THE INTERNATIONAL CRIMINAL TRIBUNAL CASE NO
FOR THE FORMER YUGOSLAVIA
IN THE TRIAL CHAMBER
Date: Monday, 24 February 1997
(The Confirming Judge)
THE PROSECUTOR OF THE TRIBUNAL
MR. MARK HARMON and MR. GREGORY KEHOE appeared on behalf of the Prosecution
MME. VASVIJA VIDOVIC appeared as representative of Bosnia-Herzegovina
( open session )
(Session opened at 10.15)
PRESIDING JUDGE: This is a hearing regarding the Prosecutorís subpoena duces tecum or their request that I issue a subpoena duces tecum to Bosnia Herzegovina and to Mr. Ante Jelavic in case no. IT-95-14-PT. Is the Prosecution ready to proceed.
MR. HARMON: Good morning Your Honour. My name is Mark Harmon. I am representing the Prosecutor this morning with my colleague Mr. Gregory Kehoe and we are ready to proceed.
PRESIDING JUDGE: And for Bosnia Herzegovina?
MRS. VIDOVIC: My name is Vasvija Vidovic. I am the Minister Counsel of the Embassy of Bosnia Herzegovina and representing Bosnia and Herzegovina today.
PRESIDING JUDGE: Thank you Ms. Vidovic. Mr. Harmon, where do we stand? The subpoena duces tecum had been issued by me on January 15th 1997 and then on February 14th 1997 I issued an order to ensure compliance with the duces tecum. We then had a hearing and Ms. Vidovic appeared on behalf of Bosnia Herzegovina, indicated that she was not contesting the subpoena duces tecum and that she was making efforts to obtain the documents. So, what do you have?
MR. HARMON: Your Honour, I can report to the court that we have not received a single document from Mr. Jelavic and the custodian of the records of the central archives of what was formerly the HVO archives of Herzeg Bosna. I would also like to inform the court that I have some documents which I would like to introduce to complete this record. The first document which I have and Iíd like the usher to submit these to you, your Honour, is a letter from Madam Vidovic describing what steps she took after the order that you issued on 20th of February 1997. In particular, Your Honour, she describes in her letter that correspondence was sent and particularly Mr. Jelavic received copies of the order, of your order, and attached to this exhibit, your Honour, are proofs of service of those orders. So, if I could submit this as my first exhibit, your Honour. (usher hands documents to presiding judge)
PRESIDING JUDGE: We should number them, that would be what, Prosecution 1 or A. How do you want it?
MR. HARMON: We could call it exhibit A for todayís hearing, your Honour.
PRESIDING JUDGE: Very good.
MR. HARMON: Your Honour, in respect of each of these exhibits, after your Honour has an opportunity. to examine them, Madam Vidovic is prepared to respond to your questions in respect of each. The second item which I have, your Honour, and Iíd like to introduce as exhibit B is a letter from Madam Vidovic and it explains what steps she has taken. In addition to that there is a copy of a letter from the Prime Minister of Bosnia Herzegovina directing Mr. Jelavic to co-operate with the Tribunal. So, if I could submit these three pieces of paper to your Honour as well. (usher hands exhibits to the Presiding Judge). Lastly, your Honour, itís my understanding after talking to the Registrarís office, in respect of your order of 20th February that the Registrarís office faxed to Mr. Jelavic the copy of your order. That I have been informed was done the day of the hearings. So I would like that also to augment the record, because it is quite obvious that Mr. Jelavic is not here today nor is his representative. I would now, your Honour, defer to Madam Vidovic to expand on the two documents, the two sets of documents, which I provided to the court.
PRESIDING JUDGE: The last document that you referred to that was faxed will be made a part of the record as Prosecution exhibit C, I suppose. And I neglected to mention the fact that I had entered an order on February 20th 1997 after we had the hearing at which Madam Vidovic appeared as well as the Ambassador for Croatia, Mr. Salaj. I also indicated at our last meeting that I would be asking the other Trial Chamber, Trial Chamber I, to handle this matter or a Judge from the Trial Chamber, perhaps Judge Jorda, since he is the Presiding Judge. On reflection, I have considered that I will continue to handle these matters relating to the subpoena duces tecum. As I indicated, I was the confirming judge for this indictment. These items, that are the subject of a subpoena, are matters that relate to the Prosecutionís investigation and perhaps even their preparation for trial. But certainly their investigation. And would be conducted ex-parte, that is without the defendants in the Blaskic matter. And because of that I consider that I should handle these matters rather than refer them to the Judge and the trial chamber who will be trying the case. So I will continue to handle this matter. You counsel have me to listen to and I have you to listen to and I hope that the matter, the matters can be handled very expeditiously. For we are very busy ourselves. But you have my full attention and I am very anxious to have the matters resolved. Madam Vidovic would you like to proceed? Should I call you Madam Vidovic or Judge Vidovic, at least you tell me how I should refer to you when I am addressing you?
MS. VIDOVIC: I am a judge by profession, but you can also use madam.
PRESIDING JUDGE: You are not dressed in a robe to day. I donít know. We discussed this back and forth. I donít know whether you are appearing as a lawyer, or whether you are appearing as the minister counsel, as the representative of Bosnia Herzegovina and thatís why I have invited you that way.
MS. VIDOVIC: In this case I am Minister counsel in the Embassy of Bosnia Herzegovina. In accordance with the suggestion by the Prosecutor, I will try to expound on the position of Bosnia Herzegovina in this matter and the steps that I have taken in this capacity to ensure that Mr. Jelavic or his authorised representative appears here today. On 20th February 1997 I received the order to ensure compliance of Mr. Jelavic, the Minister, or the representatives of the Ministry of Defence before the Judge Kirk McDonald, and in case that is not possible, a person identified by him as a successor of the custodian of records of the central archive of what was formerly the Ministry of Defence of the Croatian community of Herzeg Bosna appear on his behalf. In the document on the 20th February 1997 I have delivered a document to the Ministry of Defence which is the authorised and proper authority. The Ministry of Defence then forwarded these documents to the Minister of Defence, to the Minister of Justice, so that it could ensure the compliance with the order of the Tribunal and to Ante Jelavic in person. The Ministry of Foreign Affairs in its document of February 20th 1997 has informed me that copies of these orders have been delivered to the appropriate authorities and I do submit a copy with the proof of service which I would like to be made part of the record of this hearing. Also the Prime Minister of the Federation of Bosnia Herzegovina, Mr. Bicakcic in his letter of 21 Feb. 1997 informed me that he requested from Mr. Jelavic, the Minister of Defence in his government to appear in a public hearing of this Tribunal on 24 February 1997, in order to respond to questions regarding non compliance with the order to ensure compliance with the Tribunal and to provide any assistance to the Tribunal in this matter. Also the letter of the Prime Minister it is pointed out that in the case that Mr. Ante Jelavic is unable to appear before this Tribunal that he should designate a representative who is acquainted with the records of the central archive of the former Herzeg Bosna and to give explanations as to what documents are available in this archive. In other words, Bosnia Herzegovina has taken all necessary steps in regard to the Federation of Bosnia Herzegovina and the Prime Minister to ensure compliance with the order of the Tribunal.
I would also like to demonstrate another matter. Mr. Jelavic has sent me a letter in which he states that he is familiar with the whereabouts of the archive of what was formerly Herzeg Bosna and also that the person who was the custodian of these records has deceased. In other words that is the proof that Mr. Jelavic knows where these archives are. Also from this letter it is clear that the successor, that he is the successor of the custodian of the records of the central archive. Following this trail I requested the Prime Minister and the Ministry of Foreign Affairs whether the archives of the HVO, archives have been transferred to the central archives of the Federation of Bosnia Herzegovina, and I received a clear answer that no document, that is none of the documents from these archives have been turned over to the central archives of the Federation of Bosnia Herzegovina. I was also informed that the archives of the Military forces of Bosnia Herzegovina has been structured in such a way that everything since the Dayton agreements is being deposited in this archive, whereas all former archives of both the army of Bosnia Herzegovina and the HVO is being left in the in the old archives, that is the former structure of these two entities. The Ministry of Defence has the jurisdiction over both of these entities. In other words, the archives of the HVO is still in the jurisdiction of Mr. Jelavic and that is on two bases, as Minister of Defence of Bosnia Herzegovina and as a high official of the HVO.
PRESIDING JUDGE: And who does Mr. Jelavic report to in his capacity? He is the Minister of Defence. Who does he report to? By report to, what person is responsible for giving him instructions that he is to follow? Would that be the Prime Minister?
MS. VIDOVIC: The Prime Minister of the Government of the Federation since within the structure of the Government, the Ministry of Defence is part of the Government of the Federation and Mr. Jelavic is the Minister of Defence of the Federation of Bosnia Herzegovina and Mr. Bicakcic is the Prime Minister of this Government, and he has the authority to order Mr. Jelavic to appear before the Tribunal. It is in his authority.
PRESIDING JUDGE: Where are these documents located? You indicated, I am not sure that I fully understand you, that the archives of the Herzeg Bosna HVO were left in the old archives. Where are they physically located? If you know.
MS. VIDOVIC: They are in the archives of the HVO. And it is possible that the Prosecutor has more information about the physical whereabouts of the archives at this time.
PRESIDING JUDGE: And so the HVO is maintaining, well, at least there are separate archives for the HVO. Iíll hear from the Prosecutor then in a moment. Have you spoken with Mr. Jelavic?
MS. VIDOVIC: No, I have not spoken to Mr. Jelavic, except that I was in a position to read his statement at the press conference in which he contested his own authority which is why I have given these explanations regarding his authority regarding the archives of Herzeg Bosna.
PRESIDING JUDGE: Do you have a copy of that press statement? Or could you locate a copy and provide me with a copy.
MS. VIDOVIC: Yes I have a copy. I have also submitted it to Mr. Harmon of the Prosecution and I would request that he make one available with an unofficial translation attached to it.
PRESIDING JUDGE: Mr. Harmon, do you know where physically these documents are located? That is the archives of Herzeg Bosna and do you know physically where Mr. Jelavic is?
MR. HARMON: Your Honour, I have received information as to the exact location of where the archives are located, but I have no idea where Mr. Jelavic is.
PRESIDING JUDGE: Do you wish to make this an exhibit, this press statement?
MR. HARMON: Yes, your Honour, that would be fine.
PRESIDING JUDGE: Is that now exhibit D?
MR. HARMON: Yes
PRESIDING JUDGE: Well, what we have is the subpoena duces tecum that has been issued. The Prime Minister of the Federation of Bosnia Herzegovina, Mr. Bicakcic, has not contested the subpoena duces tecum, and in fact he has directed Mr. Jelavic to produce those records. Mr. Jelavic appears to be the custodian of the records. Mr. Jelavic is not here today and has issued a press statement, which I donít what exactly is in it, but Ms. Vidovic has indicated that he contests his authority to turnover these documents. How do you wish me to proceed, Mr. Harmon? And you may add anything else in terms of the background and what you think is shown by Ms. Vidovicís report, Madam Vidovicís report.
MR. HARMON: Yes, thank you very much, your Honour. I believe, your Honour, that first off, Bosnia Herzegovina has been extremely co-operative in urging co-operation by Mr. Jelavic as the successor custodian of the HVO and so my remarks are going to be directed at Mr. Jelavic in particular.
This subpoena, your Honour, was issued January 15th and obviously we have been urging this court and the recipient of that subpoena to produce documents relevant to which is in the subpoena duces tecum. The first response by the custodian of the records of the HVO archives was a letter that is part of this record informing this court that there was an untimely death of the custodian of the records, I believe in November of this year. This court then ordered an additional hearing, and the day before that additional hearing, of course first off the prosecutor received no documents but we received a communication that Mr. Jelavic did not receive a copy of the courtís order until the day before the hearing. That is contrary to the evidence that was also was submitted, that showed his cabinet received a copy of the subpoena duces tecum many days before his statement that he only received it the day before. The hearing was then continued and we now have the third hearing. And today there is simply no communication what so ever from Mr. Jelavic and there is no appearance from Mr. Jelavic. Now the subpoena duces tecum and the court order of the last hearing made it abundantly clear that Mr. Jelavic personally was not required to appear, if he sent a representative here. But we have, I think, a very blatant ignoring of the courtís orders, there have been three orders. My request, your Honour, is that this court make a finding of non-co-operation by Mr. Jelavic as the successor custodian of the HVO, and that finding also be tantamount to obstruction of justice in the Blaskic case. I would ask this court to have a hearing perhaps on Thursday, if convenient with the courtís calendar, an order to show cause hearing as to why Mr. Jelavic should not be held in contempt of this court.
PRESIDING JUDGE: One concern that I have is that the subpoena duces tecum is, requests 19, well it has 19 different subsections, 19 requests that are made, and within each of the request is a broad range of documents that are requested, and I am not in a position to really consider whether there are any appropriate or valid objections to the subpoena on the merits without having the custodian of the records here; so that, if the custodian of the records, and I am not sure that he is the person who would object to the breadth, but at least if he were here, I would be able to hear from him to tell me his position regarding his possession of the documents. Which one he possesses, what the documents look like, whatís the breadth of the documents, how they are organised. Just a variety of matters that you totally consider whenever a Judge rules on a subpoena duces tecum. And so without that response I am left with the request of the Prosecution. My review of the subpoena duces tecum, and of course the knowledge that I have about the matter, because I confirmed the indictment. And so I truly wish that Mr. Jelavic were here so that we could hear from him with respect to at least the documents itself. Except, however, that the Prime Minister of the Federation of Bosnia Herzegovina has not contested the subpoena duces tecum on its merits. What he has said is to direct Mr. Jelavic to comply. And so if there is some reason for his non-compliance, either going to the merits of the items that are requested, because of the size, the voluminous size, the condition of the documents, or whatever. He is not here to respond. So, what we have is a co-operation on the part of the state, but a non-co-operation on the part one of the subordinates of the Prime Minister. And I suppose I need to reflect on my authority and what is the best way to handle this matter. Have you considered taking the deposition or attempting to take the deposition of Mr. Jelavic? You know, I gather, where, well you have indicated that you donít know his whereabouts, but Ms. Vidovic indicated that she believes that you know the whereabouts of the documents. Have you thought about that as a possible approach?
MR> HARMON: Your Honour, it is an approach, but with time running short, certainly I have to consider in the mix whether it is more appropriate to have Mr. Jelavic show up in court. He has been given three opportunities, heís been faxed a copy of this order. He doesnít have to show up personally, he can send a representative. So, I have to weigh in the balance what my time constraints are as well, if I have to send somebody down to depose Mr. Jelavic, it seems to me it will take an enormous amount of time away from the time necessary to prepare this trial and get it ready for trial. So I consider options, but certainly I think the most appropriate option for Mr. Jelavic is he could designate somebody who is knowledgeable about the location of these documents, what steps have been taken to secure these documents and produce them. And it seems to me it is incumbent on him to appear here. He has had three opportunities to do so. So my answer to your question, your Honour, is yes I have considered it, but at this point, I think the more appropriate resolution would be to have him have shown up on any one of these three dates and they have had since January 15th to make any appropriate objections or concerns made to this court. They have simply ignored it.
PRESIDING JUDGE: What you are asking me to do is to issue an order finding Mr. Jelavic in contempt. Have you considered the possibility of my issuing an order noting the co-operation of the Prime Minister of the Federation of Bosnia Herzegovina, speaking on behalf of Bosnia Herzegovina, and ask that the Federation of Bosnia Herzegovina find that Mr. Jelavic has failed to comply with a valid order of the Tribunal and that he is therefore in contempt, that is, rather than my making the finding. Perhaps asking Bosnia Herzegovina. I am really just discussing and thinking out loud with you, because I am sure that I will have to adjourn and give some thought to this.
It is really the approach that should be taken. If I issue an order, find that he is in contempt, then what do I do. I suppose I would then have to execute an arrest warrant, send the arrest warrant to Bosnia Herzegovina. The Prime Minister has already indicated that Mr. Jelavic is in non-compliance and then ask Bosnia Herzegovina to execute that arrest warrant and have Mr. Jelavic transferred to the Tribunal. And this procedure has been utilised for witnesses in cases before the Tribunal. Itís not been limited to persons who have been indicted. So, can you respond to that?
MR. HARMON: Well, I am thinking aloud and not thinking aloud at the same time, your Honour, I think that it is abundantly clear from the record, your Honour, that Mr. Jelavic has had ample opportunity to comply with reasonable orders of this court. I certainly think that the court, I would urge the court to make a finding of non-co-operation with the Office of the Prosecutor by Mr. Jelavic as the successor custodian of the records. I would also urge the court to make a finding that that non-co-operation is tantamount to obstruction in the Blaskic case. Now, we come to the much more difficult issue, and that is what remedies are available when a legitimate court order is ignored, and I think it is an extremely difficult and delicate task, very frankly, because one doesnít expect Ministers to ignore the courtís order. But, nevertheless, your Honour, I donít think itís appropriate either for the Ministers to completely ignore as they have on this hearing, your order of the 20th of February. We havenít had so much as a word from Mr. Jelavic as to why he didnít show up, or why didnít send a representative.
PRESIDING JUDGE: Let the rules, the present rules see what help, perhaps, we can find. Of course, Rule 77 refer to contempt of the Tribunal. This rule was designed to operate during the trial proceedings, itís in the section on trial proceedings. As I have indicated 77(A) then refers to subject, to the provisions of several 90(E),"a witness who refuses or fails contumaciously to answer a question relevant to the issue before the Chamber", and then of course 90(E) refers to his right not to incriminate himself. I certainly have no problem with finding that Mr. Jelavic is in non-co-operation with the Tribunal. Obviously, he is in non-co-operation with his Prime Minister. What I am trying to determine is what is the best remedy to bring about compliance. I donít want to simply issue another order for simply to be disobeyed. I am not going to Bosnia Herzegovina to invite Mr. Jelavic here, so someone has to bring him here and Iíd like to determine what is the appropriate method. Is that something that you think can be handled by a single judge, or do you perhaps think that the entire Trial Chamber should handle this matter, and that is I presume, although there has been no suggestion as to what trial chamber it would be. Trial Chamber II, the one that I preside over, to issue such an order or does that make a difference. If so, youíd have to point me to the rule, because I canít find one that would, because itís sort of like a rule 61 proceeding where a single trial judge would make certain findings having confirmed the indictment and then referred. But we donít have a rule specifically beyond what this situation.
MR. HARMON: Your Honour, in respect of the rules dealing with contempt of course I would view your power, you as a judge of this Tribunal have inherent powers to enforce your own orders. Inherent in that, of course, is contempt and any other reasonable measure the court may wish to take into consideration. I also believe, your Honour, that rule 54 permits you to issue any orders as may be necessary for the preparation and conduct of trial and in support of your order for a subpoena duces tecum I would submit, your Honour, that orders related to the enforcement of your order issuing the subpoena are also included within rule 54.
PRESIDING JUDGE: I agree with you. I agree that I certainly have the power to issue this subpoena under rule 54 and I think that I have the power and, I believe that the Tribunal has the power obviously, to issue subpoenas and that the state has a duty to cooperate for investigation and providing evidence. My only question is, how I would proceed. I guess it has to do with really the drafting of the subpoena of the order. Whether the order would be a finding by the Trial Chamber, by me that of non-compliance and therefore find either that Mr. Jelavic is in contempt or that he has failed to co-operate, or both. And then my next question is, what would I then do. I would direct him once again to comply and I donít expect that Iíll get a response from there. The only way that I think I can get a response is to request the Government of Bosnia Herzegovina that has been very co-operative, very co-operative in this proceeding, very co-operative for the Tribunal. If we had that kind of co-operation we wouldnít be in this situation that we are in now as a Tribunal. But the only way it seems to me that pressure can be brought upon Mr. Jelavic is by going to the state, by issuing an order to the state, to the Prime Ministerís attention asking that he take action.
MR. HARMON: I would have no objection to an order fashioned in those terms, your Honour.
PRESIDING JUDGE: But I donít know. Certainly I will find clearly that Mr. Jelavic is in non-compliance with the order. As to the procedure that I will follow to attempt to bring about compliance that is a matter that I will have to consider. And welcome the suggestions of the Prosecution, as well as Madam Vidovic, as the Minister Counsel of Bosnia Herzegovina. Are there additional matters that we need to consider at this time regarding this subpoena?
MR. HARMON: No, your Honour. Would, your Honour, want our thoughts in writing and submitted to you.
PRESIDING JUDGE: Yes. What I would like to have is a draft order. Itís your order. I mean itís your request that you are asking me to enforce and actually I think our rules, or maybe itís our local rules or our directive on counsel ask that counsel give us proposed orders to kind of help us, to help the judges.
MR. HARMON: Al right, your Honour.
PRESIDING JUDGE: So I would appreciate that. I donít know that Madam Vidovic has a role in this since she has already appeared and has indicated her efforts which have been exhausted I gather to bring about compliance. So I donít know that she would have a role. I think thatís something that the Prosecution should consider. So I would request that you submit me a proposed order and if you can do that as soon as possible either today or tomorrow then I will consider it. Now, Wednesday? What did you want me to do Wednesday?
MR. HARMON: Well, I had suggested, your Honour, if there was an order to show cause hearing, we hold that on Thursday, but
PRESIDING JUDGE: Thursday. OK. Depending upon how the order is drafted I would set a date if it is necessary to have another hearing. I would set a date for that purpose. I donít know exactly what date that will be. Letís see where we are with the proposed order.
MR. HARMON: All right, your Honour. Thank you very much.
PRESIDING JUDGE: Is there anything else, Mr. Harmon?
MR> HARMON: Nothing further
PRESIDING JUDGE: Anything further Ms. Vidovic
MS. VIDOVIC: Perhaps if I could make one point clear. Mr. Jelavic has been ordered by you to appear here or to designate a representative who would provide the necessary explanation. He received those orders not only for his personal appearance here but for the designation of a person who might assist in the compliance with this order. In other words, he should designate a person he thinks is authorised to comply with this order. So, I think that this should be really be made very clear, so that Mr. Jelavic has a very clear situation, especially in light of the statement he has given at the press conference.
PRESIDING JUDGE: I will take that into consideration. In other words, if, for some reason he is not the appropriate person, then he should designate the appropriate person to appear, and that will then be taken into consideration in drafting the order. Perhaps the best approach, considering the splendid co-operation of Bosnia Herzegovina, the Prime Minister is to issue an order directing the arrest of either Mr. Jelavic, if he is not willing to designate an appropriate representative or appear here, and have him transferred to the Tribunal as we do with witnesses. We donít have a problem of my directly asking Mr. Jelavic to appear here, but instead asking Bosnia Herzegovina to carry forth with their co-operation that they have expressed thus far. If there is nothing further, then we stand adjourned.