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Judge Critical of Contempt Trial

Scottish judge suggests case not serious enough to be heard at the tribunal.
By Goran Jungvirth
The trial of Croatian journalist Ivica Marijacic and retired Croatian secret service chief Markica Rebic on charges of contempt has finished after three days, with the judge complaining that such proceedings were “not an appropriate way to use the court’s resources”.

The two men were accused of revealing the identity of a protected witness in the trial of former Croatian general Tihomir Blaskic in December 1997, by publishing his statement and saying that he had testified in a closed session at the tribunal.

This case is seen as an important potential precedent for a further tribunal case later this year concerning four Croatian journalists accused of contempt for revealing another witness’s name in the Blaskic trial.

On the eve of this week's contempt proceedings, the court’s appeals chamber agreed to lift all protective measures on the witness - a Dutch officer who served with the Dutch contingent within the UN Protection Force, UNPROFOR, in Bosnia and Hercegovina - named Johannes van Kuijk.

The prosecution asked that the protective measures be lifted because otherwise the contempt trial would be made “unnecessarily difficult”, as it would have to go into closed session every time his name was mentioned.

On November 18 2004, Marijacic, who was then editor-in chief of Croatian weekly Hrvatski List published an article which included a statement - supplied by Rebic, then head of the Croatian secret service, SIS - that the witness had given the prosecutor’s office in August 1997.

In the statement, van Kuijk described a failed attempt by Bosnian Croat soldier Miroslav Bralo - known as Cicko - to surrender voluntarily to a UN base in central Bosnia after he had heard that he had been indicted by The Hague for war crimes. Bralo was subsequently transferred to the tribunal, tried and sentenced to 20 years imprisonment.

The prosecution had charged the two men with violating three separate court orders in relation to the Blaskic trial. According to the appeals chamber decision, however, one of those orders, issued in June 1997, only applied to witnesses in the trial from the former Yugoslavia and therefore could not have covered the Dutch officer.

The defence argued that neither of the other two orders applied to their clients.

Contempt of court can lead to a maximum sentence of seven years imprisonment or a fine of up to 100,000 euro.

Judge Ian Bonomy established through questioning prosecution investigator Terence Cameron that at the time of publication in 2004, it was clear that there were no more reasons for applying protective measures to the witness in question, as Dutch soldiers were no longer deployed in Bosnia and Bralo had already turned himself in.

Judge Bonomy expressed concerns about inappropriate use of court resources, saying that the tribunal should be handling the most serious crimes and that this case seemed to him like a “technical violation”.

Prosecutor David Akerson agreed with Judge Bonomy that “perhaps there was no reason for the existence of protective measures” in November 2004, when the article was published.

But he argued that it wasn’t “up to third parties [Marijacic and Rebic] to rescind the orders of a trial chamber”.

The prosecutor said that Marijacic and Rebic deliberately set out to flout the court’s orders.

He tendered as evidence a report written by HINA, the Croatian state news agency, on April 27 2005, in which Rebic is quoted as saying that at the time of publication he was aware of what he was doing, but that he “is convinced that both Croatia and he will benefit from it, as this proves that it is not true that either he or the state of Croatia were involved in harbouring Bralo”.

The second prosecution witness, the tribunal’s expert analyst of Croatian documents, William Tomljanovic, gave details of a transcript of talks which the then Croatian president Franjo Tudjman, the defence minister, Gojko Susak, and chief editors of two Croatian dailies were said to have held on May 7 1997 to discuss publication of a statement of another protected witness in the Blaskic case.

Lawyer Kresimir Krsnik for Rebic and his colleague Marin Ivanovic, who represents Marijacic, challenged both the relevance of the evidence and the authenticity of the transcript.

The defence teams did not bring any witnesses nor put their clients on the stand.

They argued that the second order made orally by the court in December 1997 did not cover Marijacic and Rebic’s actions because they published the witness statement rather than his testimony. That order was made at the request of the Dutch government because van Kuijk was testifying about “extremely sensitive” operational information.

However, prosecutor David Akerson said the statement dealt with exactly the same issues the Dutch officer spoke about in closed session and that the protective measures would therefore apply to the statement, too, not only to the transcript of the testimony.

Rebic's lawyer Krsnik argued that the witness statement published by Hrvatski List had not been marked as classified.

But Judge Bonomy cautioned the lawyer about using such arguments saying “it is obvious from Marijačić's article he knew he was breaking the law". The judge also described as “perfidious” the argument that it was only the witness statement rather than his testimony that was covered.

The third court order, from December 2000, also did not apply to their client, said the defence, because it referred to a different protected witness and other Croatian newspapers.

Lawyer Ivanović further argued that “it would not be fair to punish Marijačić”, just because other journalists in Croatia have been deliberately revealing documents and flouting court orders. Krsnik described the indictment as intended only as a “demonstration of prosecution's force”.

He called on the judges not to take what was written in the Croatian newspapers - where, he said, they were still learning the trade - as serious evidence. “Hrvatski list is not the Washington Post,” he said.

A date for the judge's ruling on the case has yet to be set.

Goran Jungvirth is an IWPR reporter in The Hague.

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