Tribunal Criminal Tribunal for the Former Yugoslavia

Page 138

1 Thursday, 3 March 2005

2 [Motion Hearing]

3 [Open session]

4 [The accused entered court]

5 [The Accused Gruban not present]

6 --- Upon commencing at 2.57 p.m.

7 JUDGE ORIE: Mr. Registrar, would you please call the case.

8 THE REGISTRAR: Good afternoon, Your Honours. Case Number

9 IT-02-65-PT, the Prosecutor versus Zeljko Mejakic, Momcilo Gruban, Dusan

10 Fustar, Dusko Knezevic.

11 JUDGE ORIE: Thank you, Mr. Registrar.

12 May I have the appearances. The Prosecution first, please.

13 MS. SOMERS: Good afternoon, Your Honours. Susan L. Somers,

14 senior trial attorney for the Office of the Prosecutor, along with Ms. Ann

15 Sutherland, trial attorney, and Mr. Sebastian van Hooydonk, our case

16 manager.

17 JUDGE ORIE: Thank you, Ms. Somers.

18 Then for the Defence. May I first have the appearances for

19 Mr. Mejakic.

20 MR. SIMIC: [Interpretation] Good day, Your Honour. Jovan Simic,

21 an attorney from Belgrade, and my colleague Zoran Zivanovic, appearing for

22 Mr. Mejakic.


24 Yes.

25 MR. LUKIC: Good afternoon, Your Honours. I am Branko Lukic and I

Page 139

1 am representing Mr. Momcilo Gruban, who is not with us today.

2 JUDGE ORIE: Yes. Thank you, Mr. Lukic.

3 Then the next.

4 MR. SCUDDER: Good afternoon, Your Honour. I am Theodore Scudder,

5 here with Dragan Ivetic. We represent the defendant Dusan Fustar.

6 JUDGE ORIE: Thank you, Mr. Scudder.

7 MS. NEDIC: [Interpretation] Good day, Your Honour. Slobodanka

8 Nedic, attorney at law, appearing for Dusko Knezevic.

9 JUDGE ORIE: Thank you, Ms. Nedic.

10 Then we have invited the representatives of Bosnia and Herzegovina

11 and of Serbia. Who will present themselves first? Will it be Serbia and

12 Montenegro or will it -- I think it's proper since Bosnia and Herzegovina

13 is -- there is a motion for referral. I'll say a bit more about that at a

14 later stage. There is a motion for referral of these cases to Bosnia and

15 Herzegovina, so therefore Bosnia and Herzegovina is directly, by force of

16 this motion, involved in this case. So may I have the appearances for

17 Bosnia and Herzegovina.

18 MS. KRESO: [Interpretation] Good day, Your Honours. My name is

19 Meddzida Kreso, I am the president of the Court of Bosnia and Herzegovina.

20 And with me is Ms. Fidelma Donlon, the deputy registrar of the Court of

21 Bosnia and Herzegovina.


23 MR. MARINKOVIC: [Interpretation] Good day, Your Honours. My name

24 is Vaso Marinkovic. I am the deputy chief state prosecutor of Bosnia and

25 Herzegovina dealing with war crimes, and to my right is my colleague

Page 140

1 Mr. Nicholas Koumjian, also an international prosecutor for war crimes in

2 the state prosecutor's office of Bosnia and Herzegovina.

3 JUDGE ORIE: Thank you, Mr. Marinkovic.

4 Thank you, Ms. Kreso.

5 Then for Serbia and Montenegro.

6 THE INTERPRETER: Microphone, please.

7 MR. LONCAR: [Interpretation] Good day, Your Honours. My name is

8 Zoran Loncar. I am a minister in the government of the Republic of Serbia

9 and a member of the National Council for Cooperation with The Hague

10 Tribunal. With me today to my left is Mr. Branislav Ristivojevic, an

11 advisor, and to my right, Mr. Bogdan Stankovic, the deputy prosecutor for

12 war crimes of the Republic of Serbia. Next to him is Mr. Sasa Obradovic,

13 the first secretary of the embassy of Serbia and Montenegro here in The

14 Hague. Thank you.

15 JUDGE ORIE: Thank you, Mr. Loncar.

16 I hope that I'll not mix up your names during this hearing. I

17 hope you'll have some understanding for it. But let me first ask the

18 accused who are present whether they can hear me in a language you

19 understand. I add to that that the only thing that was said until now was

20 that everyone presented themselves.

21 THE ACCUSED MEJAKIC: [Interpretation] Your Honour, yes, I can

22 hear.

23 JUDGE ORIE: Yes. Your name is?

24 THE ACCUSED MEJAKIC: [Interpretation] My name is Zeljko Mejakic,

25 and I am the first accused in this case.

Page 141

1 JUDGE ORIE: Yes, Mr. Mejakic.

2 And next to you sits?

3 THE ACCUSED KNEZEVIC: [Interpretation] My name is Dusko Knezevic

4 and I can follow the proceedings in my own language.

5 JUDGE ORIE: Thank you.

6 And?

7 THE ACCUSED FUSTAR: [Interpretation] My name is Dusan Fustar, and

8 I can follow the proceedings.

9 JUDGE ORIE: Yes, thank you, Mr. Fustar.

10 So we now know at least who is in this courtroom. In this

11 courtroom we'll hear today the further submissions from the parties in

12 relation to a motion - a motion filed by the Prosecution - for referral of

13 the cases against the four accused, Mr. Gruban not being present today but

14 represented, a referral of the cases in order to be -- to have them

15 further prosecuted then tried in the Republic of -- Bosnia and

16 Herzegovina.

17 I already alluded for a very short moment to the presence of the

18 representatives of the -- of Serbia and Montenegro. That is because

19 Defence counsel have drawn the attention of your government to the fact

20 that this motion was pending before this court and you have requested the

21 court whether you could make any submissions here, and out of courtesy,

22 although as I said before, you are not a party to these proceedings, the

23 Chamber is interested to hear the submissions you would like to make.

24 We'll hear today, therefore, the further submissions of the

25 parties. The Chamber has read carefully all the submissions made in

Page 142

1 writing until now. We have asked very specific questions, both to

2 Defence, Prosecution, and to Bosnia and Herzegovina. Therefore, if --

3 I'll allow you in a second to make further submissions. I would not mind

4 if the parties would very briefly summarise, because this is a public

5 hearing, very briefly summarise their positions. But the Chamber is more

6 interested to hear, apart from any important addition to the submissions

7 you made already, but the Chamber is very much interested to hear what

8 your reply, response, reaction is to what the other interested parties in

9 this case have submitted to the Court so that we are better able to

10 understand where exactly the problems are.

11 Therefore, I would first like to give an opportunity to the

12 Prosecution to make further submissions in respect of its motion.

13 MS. SOMERS: Thank you, Your Honour. May I first, as a threshold

14 inquiry, ask if any aspect of confidentiality that was affixed to the

15 Prosecution's initial submissions has been lifted because this is -- I'm

16 sorry, the Defence, has been lifted for this hearing so that we can

17 respond in open court to them?

18 JUDGE ORIE: If there's any -- there -- when we discuss matters of

19 confidentiality, I would like to invite you to keep that for a moment,

20 because if there is any confidentiality involved, then whether or not to

21 lift that, if it would need any discussion, then of course we have to do

22 that in the presence of the direct parties to the case only. If any

23 confidentiality that is claimed by the Defence or is asked for by the

24 Defence would be lifted, then of course we would hear from the Defence now

25 and then you could feel free. But otherwise, I would like to ask you to

Page 143

1 keep it for a moment that we can go in private session.

2 MS. SOMERS: I would also ask at this moment, just to bring to the

3 Chamber's attention, a point of corrigenda which I think will be helpful

4 before I commence the very brief summary of the status.

5 JUDGE ORIE: Please do so.

6 MS. SOMERS: In the Prosecution's submissions of 21 February,

7 2005, in footnotes 12, 19, 25, and 39, there was a citation to a provision

8 of the Official Gazette of Bosnia and Herzegovina. Unfortunately, we did

9 not at the time have the number. We can now inform the Chamber that it is

10 61/04.

11 JUDGE ORIE: Thank you, Ms. Somers.

12 MS. SOMERS: Your Honour, by way of brief summary as to how we are

13 here today: On 2nd September, 2004, the Prosecution filed its request

14 under Rule 11 bis for referral to Bosnia-Herzegovina, and in response the

15 counsel for the various defendants -- and of course the case was a

16 four-accused case. Responses have come in. There was a request by this

17 Chamber for further comment, I believe on the 9th of February. And on the

18 21st of February, if I'm correct as to the date, the Prosecution submitted

19 additional comments pursuant to the Chamber's order of 9 February.

20 The -- again, by very brief summary for purposes of the record,

21 this case emanates from the events of the -- what are referred to as the

22 Omarska and Keraterm camp atrocities in 1992 in the territory of Bosnia

23 and Herzegovina. The issues that must be presented to this Court are on

24 the gravity of the offence and on the level of the accused. The

25 Prosecution stands on its submissions that the gravity of the offence, and

Page 144

1 of course it acknowledges that in order to be in this Tribunal or before

2 this Tribunal the offences are grave, they are of the utmost seriousness.

3 Acknowledging the mandate of the Security Council that, even bearing that

4 in mind, some of these serious cases must be referred to other Tribunals.

5 The level of the accused, reiterating that in the context of this

6 extremely serious criminal enterprise, as it has been referred to,

7 Omarska, and of course the similar criminality at Keraterm, in this

8 context the level of the accused, albeit high within that context, is such

9 that in the overall scheme of let's say a criminal continuum, we believe

10 it would be deemed as to some lower, and as to, for example, accused

11 Mejakic, mid-level. Again, entirely appropriate for referral under Rule

12 11 bis.

13 The other considerations as to fairness, and the up-and-running

14 structures available in Bosnia and Herzegovina have been set forth. As a

15 point of introduction, I don't know how much detail Your Honour would like

16 me to go into, but if this suffices for purposes of background procedural

17 history, then I would stop here and then pick up where additional

18 questioning will be made.

19 JUDGE ORIE: Yes, that seems to be sufficient.

20 Then I'd like to -- well, when I say it's sufficient, I of course

21 also invited you to touch upon those subjects that have specifically been

22 raised in the written submissions, so even before we would have perhaps

23 specific questions for you, if there would be any issue raised by any of

24 the parties that you would like to address, you may do so now.

25 MS. SOMERS: Well, of course in general the opposition by all

Page 145

1 accused to the motion has been the springing point from which we have

2 looked at response. I'd like to point out that one of the concerns that

3 had been raised, which is about the concept of anonymous witness, the use

4 of the term, has been cured. It now -- the reference, and I believe the

5 esteemed members of the delegation from Bosnia and Herzegovina can further

6 go into it, the reference now is to nondisclosure of certain things, more

7 in line with the concept that I think has been used -- well, I know has

8 been used before this Tribunal. So that whole notion of anonymity is not

9 a concern at this point in time.

10 The issue of keeping accused together for trial is of course one

11 that we think is extremely important and hence we believe it entirely

12 appropriate that all four accused should be referred to the court of

13 Bosnia and Herzegovina for this proceeding. Issues of other possible

14 venues raised by virtue of having the Government of Serbia and Montenegro

15 make an appearance, albeit that was certainly not contemplated by the

16 Prosecution, I think are irrelevant. The issue is: These persons

17 allegedly committed the crimes on the territory of Bosnia and Herzegovina;

18 it is the most appropriate forum. It has a court set up now, a very

19 specialised court, which is able and willing and eager to handle this

20 case, eager in the sense of its preparedness. And we see that there

21 should be no need to look further for a jurisdiction, particularly in this

22 -- under these facts and given that all were born in the territory of

23 Bosnia and Herzegovina, that any relationship to Serbia and Montenegro I

24 would have to describe as tangential in that they have been given, at

25 various points in time, indicia of citizenship, and it is our position

Page 146

1 that it was for convenience as opposed to anything else. That in fact how

2 they came to this Tribunal can be characterised not as an avenue of

3 reward; they have an obligation to come to this Tribunal. And they were

4 not arrested in the true sense of the word, but in fact that any

5 consideration should be given for the nature of how they came here I think

6 is also irrelevant. That they may have come from the territory of Serbia

7 and Montenegro should not be of a concern for this Tribunal. What is of a

8 concern is that a good portion of the witness base will be from Bosnia and

9 Herzegovina. The nature of the case should also be considered. And that

10 the stage at which the preparations find themselves would make it ideally

11 suited for this referral.

12 Excuse me just a moment.

13 [Prosecution counsel confer]

14 MS. SOMERS: Issues were raised, Your Honours, about witnesses for

15 the Defence and if there are any -- if this may be more appropriately the

16 subject of private or closed -- private session, I am certainly willing to

17 defer any discussion on that topic.

18 JUDGE ORIE: Yes. Perhaps you better not at this moment until we

19 have discussed with the parties what they would like to raise in private

20 session.

21 Is there any other matter you would like to --

22 MS. SOMERS: The concerns that were raised about current Defence

23 counsel --


25 MS. SOMERS: -- that will certainly be handled by the appropriate

Page 147

1 officials in Bosnia and Herzegovina who are mindful of the need to

2 expeditiously make sure these cases go to trial. And there is -- as our

3 understanding from what we have read, the realm of discretion necessary to

4 ensure that. We believe that part of their willingness and ability to

5 accept this case is the understood good faith in making sure that things

6 move forward quickly -- or expeditiously, I should say, and however the

7 appointment of counsel aspect of moving things forward expeditiously

8 factors into a plan I am confident will be addressed in great detail with

9 great concern by the Registry. It appears that the element of discretion

10 works in favour of these counsel, if it is deemed appropriate, being able

11 to continue representation. Again, I think our learned friends from

12 Bosnia-Herzegovina can best address that. But from our perspective, that

13 does not present a problem.

14 I think I have been succinct on these points. And if there comes

15 a point where an issue is raised by my learned friends later, I would ask

16 for the Court's indulgence in letting me address them as they arise.

17 There were so many sub-issues that I think I would be more effective if I

18 have the Chamber's permission to do so.

19 JUDGE ORIE: Thank you, Ms. Somers, for this first -- the first

20 matters you have addressed.

21 I would like to give an opportunity to the Defence to make further

22 submissions. Until now we have -- this Chamber has received submissions

23 on the one hand for Mr. Mejakic and then submissions by the three other

24 counsel for the other accused. Is this what we can expect this afternoon

25 as well? Are the -- Mr. Simic, I take it that you'll make submissions on

Page 148

1 behalf of Mr. Mejakic.

2 MR. SIMIC: [Interpretation] Your Honour, the Defence of all the

3 accused have agreed to divide the topics among us in order to save time.

4 The introductory remarks will be made by Mr. Scudder, I will follow him,

5 and hen we will deal with each topic one by one.

6 JUDGE ORIE: The Chamber, of course, highly appreciates that you

7 have found an efficient way of dealing with problems that are similar for

8 your clients.

9 Mr. Scudder, may I give you an opportunity to make the

10 introductory submissions.

11 MR. SCUDDER: Thank you, Your Honour. I am Theodore Scudder, with

12 Mr. Ivetic, representing Mr. Fustar. As Mr. Simic has said, we have tried

13 to save time and repetition here by each addressing certain of the issues

14 that have been raised.

15 I would like to speak particularly about this case, which does not

16 seem to be appropriate for a transfer or to lend itself readily to this

17 type of a transfer. Ms. Somers mentioned keeping the four defendants

18 together, but there have been other defendants tried on basically the same

19 facts already here at the ICTY, which I think affects what is being done

20 here. I would like to first make one correction. There is a reference to

21 the defendants have been born in Bosnia. The defendant Dusan Fustar was

22 born in Serbia and had gone back to Serbia just before he surrendered

23 himself. He had made attempts, through both governments, to surrender

24 himself and ended up surrendering himself directly to the UN.

25 My comments about this case are in contrast to the usual case. I

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1 think the people that have written the rules probably had in mind a case

2 where the defendants would be together in preparation for a case and in

3 standing trial, and this case is quite different. We're dealing with

4 several different times and places. First of all, there are the two

5 different camps, Keraterm and Omarska. As the Court knows, there was an

6 initial trial of three people labelled Keraterm 1. It resulted, after

7 trial, in convictions of the defendants Sikirica, Dosen and Kolundzija.

8 In fact, some of their sentences had been completely served before other

9 people in the same case surrendered themselves and Keraterm 2 started.

10 And in the meantime there was also an Omarska case with five defendants,

11 Kvocka, Prcac, Kos, Zigic and Radic. And now the facts of that case are

12 involved in the present matter also. There have been related cases also;

13 the first one against Dusko Tadic. There is a case on which the appeal is

14 still pending on Milomar Stakic, and of course we have the four defendants

15 in this case who were once five. There was also Predrag Banovic, who pled

16 guilty and was included in the same indictment. So there have been at

17 least 12 people involved in the overall fact situation. The Prosecution

18 and the amended indictment have described a joint criminal enterprise

19 including all of the people that I have just named. And so in terms of

20 keeping people together, we already have an established situation where

21 this court has dealt with all of them up to this time.

22 Considering the three years or more of preparation just on the

23 people before this Court now, there is a great investment of time and

24 effort that has already been put in by the Prosecution and their

25 investigators, by the Defence, and also by the Court. And consequently,

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Page 151

1 there is a large amount of accumulated evidence relating to the facts,

2 particularly the matters mentioned by Ms. Somers, namely the seriousness

3 of the offence and the overall joint criminal enterprise charged and also

4 facts that would indicate the relative culpability, not only of the four

5 people before the Court now but also of those others that I mentioned.

6 Any new personnel from another jurisdiction coming into this case will

7 have a considerable body of evidence and background information to digest

8 and build on. And really, at this point it would be practically

9 impossible I think - and I speak from my own experience as a lawyer for 40

10 years, including ten years as a prosecutor in the United States and years

11 as a criminal defence attorney - it's very difficult for lawyers,

12 prosecution or defence, to pick up a case that's been developed by other

13 people and know it as well or feel as comfortable with it. So any new

14 court, including all of the personnel, would be at some considerable

15 disadvantage, not to mention disadvantages to the defendants themselves

16 who have been dealing with a particular court and body of evidence being

17 developed.

18 Three of the four defendants before this court surrendered

19 themselves before Rule 11 was ever amended the first of three times to

20 come into its current form. It has also been mentioned, as we've learned

21 via Florence Hartmann on behalf of the OTP, that the Prosecution feels

22 there should be consideration where people voluntarily surrender

23 themselves, and particularly when they do so promptly and early, as has

24 been done in this case. This has several resulting consequences for us, I

25 believe. First of all, there's a problem of consistency. If this case

Page 152

1 were to be transferred elsewhere, we would end up with people involved in

2 the crimes charged here where there would be the judgements I've already

3 mentioned here at the ICTY and then a different judgement by a different

4 court with different personnel operating under different rules in a

5 different place. That would leave open the possibility that people would

6 seek inconsistencies between the two judgements, they would point out any

7 inconsistencies in sentencing, it could forum shopping, and make it

8 difficult to operate with the transfer rules in the future in other cases

9 of a more usual type.

10 There is also the matter of judicial economy. I mentioned how

11 much time has been spent developing this case. I believe we were told a

12 year ago that it was ready for trial here, and anybody starting up in a

13 new jurisdiction would be repeating a lot of work that has already been

14 done. I will take as an example one thing that I believe illustrates my

15 comments, and that is that the current Stakic case on appeal has raised

16 some issue about the maximum sentence that can be imposed in this court.

17 If this case before this court were transferred and another court started

18 applying its own rules, there's the possibility that a ruling could be

19 made on that issue in the Stakic case and a question raised whether the

20 transferee court --

21 THE INTERPRETER: Could the counsel please slow down for

22 interpretation.

23 MR. SCUDDER: -- here.

24 JUDGE ORIE: Mr. Scudder, could you please slow down because the

25 interpretation has some difficulties -- not in following you but in

Page 153

1 translating you.

2 MR. SCUDDER: Right. I'm trying to wrap it up here. My point is

3 that with decisions made in one group of facts and two different courts,

4 there would be problems raised, both as to judicial economy and, more

5 importantly, to consistency which relates to the two matters mentioned in

6 Rule 11, both the severity of sentence, whether the new court -- the

7 severity of the crime, whether the new court would see the severity the

8 same way, and also particularly the relative culpability among the

9 individual defendants. The ICTY has already considered other people

10 involved at both Keraterm and Omarska during the same events that are

11 involved in this case, and so the Prosecution and Defence both have some

12 good sense of the relative culpability among the people. And I might

13 mention, I believe at least two of the people before the court now have

14 been involved in some effort to settle their case, and that of course is

15 based on knowledge of both the Prosecution and the Defence of the relative

16 culpability of the crimes they are charged with and the evidence to

17 support it.

18 JUDGE ORIE: Yes. I'm re-reading your last line about some

19 effort. If there's any information that we need to know in order to make

20 no mistakes, any further information, we'll hear from you. Mr. Scudder,

21 thank you.

22 You, Mr. Simic, will be the next one who will address the Court on

23 the next subject.

24 MR. SIMIC: [Interpretation] Thank you, Your Honours. It is the

25 view of all the Defence counsel in order for Rule 11 bis to apply, the

Page 154

1 Trial Chamber needs to determine whether all conditions will be met for a

2 fair trial.

3 Furthermore, the Defence would like to discuss certain standards

4 that it deems need to be met. I will just mention them briefly. We

5 should not be guided by financial or political reasons to determine

6 whether this case should be referred or not, but we should be guided by

7 the principles of justice, a fair trial, and all the other provisions in

8 Rule 11 bis, and the Trial Chamber should base its decision in this matter

9 on criminal substantive and procedural law in the country where the trial

10 would be conducted.

11 The first basic precondition is a fair trial. The provisions in

12 Article 14 of the International Covenant on Human Rights and Article 6 of

13 the European Convention of Human Rights are the basic provisions that we

14 have to meet. We will not be listing all of them. We will just focus on

15 those elements that indicate that it would be highly problematic that the

16 conduct of a fair trial would be a highly problematic thing. First of

17 all, it is a provision that the Court must be unbiased and independent.

18 It is difficult to say to what extent a court is independent or dependent

19 and it is difficult to say whether a court is indeed free of all pressure.

20 It has been proven -- international case law indicates, for

21 instance, in the US courts many of the cases you have changes of venue or,

22 for instance, in the Lockerbie case, the venue had been changed to Holland

23 in order to ensure a fair trial. This is something that the Security

24 Council Resolution 955 determined, where it is indicated that the -- in a

25 certain -- in a certain case the trial had to be held in another country

Page 155

1 because the trial could not be independent.

2 This is a general situation. We are not talking about the persons

3 working there, but we also have to take into account the general security

4 situation in the country where the trial is to be held. Bosnia and

5 Herzegovina continues to be a high-risk site. The Security Council

6 recommendation is not to -- the state department recommends to its

7 citizens not to travel to Bosnia and Herzegovina without undue need.

8 Conditions indeed have not been met there, despite the fact that the war

9 is over, for the troops that are there to withdraw, and we also have the

10 situation where Mr. Paddy Ashdown, the high representative, has the

11 highest authority and he has the final say in all aspects of public life

12 and political life. He can even ban certain people from having public

13 functions and political functions.

14 Organised crime is rife. Let me give you an example. Dragan

15 Coric, the Supreme Court -- president of the Supreme Court, and another

16 judge have been accused of having been involved in organised crime. There

17 are some other cases in which persons have been indicted for abuse of

18 office. In Bosnia and Herzegovina organised terrorist groups have been

19 proven to exist there, and various other organisations are also active

20 there.

21 JUDGE ORIE: Mr. Simic, do you think that it of -- it would be of

22 great assistance to the Chamber to hear all the shortcomings of whatever

23 state that was involved -- that might be involved in a referral, either in

24 this case or in future cases? We have requests pending, for example, to

25 refer a case to Serbia and Montenegro. Do you think that it would assist

Page 156

1 us in that case to hear whatever is wrong in the governments, society,

2 economics of that state? Would that all be so important to take into

3 consideration to consider whether a trial could be fair? I mean, you said

4 that the -- I'm not aware of it, but that in the United States they say,

5 Don't travel to Bosnia and Herzegovina; it's not a safe place. Do you

6 expect us to compare whether there are similar recommendations made by

7 other governments to their citizens? Is that not a bit far away from what

8 it is really about and which you started, and that is whether there could

9 be a fair trial? I could mention you a lot of states where sooner or

10 later government officials would be involved in bribery, corruption. Not

11 necessarily all these states disqualify as states that could have a good

12 legal system. I'm not saying they have, but I just wonder to what extent

13 it is relevant what you're drawing our attention to at this moment. Would

14 you please keep this in mind if you continue.

15 MR. SIMIC: [Interpretation] Thank you, Your Honours.

16 The idea of the Defence was to note certain aspects that might be

17 relevant and that, in my opinion, should be presented to the Trial Chamber

18 when making the decision whether the courts in Bosnia and Herzegovina

19 could operate without any pressure. I will wrap up.

20 In Bosnia and Herzegovina, the ethnic, political, and religious

21 intolerance is rife. This has been noted by Europe Union institutions.

22 There is a media campaign preparing for a trial of the Omarska case, and

23 after all, we must keep in mind that the Omarska camp case is the one that

24 has been the most present in the media of all the cases. After all,

25 Omarska and the Vukovar crimes led to the establishment of this Tribunal

Page 157

1 quite sooner than expected. As we noted in our briefs, all parties in

2 these proceedings stated that it is quite difficult to find anyone in

3 Bosnia and Herzegovina who has not had -- who has not been affected by the

4 war in Bosnia and Herzegovina.

5 What we wanted to say is that the demands of the fair trial do not

6 coincide always with the demands to try a case where the crime was

7 committed. We've already noted the Rwanda situation and all the other

8 cases, and it is our concern that this animosity against the accused in

9 the place where the crimes were committed might affect the fairness of the

10 trial, it might affect the accused, the Defence counsel, and perhaps the

11 Court itself, the Judges themselves. Likewise, the accused have the right

12 to be tried without undue delay.

13 Judge Robinson noted that the Trial Chamber is ready to proceed

14 with trial, and the Prosecution and the Defence agreed with that. The

15 Prosecution estimated that it would need four to six weeks for its case

16 and the Defence would probably not need much longer. The question then is

17 whether it is indeed fair to extend the detention of these accused who

18 have been in detention for two or maybe even four years awaiting trial.

19 The provisions of the Criminal Code of Bosnia and Herzegovina

20 stipulate what is considered to be a trial without undue delay. The

21 Criminal Procedure Code stipulates that the indictment needs to be adapted

22 to the laws of Bosnia and Herzegovina, which means that we have further

23 deadlines for appeals and so on. There is no provision in Bosnian law

24 preventing a prosecutor from amending the indictment, including other

25 indictees. There were several additional indictees. I think that there

Page 158

1 were six. Some of them were -- charges were dropped by the Prosecution.

2 And an indictment can be amended to include certain other criminal

3 offences without prior approval of the Trial Chamber, which means that

4 this could lead to undue delay in the conclusion of the trial. This would

5 unnecessarily prolong the proceedings, and with the detention, the fact

6 that the accused would have to stay in detention, this would mean that

7 they would have to wait for at least a year and a year and a half before

8 the beginning of the trial.

9 There is also the issue of Defence counsel. My learned colleague

10 has touched upon that, but we will just mention it briefly. In Bosnia and

11 Herzegovina, according to the current legislation, nobody who has not been

12 registered by the relevant bodies in Bosnia and Herzegovina can practice

13 law. There are certain provisions in exceptional circumstances allowing

14 foreign lawyers to practice law there, but unless these provisions apply,

15 only those persons registered in the registry of attorneys at law in

16 Bosnia and Herzegovina can practice law there.

17 When it comes to the issue whether the accused would have a fair

18 trial, if an accused cannot have their Defence counsel of choice and if

19 another Defence counsel has to take on the case, this would mean that this

20 new Defence counsel would have to study the whole record, and it could

21 take again at least a year and a year and a half. As for the budget that

22 was proposed by the state court of Bosnia and Herzegovina registry, does

23 not contain any headings, any information about lawyers or Defence

24 counsel.

25 The Prosecution filed a motion -- actually informed us that it

Page 159

1 would be submitting about 200 kilos of material about mass graves, about a

2 hundred binders in all. The question is whether the accused could indeed

3 be represented by proper Defence counsel, or whether the appointment of

4 new Defence counsel would again mean undue delay in their trial. We

5 believe that it would.

6 We also have another issue, which is hearing witnesses, and

7 whether both the Prosecution and the Defence would be able to call

8 witnesses under equal conditions. The Bosnia and Herzegovina law is very

9 restrictive, particularly in light of the provisions according to which

10 the court of Bosnia and Herzegovina can take judicial notice of

11 adjudicated facts and findings, in particular because we have a decision

12 in this case by the Presiding Judge Robinson indicating that only the

13 historical context before World War II can be considered as stipulated --

14 that can be stipulated.

15 Furthermore, it would be very difficult to call witnesses to

16 Bosnia and Herzegovina because Bosnia and Herzegovina does not have the

17 instrument of safe conduct. The chief prosecutor of Bosnia and

18 Herzegovina indicated that there would be a large number of new

19 indictments, covering about 10.000 people. And in light of the fact that

20 the Office of the Prosecutor has already interviewed many witnesses in

21 this case and in view of the fact that many of them have been

22 characterised as suspects, it would indeed be very difficult to call those

23 witnesses to come to testify in Sarajevo if that were the venue for the

24 trial.

25 The people would not feel safe and witnesses simply do not believe

Page 160

1 that protective measures would indeed be applied properly. We will say

2 something more about that tomorrow because our learned colleagues --

3 colleague the Defence counsel for the accused Stankovic will indicate

4 where very serious omissions were made in this respect.

5 All the Defence counsel agree that the Trial Chamber should be

6 satisfied that conditions for a fair trial would be met, and then and only

7 then would we be able to even consider whether other conditions for the

8 referral of the case under Rule 11 bis were met. And I hope that my

9 colleagues from Bosnia and Herzegovina will not take it personally.

10 JUDGE ORIE: Mr. Simic, before we continue I would have one short

11 question to you. You said the undue delay of people in detention would

12 even be worse because it would take us at least one year and a half to get

13 started in Sarajevo and people waiting -- yes, there seems to be a

14 translation problem. Let me -- let me say another few words to see --

15 MR. SIMIC: [Interpretation] I'm not receiving interpretation.


17 Perhaps could you assist, Mr. Usher?

18 MR. SIMIC: [Interpretation] I have to apologise, Your Honour. Now

19 I can hear you but before I did not receive any interpretation.

20 JUDGE ORIE: Okay. The matter has been resolved.

21 Mr. Simic, I had one very short question to you. You alluded to a

22 further delay before the trial would start in Sarajevo for one year and a

23 half, and that these delays, especially for those who are in detention,

24 are -- you didn't use the word, but unacceptable. What do you say about

25 the information we received on the maximum terms of pre-trial detention?

Page 161

1 Because I have some difficulty understanding that you say you have to wait

2 for one year and a half, whereas the information that the period to spend

3 in pre-trial detention is rather limited seems to contradict your

4 position.

5 MR. SIMIC: [Interpretation] It's correct, Your Honour. You are

6 correct that the pre-trial detention is one year, but from the transfer of

7 the accused to Sarajevo, from that date for one year, according to the

8 Bosnia and Herzegovina laws. The time spent in UN detention here at the

9 Tribunal is not credited. So from the date of the transfer of the

10 accused, if I am -- if my information is correct, so the detention could

11 last for one year from the date of the transfer of the accused.

12 JUDGE ORIE: Is my information correct that it was six months

13 pre-trial detention and that a judgement then would have to be delivered

14 within one year, which is different from what you tell us. That's at

15 least how I understood the submissions by the government, but if you have

16 a different interpretation of it, I'd like to know.

17 MR. SIMIC: [Interpretation] Your Honour, I do not have any other

18 interpretation. Indeed, we did not receive a brief by Bosnia and

19 Herzegovina government. We cannot give you our views on this. We -- this

20 is what we were able to find in the laws, the laws that we were able to

21 find, either on the Internet or from some of our friends and colleagues

22 from Sarajevo. I apologise if I am wrong, but perhaps we could clear this

23 up with the representatives of Bosnia and Herzegovina right now. In fact,

24 my learned colleague, Ms. Nedic, dealt with this issue. Perhaps she could

25 say something about it.

Page 162

1 MS. NEDIC: [Interpretation] May it please the Court?

2 JUDGE ORIE: If you have one second, please.

3 [Trial Chamber and Senior Legal Officer confer]

4 [Trial Chamber confers]

5 JUDGE ORIE: Ms. Nedic, I think you would like to address us, or

6 if you have passed the message meanwhile to Mr. Simic we could hear from

7 him as well, but if you want to address the Court, please do so.

8 MS. NEDIC: [Interpretation] What I wish to say, Your Honours, is

9 that in fact it's a maximum of six months in investigation, in view of the

10 gravity of the crime, and a year from the time the indictment is confirmed

11 to the trial judgement. I think that's why my colleague referred to a

12 one-year period.

13 JUDGE ORIE: Yes, he referred to one year and a half someone would

14 have to stay in detention until the start of the trial, which is of course

15 a different thing.

16 The next aspect to be dealt with by the Defence.

17 MR. LUKIC: Thank you, Your Honour.

18 JUDGE ORIE: Yes, Mr. Lukic.

19 MR. LUKIC: The next aspect we should touch upon is mentioned in

20 paragraph 2 of the OTP further submission filed 21st February of 2005.

21 And it's actually the issue of re-extradition or U-turn, as I heard it's

22 popularly called here in the Tribunal.


24 MR. LUKIC: I have a few documents here I will rely on. If

25 necessary, we can copy them, maybe before tomorrow, but they are all

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Page 164

1 accessible on the Internet so I think not only you can find it but I am

2 sure Your Honours are already aware of them because some issues have been

3 raised in some other cases.

4 JUDGE ORIE: Yes. Please proceed.

5 MR. LUKIC: As it was mentioned before, all four accused

6 voluntarily surrendered to this Tribunal, two of them coming from Serbia

7 and Montenegro, or Yugoslavia at that time; one surrendered directly to

8 the UN and one surrendered, although living in Serbia and Montenegro at

9 that time, surrendered to the authorities of Republika Srpska, Bosnia and

10 Herzegovina.

11 Today the Prosecution mentioned that citizenship should not be

12 concerned of this Tribunal, and it said on page 8, line 13, and we are of

13 a completely opposite opinion on this side of the courtroom. The

14 suggested re-transfer or re-extradition to Bosnia and Herzegovina would

15 hopefully be opposed by the Government of Serbia and Montenegro, and we'll

16 probably hear about it from them, and it would contravene the

17 long-standing customary international law that requires the consent of the

18 transferring state before a person can be re-transferred to another state.

19 One of the examples we have dealing with this issue is a model

20 treaty on extradition by the General Assembly, Resolution 45/116 from

21 14th December, 1990. In its Article 14 this model treaty on extradition

22 says "A person extradited shall not be re-extradited to a third state,

23 other than then, under B, in respect of which the request of which the

24 requested state consents."

25 We know that transfer of the accused to the ICTY is not considered

Page 165

1 as a genuine extradition, but we'll deal with that issue later on, and we

2 think that still the rules of re-extradition still apply in this case.

3 Our position, humble position, is that this is a universally accepted

4 principle in this area of the international law. We have a lot of

5 two-party treaties as an example for this matter as well. But I would

6 like to draw your attention to the European Convention on Extradition from

7 the 13th of December, 1957. In its Article 15, this convention says:

8 "The requesting party shall not, without the consent of the requested

9 party, surrender to another party or to a third state a person surrendered

10 to the requesting party."

11 So we think that this convention is of the same standpoint as the

12 General Assembly's model treaty on extradition. Even the rules of the

13 Tribunal, this Tribunal, ICTY, prescribe only transfer to the Tribunal,

14 not from the Tribunal. We have Rule 68(B) of the Rules and Article 29 of

15 the Statute, and they deal with this issue.

16 I would move on, with your permission, Your Honours.

17 JUDGE ORIE: Yes, please move on.

18 MR. LUKIC: Yes.

19 Rules against re-transfer or re-extradition without consent of the

20 transferring state to persons surrendered to international tribunals is

21 established by treaties entered into by the United States with India, Sri

22 Lanka, United Kingdom, South Africa. A typical provision provides:

23 "Where a person has been surrendered to the requesting state by the

24 requested state, the requesting state shall not surrender that person to

25 any third state or an international tribunal unless the requested state

Page 166

1 consents."

2 This Tribunal has to have in mind that it is creating the

3 international law that could be applied to the USA tomorrow, to the United

4 States of America and their treaties. The constitution of the Federal

5 Republic of Yugoslavia at that time, or Serbia and Montenegro today, in

6 its Article 17 provides: "A Yugoslav citizen cannot be stripped of its

7 citizenship, cannot be deported from the country, and cannot be extradited

8 to another country."

9 This is common practice in many constitutions of the civil law

10 countries; that it forbids extradition to another country of its own

11 citizens. And our humble opinion is that the extradition to another state

12 would undermine the rationale used by the Tribunal to encourage states as

13 Serbia and Montenegro to surrender its own citizens to this Tribunal. And

14 it's our opinion also that it would breach a faith of the Serbia and

15 Montenegro to this Tribunal and could cause problems in the future when

16 dealing with voluntarily surrendering or arresting and surrendering of the

17 citizens of Serbia and Montenegro to this Tribunal.

18 My learned friend Simic already mentioned a connection between a

19 fair trial and re-extradition, and I would like to address this issue of a

20 fair trial now. And a fair trial is something that is prescribed even by

21 the Rule 11 bis, the rule of the -- of this Tribunal, which says, for the

22 record: "The Referral Bench may order such referral proprio motu or at

23 the request of the Prosecutor after having given to the Prosecutor and,

24 where applicable, the Defence, the accused, the opportunity to be heard

25 and -- and -- after being satisfied that the accused will receive a fair

Page 167

1 trial."

2 It is frequently recognised by the international and international

3 [sic] settings that trials need not be held in the places where the crimes

4 were allegedly committed, especially when the right of an accused to a

5 fair trial is involved. We have both international and national examples

6 on this issue. My learned friend Simic already mentioned the creation of

7 ICTR, International Criminal Tribunal for Rwanda. In his report from the

8 13th February, 1995, The Secretary-General, in paragraph 42, states:

9 "Although the international character of the Rwanda Tribunal is a

10 guarantee of a just and fair conduct of the legal process, it is

11 nevertheless necessary to ensure not only the reality but also the

12 appearance or complete impartiality and objectivity in the Prosecution of

13 persons responsible for crimes committed by both sides to the conflict.

14 Justice and fairness, therefore, require the trial proceedings be held in

15 a neutral territory."

16 As I mentioned, this is said by the Secretary-General of the

17 United States. We understand that -- what did I say -- the United

18 Nations, sorry. We understand the issue of a closing strategy of this

19 Tribunal, but as this Defence already mentioned, it cannot be the most

20 important issue in this hearing.

21 My learned friend also mentioned the Lockerbie trial of two

22 Lebanese, and on that issue we have a document issued by the UN, by the

23 Security Council of the United Nations by the number of S1998/794 of the

24 27th of August, 1998, where it also welcomes joint United Kingdom/United

25 States initiative and Netherlands willingness to try Arabian airline

Page 168

1 bombing suspects on the neutral territory.

2 Beside these international examples, we have also national

3 examples, meaning examples from the national jurisdiction where it is

4 provided that, because of the serious issues, the trial can be transferred

5 from one region of the same state to another region of the same state.

6 For example - and we find this one because it's always easy to find the US

7 laws on the Internet - the federal rules of criminal proceedings of the

8 United States of America in its rule 21, prescribe for prejudice: "Upon

9 the defendant's motion, the Court must transfer the proceeding against the

10 defendant to another district if the Court is satisfied that so great a

11 prejudice against the defendant exists in the transferring district that

12 the defendant cannot obtain a fair and impartial trial there."

13 And (B): "For convenience, upon the defendant's motion, the Court

14 may transfer the proceeding or one or more counts against the defendant to

15 another district for the convenience of the parties and witnesses and in

16 the interest of justice."

17 And the last but not the least, Bosnian legislation. Concretely,

18 the criminal proceedings court for the Federation of Bosnia and

19 Herzegovina also contains a section for change of venue from place where

20 the crime was committed, "if important grounds exists," quote, and it's in

21 Article 3(5).

22 So it's our position that if -- that this case cannot be

23 transferred or re-extradited to another case, Bosnia and Herzegovina

24 firstly, without the consent of Serbia and Montenegro. And if the same is

25 done, these accused cannot expect a fair trial in front of any court in

Page 169

1 Bosnia and Herzegovina. Thank you, Your Honours.

2 JUDGE ORIE: Thank you.

3 May I just put one question to you, Mr. Lukic. You promised us

4 that you would explain to us why a surrender to the Tribunal would be the

5 same as an extradition, because you heavily relied upon many, many treaty

6 provisions, saying that re-extradition is only permitted under certain

7 conditions such as consent by the state or lapse of a certain period of

8 time or -- but do you have any authority for what you seem to put on an

9 equal level as well, that if someone turns themselves in voluntarily, if

10 he's not surrendered by state force, which is of course one of the -- I

11 would say one of the vital characteristics of extradition, if I'm living

12 in Germany and if Belgium is asking my extradition, even if I know that I

13 could be arrested the next day if I say, no, I have to stand trial in

14 Belgium so I'll go to Belgium and I'm not going to wait until I'm

15 arrested, until the moment by force and perhaps after court proceedings

16 was sent to Belgium, do you have any authority where the re-extradition

17 clause would apply if there has been no formal extradition?

18 MR. LUKIC: As I said, although we know that the transfer to the

19 Tribunal is not formally recognised as the extradition, we made many

20 similar --

21 JUDGE ORIE: May I just interrupt you. The transfer to the

22 Tribunal, I understand that you are sent there by force of a state, a

23 state which is under an obligation for the Tribunal that would be under

24 chapter 7 of the United Nations Charter and on the basis of Article 29 of

25 our Statute is under an obligation to arrest whoever the Tribunal asked to

Page 170

1 be arrested and to send that person. I tend to agree with you that one of

2 the major characteristics for extradition, that is the use of the force by

3 a state that sent someone to another jurisdiction in order to be tried or

4 in order to serve his sentence would come quite close to an extradition,

5 even if it bears a different name.

6 But if you would expect to be arrested, if you would expect that

7 whether under treaty obligations or whether under Chapter 7 of the United

8 Nations' Charter, if you would expect that once arrested you will be sent

9 and if at that moment you say, Well, I'll turn myself in, I'll travel to

10 The Hague and I came voluntarily, because that's part of your position as

11 well, would that also be the same as an extradition?

12 MR. LUKIC: Your Honours, I don't know how much you are familiar

13 with that voluntary surrendering of the people, the accused, but that --

14 at one moment the investigator put the hand on their shoulder and said,

15 From now on you are arrested. So although voluntarily surrendered, at

16 that time they are arrested as well. They are arrested by the

17 investigator of the OTP. So although voluntarily -- although they

18 voluntarily surrendered, they are arrested as well. And we hope you are

19 not -- you wouldn't hold it against our clients that they voluntarily

20 surrendered instead of being arrested by force.

21 JUDGE ORIE: Well, the difference is often invoked in sentencing

22 hearings --

23 MR. LUKIC: And also --

24 JUDGE ORIE: -- we hear from the Prosecution --

25 MR. LUKIC: One addition.

Page 171


2 MR. LUKIC: They all have been put into detention by Yugoslavia.

3 Whoever voluntarily surrenders, he's put into detention.

4 JUDGE ORIE: Okay. We are perhaps --

5 MR. LUKIC: And there is a formal decision on that for every and

6 each of them.

7 JUDGE ORIE: What you actually say, it's not that voluntarily.

8 MR. LUKIC: It's voluntarily up to the authorities of the state.

9 From then on, they cannot play games with it anymore, they have to put

10 them into detention and transfer them to the ICTY.


12 Who's next to address the Chamber?

13 THE INTERPRETER: Microphone, please.

14 MR. ZIVANOVIC: [Interpretation] Your Honours, I will deal with

15 the gravity of the crimes charged against Zeljko Mejakic and also his

16 rank, as both of these elements are essential for the evaluation of the

17 motion for referral. In our view, we need to start from Article 15 -- or

18 rather, Count 15 of the consolidated indictment, according to which

19 beatings and other murders and other forms of mistreatment, including

20 sexual assaults, were usual in the Omarska camp; that the guards and the

21 visitors who frequently came to the camp used all kinds of weapons and

22 implements -- instruments to beat and otherwise physically abuse the

23 detainees. According to this paragraph of the indictment, hundreds of

24 detainees, known and unknown, did not survive. Therefore, the first

25 question that arises is whether such acts represent a serious crime, of

Page 172

1 course provided that the allegations are true - however, at present we are

2 simply considering the counts in the indictment - and whether they justify

3 extradition, or rather, a referral under Rule 11 bis (C).

4 I will also respond to the position of the Prosecutor. My learned

5 friend has said these are very grave crimes which are alleged in the

6 indictment, but that they can still be referred under Rule 11 bis. In our

7 view, this is a contradiction. If these crimes are so serious, they

8 cannot fall within the category of crimes which justify a referral under

9 Rule 11 bis (C). The Defence wishes to remind Your Honours of the fact

10 that many of the accused before this Tribunal who were lower-ranking were

11 tried before this Tribunal. We also have paragraph 24 of the indictment

12 in which the rank of Zeljko Mejakic is described. He is said to be the

13 camp commander of the Omarska camp and that he had effective control over

14 the guard shift commanders, camp guards, and other persons working within

15 or frequently visiting the Omarska camp.

16 There is also a confidential part of the indictment which I will

17 not discuss here, but in general terms it is alleged that many of these

18 visitors and guards committed the crimes alleged against Zeljko Mejakic

19 under Article 7(1) and (3) of the Statute of this Tribunal, the article

20 that deals with command responsibility.

21 A further question which arises is whether a camp commander who

22 has control over all persons employed in the camp or visiting the camp

23 where, as the indictment alleges, hundreds of people were murdered and

24 several thousand people tortured and illegally detained, whether this can

25 be a medium-rank person according to the Prosecution's submission of the

Page 173

1 21st of February of this year. If it is correct that all these crimes

2 were committed in the camp and there was a camp commander who had control

3 over all the perpetrators of such crimes, he can by no means be described

4 as a person of medium significance.

5 We feel that the Prosecution view has been adapted to suit the

6 requirements of Rule 11 bis. Therefore, in our view, the conditions in

7 Rule 11 bis (C) have not been met and we move that the Court reject them.

8 Thank you.

9 JUDGE ORIE: Thank you, Mr. Zivanovic.

10 Next, I would like to finish in approximately 10 minutes from now.

11 I take it that you'll be able to finish, Mr. Ivetic.

12 MR. IVETIC: [Interpretation] We ought to. I'll try to just

13 highlight and develop some points, may it please the Court. Dan Ivetic,

14 appearing on behalf of Dusan Fustar, but my comments here today will also

15 apply to the joint Defence filings that have been filed and responses that

16 we have prepared to certain items that the Prosecution has raised. I will

17 also try to save time for Ms. Nedic since she has very important points

18 that I would ask this trial to consider that she is going to present to

19 you.

20 The first point that I would like to discuss and raise is in

21 response to my learned colleague from the Office of the Prosecution's

22 suggestion that this case is appropriate for Rule 11 bis and implying that

23 Rule 11 bis -- that this case is ideal for Rule 11 bis. What has to be

24 taken into account and has been alluded to previously by my colleagues is

25 the fact that three of the accused that are presently before this Tribunal

Page 174

1 and before the Trial Chamber surrendered themselves in the year 2002.

2 Specifically, my client, Mr. Fustar, surrendered himself on January 31st

3 of 2002. Mr. Gruban, thereafter, I believe turned himself on May the 2nd,

4 2002; and shortly thereafter Mr. Knezevic also turned himself in

5 voluntarily on May the 18th of 2002.

6 Significantly, this is all prior to the amendment of Rule 11 bis,

7 which for the first time created the notion that a case could be deferred

8 to a national court. At the time that these individuals submitted

9 themselves to the Tribunal and at the time that proceedings were at that

10 time proceeding against them, the version of Rule 11 bis that existed

11 provides merely for a suspension of the Tribunal's indictment in the case

12 if the state that arrested the accused already had proceedings underway

13 and was willing and able to proceed with that case. In that circumstance,

14 the Trial Chamber would have the opportunity to suspend the ICTY

15 indictment until those proceedings were completed.

16 Now, what is critical is that it is respectfully submitted that

17 the purpose of the rule at that point in time was economy of resources,

18 not to have the Tribunal duplicate a proceeding that was already prepared,

19 already underway, and since the entity that was to do this proceeding had

20 the individual and had arrested him, it would be more efficient for them

21 to proceed with the proceedings. But that is not the case with the new

22 Rule 11, which implies a certain different set of circumstances.

23 Now, the rules of the ICTY stipulate, in particular Rule 6, that

24 any time an amendment -- any time a Rule is amended, that amendment shall

25 not operate to prejudice the rights of the accused or of a convicted or

Page 175

1 acquitted person in any pending case.

2 It is respectfully submitted that at the time that Rule 11 bis was

3 amended in 2002, after the surrender of three of the accused here, there

4 was definitely proceedings pending in the ICTY and Rule 6(D) did apply to

5 prevent that amendment from gravely impacting and prejudicing the accused.

6 The application of the current Rule 11 to this case would therefore be

7 improper for several reasons. One of the reasons, which I will not go

8 into great detail since we have presented very detailed arguments and

9 facts in our varied submissions, both the joint submissions and the

10 separate submissions by counsel for Mr. Mejakic, my learned colleague

11 Mr. Simic, that's one reason why the new Rule 11 bis shall not apply.

12 Another reason is, particularly for my client, that the old Rule

13 11 bis, which should be effective as to him, indicates that this type of

14 suspension of the indictment would occur where another state actually

15 arrested him. That's not the case for Mr. Fustar. Mr. Fustar was never

16 arrested by the authorities of Bosnia and Herzegovina or any other state,

17 for that matter. We submitted ourselves directly to the United Nations

18 after having private and direct discussions with the Tribunal and the

19 Office of the Prosecutor to effectuate that request. He submitted himself

20 directly to the United Nations personnel and was arrested by the United

21 Nations personnel. There was not a single Bosnian governmental authority

22 present. So therefore, under the old Rule 11 bis that should still apply

23 to him by operation of Rule 6(D), this case is not appropriate for

24 deferral under the new Rule 11 bis.

25 The second issue I would like to just highlight and develop is

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Page 177

1 with respect to witness protection issues in the state court of Bosnia and

2 Herzegovina where the Office of the Prosecutor has proposed that this case

3 should be referred.

4 My learned colleague has alluded to the fact that this state court

5 as far as we know, since we have not received any official response from

6 the state court, we have not received any official information either to

7 the request that we made back in September of 2004 or to the request that

8 the learned Trial Chamber has made of the state court of Bosnia and

9 Herzegovina, we have not heard their responses; we don't know what their

10 position is.

11 JUDGE ORIE: May I just interrupt you here.

12 MR. IVETIC: Yes.

13 JUDGE ORIE: I again get the impression that the latest filings

14 with quite a number of documents are not known to the Defence counsel.

15 MR. IVETIC: That is correct.

16 JUDGE ORIE: Which is surprising. It has been filed, I think it

17 was last Friday, and therefore we'll --

18 [Trial Chamber and Senior Legal Officer confer]

19 JUDGE ORIE: It was filed on the 25th of February --

20 MR. IVETIC: Your Honour, I can speak for ourselves; the Defence

21 of Mr. Fustar has not received any documentation, and I believe I speak

22 for all counsel that no one has received not even a single shred of paper,

23 let alone a box of documentation relating to any submission by the state

24 court of Bosnia and Herzegovina. And I stress that we requested very

25 brief and basic information back in September of 2004 and we were told at

Page 178

1 that time, "We'll get back to you by the end of the day," and we're here

2 six months later and no one has gotten back to us.

3 JUDGE ORIE: We'll try to find out during the next break what

4 happened to these filings, because I take it that the other filings of the

5 governments, that you have received them.

6 MR. IVETIC: We received a motion from Serbia and Montenegro and

7 we received some sort of a letter, a four- or five-page letter that

8 apparently the registrar -- that the registrar of the state court of -- I

9 -- presumably of the state court of Bosnia and Herzegovina insofar as

10 there is not letterhead identifying it, Mr. Michael T. H. Johnson, that is

11 the only documentation that we have ever received from the state court of

12 Bosnia and Herzegovina.

13 JUDGE ORIE: Yes, and did you ever receive -- there were earlier

14 filings, responses on the gravity of the crimes.

15 MR. IVETIC: From Bosnia and Herzegovina; nothing.

16 JUDGE ORIE: Okay. Well, we'll check that during the break,

17 because that's -- if I invite you to respond to whatever has been

18 submitted earlier, then of course you should be aware of what has been

19 submitted. We'll look at this during the break.

20 How much time would you still need?

21 MR. IVETIC: I have just a few more comments and then Ms. Nedic

22 has some important items. We could hopefully squeeze them in and get that

23 taken care of and then move forward from there.

24 JUDGE ORIE: Yes, because we have to stop within the next eight to

25 nine minutes also before -- since the tapes will then be finished. Would

Page 179

1 you be able to finish in --

2 MR. IVETIC: I will be able to finish my part in probably two to

3 three minutes.

4 JUDGE ORIE: Okay. Please do so.

5 MR. IVETIC: My learned colleague has indicated that, as far as we

6 know, that safe conduct is not available for Defence witnesses in the

7 state court of Bosnia and Herzegovina. This is important because of the

8 fact that the ICTY has provided safe passage, has provided the ability for

9 witnesses to be free of intimidation, to be free of abuse, and to come and

10 freely testify and truthfully testify. Most Defence witnesses who have

11 agreed to testify for the various Defence teams have done so with great

12 reluctance because of fear for their safety and the safety of their loved

13 ones. Now, the reputation of the ICTY and the respect that the ICTY has

14 garnered to its various proceedings is one factor that convinced them,

15 since the case is in The Hague, we'll come testify. Because in prior

16 cases, witnesses have come, they have been properly protected, and they

17 have not had repercussions.

18 Further, Holland is a neutral country and one where the Judges and

19 staff are not individuals who are of one ethnic group or another, or one

20 political party or another that was involved in the Bosnian civil war, are

21 viewed as being fair and persons that will listen to the truth and to the

22 testimony.

23 On the other hand, as we have heard, there is the bad reputation

24 of the Bosnia and Herzegovina political and judicial authorities, and I

25 want to hopefully correct something that I believe the panel -- the Trial

Page 180

1 Chamber may have a misapprehension about one of the points that Mr. Simic

2 raised regarding the US State Department --

3 JUDGE ORIE: I intervened at the moment when Mr. Simic started to

4 explain us to that there were terrorist organisations active on the

5 territory of the -- of Bosnia and Herzegovina. That was a general

6 observation which might be true for many, many, many countries where

7 there's no reason to believe that the administration of justice could not

8 be fair for that reason.

9 MR. IVETIC: Your Honour --

10 JUDGE ORIE: That was when I intervened and not earlier.

11 MR. IVETIC: I want to clear something with respect to the State

12 Department. The State Department has gone further than that. They have

13 not just given a general warning but in the January 2004 US government

14 assistance --

15 THE INTERPRETER: Could the counsel please slow down.

16 MR. IVETIC: -- department's report indicates --

17 JUDGE ORIE: Mr. -- Could you please slow down a bit.

18 MR. IVETIC: I will try.

19 The State Department states: "Bosnia's criminal justice system is

20 still plagued by corruption, low salaries, and poor training. The

21 ineffectiveness of the courts and law enforcement bodies weakens national

22 security. We believe that the concerns of various international

23 organisations, including the US State Department, the Council of Europe

24 European Commission Against Racism and Intolerance in its most recent

25 report, dated February 15th, 2005, likewise identified severe problems

Page 181

1 with the ability of justice to be found in the Bosnian court system and

2 states that there is continuing lack of independence and impartiality of

3 the Judges, and in particular a favouritism --

4 THE INTERPRETER: Could the counsel please slow down when reading.

5 JUDGE ORIE: You're again invited to slow down --

6 MR. IVETIC: I will try, Your Honour. I just don't want to have

7 us to go over the time limit. I'm trying to make sure that the Court has

8 all the information and that we have time to present the additional

9 information.

10 JUDGE ORIE: Yes. You will have an opportunity for that.

11 Yes, please.

12 MR. IVETIC: With respect to witnesses, we believe that there are

13 two problems with Defence witnesses travelling to Sarajevo to participate

14 in proceedings if the case were to be transferred over there.

15 First and foremost, most of the witnesses who are ethnic Serbs

16 would have fears travelling to Sarajevo based upon the climate and

17 environment in Sarajevo where people have been threatened, people have

18 been accosted, and in particular I know that even my client's family, when

19 they go to Sarajevo to get visas from the Dutch embassy, they have

20 incurred problems and have been verbally abused and accosted by people.

21 And it is feared that witnesses who are already hypersensitive and fearful

22 for themselves to come to The Hague would decide not come to Sarajevo

23 based on these problems and these fears.

24 And one thing I would like to stress is that it is our

25 understanding that the use of videolink testimony has been rejected in the

Page 182

1 state court of Bosnia and Herzegovina and therefore would -- for the

2 witnesses and therefore would not be available to allow witnesses to

3 testify without travelling to Sarajevo and therefore that mechanism which

4 would alleviate some of these fears is not available.

5 [Defence counsel confer]

6 MR. IVETIC: I apologise. A correction. I am trying to present

7 information that my colleagues prepared on that respect. The problem is

8 that many of the witnesses do not want to testify via videolink and

9 therefore that device cannot be used to remedy the problem of witnesses

10 coming to Sarajevo.

11 There is another group of witnesses that would have difficulty

12 coming to Sarajevo, and those are Bosniak Muslim witnesses. They fear

13 that if they come to testify in support of ethnic Serb defendants, that

14 they will be accosted, that their families will receive pressure from the

15 areas that they live in which are predominantly ethnic Muslim locations.

16 The third category of witnesses that would have difficulty under

17 the Defence in Sarajevo would be individuals who fear that they might be

18 arrested and further indicted. We've already from my colleague Mr. Simic

19 that the public prosecutor in Bosnia and Herzegovina has boasted that as

20 many as 10.000 new defendants will be arrested, will be indicted, will be

21 tried. That has inflamed the public and people are frightful that they

22 don't know who is going to be subject to arrest, trial, and prosecution.

23 Not only do we have regular citizens who are fearful that they will be

24 wrongfully arrested, but we have individuals who were involved in the

25 activities in Keraterm, in Omarska, in the police, in the military, in

Page 183

1 Prijedor, who would be vital Defence witnesses and some of whom were the

2 subject of indictments before the ICTY that were withdrawn with the caveat

3 that national courts could still indict these individuals. They obviously

4 would not come to Sarajevo to testify for fear of being arrested and

5 indicted and therefore the Defence could likely be left with no actual

6 witnesses to present at that point in time.

7 The last point that I would like to raise is in response to the

8 Prosecution's representation that the anonymity problem has been resolved.

9 It is our understanding based upon the research and the material that was

10 provided to the Defence that Articles 13 through 22, 19, and 21 of the law

11 on protection of witnesses under threat and vulnerable witnesses still

12 provide for very drastic proceedings in which a witness who is -- who is

13 sensible -- sensitive to a particular defendant or to a particular set of

14 facts can be allowed to testify not only outside of the presence of the

15 defendant, but also outside of the presence of the Defence counsel. It is

16 our understanding that there are provisions that would be employed in

17 Sarajevo that such witnesses could give testimony only to the Court, in

18 private session, and that their information as to who these witnesses are

19 would be kept confidential for in upwards of 30 years, making it very

20 unlikely and impossible for the Defence to prepare rebuttal evidence and

21 rebuttal testimony with respect to these witnesses. That is a very

22 serious due process problem with the state court of Bosnia and

23 Herzegovina. And again, if we can get more -- if we can get access to the

24 submissions from the state court of Bosnia and Herzegovina, we can verify

25 whether in fact this information is accurate, but that is the result of

Page 184

1 our research into this matter, that those articles exist and create a

2 difficulty for obtaining due process and justice were this case to be

3 transferred.

4 Now I would defer to my colleague Ms. Nedic for her submissions.

5 Thank you.

6 JUDGE ORIE: Yes, perhaps, because you have our own interpretation

7 of what two or three minutes are, I would limit Ms. Nedic too much if I

8 would invite her to make further submissions now. Perhaps we first have a

9 break -- we'll have a break until 5.00. And if at any later stage,

10 Mr. Ivetic, you could pay attention to -- well, international case law on

11 anonymous witnesses because you have described the issue as a human rights

12 concern. I'm not saying I'm disagreeing with you, but I would like to

13 deepen out a bit the problem in the light of the international case law on

14 anonymous witnesses. That certainly would assist the Chamber.

15 We adjourn until 5.00.

16 --- Recess taken at 4.39 p.m.

17 --- On resuming at 5.07 p.m.

18 JUDGE ORIE: Ms. Nedic, you may proceed.

19 MS. NEDIC: [Interpretation] Your Honours, what I wanted to talk

20 about is the application of the laws that might be applicable to the

21 accused in this case. I would like to refer first of all to the arguments

22 provided by the Prosecution in its brief of the 21st of February that we

23 have not been able to understand fully. In paragraphs 14 and 15 -- in

24 paragraph 14 it says that practically all the provisions of the law of the

25 Socialist Federative Republic of Bosnia and Herzegovina and the

Page 185

1 international law are the same, and it further says in paragraph 15 that

2 the Criminal Code of SFRY contains no provisions which would refer to

3 crimes against humanity or command responsibility.

4 JUDGE ORIE: Ms. Nedic, could I invite you to slow down a bit for

5 the interpreters.

6 MS. NEDIC: [Interpretation] First of all, I don't know if the

7 Prosecution has made it uncontestable that the SFRY Criminal Code was in

8 force in Bosnia and Herzegovina in 1992. If that is the case, we would

9 not be forced to provide any arguments in that matter, but I expect the

10 Prosecution to make its views plain. In view of their submissions in

11 their brief, it would seem so. I would like to stress that first of all

12 it is not correct that the Criminal Code of the SFRY does not contain

13 provisions against crimes against humanity and command responsibility.

14 Quite the contrary. There is a whole chapter, Chapter 16, and Articles

15 from 141 through 156 of the Criminal Code of the SFRY, which deal

16 precisely with those offences, crimes against humanity and against

17 humanitarian law. Article 142 might perhaps be the one that might apply

18 because it is entitled "crimes against the civilian population." That

19 would seem so at first sight.

20 I would like to stress that in fact the law of the Socialist

21 Republic of Bosnia and Herzegovina did not contain any provisions relating

22 to war crimes. War crimes were defined and sanctioned in the federal law

23 because the federal state deemed that issue to be much too important to be

24 left to the discretion of the republics. And that is why it is only

25 regulated in the federal law. The question is, the Prosecution claims,

Page 186

1 that in order for the new Criminal Code of Bosnia and Herzegovina to

2 apply, that it might apply. We do not agree with that and we submitted

3 some of the arguments in our 22nd of February motion.

4 I would now not repeat all the ways in which you can determine

5 whether -- which law is in fact more lenient towards the perpetrator, and

6 both the Criminal Code of Bosnia and Herzegovina and the Criminal Code of

7 the SFRY, one has to apply the law that is more lenient towards the

8 perpetrator. So the Prosecution here used only the arguments relating to

9 the punishment, and we wanted to stress that many other aspects need to be

10 taken into account; whether the criminal offence was indeed qualified as

11 such, whether it entailed a certain type of responsibility for the

12 perpetrator, and the final consideration is the punishment itself. But we

13 stress that no offence could be punishable by death penalty as the only

14 penalty prescribed. There always had to be the alternative punishment of

15 imprisonment. The Criminal Code of the SFRY provided for two alternatives

16 to death penalty. First of all, for every criminal offence it was usually

17 stipulated that the perpetrator could either be punished by imprisonment,

18 usually the minimum imprisonment -- length of imprisonment was stipulated,

19 or by death penalty, and there was then a special provision in the

20 Criminal Code of the SFRY which stipulated that the death penalty could be

21 replaced by the term of imprisonment of 20 years.

22 So even if we only look at those provisions that relate to the

23 punishment itself, we could state that the law, the 1992 law, is the law

24 that should apply because it is more lenient. We even found out that

25 there is a decision of the Supreme Court of the Federation of Bosnia and

Page 187

1 Herzegovina expressing the view that the law dating from 1992 is more

2 lenient, that is judgement 208/2 of the 10th of July, 1997, of -- against

3 the accused Osman Hodzic. It is the famous Ristovic case for crimes

4 against Serbs as part of the armed conflict in Bosnia and Herzegovina. So

5 we disagree with the arguments proffered by the Prosecution that the new

6 law of Bosnia and Herzegovina, the new Criminal Code of Bosnia and

7 Herzegovina would apply.

8 As regards the international law, I have to say that the Criminal

9 Code of the SFRY stipulated in Article 3 that no one can be sentenced in

10 any way or sanctioned in any way for a criminal offence that, before it

11 was committed, was not qualified as a criminal offence and which did not

12 have any penalty attached to it. And Article 211 of the constitution of

13 SFRY contains the same provision.

14 I have to apologise, there is a slight error in the transcript as

15 regards the judgement against Osman Hodzic. It is not dated 1997 but

16 2002.

17 JUDGE ORIE: Would you have a copy for the Chamber? Perhaps

18 even --

19 MS. NEDIC: [Interpretation] I think that we will be able to

20 provide you a copy by tomorrow if you agree to give us this deadline.

21 JUDGE ORIE: Yes. We can't expect you to give it to us right

22 away. Please proceed.

23 MS. NEDIC: [Interpretation] When it comes to the death penalty, I

24 would like to note another aspect. The constitution of the Serbian

25 Republic of Bosnia and Herzegovina or of the Serbian people in Bosnia and

Page 188

1 Herzegovina, published in the Official Gazette 3/92, abolished the death

2 penalty. So it was in March -- published on the 16th of March, 1992.

3 I also wanted to make a few arguments regarding what the

4 Prosecution said about the Defence counsel that might or might not

5 represent their clients as foreign nationals in proceedings before a court

6 in Sarajevo. According to the law on the court of Bosnia and Herzegovina,

7 lawyers can be selected or if they are appointed by the court to indigent

8 accused, they are selected from a list of lawyers of Bosnia and

9 Herzegovina. And the Rules of Procedure and Evidence of the court -- the

10 rules of procedure of the court may stipulate any circumstances in which

11 lawyers that are not on the list may be allowed to represent the accused.

12 I have to stress that we tried many times to obtain from the

13 registry of the court of Bosnia and Herzegovina, to obtain the rules of

14 procedure of that court and in order to be able to determine whether there

15 are any conditions under which we might continue to represent our clients

16 in Sarajevo and whether indeed we meet those conditions, and we have yet

17 to receive the rules of procedure. I don't know why, whether it indeed

18 exists, whether those stipulate -- those provisions about the Defence

19 counsel exist. The representatives of Bosnia and Herzegovina should

20 actually make their views clear on that.

21 I would also like to say something briefly about the law on

22 protection of witnesses, which is currently in force in Bosnia and

23 Herzegovina. The amendments thereto were passed on the 29th of December,

24 2004, and were published in the Official Gazette 61, number 61. But we

25 compared the existing text with the amendments and we were unable to find

Page 189












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 190

1 any significant amendments. We believe that they're mostly linguistic in

2 character and that all our objections made with regard to this law,

3 particularly Articles 15 through 22, that make it possible for a protected

4 witness to be questioned without the presence of the parties so that this

5 witness be questioned just by the Trial Chamber. The Trial Chamber, the

6 Judges, then read the statements at the trial, the Judges then ask the

7 parties whether they want to ask any additional questions, and if the

8 parties say no, then the Judges decide whether -- whether the witness

9 would be heard again and whether any questions might be -- additional

10 questions by the party may be put to this witness, thus eliminating any

11 cross-examination of the witness. And since the Defence is unable to

12 determine the identity of the witness for 30 years after the finality of

13 the judgement, there is no possibility for the Defence to avail itself of

14 the extraordinary legal remedies available to it and to present any new

15 facts or circumstances that arise in regard -- or that are related to this

16 protected witness.

17 The law on protection of witnesses in Article 13 also stipulates

18 that the identity of the witness must be disclosed to the other party at

19 the trial at the latest. We believe that this is too late because in that

20 case the Defence really is unable to question the credibility of the

21 witness or to obtain any evidence that would stand to impeach the witness.

22 In its brief, the Prosecution noted that the identity of all the

23 witnesses is already known to the Defence and it has been made known to

24 them in the course of the pre-trial proceedings. But we believe that the

25 prosecution in Bosnia and Herzegovina is not bound in any way to stick to

Page 191

1 this witness list and nothing prevents them from calling additional

2 witnesses. So that we believe that this does not in fact answer to our

3 question.

4 This is all I have to say.

5 JUDGE ORIE: Thank you, Ms. Nedic.

6 I was informed, Ms. Somers, that you would like to briefly respond

7 -- as a matter of fact, we might have some questions as well and I'm

8 considering what would be better, that we first hear your response and

9 that perhaps we ask for some clarifications and that we then give an

10 opportunity to the representatives of Bosnia and Herzegovina and Serbia

11 and Montenegro to give their views, because we have received them in

12 writing, and I reluctantly have to inform the Defence that the filing of

13 last Friday, which was quite voluminous, has been sent to you by DHL one

14 of these days, yesterday perhaps. So this was, at least in the view of

15 the Chamber, not the most efficient way of giving you the information that

16 is contained in these submissions. We apologise for that, but I suggest

17 that the Defence will have an opportunity to make further submissions in

18 writing based on the material and the views as expressed by the government

19 of Bosnia and Herzegovina and the many, many legal texts attached to it.

20 We'll set -- perhaps you first read it and then you'll hear how

21 much you would get for it.

22 Perhaps, Ms. Somers, I heard that you'd like to briefly respond.

23 Perhaps one of the -- one, I emphasise -- one of the issues seems to be

24 the applicable law. There are different views on that. Perhaps you could

25 include that if you respond.

Page 192

1 MS. SOMERS: Some of my comments may require further comment,

2 depending on what our esteemed representatives say as well, but from the

3 standpoint of what was said by my learned colleagues from the Defence, I'd

4 like to point out that they have presented a very logical reason: This is

5 a ready-for-trial case that has arguably more jurisprudence at the hand of

6 the general public as well as the Defence than any other case in the

7 Tribunal upon which to familiarise themselves for a speedy trial, speedy

8 in the sense of expeditious, without any untoward delay. It is currently

9 a case that has more adjudicated facts at the disposal of all counsel and

10 of the Bench than probably any other set of facts in the Tribunal --

11 JUDGE ORIE: May I just interrupt?

12 MS. SOMERS: Surely.

13 JUDGE ORIE: Did I understand the Defence properly, that referring

14 to the decision of Judge Robinson, that there was only limited material

15 that could be accepted as adjudicated facts? Perhaps the situation might

16 have changed since a couple of days. I can imagine that. But I remember

17 that a different position was taken as far as adjudicated facts are

18 concerned. Mr. Simic.

19 MR. SIMIC: [Interpretation] Your Honour, I am speaking on behalf

20 of all the Defence counsel. Judge Robinson's Chamber issued a decision

21 limiting the facts to a very limited number of facts up to World War II as

22 indisputable because there were very many different facts presented in the

23 various trials concerning Prijedor.

24 JUDGE ORIE: Yes, I do understand. That was in my mind, so I was

25 a bit surprised, Ms. Somers, when I heard you say that this was a case --

Page 193

1 MS. SOMERS: I don't think, Your Honour, that it's a terribly

2 limiting decision by His Honour Judge Robinson. In fact, just to let the

3 Chamber know, the decision is -- I believe at April -- 1st of April, 2004,

4 and it cites, just for clarity for the record: "Hereby admits the

5 following facts, 1 through 72, 74, 105, 111 through 120, et cetera, et

6 cetera, and this covers a span well beyond the World War II period up to

7 various facts -- up to various facts in 1992. So I think that although it

8 was not all-inclusive, it certainly does not cover the pre-World War II

9 period.

10 JUDGE ORIE: So we have some expertise on this Bench in -- on the

11 matter and it's all public decisions --

12 MS. SOMERS: Exactly.

13 JUDGE ORIE: -- so --

14 MS. SOMERS: We won't pursue that anymore.

15 JUDGE ORIE: I apologise for interrupting you. Please proceed.

16 MS. SOMERS: Not at all.

17 The -- there is law. I regret that my learned colleagues opposite

18 have not had a chance to see the law, but the acceptance of adjudicated

19 facts and a decision of law is set forth in Article 4 of the law on

20 transfer of cases, and I would just ask that when an opportunity is --

21 presents itself, to take a look at it, but in fact the binding decisions

22 in the course of the ICTY are naturally to be taken into account, but it

23 specifies it and I think it's helpful to the Chamber.

24 On the issue of -- I almost have to paraphrase it -- "If we had

25 known that this change was going to occur, we would never have

Page 194

1 surrendered." I find this an absolutely invalid, almost offensive,

2 assertion. The duty to present one's self to the Tribunal when indicted

3 exists. It is not conditional, it is not a contract with the Tribunal, it

4 is a duty. And the suggestion that "had we known..." As it is, one of

5 the reasons, and I know this is so obvious I only have to state it for the

6 record, that we have this breakup of hearings is because people serially,

7 at their own convenience or at the convenience of other perhaps

8 undisclosed persons surrender or present themselves to this Tribunal

9 rather than allowing the proper or the all-in-one hearing. Yes, there

10 have been a number of cases in which these facts have been the subject of

11 prosecutions. It is not in the main because they could not have been

12 tried at once; it was a decision consciously made by the accused.

13 [Trial Chamber confers]

14 MS. SOMERS: Again, this case -- and we have no reason to

15 assume --

16 JUDGE ORIE: Ms. Somers, I just -- I hope you don't mind if I try

17 -- if I'm seeking clarification. You say it's the duty to present one's

18 self to the Tribunal. I am aware of the duty of states to surrender

19 accused to the Tribunal. I am not aware of a duty at this moment, and I

20 checked with my colleagues how this would be in their domestic systems,

21 that there is a duty, perhaps apart from a kind of a moral duty, but if I

22 am aware that I have to stand trial and I just decide not to appear, is

23 there a legal duty to come? And where do we find the basis for that duty?

24 MS. SOMERS: Perhaps I should recast the observation and suggest

25 that once the fact of indictment is known to an accused one can obviously

Page 195

1 elude presentation to the relevant Tribunal as long as one can get away

2 with it, but the fact is the indictment exists and, yes, there is a state

3 duty, based on Article 29, and in fact harbouring or allowing the evasion

4 of fulfilling that duty by permitting the person to remain on the

5 territory has other ramifications, and I would leave that as the other

6 parameter for this argument. But the suggestion that "I wouldn't have

7 done it but for ..." given the very special nature of how we came into

8 existence as a body and that same body that put us into existence has

9 mandated that we take those serious cases -- and I repeat that by virtue

10 of our title, this is a Tribunal for prosecution of violations of serious

11 international humanitarian law, there's no question that everything that's

12 here is a serious violation.

13 So the suggestion that we have a deal to be struck I think is not

14 correct. And then the suggestion that the gravity is really -- that there

15 are various degrees of gravity, well, of course. But to be here in the

16 first place it has to be a grave or serious violation of international

17 humanitarian law. I want to put that to one side because I see that

18 interwoven on a regular basis in argument.

19 JUDGE ORIE: May I nevertheless ask you a question because you say

20 -- but the suggestion, you said "I wouldn't have done it but for..." isn't

21 the argument "I did it but you changed what I did."

22 MS. SOMERS: I --

23 JUDGE ORIE: "I presented myself to the Tribunal and suddenly I'm

24 not standing before the Tribunal anymore but before another court. And

25 what I did was unconditional. Apart from that, it would have the same

Page 196

1 meaning, that it would be the same as what I did."

2 If I voluntarily go to the army and end up in -- I'm voluntarily

3 ascribing to the army and I suddenly end up in a metal factory -- well, I

4 wanted to go to the army, not anywhere else.

5 MS. SOMERS: This Tribunal has been granted the authority to make

6 the referrals, and as part of that authority, however the accused ends up

7 here, he or she is also subject to what changes come on -- come along as a

8 result of the enforcement of the mandate by the Security Council. There

9 is -- I understand it's a grey area, but it is not, in our view, a pure --

10 an extradition question. It is a question of the powers that are inherent

11 in carrying out the mandate of the Security Council under Chapter 7, and

12 any changes that have to be effected in order to continue to carry it out,

13 which include, perhaps unfortunately, but the need to pare down to only

14 those very, very high-level cases, given its finite status.

15 JUDGE KWON: Ms. Somers, could you respond to one of the issues

16 raised by Mr. Ivetic in relation to possible application of Rule 6(D).

17 MS. SOMERS: As to the prejudice, Your Honour, the possibility of

18 prejudice which result in rule changes. Is that what Your Honour is

19 referring to?

20 JUDGE KWON: Yes. You raised that in your submission of the 21st

21 of February. You said that -- it's page -- "There's no evidence that the

22 rights of the accused will be prejudiced or that the state court will be

23 less reliable and exhibit less due process guarantees than the ICTY."

24 Could you elaborate on that, responding to the submission of

25 Mr. Ivetic.

Page 197

1 MS. SOMERS: Your Honour, there is no proof or any evidence that

2 has been submitted of a systemic problem with this new state court. In

3 fact, this body perhaps offers more safeguards than would have been

4 contemplated because of, A, the international character, A [sic], the

5 international interest, deep interest in making sure that matters which,

6 for example, come to it from us, from this body, are carried out with all

7 the necessary due process safeguards. There is not anything that has been

8 suggested, other than innuendo based on other comments about allegations

9 of government persons, that it cannot work. In fact, it's been untested

10 in that respect. And in the absence of some suggestion of a systemic

11 fault so deep, which seems very unlikely, I think that that is a baseless

12 suggestion by counsel. I believe it was without merit.

13 Now, may I proceed into a question that His Honour Judge Orie also

14 asked me to ask about the law. It is not always going to be possible to

15 have identical charges; it may not work. We are going into national

16 jurisdictions. Comparable charges with due process guarantees that meet

17 the requirements that have been laid out are --

18 JUDGE KWON: We'll go into the substantive law later.

19 MS. SOMERS: Okay.

20 JUDGE KWON: Can you stay in rules in relation to 6(D) a little

21 further. In your submission here you compared two scenarios, one being

22 the situation of the accused being tried in the court of Bosnia and

23 Herzegovina and the other being the situation of the accused being tried

24 at the ICTY. However, speaking for myself, the comparison should be

25 between the trial in Serbia and Montenegro and the trial in the court of

Page 198

1 BiH. The reason is because of the -- sort of retroactive application of

2 Rule 11 bis. 11 bis was enacted in 1997 and at that time the only

3 referral envisaged by that original rule was the referral to the state

4 where the accused was arrested. So of course there is an issue whether

5 the arrest and voluntary surrender are two different matters. But if we

6 set aside that issue for the moment and if we presuppose -- just suppose

7 that every aspect or conditions of the two nations' legal systems in terms

8 of fairness or due process of law are the same, then would there not be a

9 possibility of viewing the trial in the court of BiH less favourable to

10 the accused than that in Serbia and Montenegro?

11 MS. SOMERS: I am not sure on which particular grounds His Honour

12 thinks that it might be less favourable, but I think from the standpoint

13 of two equal courts only for the sake of argument.

14 JUDGE KWON: Might it not be a general conception that everybody

15 would prefer to be tried in his homeland?

16 MS. SOMERS: Sometimes, yes, Your Honour. Depending on the issue.

17 JUDGE KWON: What would be your observation on this?

18 MS. SOMERS: That it is not only where one prefers, that is a kind

19 of, as His Honour knows, forum shopping. If in fact where the crimes are

20 committed, and if one looks at the setting out, the stacking as it were,

21 in 11 bis, if any significance is attached to it, it places the place

22 where the crimes are committed as the first. It's not -- I submit that

23 it's -- it should have some reason for that, and if all other factors are

24 equal, the place where the crimes are committed, in our view, should be

25 the first locus where possible. I am unable to analyse the similarities

Page 199

1 or dissimilarities between the Serbia and Montenegro system because I

2 don't have as much information on it here, but I think that there is a

3 rational basis for having the place of -- where the crimes were committed

4 as the first. Again, looking at what is up and running and ready to go in

5 Sarajevo, if this Chamber makes a determination that all aspects of due

6 process are complied with, then there would really be no reason why -- at

7 least, I have not for myself heard anything that would suggest that

8 anything other than a fair trial could be had in Bosnia and Herzegovina,

9 which indeed is a multi-ethnic republic.

10 JUDGE KWON: Thank you.

11 MS. SOMERS: I just -- I'm confident the Chamber has looked at the

12 provisions of Rule 58, but I just want to bring to its attention, of

13 course, again the issue of national extradition, et cetera, et cetera,

14 should extradition become a central point in the Chamber's determination.

15 On the -- although it was addressed earlier, if perhaps my learned counsel

16 opposite feels that the level of the accused is so high as to preclude a

17 transfer or not to be in compliance with the provision of Rule 11 bis, I

18 would have to disagree. In fact, within the scheme of Omarska, let's say

19 as to accused Mejakic, the command -- commander position, the police

20 commander position, albeit at the top of a ladder is not at the top of the

21 ladder and fits well within the group of persons mid-level in the scheme

22 of things who could be heard in a state or local court.

23 As to the -- which law will apply, the complexity of the issue is

24 such that my brief comments will not do very much, I think, to help it,

25 but if it is the court -- if it is referred to the court of Bosnia and

Page 200

1 Herzegovina, it would be my understanding, subject to correction, that it

2 is that court that will decide which law would apply, unless that is one

3 of factors right now that the Chamber will have to determine.

4 JUDGE ORIE: We don't have to determine what law the court in

5 Bosnia and Herzegovina would apply, but of course we have to find out what

6 kind of charges could be realistically brought against the accused in

7 Bosnia and Herzegovina, and therefore the applicable law is certainly one

8 of the elements, at least, thoughts on what would be the applicable law,

9 especially since there seems to be quite some disagreement as to whether

10 the BH Criminal Code of 2003 would apply, which gives some reference to

11 international law and where the government has indicated that since in

12 1992 that -- that the 2003 code mainly qualifies what was already

13 international law in 1992. And that raises, well, at least a couple of

14 questions which I'd very much like you to say at least whatever you can

15 say about it.

16 MS. SOMERS: I'm -- without really being able to predict how this

17 Chamber would view the -- if the hovering over of principles of customary

18 international law, but not necessarily full incorporation into -- or

19 enabling into, we acknowledge that there are some difficulties, there's

20 some very grey areas. However, there is and has been the provision of

21 crimes against -- war crimes against the civilian population, or I believe

22 it's called war crimes against civilians, that as I referred to earlier --

23 JUDGE KWON: Does the Criminal Code of the federal republic --

24 MS. SOMERS: Both then and now. Both then and now. There is a

25 provision called war crimes against civilians. And it embodies a good

Page 201

1 deal of the type of criminal conduct that goes into let's say crimes

2 against humanity, persecutions, and in the absence of the discriminatory

3 intent and widespread and systematic --

4 JUDGE KWON: Ms. Somers, I remember hat Ms. Nedic raised the

5 question of whether that Criminal Code of the federal republic was

6 applicable in BiH at all at the time. Are you in the position to answer

7 the question?

8 MS. SOMERS: I'm not a BH constitutional lawyer, but I believe

9 that the republican level would have looked to the federal level for any

10 type of gap, if I recall from other cases that I've been involved in, but

11 I cannot address that specifically. And if the Chamber has no objection

12 to referring it to the appropriate expert.

13 JUDGE KWON: The relation of two Criminal Codes is not very clear

14 to me. Did Serbia and Montenegro have their own Criminal Code at that

15 time?

16 MS. SOMERS: Can I ask the Chamber to --

17 JUDGE KWON: You're not --

18 MS. SOMERS: I'm afraid I'm just not -- couldn't pull it out of my

19 head right now.

20 JUDGE KWON: Then we can hear that from the representative later.

21 MS. SOMERS: Thank you, sir.

22 JUDGE KWON: Can I ask one more question. It's about the command

23 responsibility. Three accused, as far as I understand, they are accused

24 under 7(3). So you must be confident that in Bosnian court -- in the

25 court of BiH, such legal regime should exist, but unfortunately it is not

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Page 203

1 clear from your submission.

2 MS. SOMERS: It appears that --

3 THE INTERPRETER: Microphone, please.

4 JUDGE KWON: Microphone.

5 MS. SOMERS: It appears that there is no strict -- and again I

6 would stand corrected by my colleagues from BiH, no strict equivalent of

7 our 7(3), of the concept of 7(3). There are other provisions which

8 perhaps, if translated, suggest that where duties exist, certain omissions

9 -- or if certain acts are committed and there is a failure to either

10 report it or act on it, it's kind of a backward approach -- not backward

11 but a back-door approach to it. But I have not been able to find the

12 exact equivalent of 7(3), and I think that that is a concession that we

13 have to make. There is a concern, however, that the conduct -- that the

14 language of, for example, the war crimes against civilian population may

15 allow, if very adequate charged, and I think the charging becomes very,

16 very important in terms of the language, the language, in its equivalent

17 comparable provisions, what roles were taken and to show that this is

18 committing the offence, acknowledge that it would take careful

19 draftsmanship of the existing -- reworking it into their own criminal

20 regimen, but I believe it can be done. There is not, Your Honour -- I

21 believe you're correct, there is not a comparable one.

22 JUDGE ORIE: Thank you.

23 Are there any further issues you would like to raise in responding

24 briefly?

25 MS. SOMERS: Just, it was unclear by Mrs. Nedic's comment about no

Page 204

1 questioning -- no ability to question, I mean almost ruling out

2 cross-examination. I would also ask when the Chamber inquires of our

3 colleagues from the BiH if the type of additional questions that are

4 envisioned in that provision are of the nature of cross-examination. And

5 again, it is not clear -- it's a bit less than clear as laid out in the

6 law. Other than that, there is an opportunity to pose questions to

7 witnesses, albeit protected ones, and perhaps under different

8 circumstances than we are used to here, but the opportunity exists. It

9 may, again, not be an exact parallel to the cross-examinations practices

10 of this Tribunal but may yet serve the same interests of justice.

11 Thank you.

12 JUDGE ORIE: Yes. Perhaps the Defence would also be in a better

13 position to respond to that once they've received the documents.

14 MS. SOMERS: Excuse me, Your Honour, forgive the interruption.


16 MS. SOMERS: I was just asked to relate to the Chamber that the

17 SFRY code was taken over by Bosnia and Herzegovina as republican law on

18 the 11th of April, 1992, by -- as found in Official Gazette of BH 211.04

19 1992. This is what I'm relaying as it has come to me, so I hope it may

20 offer some help. I don't know.

21 JUDGE KWON: Yes. I would like to hear more detail from the

22 representative later.

23 JUDGE ORIE: Before we continue, because as you may have noticed

24 the Chamber has already put some questions to the parties, although not

25 very extensively, the Defence has asked in a few aspects to treat their

Page 205

1 response as confidential. Is there any need at this moment to deal with

2 those confidential issues, because we then could consider to go into

3 private session for a while. And I have to ask the Defence -- or to deal

4 with them in open session if confidentiality is not of vital importance.

5 MR. SIMIC: [Interpretation] Your Honour, there is no reason for

6 private session. Should there be any need, we will request it.

7 JUDGE ORIE: Yes. And that also -- Ms. Somers, you asked at an

8 earlier stage whether you could respond freely. Is there any intention on

9 your part at this moment to go into any area just to -- I think that would

10 not violate the confidentiality to say it has got something to do with

11 counsel, to do with witness protection. Is there any matter you would

12 like to raise at this moment where you would not be sure you could do it

13 in open session?

14 MS. SOMERS: I cannot think of any, Your Honour.

15 JUDGE ORIE: Okay. Then let's then proceed.

16 Let me see whether we have any additional questions.

17 [Trial Chamber confers]

18 JUDGE ORIE: Yes, not raised by the ongoing debate more or less.

19 Judge Kwon.

20 JUDGE KWON: Can I hear from Ms. Nedic, who said that -- who

21 pointed out some Article 142 in relation to command responsibility. Could

22 you point out the relevant procedure -- I'm sorry, I beg your pardon --

23 provision which deals with the command responsibility you referred to.

24 MS. NEDIC: [Interpretation] Just a moment, Your Honour.

25 "Whosoever violating the rules of international law in time of

Page 206

1 war, an armed conflict or an occupation, orders that murders, torture,

2 inhumane acts, biological experiments, infliction of severe suffering and

3 injuries, physical integrity or health, deportation or transferral or

4 forcible denationalisation or conversion to another religion, forcing to

5 prostitution or rape be committed against the civilian population by using

6 means of coercion or terror, the taking of hostages, collective

7 punishment, illegal detention in concentration camps, and other illegal

8 kinds of detention, depriving of the right to a fair and impartial trial,

9 forcing to serve in the armed forces of a hostile force, or in its

10 intelligence services or administration, forcing to forced labour --"

11 JUDGE KWON: I think that's enough. So can I take it that you are

12 saying --

13 MS. NEDIC: [Interpretation] It's a very long article.

14 JUDGE KWON: -- that by adopting the international law that it

15 also adopted the principle of command responsibility? Is that your -- the

16 crux of your submission?

17 MS. NEDIC: [Interpretation] I'm not absolutely sure that the

18 responsibility actually corresponds to the responsibility as provided for

19 in international law and this law so that the two correspond exactly.

20 JUDGE KWON: Could you elaborate a bit more. I don't think I

21 followed in full.

22 MS. NEDIC: [Interpretation] This article provides punishment for

23 acts and for intent.

24 JUDGE KWON: Thank you.

25 JUDGE PARKER: Could I follow up on that, Ms. Nedic. I'm sorry

Page 207

1 that you sat with the sense of relief, but I call on you again. That

2 article seemed to be directed to conduct in the nature of ordering all

3 these things, direct exercise of authority by a commander. Is there any

4 provision which deals with the more indirect form of command

5 responsibility, that is, where a commander may be found criminally

6 responsible for the acts of the soldiers under command or responsible

7 because the commander has failed to punish criminal acts by those

8 soldiers?

9 MS. NEDIC: [Interpretation] To be quite honest, in view of the

10 fact that my defendant has not been charged under Article 7(3), I

11 personally have not gone into the issue of command responsibility in any

12 great depth. I think, however, that the answer is no, but please don't

13 take my word for it.

14 JUDGE PARKER: I think that is the issue that was troubling both

15 Judge Kwon and myself. Thank you.

16 MR. ZIVANOVIC: [Interpretation] Your Honour, by your leave, I

17 might be able to provide an answer to this question. The form of

18 liability in Article 7(3) of the Statute did not exist in the

19 then-Criminal Code of the SFRY. This indirect form of command

20 responsibility did not exist. As far as I know, although I would have to

21 check this, there was responsibility for directly issuing such an order,

22 and it referred to military commanders. I think it is found in the

23 chapter referring to crimes against the armed forces.

24 JUDGE KWON: Would there not be a possibility of direct

25 application of internationally accepted law, international treaties?

Page 208

1 MR. ZIVANOVIC: [Interpretation] According to the then-law of the

2 SFRY, there was no possibility of directly applying the provisions of

3 international law to cases tried pursuant to this law. And that is why we

4 felt that this law was more lenient toward the perpetrators.


6 JUDGE KWON: And can I ask one more brief question to Mr. Ivetic.


8 JUDGE KWON: This is a very hypothetical question, to Mr. Ivetic.

9 Can I hear from you a comment on the submission of the Serbia and

10 Montenegro, or hypothetically, would your client agree or oppose -- the

11 transfer to Serbia and Montenegro?

12 MR. IVETIC: Assuming under the hypothetical that a decision is

13 made for referring the case outward to either Serbia and Montenegro, the

14 -- we believe Serbia and Montenegro would be the better of the two

15 choices, although obviously we believe staying at the Tribunal would be

16 the best choice of all for the reasons that we specified in the various

17 filings that we made, in the hypothetical sense.

18 JUDGE KWON: Thank you.


20 Mr. Simic, I have a similar question for you. I did understand

21 from the submission by the Government of Serbia and Montenegro that -- I

22 think it was you or Mr. Zivanovic addressed the government with a request

23 to apply for referral of the case to Serbia and Montenegro. Apart from

24 whether that's the proper way of getting a state involved, but could you

25 explain to me if you are saying that the case is not a referable case why

Page 209

1 you apply to another government to get the case referred?

2 MR. SIMIC: [Interpretation] Your Honour, I think I have been

3 misunderstood. I informed the government of my country that in the

4 proceedings before the Tribunal, its citizens accused of war crimes might

5 be referred to another country and be tried there. Knowing the situation

6 in the entire region, I felt certain and I feel even more certain today

7 that the most credible judgements that might lead to true reconciliation

8 are only the judgements made by the people of the country whose citizen

9 the accused is.

10 JUDGE ORIE: Yes. I do understand that you want to explain the

11 thoughts you had. What I read in the submission by Serbia and Montenegro

12 - and I take it that you have received a copy of that as well - it reads

13 as follows: "On the 14th of December, Mr. Jovan Simic, and Mr. Branko

14 Lukic, the Defence counsel for --" and then they list the accused --

15 "wrote to the National Council of Serbia and Montenegro for cooperation

16 with the International Criminal Tribunal for the former Yugoslavia and

17 requested that Serbia and Montenegro address the Tribunal and request that

18 the case of Prosecutor versus Mejakic and others be referred to the

19 additional authorities of Serbia and Montenegro, pursuant to Rule 11 bis."

20 I never heard any protest of you against this -- well, this

21 language. It does not say what you just explained to me, but which says

22 Mr. Simic asked us to apply for referral of the case. And of course my

23 question comes from your position in this court that it's a non-referable

24 case and this at least suggests that you sought referral, but then to

25 another state.

Page 210

1 MR. SIMIC: [Interpretation] Your Honour, I will repeat: I applied

2 to the National Council in order to inform them that proceedings were

3 being held here under Rule 11 bis. The Defence has no right to request a

4 country to move the Tribunal to have a case referred to a national

5 jurisdiction. The Defence simply wished to inform the government so the

6 government could take steps in favour of its citizens. And in the case of

7 citizens who have voluntarily surrendered, it would be best for them to

8 return to their country. As Defence counsel --

9 JUDGE ORIE: What I see is that there's a clear disagreement on

10 whether you applied for a referral to be initiated by Serbia and

11 Montenegro or whether you just said, Well, there happens something which

12 might not be good for your citizens, so if you want to do anything, do it,

13 which is of course a different matter, especially in view of the position

14 you take here whether this is a referable case, yes or no. We'll hear

15 from Serbia and Montenegro later, I take it, on this disagreement.

16 I have another question which comes back to the applicable law.

17 It has been invoked by the government of Bosnia and Herzegovina that the

18 Criminal Code of Bosnia and Herzegovina provides that Articles 3 and 4 of

19 this code shall not prejudice the trial and punishment of any person for

20 any act or omission which at the time when it was committed was criminal

21 according to the general principles of international law.

22 I am aware that -- I am aware that you have not seen these

23 submissions by the BH government, but if any of the Defence counsel could

24 give me an answer to the question whether such a rule in existence would

25 make it possible to apply customary law which was not codified at the time

Page 211

1 when a crime was committed, if any of you could comment on that issue,

2 then I'd like to hear from you.

3 Yes, Ms. Nedic.

4 MS. NEDIC: [Interpretation] As I read these pieces of legislation,

5 Your Honours, I concluded that they're quite contradictory. To be quite

6 frank, in the territory of the former Yugoslavia we had the codified laws,

7 which meant that in criminal law the norms were quite specific; the

8 definition of the criminal offence, the mode of liability of the

9 perpetrator, and the sanctions envisaged for such crimes. And it was

10 impossible to define them in any other way, apart from that in the law.

11 The law in Bosnia and Herzegovina copied to a certain extent the

12 provisions in the SFRY codes and then there were some other provisions

13 added to it which in fact violated the unity of the code itself. In

14 Article 3, which is entitled "The principle of legality," paragraph 1

15 reads: "Criminal offences and criminal sanctions can be prescribed only

16 by law."

17 Paragraph 2 reads -- is a modification of that, is in

18 contradiction with paragraph 1: "No one can be sentenced or sanctioned in

19 any way for any criminal offence that was not stipulated as such or

20 qualified as a criminal offence, either by domestic or international law

21 before the commission and which did not have a sanction prescribed for it

22 by the law."

23 So these two paragraphs are contradictory because one stipulates

24 that only a law can prescribe crimes and sanctions, whereas the paragraph

25 2 stipulates that international law can apply here, too, and only

Page 212

1 sanctions prescribed by law can apply also to that other case. So how

2 this will be applied in practice, how you can decide which sanction to

3 apply, whether you would seek the analogous crime, the one that is most

4 similar, that is qualified in the law, and then to compare it with the

5 international law and to prescribe this same sentence, I think that this

6 is quite illogical in fact.

7 JUDGE ORIE: Of course sometimes one rule makes an exception to

8 another one and that is, of course, to some extent always in

9 contradiction, but I do understand you say the strict application of the

10 rule of non redric [phoen] that the lex scripta means that there should be

11 a written law which criminalises should be applied and there's

12 contradiction between that exception which is unclear. At the same time,

13 of course, the rule says this -- I just read the text to you, that the

14 foregoing rules would not prevent from ... That means to that extent of

15 course an exception is made, which makes it less contradictory.

16 I would like now, if there are no further questions at this

17 moment, I would like to give an opportunity -- we are limited in our time.

18 We started late due to the snow conditions. I can imagine that if you

19 come from the Serbia or from Bosnia that you laugh a bit about our 15 or

20 20 centimetres of snow and see that they cause us so many difficulties,

21 but that's our reality at this moment. I'd first like to give an

22 opportunity. We have -- we'll continue tomorrow. Of course we are a bit

23 beyond schedule. We have some -- until the tape ends, we will have

24 presumably until quarter to 7.00, that would be close to half an hour. Of

25 course the Bosnia and Herzegovina is a party in this proceeding, so I

Page 213

1 would like to give them the floor first and at the same time invite them

2 to keep an eye on the clock so that their neighbours still have time left

3 as well to address the Tribunal.

4 I take it, Madam Kreso, that you can take the floor. You might be

5 more used to being addressed as "Your Honour," but that might be a bit

6 confusing in this court. So, Madam President, may I give you the floor.

7 MS. KRESO: [Interpretation] Thank you, Your Honour, for making it

8 possible for the delegation from my state to present the arguments why we

9 deem that we are ready and committed to take on the cases such as the one

10 that is debated here today, to try them in conditions that would ensure a

11 fair trial, and to have trials that will be a result of all the changes

12 that the legal system in Bosnia and Herzegovina has undergone. I could

13 really not accept the argument that financial and political reasons argue

14 in favour of transferring those cases to domestic courts, because we would

15 not accept such reasons. We are experts, professionals, we cannot accept

16 such an argument. This cannot be a reason for a case to be accepted.

17 Let me present in brief what the judiciary of Bosnia and

18 Herzegovina has done in order to equip itself to deal with such sensitive

19 cases.

20 After the war, the judiciary in Bosnia and Herzegovina underwent

21 momentous changes. In the region, in the former Yugoslavia, in fact it

22 has gone furthest in the reform that it underwent. First of all, the

23 appointment of judges and prosecutors is done in a totally different way.

24 No political party, no NGO, nobody except for the high judiciary council

25 appoints the judges, and equal representation of all ethnic groups is

Page 214

1 complied with from both entities. Members of the high judicial council

2 are our colleagues; defence counsel, prosecutors, judges, all highly

3 respected, professors from the law school, and so on. Our judiciary has

4 incorporated an international element recently. We have international

5 judges and international prosecutors working in our courts.

6 Furthermore, our legislation has been changed and adapted to the

7 international and European standards, and despite the fact that we do have

8 a very rich tradition because we were part of the legal system of the

9 former Yugoslavia, which was itself based on the German law due to the

10 fact that Austria Hungary was present in Bosnia and Herzegovina, after the

11 war, we did not stop there. We continued our tradition of fair trials.

12 The laws that pertain to this matter before us, such as the law on the

13 court of Bosnia and Herzegovina with relevant amendments, the law on the

14 prosecutor's office of Bosnia and Herzegovina, the law on the transfer of

15 cases from the ICTY and the use of evidence, the law on the protection of

16 witnesses and vulnerable witnesses, witnesses under threat, and other laws

17 that are related to those primary laws make it possible for us to conduct

18 such proceedings in a very appropriate way. Our law on criminal procedure

19 has been amended, if you compare it to the laws in our neighbouring

20 countries, because we removed the investigative judge from the proceedings

21 and assigned his role to the prosecutor. We also introduced the

22 instrument of plea agreement and this is in use, of course, because it

23 makes proceedings much more speedier, efficient, and less expensive.

24 We are not a high-risk area, as Bosnia and Herzegovina is

25 attempted to be portrayed. There are no terrorist attacks. There are no

Page 215












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Page 216

1 other incidents that would distinguish this country from its environment,

2 which is the Balkans. Quite the contrary. We at the state level have

3 tackled all these problems that we face and we have not hesitated to

4 prosecute our high-ranking officials and to convict them, if necessary,

5 including a member of the Presidency or a Supreme Court judge, if indeed

6 he or she is corrupted -- is a corrupt person, or an Interpol

7 representative. The fact that we have corruption trials now for criminal

8 offences committed after the war does not mean that these acts are still

9 committed at the same scale as they were committed after the war. Quite

10 the contrary. By prosecuting such cases, we show that we are ready to

11 tackle problems in our own ranks, all the deviant forms of behaviour that

12 are the legacy of the war in our society.

13 Our laws make it possible for trials to be held without undue

14 delay. We have presented our arguments in our briefs. I would not like

15 to dwell upon that, on the readiness of the courts in Bosnia and

16 Herzegovina, primarily the state court of Bosnia and Herzegovina which was

17 established in year 2000, and in the 2003 we have -- we had the state

18 prosecutor's office. This is a huge advantage, the fact that we have this

19 court, because this has given us jurisdiction over crimes committed in the

20 entire territory of Bosnia and Herzegovina. We can prosecute them. But

21 let me note that before that we had only partial jurisdiction which was

22 limited to the entities; Republika Srpska, Federation of Bosnia and

23 Herzegovina, and the Brcko district.

24 Furthermore, I would like to stress that what the learned

25 colleagues from the defence noted, that Article 12 of the law on the court

Page 217

1 of Bosnia and Herzegovina gives the court of Bosnia and Herzegovina, which

2 has jurisdiction over the most serious crimes the option to allow other

3 lawyers to represent clients before that court, including the lawyers who

4 are not in the registry of the relevant bar associations. I would like to

5 tell you that the rules of procedure are in existence and they regulate

6 this issue, and now it is just a matter of time for the plenary session of

7 the Judges to adopt it formally. And the rule, according to the rules of

8 procedure, international lawyers can represent clients before the court of

9 Bosnia and Herzegovina. So this will be allowed. There will be no

10 exceptions to this rule.

11 As for the objections that witnesses, particularly Defence

12 witnesses, might be in danger that if they come to Bosnia and Herzegovina

13 they face the risk of an arrest, a court issues an arrest warrant, no one

14 else, no other body. But as Bosnia and Herzegovina has already signed a

15 memoranda with its neighbouring countries, with Croatia, for instance, and

16 a similar memoranda will be signed, an agreement will be signed with

17 Serbia and Montenegro on interstate judicial assistance, and as these

18 agreements specify, that witnesses coming to the request country cannot be

19 arrested if they go there as witnesses.

20 JUDGE ORIE: May I -- I apologise for interrupting you. Wouldn't

21 it have been -- I've heard about this memoranda. Wouldn't it have been

22 the simple way just to ratify the European convention on mutual assistance

23 in criminal matters, which is ratified by your neighbour countries as well

24 and would provide a full set, apart from obligations to cooperate which

25 would perhaps ensure that witnesses would be present, but also would

Page 218

1 provide for the safe conduct you're now referring to, and which is, as far

2 as I understand, in place only with one of your neighbouring countries,

3 and then only in the form of a memorandum. I do not exactly know what

4 status this memorandum would have under international -- public

5 international law. But my question is: Why have so many countries

6 ratified and why have you just signed European convention and not ratified

7 it?

8 MS. KRESO: [Interpretation] Your Honour, the agreements that have

9 been signed or are in the process of being signed, they were signed by

10 prosecutors, state prosecutors in the three countries. They guarantee and

11 they indeed speed up the procedure when it comes to certain requests,

12 especially in terms of interviewing witnesses. And they incorporate

13 provisions of international conventions dealing with this matter. But the

14 prosecutors have greater leeway to act more expeditiously when it comes to

15 gathering evidence. In fact, if you allow, my colleague from the

16 Prosecution can address this because we've also divided our topics amongst

17 ourselves.

18 JUDGE ORIE: Yes -- yes. I will give her an opportunity to do

19 that. Perhaps then if you could think already about what would have

20 happen if witnesses are living somewhere else where of course a -- where a

21 treaty like European convention would cover a larger area where bilateral

22 treaties, of course, have a limited effect. And secondly, that of course

23 it's always possible to conclude any additional complementary agreement

24 with one of your neighbours, that's well-known and often practiced, but to

25 say this replaces a convention is of course a different matter. So I

Page 219

1 would just give these questions already for consideration.

2 Please proceed, Madam President.

3 MS. KRESO: [Interpretation] Thank you, Your Honour.

4 Within the context of the reforms carried out in the judiciary of

5 Bosnia and Herzegovina, a registry was set up and very few countries in

6 our immediate neighbourhood and indeed in Europe can boast having that

7 office. The advantages of having a registry in the court of Bosnia and

8 Herzegovina have been great already. As you know, the registry has

9 several departments providing support to the court, the prosecutor's

10 office, the Defence. It provides protection to the witnesses as a

11 department dealing with the PR and so on. And I would like to stress in

12 this context that the international community has invested a lot of

13 resources through various donors' conferences to establish a special

14 chamber at the court of Bosnia and Herzegovina which would be prosecuting

15 war crimes and also the department for organised crime, economic crime,

16 and corruption. The presence of international judges and prosecutors is a

17 guarantee that there will be a high degree of objectivity and impartiality

18 according to our law. The war crimes chambers shall be presided by a

19 domestic judge, but members of the chamber will be international judges.

20 And the proceedings will be conducted in one of the languages of the

21 peoples of Bosnia and Herzegovina and in English.

22 So apart from these procedural conditions, we also have the

23 material and technical conditions that make it possible for us to conduct

24 such proceedings. From the funds provided by the donors, the court has

25 obtained the most state-of-the-art technology, which makes it possible for

Page 220

1 the chambers to work efficiently and expeditiously. It is the kind of

2 technology that this court has here.

3 In addition to the legal reasons that our state can put forth when

4 it seeks the referral of these cases to its courts, among those reasons is

5 the fact that the accused are persons that have dual citizenship; their

6 original citizenship being that of Bosnia and Herzegovina. When the

7 former Yugoslavia broke down, the peoples of Bosnia and Herzegovina -

8 Serbs, Bosniaks, and Croats - availed themselves of the possibility to

9 have dual citizenship. Not only Croats from Bosnia and Herzegovina or

10 Serbs took the citizenship of Croatia and Serbia respectively, Bosniaks

11 also availed themselves of that right, so many of them have the

12 citizenship both of Croatia and Bosnia and Herzegovina or of Serbia and

13 Bosnia and Herzegovina. So legal grounds that we quote in favour of our

14 argument that we can try our own citizens lies in the fact that their

15 citizenship they obtained by the fact of their birth in Bosnia and

16 Herzegovina is that of Bosnia and Herzegovina and that any other

17 citizenship they may have they obtained after the breakup of the former

18 Yugoslavia.

19 The next grounds that prompt us to seek that these trials be held

20 in Bosnia and Herzegovina lie -- lies in the fact that our Criminal Code

21 stipulates that the criminal legislation of Bosnia and Herzegovina shall

22 apply to everyone who commits a criminal offence in the territory of

23 Bosnia and Herzegovina. So we have territorial jurisdiction. The state

24 court of Bosnia and Herzegovina has territorial jurisdiction because the

25 crimes discussed here were committed in the territory of Bosnia and

Page 221

1 Herzegovina by its citizens, the victims live in the territory of that

2 state, most of the witnesses live in the territory of that state.

3 And finally, justice must be done where the crimes were committed,

4 because victims did not choose where the crime would be committed.

5 Transferring cases such as this one would be particularly detrimental

6 because the process of building trust and creating an atmosphere for the

7 reconciliation of our peoples would be much more difficult. I sometimes

8 say that ten years in prison imposed by a Bosnia and Herzegovina court and

9 15 years imposed by a court in one of the neighbouring counties, it's not

10 the same because witnesses and victims demand that justice be done there,

11 on the ground where the crimes were committed.

12 If we were to ask ourselves how it would be prejudicial to the

13 accused if this case were to be transferred to the Bosnia and Herzegovina

14 courts, hypothetically speaking this is a perception that people have.

15 But this is the perception, that they would receive a milder sentence if

16 they were to be tried before courts in another state, in this case it

17 would be Serbia and Montenegro. This perception is quite wrong, just as

18 the perception of some of the victims that if a trial is held before a

19 court in Bosnia and Herzegovina, that they would receive a much stiffer

20 sentence; that would also be wrong. I can tell you that with full

21 responsibility.

22 The standards applied by this court, the standards that have been

23 incorporated in our legislation guarantee a fair trial, as stipulated by

24 the law, without undue delay.

25 JUDGE ORIE: May I ask you -- I said before that we would have

Page 222

1 approximately half an hour. First of all, I'd like to avoid that this

2 hearing becomes a competition or a race for who wins this case. The

3 Chamber is primarily interested to hear about all kind of legal technical

4 matters, and of course we are aware, just as has been shown by both the

5 Prosecution and the Defence, and I hear it in your words as well, of

6 course these legal, technical matters are not on its own. They all serve

7 the final purpose of fair trials for those who are accused, for a fair

8 justice for those who are victims, so therefore these technicalities are

9 not to be viewed as isolated elements, but at the same time they are very

10 important because they all serve the same purpose.

11 What I heard until now that you mainly took the general approach

12 of it. To the extent possible I would like to give -- and we have not

13 much more than ten minutes left, but we will continue tomorrow in the

14 afternoon briefly. If there is any specific matter that you would like to

15 address at this moment, please do so. And I take it that on the technical

16 matters we'll get more information, perhaps briefly tomorrow, by those

17 assigned to give us that information. Is there any specific matter you

18 would like to draw our attention to at this very moment, any further

19 matter?

20 MS. KRESO: [Interpretation] I wish to draw your attention to a

21 point that my colleague will discuss in greater detail, and that is that

22 the Criminal Code of the SFRY of 1977 prescribed in Articles 30 that a

23 criminal act can be committed by an act or a failure to act. It further

24 provides that a criminal act can be committed by a failure to act only

25 when the perpetrator has failed to carry out an act that he was duty-bound

Page 223

1 to perform.

2 JUDGE ORIE: I do understand. This is mainly in the field of

3 command responsibility. We'd like to hear, but we can't do that in a

4 couple of minutes, to hear some further details in that respect. And we

5 especially are interested to know to what extent also negligence would be

6 covered by these legal provisions, because that might be a problem.

7 I would suggest that we leave some of the technical aspects but

8 then very concise for tomorrow in the afternoon, if that would be suitable

9 for you. Is there another matter which you would like to raise at this

10 moment?

11 MS. KRESO: [Interpretation] I do not wish to take advantage of

12 this time now because my colleagues would like to say something.

13 Ms. Mechtild Lauth would like to say something about command

14 responsibility, by your leave, or shall we leave that until tomorrow?

15 JUDGE ORIE: I would suggest that we leave this technical matters

16 for tomorrow, and I take it that then because you have been in the

17 procedure at least you know what part of our problems are, if you can deal

18 with that in 10 to 12 minutes, if that would be possible. If you write it

19 down, apart from presenting it in an oral way, that would be good as well.

20 Yes?

21 Madam President, anything else? Because we will then take time

22 tomorrow to listen to it and it's earlier on the day, which keeps us

23 fresher as well --

24 MS. KRESO: [Interpretation] I agree, Your Honour, that we leave it

25 until tomorrow, in view of the brevity of time left to us for our

Page 224

1 presentation.

2 JUDGE ORIE: Yes. Then -- one second, please.

3 [Trial Chamber and registrar confer]

4 JUDGE KWON: Perhaps while we are waiting, can I raise this: For

5 the sake of the record, Madam President, the transcript says that you

6 said, in page 76 from line 16 to 17, I quote: "Transferring cases such as

7 this one would be particularly detrimental because" -- blah, blah, blah.

8 But that is quite opposite to what you are saying. Could you remember

9 what you did say at the time?

10 MS. KRESO: [Interpretation] It would be detrimental to the

11 confidence-building process or the process of the restoration of

12 confidence.

13 JUDGE KWON: What is detrimental, transferring the case?

14 MS. KRESO: [Interpretation] Yes. That is to say, the courts in

15 Bosnia and Herzegovina, especially the court of Bosnia and Herzegovina,

16 are quite able. And I have to point out that the war devastated our

17 judicial system, and if such cases are referred to us, we are given a

18 chance - and I appeal to you, Your Honours, to do this - give us a chance

19 to prove not only to the people at home but also the international

20 community that we are able to look the truth in the face and that we are

21 able to issue both convictions and acquittals, that we are able to justify

22 the confidence that the international community has placed in us.

23 JUDGE KWON: Thank you, Madam Kreso. I think I can follow.

24 JUDGE ORIE: And I would like to thank you very much, Madam

25 President, for addressing us, and we'll hear on technical details further

Page 225

1 tomorrow.

2 I'd like, then, as the last part of this hearing to address you,

3 Mr. Loncar, representative of Serbia and Montenegro. I would say the same

4 would apply for you, that I leave it up to you whether you will start with

5 any technical comments or with a rather general comment. You may have

6 noticed that, as I said before, that this Chamber would be -- would try to

7 avoid this to become a race for the case and try to avoid that this would

8 be competition of who would best do the case. The Chamber is convinced

9 that there is a -- there is much at stake, both for Bosnia and

10 Herzegovina, but also we know that some of the occasions ask for a

11 referral to Serbia and Montenegro, so therefore you'll be here as a party

12 soon in other cases perhaps as well. But we'd like to -- not to make it a

13 competition for who gets away here with the case.

14 So if you would please address the Court and perhaps give

15 additional information or additional thoughts on the submissions you've

16 already made.

17 MR. LONCAR: [Interpretation] Your Honour, seeing that we are

18 coming near to the end of today's session and that there are only about

19 ten minutes left, I wish to address you on general issues and tomorrow we

20 can discuss specific issues.

21 Therefore, allow me at the outset, Your Honours, to express the

22 gratitude of my government for inviting us to attend today's session and

23 making it possible for us to address you on this important matter. Also,

24 at the outset I wish to express the political will of my government to

25 fully cooperate with the International Criminal Tribunal and the readiness

Page 226

1 of my government to have some of the cases pending before this Tribunal

2 tried before our national judiciary.

3 Serbia and Montenegro is properly prepared and I believe able to

4 try all those suspected of war crimes. I think that this is best

5 supported by the opinion of the Office of the Prosecutor of the ICTY. In

6 the 11 bis motion for transferral submitted in the case of Vladimir

7 Kovacevic of the 28th of October, 2004, in paragraphs 41 to 45 stated the

8 following: "Serbia and Montenegro possess the political will and is

9 properly prepared to prosecute the accused before its own courts. The

10 prosecutor has developed excellent working relations with the Belgrade

11 district court in relation to war crimes cases. In cooperation with the

12 ICTY Prosecutor, the war crimes prosecutor of the Republic of Serbia

13 brought indictments against a number of persons suspected of participating

14 in the massacre at Ovcara and actively cooperated with the office of the

15 ICTY Prosecutor in bringing other cases to trial. As a result, the ICTY

16 Prosecutor transferred to the Belgrade district court one case of a war

17 crime committed in Bosnia and Herzegovina. The Prosecutor believed the

18 Belgrade district court, its judges, and the war crimes prosecutor had the

19 skills and technical capabilities to prosecute the Vladimir Kovacevic case

20 according to the internationally recognised standards of justice. The

21 ICTY prosecutor was further satisfied that the accused would receive a

22 fair trial."

23 Allow me, in support of my government's claim, to put forward the

24 submission that the crimes alleged against the accused were not committed

25 in Serbia and therefore there are no passions around that might influence

Page 227

1 the prosecutor and the judges. As for political will, the political will

2 of Serbia and Montenegro to try war crimes cases, let me say again that

3 the governments are fully committed to cooperation with the ICTY. This

4 cooperation has intensified after the enactment of the law enacted two

5 years ago in 2003 by which a special Chamber for war crimes was

6 established with the district Belgrade court as well as a special war

7 crimes prosecutor. Both bodies have in a short time shown excellent

8 results in war crimes prosecutions and this has been recognised by all

9 independent observers. Serbia and Montenegro and Serbia are

10 institutionally and legislatively ready, willing to prosecute cases of

11 serious violations of international humanitarian law on the territory of

12 the former Yugoslavia. Let me reiterate that for the reconciliation of

13 the peoples of the former Yugoslavia, it would be of exceptional

14 importance for every country to try its own citizens, because this would

15 demonstrate its maturity, its willingness to face its own past and the

16 crimes allegedly committed on its behalf. This is the only way for the

17 judgements to be widely accepted by the domestic public. If the accused

18 and their Defence counsel do not have confidence in the judiciary of one

19 country, then their compatriots may reject the truth established by that

20 court. And the ICTY for a time in the public opinion of the former

21 Yugoslavia was mistrusted, without going into the merits of the cases and

22 the judgements handed down in that period. It seems to be in the interest

23 of Serbia and also in the interest of Bosnia and Herzegovina that this

24 case be prosecuted in Belgrade. This would be the best way to grapple

25 with the past, a past that is burdening all the states on the territory of

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13 English transcripts.













Page 229

1 the former Yugoslavia.

2 Your Honours, allow me to put forward the standpoint of my

3 government, which is that we fully support the arguments regarding

4 extradition put forward by Defence counsel Lukic today.

5 As for specific technical details, I hope that we will have

6 further opportunity tomorrow to hear my colleagues speak on these matters.

7 Thank you, Your Honours.

8 JUDGE ORIE: Yes, thank you very much, Mr. Loncar.

9 First of all, I have to apologise to the interpreters. I didn't

10 ask the permission to go on longer than we intended to do. So apologies

11 for that.

12 Now, Mr. Loncar, perhaps since you expressed as your view that

13 since the crimes had not been committed in Serbia and Montenegro that

14 there would be less passion in such a trial, but this of course -- perhaps

15 your colleague could give it some thought overnight -- is this a frontal

16 attack against the principle of territoriality which usually you say is

17 that the primary jurisdiction that should deal with the matter, that's the

18 jurisdiction of the place where it happened. Some might say that if you

19 go far away from where it all happened that perhaps the voice of the

20 victims might not be heard anymore and that there could be compassion for

21 other reasons, perhaps not primarily the compassion with the victims which

22 might result in a judgement which -- well, might be too heavy. But of

23 course there's the shadow side of the same problem, that if there is any

24 -- if there is compassion with the accused, then it of course could also

25 result in a judgement which would be considered too lenient, at least by

Page 230

1 the victims.

2 So therefore, it's -- to say it didn't happen here so there's no

3 passion, that seems to be a -- well, I consider it a bit simplistic as an

4 approach for a rather complex problem.

5 We'll adjourn until tomorrow as quarter past 2.00. Both

6 governments will have time to address the technical matters. Finally, the

7 parties -- and if you could do it together, that would be fine -- will

8 have an opportunity to make some final comments to the extent necessary.

9 And you may have noticed especially also what kind of subjects the Chamber

10 is specifically interested in. I might say a few words as well, and we

11 hope to finish tomorrow in a little bit over one hour, so altogether

12 perhaps three-quarters of an hour.

13 We'll adjourn until tomorrow, quarter past 2.00, same court.

14 --- Whereupon the hearing adjourned at 6.55 p.m.,

15 to be reconvened on Friday, the 4th day of

16 March, 2005, at 2.15 p.m.