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Hartmann Defence Wants Judges Dismissed

It argues that there has been “contamination” between prosecutor and trial chamber.
By Simon Jennings
The lawyer defending the former tribunal spokeswoman charged with revealing details of confidential decisions made by the court has asked two judges set to hear the case to stand down.

Defence counsel Karim Khan has objected because two of the judges hearing the case at the International Tribunal for the former Yugoslavia, ICTY, were part of the trial chamber which first ordered the registry to appoint an amicus curiae, friend of the court, to investigate Florence Hartmann.

The registry then appointed Canadian prosecutor Bruce MacFarlane as investigator, and judges Carmel Agius and Alphons Orie, along with one other judge, issued an order in place of an indictment against the French journalist on August 27.

Khan explained to judges that he was worried about inadvertent bias against his client if judges Agius and Orie are allowed to hear the case.

“Contamination” has taken place between the judges and MacFarlane, who is now leading the prosecution, he said.

“It's only right and proper that the president can appoint… judges that have not been touched by the investigation, that have not been part of the investigation, and the appointment of the amicus prosecutor to investigate the matter,” he said.

“It’s only the right that the well-deserved reputation of this bench and this court be protected.”

The third judge, Bakone Maloto, only recently joined the case so is not implicated in Khan’s complaint.

Hartmann is charged on two counts of contempt of court relating to the disclosure of decisions made by the appeals chamber during the trial of the former Serbian president Slobodan Milosevic, in 2005 and 2006.

The court order against her states that both Hartmann’s book, Paix and Chatiment (Peace and Punishment), published in September 2007, and her article entitled Vital Genocide Documents Concealed, which was published on the Bosnian Institute website on January 21 2008, gave details of confidential decisions made by appeals judges on court motions which were themselves filed confidentially.

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

Khan said he would be putting his request for the judges to stand down into writing this week.

Earlier in the pre-trial hearing which took place on January 30, judges rejected Khan’s request to stay proceedings against Hartmann due to what he sees as MacFarlane’s improper approach to the investigation.

The defence contends that MacFarlane has failed to disclose exculpatory evidence to the judges, in particular, material which demonstrated that the information allegedly disclosed by Hartmann had already been released by other sources.

Khan said he would be seeking permission to appeal the judges’ decision.

Responding to Khan’s concerns, MacFarlane said there was no reason for the judges to stand down as the necessary investigatory procedure had been followed.

During the hearing, Khan also called for the trial itself to be postponed. He said that it would not be possible to hold the trial on February 5 and 6 as scheduled.

Explaining his reason, Khan said that his team was still waiting for permission from the United Nations to interview a member of the court’s staff which he claimed was the “foundation” of the charges against Hartmann. According to Khan, the prosecutor interviewed the member of staff and her testimony was “heavily relied upon” by the judges in issuing the charges against Hartmann.

However, MacFarlane said this was not the case, telling judges that the charges were based primarily on the defendant’s alleged disclosures.

Khan also explained that he understood Hartmann had made a formal complaint against the member of staff during her time at the tribunal, and had asked the registry for disclosure of that complaint. However, to obtain disclosure he would require an order from the judges, he said, saying that he would request one in writing this week.

“It is our submission that your honours would not want a criminal process to be used as a means of settling old scores, because of personal enmity that may have existed,” said Khan.

He also explained that there were a number of documents that still needed translating.

“A rush to judgement next week does not serve the cause of justice,” said Khan, concluding that the need for a delay was “a no-brainer”.

Judge Agius signaled the seriousness of Khan’s request for the two judges to stand down.

“I'm sure it's the product of much thought, and equally, we want to take it as seriously as you propose it,” said the judge, asking Khan to give it priority over his other requests.

However, he said that the schedule to hold the trial next week remained in place unless judges ruled otherwise.

Simon Jennings is an IWPR reporter in The Hague

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