Hartmann process -3-

Florence Hartmann Support Committee

2009 07 03

On July 1st 09:00 -- 13:45 - continuation of the cross examination of Natasa Kandic and ending of the presentation of the pieces of evidence.
On July 3rd, 09:00 - noon -- closing speeches for the prosecution and the defense.

The final hearing was very short: half an hour for the conclusions of the prosecution and one hour for those of the defence.

For the prosecution, M Mc Farlane developed 5 points:
1 - There has been indeed violation of the article 77 of the Rules and Procedures of the ICTY and Mrs Hartmann violated this article "knowingly" since she knew the Rules perfectly well. She did it twice, first with the book, then 4 months later with the article on the Bosnian Institute website. Yet a letter from The Registar of the ICTY had warned her in the meanwhile.
2 - It is true that these decisions were public knowledge, but as far as the ICTY is concerned, only the Tribunal can lift a confidentiality classification and until it does so officially, the confidentiality status is still valid.
3 - The Chamber should give a second thought to the validity of the testimony of Ms Kandic, who never answered the questions she's been asked, and who took advantage of any occasion to promote her cause.
4 - The concept of free speech has been precisely delimited by a ruling of the European Court for Human Rights in the case Dupuis vs Government of Geneva: there are limits to every Rights.
5 - The prosecution acknowledges the fact that Ms Hartmann did not violate the Rules for a reprehensible purpose. But she acted at the risk that, in the future, States refuse to contribute sources or documents, under the pretext of unpunished leaks.

Thus M Mc Farlane as a conclusion draws a balance between the worsening (two violations in a row despite the warning of the clerk) and the mitigating (Mrs Hartmann's cooperative behaviour, never indicted nor convicted in the past, poor success of the book) points of the case. This balance leads him to disregard any imprisonment sentence and to claim a fine between 7000 and 15 000.

For the defence, M Kahn developed 6 points:
1 - The constant eroding of the Prosecution's allegations, none of which has actually been proven.
2 - The odd choice of the witnesses (M. Kermarec admitted that he did not attend the signature of the contract between Flamarion and Ms Hartmann; M Vincent presented a very general viewpoint of the concept of confidentiality) and the fact the prosecution did not even try to call any representative of Serbia. It looks as if Serbia was not even "embarrassed" by the publishing of the book.
3 - The prosecution paid no attention to the moral dimension of this case and presented an attitude of "juridical integrism". All the cited examples of contempt of the court were related to cases still in process, while this case is extinct. There was never a risk of putting someone's life in danger. M. Mc Farlane acknowledges that there were no reprehensible intents. He reproaches a wrong-minded behaviour, which is not true; since the case was closed, there was no intent to hinder the working on of Justice.
4 - The defence referred to juridical fouls: Due to a beach of law (the letter of the Registar being accepted to the file) and the defence having been forbidden to question the investigator, the motivations behind Ms Hartmann's indictment could not be questioned. Yet why is Ms Hartmann targeted in this case? As M. Joinet said "there was never a case where the contempt of the court was linked to the reasoning of a Chamber". So why is Ms Hartmann treated differently from people in similar situations. This question clearly raises a point.
5 - The components of the Contempt of Court have NOT been demonstrated, yet the prosecution is due to demonstrate the risk of hindering the working on of Justice. This notion of Contempt of Court was not due to protect Judges from being evaluated, but to guaranty a good working on of the Justice. On the contrary, the recent address of Prosecutor Brammertz to the UN notices that Serbia is improving its cooperation.
6 - The letter of the Registar does not refer to article 77 of the Rules and procedures of the ICTY.

M Kahn notices with pleasure that no imprisonment sentence has been required by the prosecution. He also reminds that following a ruling of the ECHR, when no destruction of the text has been required, no fine should be imposed. Thus he claims the acquittal for Ms Hartmann, whose sentencing would provoke a dramatic effect on the concept of free speech.