The defense accuses the amicus curiae investigator turned amicus curiae prosecutor, of running a ‘negligent, incomplete and thoroughly flawed investigation’, ‘abuse of process’ and repeated instances of contempt of court for disclosing parts of a confidential document to public


Florence Hartmann’s defense has filed a new motion to the judges; this time, to stay the proceedings against the French journalist. The Trial Chamber has yet to rule on the motions the defense filed asking the judges to ‘review’ the case and to issue an urgent order for disclosure of evidence given by prosecution witnesses.

The Trial Chamber charged the French journalist with contempt of court after she disclosed information about two decisions of the Appeals Chamber. At Serbia's request, the Appeals Chamber had granted protective measures for the documents of the FRY Supreme Defense Counsel. The documents had been disclosed to the prosecution at the Slobodan Milosevic trial.

The Trial Chamber filed the indictment based on the recommendation of Canadian lawyer Bruce MacFarlane who had conducted an investigation as the amicus curiae investigator. The ICTY Registry then appointed MacFarlane ‘amicus curiae prosecutor’ to represent the prosecution at the trial scheduled to take place on 5 and 6 February 2009.

In its motion to stay the proceedings, the defense accuses MacFarlane of "negligent, incomplete and thoroughly flawed investigation", ‘abuse of process’ and ‘violations of the fundamental rights’ of the French journalist. The findings of his investigation, which led MacFarlane to recommend that the proceedings be instituted against her, are ‘unreliable, un-verified, one-sided, incomplete and misleading’, the defense emphasizes.

As the defense notes, in his investigation MacFarlane failed to determine that the information Hartmann allegedly disclosed had already been made public by both the Tribunal and Serbia, the party that had originally sought protective measures for the documents. MacFarlane also failed to draw the judges’ attention to this fact.

As an ‘independent and impartial investigator’ MacFarlane was duty-bound to investigate any elements that might be favorable to the indicted journalist, the defense argues, but he failed to do so. MacFarlane also failed to verify the reliability and credibility of evidence given by those incriminating Hartmann. The defense also accuses MacFarlane of ‘violating the UN immunity’, both with regard to Florence Hartmann and other ICTY staff members MacFarlane interviewed without having obtained immunity waivers.

Last but not least, defense counsel Karim Khan and Guenael Mettraux note that MacFarlane himself was repeatedly guilty of contempt of court. When he interviewed Hartmann, MacFarlane gave her three confidential court decisions; also, in his public response to an earlier defense motion, MacFarlane disclosed ‘the contents and purported effect" of one of the confidential documents. The defense concludes that to stay the proceedings is the ‘only proper and necessary response to the abuse’.

The judges are expected to deliver their decision on this and other motions submitted by the defense at a status conference scheduled for Friday, 30 January 2009.

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