Institute for War and Peace Reporting | Giving Voice, Driving Change

Hartmann Defence Wants Case Dropped

It says continuing with contempt proceedings would encroach on its client’s right to free expression.
By Merdijana Sadović
Lawyers representing French journalist Florence Hartmann, indicted for allegedly revealing confidential information, called on the Hague tribunal this week to dismiss all charges against her, saying the case threatens to undermine press freedom.

“The defence submits that the trial chamber should reconsider its orders of 27 August 2008 and 27 October 2008 and decide that contempt proceedings should not have been initiated, stay the proceedings and dismiss the charges against Ms Hartmann,” said her defence team, in a motion filed on January 14.

“The oppressive and overreaching interpretation of contempt that would result in the initiation of criminal proceedings would…infringe on Ms Hartmann’s fundamental right to information and expression.”

Hartmann, who was spokesperson for former chief prosecutor Carla Del Ponte from 1999 to 2006, is charged on two counts relating to the disclosure of decisions made by the appeals chamber during the trial of former Serbian president Slobodan Milosevic in 2005 and 2006.

The information she revealed is thought to relate to the court’s handling of certain documents, including minutes of meetings of Serbia’s Supreme Defence Council, SDC, during the wars in the former Yugoslavia in the 1990s.

Tribunal judges reportedly granted excerpts of this material confidential status at Serbia’s request, under tribunal rules which allow a state to keep its documents secret if their disclosure could “prejudice national security interests”.

Minutes from the SDC meetings are widely believed to contain crucial information about Belgrade’s involvement in the Balkans wars, and the decision not to make them public has been widely criticised.

A court order issued in lieu of an indictment on August 27 states that Hartmann – in her 2007 book, Peace and Punishment, and in her article Vital Genocide Documents Concealed, published in January 2008 – gave details of confidential decisions made by appeals judges on court motions, while also noting that they were confidential.

According to the court order, Hartmann broke the rules because she knew she was “revealing confidential information to the public”.

In a pre-trial brief of last week, prosecutors said, “The accused knew that the information was confidential at the time disclosure was made, that the decisions from which the information was drawn were ordered to be filed confidentially, and that she was revealing confidential information to the public.”

Prosecutors maintain that information revealed by the accused “was subject to an order or orders by a chamber which were in effect at the time the information was disclosed”.

“The confidential status guaranteed by these orders can only be lifted by a chamber. No chamber has lifted confidentiality of either order,” they argued.

In their motion calling for the case to be dismissed, defence lawyers pointed out that Hartmann was not accused of revealing the actual contents of confidential documents, and was charged only with disclosing information related to the court’s treatment of them.

“There has been no disclosure or revelation of the content of the material and documents that were the subject of the protective measures. Ms Hartmann is being prosecuted not for disclosing any protected information, but for disclosing the fact that an order exists that protects these documents,” they said.

They pointed out that the alleged disclosure had resulted in no proven consequences.

“Ms Hartmann is being prosecuted for an alleged interference with the course of justice when none [has been] established,” they said.

The lawyers further argued that their client had been unfairly singled out, saying that the information she is accused of revealing was already in the public domain.

“[Hartmann is being prosecuted] for saying what everyone already knew. And she is the only one to be prosecuted for these facts,” they said.

The journalist’s defence stressed that there is no evidence that Hartmann intended to damage the reputation of the tribunal and that no witness was endangered as a result of her conduct.

Finally, they pointed out that prosecuting journalists for allegedly disclosing facts of public interest is “likely to undermine the freedom of the press, hinder public discussion of important matters and is unlikely to contribute to a frank and open discussion about those events which interest the tribunal and the public at large”.

Hartmann’s trial is due to take place on February 5 and 6.

Merdijana Sadovic is IWPR’s Hague tribunal programme manager.

More IWPR's Global Voices

FakeWatch Africa
Website to provide multimedia training and resources for fact-checking and investigations.
FakeWatch Africa
Africa's Fake News Epidemic and Covid-19: What Impact on Democracy?