Former Yugoslavia Tribunal Hears Contempt Case for Failure to Testify

Friday, 2 December, 2011

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Alexandra Arkin

The defence lawyer for Dragomir Pecanac told Hague tribunal judges this week that his client, a former Bosnian Serb security and intelligence officer, was not in contempt of court when he refused to testify earlier this year in the trial of Zdravko Tolimir.

Tolimir was deputy commander for military intelligence and security in the Bosnian Serb army’s main staff during the war, reporting directly to General Ratko Mladic, who is currently awaiting trial for genocide at the Hague tribunal.

Tolimir is charged with eight counts including genocide, extermination, murder, and the forced transfer and deportation of Bosniaks from the Srebrenica and Zepa enclaves in July 1995. Some 8,000 Bosniak men and boys were murdered at various execution sites in the days following the fall of Srebrenica.

Tribunal judges issued a subpoena on August 31, 2011 ordering Pecanac to appear as a prosecution witness in the Tolimir trial.

After receiving the subpoena, Pecanac responded that he was willing to appear but that he could not testify “for reasons of health and also because an indictment has been raised against [him] in Sarajevo and a criminal report filed in Belgrade on the same grounds”, according to court documents.

Pecanac’s failure to appear as ordered, or to show “good cause” why he could not comply with the subpoena, meant he “knowingly and wilfully” interfered with the administration of justice, according to an order issued by the tribunal.

He was arrested in Belgrade on September 27, and pleaded not guilty to the contempt charges three weeks later.

Pecanac was in court for a pre-trial conference on November 28, but did not appear for the rest of the week on health grounds. Because he had signed a waiver of his right to attend the hearing, court proceedings continued despite his absence.

Presiding Judge Christoph Flügge read out a summary of the case, and after documents were submitted into evidence, the defence case began –prosecutors are not a party in the contempt proceedings.

Defence lawyer Jens Dieckmann referred to precedents set in previous tribunal cases to argue his case for acquitting Pecanac of the contempt charges.

Documents “taken in the context of the totality of the evidence, show in fact the compliance of the accused,” he said. He argued that there was no evidence that Pecanac failed to comply with an order to attend the court, because he was not given a specific date to appear.

Second, Dieckmann said that even if judges found that Pecanac had failed to comply with an order to attend, the documents showed “a number of just excuses” why it was impracticable or impossible for him to appear on the date that was finally chosen.

For example, before he was due in court, various issues – which were disclosed to the chamber in private session – needed to be properly resolved, but this was not done in time.

Finally, the defence lawyer said, judges would have to demonstrate that Pecanac intended to interfere with the administration of justice. Indifference or negligence may interfere with the administration of justice, but does not amount to contempt, or justify imprisonment or a substantial fine, he argued.

Dieckmann said the evidence before the court did not show that Pecanac was aware he was interfering with the administration of justice, or that he intended to do so, especially since when he was subpoenaed, he said he was willing to appear but unable to testify for the reasons he gave.

He went on to say that the charges were premature and a consequence of misunderstandings in communications between Pecanac and the trial chamber.

He concluded by asking the court to dismiss the case because there was not enough evidence to support the charges beyond reasonable doubt. If it did find the defendant guilty, Dieckmann asked for a sentence of no more than two months, the period Pecanac has already spent in detention awaiting trial.

Alexandra Arkin is an IWPR editorial intern in The Hague.