issues raised that the Trial Chamber needs to re-assert in light of the approach taken by the Respondent in her submissions on the evaluation of evidence. 9. The Trial Chamber agrees with the following submissions of the Amicus Curiae Prosecutor, which are in line with the jurisprudence of the Tribunal: a) In applying the test, the Trial Chamber should not assess the credibility and reliability of the Prosecution evidence unless the evidence is so manifestly unreliable or incredible that no
reasonable tribunal of fact could credit it, i.e., unless the Prosecution case can be said to
have completely broken down in that no trier of fact could accept the evidence relied upon
by the Prosecution to maintain its case on a particular issue. 11 b) In that regard, inconsistencies in the Prosecution evidence are matters for consideration in assessing credibility and reliability of the evidence, and, thus, are matters for consideration
at the conclusion of the case, not at this stage. 12 c) The Trial Chamber should not consider evidence favourable to the Respondent. It is at the conclusion of the proceedings, not at this midway point, that the Trial Chamber should
consider the extent to which any evidence is favourable to the Respondent, and the overall
effect of such evidence in light of the other evidence of the case. 13 9. All this is being re-stated because the Respondent in her written submissions has adopted an approach that would require the Trial Chamber to go well beyond what is now the established law and practice of the Tribunal in dealing with Rule 98 bis motions. The factual findings of this decision are thus reached using the Rule 98 bis standard, explained above, namely whether a reasonable trier of fact could be satisfied beyond reasonable doubt that the evidence adduced, if believed, could sustain a finding of guilt of the Respondent as charged. 10 Prosecutor v. Goran Jelisi, Case No. IT-95-10-A, Judgement, 5 July 2001 (Jelisi} Appeal Judgement), para. 37 (emphasis added). 11 See Prosecutor v. Dario Kordi} and Mario Cerkez, Case No. IT-95-14-2, Decision on Defence Motions for Judgement of Acquittal, 6 April 2000, para. 28; Prosecutor v. Galic, Case No. IT-98-29-T, Decision on the Motion for
the Entry of Acquittal of the Accused Stanislav Galic, 3 October 2002, para. 11. 12 Prosecutor v. Zoran Kupre{ki} et al., Case No. IT-95-16, Judgement, 23 October 2001 (Kupre{ki} Appeal Judgement), paras 332 334. 13 See Prosecutor v.Radoslav Br|anin, Case No. IT-99-36-T, Decision on Motion for Acquittal Pursuant to Rule 98 Bis, 28 November 2003, para. 62. 4 Case No.: IT-99-36-R77 19 March 2004 C. Acts that the Amicus Curiae Prosecutor Concedes Have not Been Proven (a) Disclosure of the Whereabouts of the Witness 10. By her own admission, 14 the Respondent disclosed the whereabouts of the Witness to witness R77-B. This would constitute a violation of the plain language of the order of the Trial Chamber dated 3 July 2000. However, it appears that witness R77-B knew the whereabouts of the Witness prior to that disclosure, as did many of the people in their community. 15 For this reason, the Amicus Curiae Prosecutor concedes that it is the disclosure of the identity of the Witness as a witness in the Br|anin case, and not the disclosure of the Witness whereabouts, that allegedly violates both the letter and spirit of the Trial Chambers order. She therefore requests that in the circumstances of this case, the allegation of disclosure of the whereabouts of the Witness be dismissed. 16 11. Accordingly, the Trial Chamber holds that in relation to Count 3 of the Allegations, there is no case to answer with respect to the alleged disclosure of the whereabouts of the Witness to a member of the public in violation of an order of a Chamber pursuant to Rule 77(A)(ii). (b) Joint Criminal Enterprise 12. The Amicus Curiae Prosecutor also concedes that there is no evidence from which a reasonable trier of fact could conclude beyond reasonable doubt that a joint criminal enterprise has been proven, and requests that the Trial Chamber dismiss this form of liability. 17 13. In considering the pleading practices before the Tribunal 18 and the specificity of pleading required in proceedings pursuant to Rule 77, 19 the Trial Chamber is of the view that the Respondent has not been charged for participating in a joint criminal enterprise to commit any of the alleged offences. Regardless of the evidence presented by the Amicus Curiae Prosecutor, the Trial Chamber opines that it would be unfair to the Respondent to allow the Amicus Curiae Prosecutor to invoke a 14 Ex P 10. 15 R77-B (T 192 - closed session, and T 105 private session). 16 Amicus Curiae Prosecutor Response, para. 10. 17 Amicus Curiae Prosecutor Response, para. 11. 18 See, Kupre{ki} Appeal Judgement, paras 88 and 116; see also: Prosecutor v. Miroslav Kvoka et al., Case No.: IT- 98-30-PT, Decision on Defence Preliminary Motions on the Form of the Indictment, 12 April 1999, para. 23;
Prosecutor v. Milorad Krnojelac , Case No.: IT-97-25-PT, Decision on Preliminary Motion on Form of Amended Indictment, 11 February 1999, para. 18; Prosecutor v. Milorad Krnojelac, Case No.: IT-97-25-PT, Decision on the
Defence Preliminary Motion on the Form of the Indictment, 24 February 1999, paras 11-20; Radoslav Branin and
Momir Tali , Case No.: IT-99-36-PT, Decision on Objections by Momir Tali to the Form of the Amended Indictment, 20 February 2001, para. 13. 19 Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR77, Judgement on Appeal by Anto Nobilo Against Finding of Contempt 30 May 2001, (Aleksovski Contempt Decision), para. 56. See also Prosecutor v. Blagoje Simi} et al., 5 Case No.: IT-99-36-R77 19 March 2004 joint criminal enterprise for whatever purpose. 20 The question of the potentiality of this form of criminal responsibility does not arise in any case; the matter and the submissions of the Amicus Curiae Prosecutor can thus be of no relevance and will not be considered by the Trial Chamber. II. THE LAW ON CONTEMPT OF THE TRIBUNAL A. Introduction 14. Historically, the law of contempt originated as, and has remained, a creature of common law. The general concept of contempt is said to be alien to civil law, but many civil law systems have legislated to provide offences that produce a similar result. 21 15. Contempt of court is an act or an omission intended to interfere with the due administration of justice. 22 The Tribunal possesses an inherent power to hold in contempt those who knowingly and wilfully interfere with the Tribunals due administration of justice. 23 Each of the formulations in the current Rule 77(A)(i) to (v), when interpreted in the light of the statement of the Tribunals inherent power, fall within this inherent power, as each clearly amounts to knowingly and wilfully interfering with the Tribunals due administration of justice. 24 The content of this inherent power Case No. IT-95-9-R77, Scheduling Order in the Matter of Allegations Against Accused Milan Simi} and his Counsel, 7
July 1999. 20 See Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement, 21 September 2001, paras 124-144. See also Kupre {ki } Appeal Judgement, para. 114. 21 Prosecutor v. Du{ko Tadi}, Case No. IT-94-1-A-R77, Judgement on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 January 2000 (Tadi} Contempt Decision), para. 15. In footnote 20 of the Tadi} Contempt Decision,
the Appeals Chamber examined a number of respective criminal statues in civil law systems, stating: For example, the
German Penal Code punishes as a principal offender anyone who incites a witness to make a false statement (
The web site itself may have changed. You can check the current page or check for previous versions at the Internet Archive. Yahoo! is not affiliated with the authors of this page or responsible for its content. Microsoft Word - Document in Microsoft Internet Explorer UNITED
NATIONS Case No. IT-99-36-R77 Date: 19 March 2004 International Tribunal for the
Prosecution of Persons
Responsible for Serious Violations of
International Humanitarian Law
Committed in the Territory of
Former Yugoslavia since 1991 Original: English IN THE TRIAL CHAMBER Before: Judge Carmel Agius, Presiding
Judge Ivana Janu
Judge Chikako Taya Registrar: Date: Hans Holthuis 19 March 2004 PROSECUTOR v. RADOSLAV BRANIN CONCERNING ALLEGATIONS AGAINST MILKA MAGLOV DECISION ON MOTION FOR ACQUITTAL PURSUANT TO RULE 98 BIS Amicus Curiae Prosecutor: Ms. Brenda J. Hollis The Respondent: Defence: Ms. Milka Maglov Mr. Jonathan Cooper CONTENTS I. INTRODUCTION ..........................................................................................................................1 A. P ROCEDURAL B ACKGROUND ........................................................................................................1 B. R ULE 98 BIS : T HE L AW AND S TANDARD OF P ROOF ......................................................................2 C. A CTS THAT THE A MICUS C URIAE P ROSECUTOR C ONCEDES H AVE NOT B EEN P ROVEN ..................4 (a) Disclosure of the Whereabouts of the Witness ........................................................................ 4
(b) Joint Criminal Enterprise ......................................................................................................... 4 II. THE LAW ON CONTEMPT OF THE TRIBUNAL ................................................................5 A. I NTRODUCTION .............................................................................................................................5 B. I NTIMIDATION OF A WITNESS ........................................................................................................6 (a) Submissions by the Respondent ............................................................................................... 6
(b) Submissions by the Amicus Curiae Prosecutor........................................................................ 7
(c) The Trial Chambers Position .................................................................................................. 8 C. O THERWISE I NTERFERING WITH A W ITNESS .................................................................................8 (a) Submissions by the Respondent ............................................................................................... 8
(b) Submissions by the Amicus Curiae Prosecutor........................................................................ 9
(c) The Trial Chambers Position .................................................................................................. 9 D. A TTEMPT TO I NTIMIDATE OR O THERWISE I NTERFERE WITH A W ITNESS .....................................10 (a) Submissions by the Respondent ............................................................................................. 10
(b) Submissions by the Amicus Curiae Prosecutor...................................................................... 10
(c) The Trial Chambers Position ................................................................................................ 11 E. D ISCLOSING THE I DENTITY OF A W ITNESS TO A M EMBER OF THE P UBLIC IN V IOLATION OF AN O RDER OF A C HAMBER .............................................................................................................11 (a) Submissions by the Respondent ............................................................................................. 11
(b) Submissions by the Amicus Curiae Prosecutor...................................................................... 11
(c) The Trial Chambers Position ................................................................................................ 12 III. FACTUAL SUBMISSIONS .....................................................................................................14 A. A RGUMENTS OF THE R ESPONDENT .............................................................................................14 B. A RGUMENTS OF THE A MICUS C URIAE P ROSECUTOR ....................................................................15 C. C ONCLUSIONS OF THE T RIAL C HAMBER .....................................................................................16 IV. DISPOSITION ...........................................................................................................................17 1 Case No.: IT-99-36-R77 19 March 2004 I. INTRODUCTION A. Procedural Background 1. This Trial Chamber (the Trial Chamber) in the case Prosecutor v. Radoslav Br|anin 1 issued on 15 April 2003, an Order Concerning Allegations Against Milka Maglov (the Respondent) 2 , finding that facts before this Trial Chamber, if believed, could lead to the conclusion that: 1) the Respondent approached a potential Prosecution witness (the Witness) and intimidated the Witness; and/or 2) the Respondent revealed the identity of the Witness to a member of the public in violation of an order of a Chamber; and on the basis of this there were sufficient grounds to proceed against the Respondent for contempt of the Tribunal on the basis of Rule 77(A)(iv) and Rule 77(A)(ii) of the Rules of Procedure and Evidence (Rules). On 8 May 2003, the Trial Chamber issued an Order Instigating Proceedings Against Milka Maglov 3 , directing the Registrar to appoint an Amicus Curiae (Amicus Curiae Prosecutor) and ordering the Amicus Curiae Prosecutor to prosecute the Respondent for: 1. the alleged intimidation of the Witness, and 2. the alleged disclosure of the identity of the Witness to a member of the public in violation of an order of a Chamber. 2. On 6 February 2004, the Trial Chamber granted the motion by the Amicus Curiae Prosecutor to amend the allegations for contempt of the Tribunal, 4 ordering the Amicus Curiae Prosecutor to prosecute the Respondent for the following allegations (Allegations): 1. Intimidating, or otherwise interfering with the Witness, pursuant to Rule 77(A)(iv); or, alternatively, 2. Attempting to intimidate, or otherwise interfere with the Witness, pursuant to Rule 77(B); and 3. Disclosing the identity and whereabouts of the Witness to a member of the public, in violation of an order of a Chamber, pursuant to Rule 77(A)(ii). 3. Trial proceedings against the Respondent commenced on 16 February 2004. The Amicus Curiae Prosecutor closed her case on 19 February 2004, after four days of trial, during which five witnesses were called to testify and seventeen documents were tendered into evidence. The Respondent tendered five documents into evidence. 1 Prosecutor v. Radoslav Br|anin, IT-99-36-T. 2 Prosecutor v. Radoslav Br|anin, IT-99-36-T, Order Concerning Allegations Against Milka Maglov, 15 April 2003. 3 Prosecutor v. Radoslav Br|anin, IT-99-36-R77, Order Instigating Proceedings Against Milka Maglov, 8 May 2003. 4 Prosecutor v. Radoslav Br|anin, IT-99-36-R77, Decision on Motion by Amicus Curiae Prosecutor to Amend Allegations of Contempt of the Tribunal, 6 February 2004. 2 Case No.: IT-99-36-R77 19 March 2004 4. On 24 February 2004, the Respondent confidentially filed a Motion for Judgement of Acquittal Rule 98 bis. 5 The Amicus Curiae Prosecutor confidentially filed a Response to The Respondents Motion for Judgement of Acquittal Rule 98 bis on 26 February 2004, 6 and a Corrigendum to Confidential Response to The Respondents Motion for Judgement of Acquittal Rule 98 bis on 27 February 2004. 7 On 4 March 2004, the Respondent confidentially filed Milka Maglovs Reply to the Prosecutors Response to Ms. Maglovs Motion for Judgement of Acquittal Pursuant to Rule 98 bis 8 5. The Respondent represented herself until 18 March 2004, when Registry appointed Mr. Jonathan Cooper to represent the Respondent in the proceedings concerning the allegations of contempt against her. B. Rule 98 bis : The Law and Standard of Proof 6. Rule 98 bis (Motion for Judgement of Acquittal) of the Rules of Procedure and Evidence (Rules) states that: (A) An accused may file a motion for the entry of judgement of acquittal on one or more offences charged in the indictment within seven days after the close of the Prosecutors case and, in
any event, prior to the presentation of evidence by the defence pursuant to Rule 85 (A)(ii). (B) The Trial Chamber shall order the entry of judgement of acquittal on motion of an accused or proprio motu if it finds that the evidence is insufficient to sustain a conviction on that or those charges. 7. The Respondent and the Amicus Curiae Prosecutor agree 9 that the Rule 98 bis standard of review to be applied is correctly set out in the Jelisi Appeals Judgement: The Appeals Chamber considers that the reference in Rule 98 bis to a situation in which the
evidence is insufficient to sustain a conviction means a case in which, in the opinion of the Trial
Chamber, the prosecution evidence, if believed, is insufficient for any reasonable trier of fact to
find that guilt has been proved beyond reasonable doubt. In this respect, the Appeals Chamber
follows its recent holding in the Delali appeal judgement, where it said: the test applied is
whether there is evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied
beyond reasonable doubt of the guilt of the accused on the particular charge in question. The
capacity of the prosecution evidence (if accepted) to sustain a conviction beyond reasonable doubt
by a reasonable trier of fact is the key concept; thus the test is not whether the trier would in fact 5 Prosecutor v. Radoslav Br|anin, Concerning Allegations Against Milka Maglov , Confidential Motion for Judgement of Acquittal Rule 98 Bis, 24 February 2004 (Rule 98 bis Motion). 6 Prosecutor v. Radoslav Br|anin, Concerning Allegations Against Milka Maglov, Confidential Response to The Respondents Motion for Judgement of Acquittal Rule 98 Bis, 26 February 2004 (Amicus Curiae Prosecutor
Response). 7 Prosecutor v. Radoslav Br|anin, Concerning Allegations Against Milka Maglov, Corrigendum to Confidential Response to The Respondents Motion for Judgement of Acquittal Rule 98 Bis, 27 February 2004 (Amicus Curiae
Prosecutor Corrigendum). 8 Prosecutor v. Radoslav Br|anin, Concerning Allegations Against Milka Maglov, Confidential Milka Maglovs Reply to the Prosecutors Response to Ms. Maglovs Motion for Judgement of Acquittal Pursuant to Rule 98 Bis,
4 March 2004, (Reply to Amicus Curiae Prosecutor Response). 9 Rule 98 bis Motion, pp. 12-13; Amicus Curiae Prosecutor Response, paras 5-9. 3 Case No.: IT-99-36-R77 19 March 2004 arrive at a conviction beyond reasonable doubt on the prosecution evidence (if accepted) but
whether it could. At the close of the case for the prosecution, the Chamber may find that the
prosecution evidence is sufficient to sustain a conviction beyond reasonable doubt and yet, even if
no defence evidence is subsequently adduced, proceed to acquit at the end of the trial, if in its own
view of the evidence, the prosecution has not in fact proved guilt beyond reasonable doubt. 10 8. Both the Respondent and the Amicus Curiae Prosecutor make various submissions with respect to the manner in which the Trial Chamber is to exercise its powers and jurisdiction in carrying out the Rule 98 bis exercise. These need not be repeated here in any detail because the jurisprudence of the Tribunal on this Rule already deals with them. However, there are some issues raised that the Trial Chamber needs to re-assert in light of the approach taken by the Respondent in her submissions on the evaluation of evidence. 9. The Trial Chamber agrees with the following submissions of the Amicus Curiae Prosecutor, which are in line with the jurisprudence of the Tribunal: a) In applying the test, the Trial Chamber should not assess the credibility and reliability of the Prosecution evidence unless the evidence is so manifestly unreliable or incredible that no
reasonable tribunal of fact could credit it, i.e., unless the Prosecution case can be said to
have completely broken down in that no trier of fact could accept the evidence relied upon
by the Prosecution to maintain its case on a particular issue. 11 b) In that regard, inconsistencies in the Prosecution evidence are matters for consideration in assessing credibility and reliability of the evidence, and, thus, are matters for consideration
at the conclusion of the case, not at this stage. 12 c) The Trial Chamber should not consider evidence favourable to the Respondent. It is at the conclusion of the proceedings, not at this midway point, that the Trial Chamber should
consider the extent to which any evidence is favourable to the Respondent, and the overall
effect of such evidence in light of the other evidence of the case. 13 9. All this is being re-stated because the Respondent in her written submissions has adopted an approach that would require the Trial Chamber to go well beyond what is now the established law and practice of the Tribunal in dealing with Rule 98 bis motions. The factual findings of this decision are thus reached using the Rule 98 bis standard, explained above, namely whether a reasonable trier of fact could be satisfied beyond reasonable doubt that the evidence adduced, if believed, could sustain a finding of guilt of the Respondent as charged. 10 Prosecutor v. Goran Jelisi, Case No. IT-95-10-A, Judgement, 5 July 2001 (Jelisi} Appeal Judgement), para. 37 (emphasis added). 11 See Prosecutor v. Dario Kordi} and Mario Cerkez, Case No. IT-95-14-2, Decision on Defence Motions for Judgement of Acquittal, 6 April 2000, para. 28; Prosecutor v. Galic, Case No. IT-98-29-T, Decision on the Motion for
the Entry of Acquittal of the Accused Stanislav Galic, 3 October 2002, para. 11. 12 Prosecutor v. Zoran Kupre{ki} et al., Case No. IT-95-16, Judgement, 23 October 2001 (Kupre{ki} Appeal Judgement), paras 332 334. 13 See Prosecutor v.Radoslav Br|anin, Case No. IT-99-36-T, Decision on Motion for Acquittal Pursuant to Rule 98 Bis, 28 November 2003, para. 62. 4 Case No.: IT-99-36-R77 19 March 2004 C. Acts that the Amicus Curiae Prosecutor Concedes Have not Been Proven (a) Disclosure of the Whereabouts of the Witness 10. By her own admission, 14 the Respondent disclosed the whereabouts of the Witness to witness R77-B. This would constitute a violation of the plain language of the order of the Trial Chamber dated 3 July 2000. However, it appears that witness R77-B knew the whereabouts of the Witness prior to that disclosure, as did many of the people in their community. 15 For this reason, the Amicus Curiae Prosecutor concedes that it is the disclosure of the identity of the Witness as a witness in the Br|anin case, and not the disclosure of the Witness whereabouts, that allegedly violates both the letter and spirit of the Trial Chambers order. She therefore requests that in the circumstances of this case, the allegation of disclosure of the whereabouts of the Witness be dismissed. 16 11. Accordingly, the Trial Chamber holds that in relation to Count 3 of the Allegations, there is no case to answer with respect to the alleged disclosure of the whereabouts of the Witness to a member of the public in violation of an order of a Chamber pursuant to Rule 77(A)(ii). (b) Joint Criminal Enterprise 12. The Amicus Curiae Prosecutor also concedes that there is no evidence from which a reasonable trier of fact could conclude beyond reasonable doubt that a joint criminal enterprise has been proven, and requests that the Trial Chamber dismiss this form of liability. 17 13. In considering the pleading practices before the Tribunal 18 and the specificity of pleading required in proceedings pursuant to Rule 77, 19 the Trial Chamber is of the view that the Respondent has not been charged for participating in a joint criminal enterprise to commit any of the alleged offences. Regardless of the evidence presented by the Amicus Curiae Prosecutor, the Trial Chamber opines that it would be unfair to the Respondent to allow the Amicus Curiae Prosecutor to invoke a 14 Ex P 10. 15 R77-B (T 192 - closed session, and T 105 private session). 16 Amicus Curiae Prosecutor Response, para. 10. 17 Amicus Curiae Prosecutor Response, para. 11. 18 See, Kupre{ki} Appeal Judgement, paras 88 and 116; see also: Prosecutor v. Miroslav Kvoka et al., Case No.: IT- 98-30-PT, Decision on Defence Preliminary Motions on the Form of the Indictment, 12 April 1999, para. 23;
Prosecutor v. Milorad Krnojelac , Case No.: IT-97-25-PT, Decision on Preliminary Motion on Form of Amended Indictment, 11 February 1999, para. 18; Prosecutor v. Milorad Krnojelac, Case No.: IT-97-25-PT, Decision on the
Defence Preliminary Motion on the Form of the Indictment, 24 February 1999, paras 11-20; Radoslav Branin and
Momir Tali , Case No.: IT-99-36-PT, Decision on Objections by Momir Tali to the Form of the Amended Indictment, 20 February 2001, para. 13. 19 Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR77, Judgement on Appeal by Anto Nobilo Against Finding of Contempt 30 May 2001, (Aleksovski Contempt Decision), para. 56. See also Prosecutor v. Blagoje Simi} et al., 5 Case No.: IT-99-36-R77 19 March 2004 joint criminal enterprise for whatever purpose. 20 The question of the potentiality of this form of criminal responsibility does not arise in any case; the matter and the submissions of the Amicus Curiae Prosecutor can thus be of no relevance and will not be considered by the Trial Chamber. II. THE LAW ON CONTEMPT OF THE TRIBUNAL A. Introduction 14. Historically, the law of contempt originated as, and has remained, a creature of common law. The general concept of contempt is said to be alien to civil law, but many civil law systems have legislated to provide offences that produce a similar result. 21 15. Contempt of court is an act or an omission intended to interfere with the due administration of justice. 22 The Tribunal possesses an inherent power to hold in contempt those who knowingly and wilfully interfere with the Tribunals due administration of justice. 23 Each of the formulations in the current Rule 77(A)(i) to (v), when interpreted in the light of the statement of the Tribunals inherent power, fall within this inherent power, as each clearly amounts to knowingly and wilfully interfering with the Tribunals due administration of justice. 24 The content of this inherent power Case No. IT-95-9-R77, Scheduling Order in the Matter of Allegations Against Accused Milan Simi} and his Counsel, 7
July 1999. 20 See Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement, 21 September 2001, paras 124-144. See also Kupre {ki } Appeal Judgement, para. 114. 21 Prosecutor v. Du{ko Tadi}, Case No. IT-94-1-A-R77, Judgement on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 January 2000 (Tadi} Contempt Decision), para. 15. In footnote 20 of the Tadi} Contempt Decision,
the Appeals Chamber examined a number of respective criminal statues in civil law systems, stating: For example, the
German Penal Code punishes as a principal offender anyone who incites a witness to make a false statement (
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