Tribunal Criminal Tribunal for the Former Yugoslavia

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1 [Motion Hearing]

2 [Open session]

3 --- Upon commencing at 8.36 a.m.

4 JUDGE ORIE: Good morning to everyone.

5 Madam Registrar, would you please call the case.

6 THE REGISTRAR: Good morning, Your Honours. Case Number

7 IT-04-78-PT, the Prosecutor versus Rahim Ademi and Mirko Norac.

8 JUDGE ORIE: Thank you, Madam Registrar.

9 May I have the appearances. Prosecution first, please.

10 MR. SCOTT: Good morning, Your Honours. Kenneth Scott for the Office

11 of the Prosecutor, and with me this morning are Ann Sutherland and Laurie

12 Sartorio, and our case manager Lakshmie Walpita.

13 JUDGE ORIE: Thank you, Mr. Scott.

14 And for the Defence.

15 MR. PRODANOVIC: [Interpretation] Good morning, Your Honours. I

16 am counsel for General Ademi, attorney Cedo Prodanovic, and with me is my

17 colleague, Ms. Jadranka Slokovic.

18 JUDGE ORIE: Thank you, Mr. Prodanovic.

19 And for Mr. Norac.

20 MR. OLUJIC: [Interpretation] Good morning, Your Honours. Zeljko

21 Olujic appearing for Mirko Norac. I am an attorney from Zagreb in the

22 Republic of Croatia.

23 JUDGE ORIE: Thank you, Mr. Olujic.

24 Then we have some guests, representatives of the Republic of

25 Croatia. Could they please introduce themselves.

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1 MR. HORVATIC: Good morning, Your Honour. I am representative of

2 the state of Croatia. I am the president of the Croatian Academy of

3 Science and the counsellor of the Ministry of Justice. Thank you.

4 JUDGE ORIE: And your name is Mr. Horvatic, I take it.

5 MR. HORVATIC: My name is Zeljko Horvatic.

6 JUDGE ORIE: Thank you, Mr. Horvatic. And you're accompanied by

7 -- good morning.

8 MR. MULJACIC: Mr. President, Your Honours. I am Jaksa Muljacic,

9 I am co-representative of the Republic of Croatia here. I am Assistant

10 Minister of justice. And Sinisa Milevoj on behalf of the Embassy of

11 Croatia.

12 JUDGE ORIE: Thank you very much. Good morning to you, Mr.

13 Horvatic, Mr. Muljacic, and Mr. Milevoj.

14 And then amicus curiae that appears today.

15 MR. KRAPAC: Good morning, Your Honour. I am Professor Davor

16 Krapac, University of Zagreb School of Law.

17 JUDGE ORIE: Thank you, Mr. Krapac. And I do understand that

18 Professor Damaska was not able to come today, but you have come and

19 submitted together an amicus curiae brief?

20 MR. KRAPAC: Right.

21 JUDGE ORIE: Thank you very much.

22 We're in this courtroom today to hear further submissions and to

23 hear further argument in relation to a motion filed by the Prosecution to

24 refer the cases against Mr. Norac and Mr. Ademi to be further tried in a

25 Croatian court. Before we further proceed, I'd like to ask the Defence,

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1 since the accused are not present, whether the accused agreed that we

2 would proceed in their absence. We all know that Mr. Ademi is on

3 provisional release. Mr. Norac is at this moment detained in Croatia.

4 Could you please express yourself on the absence of the accused and

5 whether they agree that we proceed.

6 MR. PRODANOVIC: [Interpretation] Your Honour, while General Ademi

7 was the only accused in this case about a year and a half ago, he had an

8 opportunity to declare himself about the anticipated referral of this

9 case to the Republic of Croatia and he agrees with the motion. And also

10 he agrees that the case be referred to the Croatian judiciary. He has

11 expressed no wish to be present at this hearing.

12 JUDGE ORIE: Thank you.

13 Mr. Olujic.

14 MR. OLUJIC: [Interpretation] Your Honour, as you know, Mr. Mirko

15 Norac, my client, has been sentenced to 12 years in prison and he is

16 serving his sentence in the proper institution. This is the reason why,

17 by your leave, I was able to extend the deadline for my response to the

18 Chamber. I consulted my client and he agrees without any reservations

19 that today's session be held without his presence. He agrees that he not

20 be present today. Thank you.

21 JUDGE ORIE: We'll then proceed in the absence of the accused.

22 This is the first time that this Tribunal hears a motion in a public

23 hearing on a referral of cases, and a lot of basic issues arise. The

24 parties have submitted extensive written submissions already.

25 I'd like to invite the parties, and that will take us

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1 approximately into the first break -- I'd like to invite the parties to

2 briefly summarise their positions as taken until now because it is the

3 first time that a matter is dealt with in a public hearing. So a brief

4 summary of its position taken until now and any additional issues to be

5 raised since you now are aware of what the other parties, what amici and

6 what the Croatian government has submitted to this court.

7 I would first like to give the opportunity to the Prosecution. I

8 expect the Prosecution to do that in 20 to 25 minutes. Then I'll give an

9 opportunity to counsel for Mr. Ademi and then for counsel for Mr. Norac.

10 Mr. Scott, you may proceed.

11 MR. SCOTT: May it please the Court, Counsel, representatives of

12 the Republic of Croatia, and amici curiae.

13 This is a hard situation. For many of us, sending any serious

14 war crimes case away to be prosecuted anywhere else goes against the

15 grain. We want to finish the job and we want to finish the job here.

16 Let there be no mistake: Given adequate time and resources, the

17 prosecutor, Madam Del Ponte would prefer to prosecute this case here; I

18 would prefer to prosecute this case here. I would prefer to prosecute

19 these two accused concerning the horrible crimes that are alleged against

20 them if there was adequate time and resources to do so. But at the same

21 time, all of us, the Tribunal, all of us here are in a situation that has

22 existed from the very beginning, from the first day that this Tribunal

23 opened its doors and still exists today. It was always known and is

24 known today that this Tribunal would never and will never be able to

25 prosecute all of the serious war crimes and all of the terrible

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1 perpetrators from the horrible Balkan wars.

2 What I said a moment ago, I submit, summarises the situation we are

3 in: We want to finish the job and we want to finish the job here.

4 Therein lies the dilemma. We want to finish the job here, but in order

5 to do that and to still finish the bigger job, some cases, even quite

6 important ones - and, I would add, are there any that are not important?

7 - But even quite important ones must be prosecuted and decided somewhere

8 else. That is the reality.

9 Having said this, the Prosecutor affirms and, Your Honours, I

10 affirm this morning that there can be no transfer that results or would

11 result in impunity. At the end of the day if this Bench, this Referral

12 Bench, decides that this case or any case cannot be transferred without

13 an unreasonable risk to the cause of justice, then the case should stay

14 here.

15 In going forward I note the directions given by the Security

16 Council to this institution. In paragraph 4 of the Security Counsel

17 Resolution 1534, the Security Council stated: "It calls on the ICTY and

18 the prosecutors here to review the case-load of the ICTY, in particular

19 with a view to determining which cases should be proceeded with and which

20 should be transferred to competent national jurisdictions as well as the

21 measures that need to be taken to meet the completion strategies referred

22 to Resolution 1503."

23 In that reference to Resolution 1503 in 2003, the Security

24 Council stated: "Recalling and re-affirming in the strongest terms the

25 statement of 23rd July, 2002, made by the President of the Security

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1 Council which endorsed the ICTY strategy for completing investigations by

2 the end of 2004, all trial activities of first instance by the end of

3 2008, and all of its work in 2010 by concentrating on the prosecution and

4 trial of the most senior leaders suspected of being most responsible for

5 crimes within the ICTY jurisdiction and transferring cases involving

6 those who may not" -- who may not -- "bear this level of responsibility

7 to competent jurisdictions as appropriate, as well as the strengthening

8 of the capacity of such jurisdictions.

9 Both the President and the Prosecutor of this Tribunal have made

10 similar statements and commitments. As the President His Honour Judge

11 Meron stated at the Security Council on 29 June of last year: "As the

12 Council recognised in Resolutions 1503 and 1534, the ability to refer

13 cases of intermediate- and lower-rank accused to domestic jurisdictions

14 including the planned war-crimes chamber within the court of

15 Bosnia-Herzegovina is an essential prerequisite to the fulfilment of the

16 completion strategy."

17 President Meron also reported the statement by the OSCE Mission

18 to Croatia that "There is no reason to believe" -- and I know there's

19 been some questions that have been raised that will be discussed probably

20 in the course of the day, but President Meron stated in June of last

21 year: "There is no reason to believe that the Croatian judiciary would

22 not be able to handle a limited number of cases in a fair and efficient

23 way, particularly if assigned to those judges and prosecutors who have

24 already received special training and resources."

25 President Meron made similar statements, more recently on

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1 September 23 of 2004, again emphasising the importance of transfer of

2 cases as part of the completion strategy of this Tribunal. I will not

3 read his comments at length in the interest of time. However, President

4 Meron recognised also the importance that "In using the 11 bis process to

5 integrate Bosnia and Herzegovina and Croatia and Serbia and Montenegro

6 into the process of bringing offenders to justice, that itself will have

7 benefits that go well beyond a reduction of the Tribunal's case-load and

8 promoting the completion strategy. Involving these national governments

9 in the process will bring reconciliation and justice to the region as

10 well as promote the development of commitment to the rule of law.

11 "National courts can only play this role, however, if trials are

12 not used for political purposes and if they meet the standards of due

13 process and fair trial."

14 Referring to the judiciary particularly in Zagreb, President

15 Meron stated: "I am optimistic about their growing capability to try

16 war-crime cases according to international human-rights and due-process

17 standards. I have been advised by the OSCE Mission to Croatia in a

18 letter dated 12 November 2004 that a limited number of transferred cases

19 could likely be dealt with adequately by a limited number of courts in

20 Croatia."

21 The Prosecutor too, Madam Del Ponte, addressing the Security

22 Council and in various public statements has echoed these same remarks

23 and stressed the importance of the transfer of cases to the Tribunal's

24 completion strategy. She also recognises that beyond the assistance

25 given to the Tribunal in completing its own work, the successful

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1 prosecution of war-crimes cases in the countries of the former Yugoslavia

2 is an important milestone in marking the reconciliation and progress

3 being made in these areas. Having said this, and as I said a moment ago,

4 the Office of the Prosecutor fully understands the importance of ensuring

5 that the transfer of cases is properly done with full consideration of

6 the various factors and questions that may be involved in these

7 decisions.

8 In turning to this case, Mr. President, Your Honours, the

9 Norac/Ademi case, we observe at the outset as we have observed before in

10 our very first, earliest submissions that this is a case that could go

11 either way. While some of the Rule 11 bis candidate cases might be

12 considered to more clearly involve lower-level accused or less serious

13 charges - if we can use that terminology given the cases and types of

14 crimes that this Tribunal deals, if any are less serious - the level of

15 the accused here and the seriousness of the offences here would make this

16 case fully suitable to remain at the ICTY for prosecution. In this

17 sense, it may be thought by some that this is not the best case to first

18 reach this point in the process. To some extent, I suppose, that was the

19 luck of the draw. Some other cases might possibly have reached a

20 Referral Bench before this one.

21 But inevitably, and in any event, the cases that the Chambers and

22 the Tribunal will consider, that the Referral Bench will consider, will

23 cover a range of accused and a range of situations. And on balance the

24 Prosecutor believed that this is a case -- believes and believed then at

25 the time of her initial submission -- that this is a case that while

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1 fully suitable as an ICTY case is also a case that can properly be

2 transferred or considered for transfer by the judges assigned to this

3 determination.

4 Rule 11 bis states: "In determining whether to refer the case,

5 the Trial Chamber shall, in accordance with United Nations Security

6 Council Resolution 1534, consider the gravity of the crimes charged and

7 the level of responsibility of the accused..."

8 Once again, most of us involved in this process find it difficult

9 and somewhat artificial to assign rankings to cases involving some of the

10 world's most horrible crimes. The killing or abuse of 10 persons or 50

11 persons or 100 persons, let alone thousands, is not to be condoned or

12 minimised in any way. And yet the Security Council resolution and

13 completion strategy requires us to in fact engage in such a process, at

14 least to some extent.

15 We also think it important to observe the following before

16 turning to some of the more specific questions about the case. And I

17 realise my comments now will only be essentially introductory to many

18 topics and issues that I am sure will be discussed in the course of the

19 day.

20 We think it's important to note at the outset, Mr. President,

21 Your Honours, this motion, the motion before the Bench, has only limited

22 connection to the assessment of the overall condition of the Croatian

23 legal and judicial system as a whole. We are aware, of course, of

24 various reports and studies and assessments that have been made,

25 including such as those by OSCE. With respect, however, the matter

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1 before the Bench concerns this one case and the referral of this one case

2 to one of the best courts in Croatia, one of the specialised courts that

3 have been designed to handle war-crimes cases; with the assignment, we

4 are promised, we have been promised, of the best prosecutors; where, at

5 least as to procedural matters and practices, the most recent reformed

6 laws will apply, which include receiving and admitting ICTY evidence.

7 The Chamber, respectfully, need not consider in our view what

8 might happen in some other Croatian court in Split or Vukovar or in some

9 other outlying area or another war-crime case in some other conditions or

10 circumstances. It is the referral of this case under the conditions and

11 commitments that have been made by the Government of Croatia. Further,

12 it goes without saying and is not saying anything secret: Croatia knows

13 and will know that this case will be watched with great scrutiny from

14 beginning to end, and if the ICTY is not satisfied with the case, is not

15 satisfied with the Croatian proceedings, the ICTY will order -- at least

16 the Office of the Prosecutor will seek that the referral be withdrawn and

17 the case be returned here.

18 I turn briefly to the two topics of the gravity of the offences

19 charged and the level of the accused. And again, for purposes of time,

20 let me just say as to the gravity of the offences charged we've outlined

21 those in several of our submissions, particularly the submission that was

22 made in November. These are indeed serious crimes. What happened in the

23 Medak Pocket in September 1993 was truly horrendous. While it involved a

24 relatively small area, approximately only 5 kilometres by 5 kilometres in

25 size, it involved essentially the total disruption of the Serb areas,

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1 houses, residences, villages in that area; in our submission done

2 intentionally, done systematically, resulting in the deaths of many

3 people, at least 29 -- a conservative number, at least 29 Serb civilians,

4 many of the victims be women and elderly, shot at close range, shot in

5 the back. The majority of the buildings in the entire Medak Pocket, more

6 than 164 homes, 148 barns and outbuildings, were intentionally destroyed

7 by fire or explosives. The investigation showed that unfortunately most

8 of these crimes, these alleged crimes occurred, after a cease-fire was in

9 effect; that is, they did not happen during combat operations but after

10 the fighting was over. Oil was intentionally poured and dead animals

11 thrown into wells in order to pollute them. The investigation further

12 showed that all or most of these alleged crimes occurred while the

13 Croatian army forces were deliberately preventing the UN peacekeeping

14 forces, UNPROFOR, from entering the area. As a result of this widespread

15 and systematic campaign, the Medak Pocket was rendered unlivable. It's

16 the Prosecutor's view and the basis of the indictment that that was what

17 was intended: to drive the Serbs from this pocket, from this area, and

18 make conditions so uninhabitable that they would not return. It is

19 indeed a serious case.

20 In terms of the level of responsibility of the accused, we submit

21 to Your Honours, and we again address this in our submissions, that both

22 Mr. Ademi and Mr. Norac fall in the upper -- fall in the middle,

23 approximately the middle- to upper-half of the various accused that have

24 been processed, indicted, processed, adjudicated at this Tribunal. I

25 don't think in any stretch of the imagination and with honesty they can be

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1 considered lower-level figures. Mr. Ademi was a senior official, a

2 senior officer and very high in the chain of command. He was the deputy

3 commander and then appointed acting commander of the Gospic military

4 district, the position he held at the time of the charged offences. Mr.

5 Norac was a commander of the HV 6th Guards Brigade which became the 9th

6 Guards Motorised Brigade which was the principal motorised unit involved

7 in these alleged atrocities.

8 We submitted to the Chamber before a chart, Annex 1, that was

9 part of our November submission, which indicated on the one side the

10 approximate level of the accused in relation to the chain of command in

11 the Croatian military starting with President Tudjman, of course, at the

12 top as commander-in-chief, and continuing down to the private soldier, if

13 you will. On the other side of that chart we provided a comparison, if

14 you will, of other ICTY cases and other 11 bis candidate cases.

15 In general and by summary, the level of the accused Ademi can be

16 directly compared among others to the ICTY accused Krstic, Tihomir

17 Blaskic, and Stanislav Galic. We believe that Mr. Ademi was at at least

18 a comparable level to those. As to Mr. Norac, he can be compared to such

19 ICTY accused as Mario Cerkez, Vidoje Blagojevic and Mladen Naletilic,

20 "Tuta." And indeed, and for better or worse, the chart would show that

21 many, many people have been prosecuted by this Tribunal, rightly or

22 wrongly, at substantially lower levels than both Mr. Ademi and Mr. Norac.

23 I think that I'm probably perhaps reaching the limits of my time

24 at the moment. Let me just preview a couple of comments, a couple of the

25 other issues that will be discussed in the course of the day. One, of

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1 course, important question the Chamber has raised which substantive law

2 would be applicable to the case that is transferred to Croatia. It

3 appears to us -- all the parties, and the Republic of Croatia and the

4 amici agree, appear to agree with perhaps some variation of certainty,

5 perhaps with some qualification, but generally that in fact 1993 law, the

6 law in effect at the time of the crimes, would apply. There may be some

7 qualification to this if the -- if the European Convention for the

8 Protection of Human Rights, Article 7(2) would be applied which does

9 provide for or allows as an exception to the general prohibition against

10 the retroactive criminal law: "The trial and punishment of any person

11 for any act or omission which at the time when it was committed was

12 criminal according to the general principles of law recognised by

13 civilised nations."

14 And we would submit, Your Honours, that the nature of the crimes

15 here and the theories of responsibility were matters of existing

16 international law at the time this conduct occurred in 1993. Again, only

17 briefly now --

18 JUDGE ORIE: Mr. Scott, before you move on, you may have noticed

19 especially in the respect of the direct applicability of norms of

20 international law, be it treaty law or be it customary law, that there

21 seems quite some disagreement between the Office of the Prosecution and

22 amici curiae and also the Croatian government. What I just heard was

23 that you repeated your position but without responding to the reasons why

24 the amici and the Croatian government have some doubts as to whether

25 there could be a direct application of norms of international law. Could

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1 you elaborate on that, apart from repeating your position.

2 MR. SCOTT: Yes, Your Honour. I did anticipate we would

3 eventually if not now get into that in a larger and much more detailed

4 way.

5 JUDGE ORIE: If you would like to do it at a later stage --

6 MR. SCOTT: I'm happy, Your Honour to say that it seems to me,

7 particularly in connection with the issue of command responsibility,

8 which is an issue in the case, and whether there is a Croatian substitute

9 or way to address, to sufficiently address, adequately address command

10 responsibility as a theory of prosecution in the Croatian courts.

11 JUDGE ORIE: Yes, I do not mind if you would like to address it

12 in relation to the issue of command responsibility, where it appears to

13 be most urgent. Please proceed.

14 MR. SCOTT: Just if I could -- Mr. President, to answer your

15 questions and to preview the further discussion, it seems to us that the

16 amici in the state of Croatia would prefer, I think on balance, to find

17 a solution to the problem in Croatian national domestic law by pulling

18 certain statutes under the general criminal code and attempting to press

19 those statutes into service to accomplish some form of what we would call

20 at the Tribunal 7(3) or command responsibility. On balance, the

21 Prosecution's view, and I think it's firmed up some since we filed our

22 submissions some days ago: We would view and would submit today for the

23 Chamber's consider that international law, the application of

24 international law provides a more reliable and more predictable basis to

25 address these matters under -- because -- and again as a preview, based

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1 upon Croatia's full acceptance of the Geneva Conventions, including

2 Protocol 1 which was in force at the time and based on customary

3 international law including the customary law of command responsibility,

4 as recognised by the Hadzihasanovic interlocutory appeal decision.

5 We do have some concerns, Mr. President, about some of the

6 applications of domestic law. And again, that gets us into these various

7 questions such as mens rea. And indirect intent and advertent negligence

8 and again, topics that will be discussed more in the course of the day.

9 Let me order the time that's been allowed me, Your Honour; let me see if

10 there's any other additional comments that I might be able to make at

11 this time.

12 Unless the Court has additional questions I think I would just

13 conclude for now by saying: Again, the Prosecution on balance has

14 considered these matters and looked at the existing indictment, has

15 looked at Croatian law and international law; and while it would be

16 dishonest to say that we have no concerns about these issues, that there

17 are some legitimate issues that are before the Chamber, on balance, once

18 again, we think there is a basis for a fully appropriate prosecution in

19 Croatia, again, in the conditions of the specialised courts that have

20 been set up and the legislation -- the new legislation and reforms that

21 have been adopted. Thank you very much.

22 JUDGE ORIE: Thank you, Mr. Scott.

23 [Trial Chamber confers]

24 JUDGE ORIE: We'll then proceed and give an opportunity to the

25 Defence for Mr. Ademi to address the Court. Mr. Prodanovic, you may

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1 proceed.

2 MR. PRODANOVIC: [Interpretation] Thank you, Mr. President. Your

3 Honours, distinguished colleagues of the Prosecution, and my colleagues

4 present here, representatives of the government, or the amicus curiae

5 rather.

6 First of all, let me start off by saying that as a general stand, as a

7 general position, the Defence of General Ademi agrees with the proposition

8 made by the Prosecution that the Ademi/Norac case be referred to Croatia

9 first and foremost guided by the new strategy, the completion strategy,

10 and of course everything that we have heard to date and on the basis

11 of resolution of 2003, Resolution 1503. Although I don't wish to repeat

12 what the Prosecution has said or follow their order, I will have to do to

13 a certain measure. Of course, before this Court, before this Tribunal,

14 we had the trials of crimes that were of less gravity -- of course there

15 are no crimes of less gravity before this Tribunal, but if we speak in

16 relative terms, then we will have to do that and call them that. And of

17 course, people were tried -- accused were tried of a lower rank, either

18 by virtue of rank or by virtue of their military hierarchy position.

19 However, if we are guided by the criteria which are present and

20 conditioned by the circumstances put forward by the Prosecution, that is to

21 say the awareness that physically speaking not all trials can be tried

22 and completed by this Tribunal, then, as we have stated, we consider that

23 this particular trial falls under the criteria set out which would

24 satisfy the referral of this trial to the Croatian legislature. Why?

25 Because in our opinion along with the proviso that I've already said that

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1 there are no less grave or more grave crimes and that of course the

2 accused have held this intermediate rank and responsibility, they are

3 still not the highest ranking officials, whether political or military,

4 that stand accused before this Tribunal appeared that were tried by this

5 Tribunal, and therefore come under these criteria.

6 Now, this introduction of mine speaks in one way of an

7 ambivalence in the relationship and position taken which was expressed by

8 the Prosecution a moment ago: on the one hand the awareness that we are

9 dealing with serious crimes, grave crimes; that we are dealing with

10 accused persons who do have a level of responsibility and held a certain

11 position; and also of the awareness of the fact that these matters cannot

12 be dealt with within the frameworks and time frame of this Tribunal and

13 that we will have to find another solution, the solution that was

14 discussed and set out a moment ago.

15 With respect to Rule 11 bis being applied of the Rules of

16 Procedure and Evidence with all the provisos that I've also mentioned.

17 When we speak of all the crimes, the Defence which does not agree with

18 all the assertions made by the Prosecution in the indictment, and these

19 will be questions which we shall deal with in due course, does consider

20 that we are nonetheless dealing here with a militarily justified action

21 in a narrow period, in a short space of time where the number of victims

22 -- there was a number of victims which we know, but we do not know

23 whether those victims fell victim on the basis of unlawful action by the

24 accused or whether they were the results of military actions by the

25 accused or whether they were the results of military action, that is to

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1 say battles and fighting. So these are matters which remain open

2 questions and will have to be deliberated.

3 At the same time, with respect to the level of responsibility or

4 positions held by persons concerned, namely General Ademi, the Defence

5 will repeat its, reiterate its stand, which it presented in its motion

6 and submission, and that is that he never de facto had effective control

7 over all the units during the operation. In the submission by the

8 Prosecution, we were in a way criticised that we spoke about his rank and

9 that we delved into factual debate about that. But I think that it is

10 impossible without entering into a factual debate to speak about ranks

11 and positions of the accused in this particular operation and for the

12 material time, that is to say the Medak Pocket 1993, because he

13 functioned in an interaction and correlation with other accused, or

14 rather with other individuals. And we claimed - and in an implicit way

15 this was confirmed by the conduct of the Prosecution as well - that the

16 accused Ademi at the material time was not the highest ranking military

17 officer in the territory while the operation was taking place. While the

18 operation was taking place, there were four generals in that area, each

19 of them having their own specific function, actively participating and

20 highly involved in the determination and implementation of the operation

21 itself. So the Prosecution in a way accepted these arguments of ours and

22 this is borne out of the fact that General Bobetko was accused for the

23 same operation as an individual who conceived, planned, and commanded the

24 operation; and that simultaneously, in relation to that operation,

25 investigations were conducted against two other suspects, two other

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1 generals of the Croatian army who at that time were in the Medak Pocket

2 and each of them in their own way played a certain part in the operation.

3 Let me summarise. At the time brigadier or as the speaker says

4 as major general was only in formal terms the commander of the operation,

5 de jure he did have certain control over the units, but because of the

6 fact that the operation was planned by the Main Staff, which can be seen

7 from the book written by General Bobetko. And when the operation was

8 implemented General Ademi was skipped over and there was direct

9 communication with lower units in the field without the knowledge of

10 General Ademi. We claim and we submit that he at no event -- in no event

11 was the individual who was the alpha and omega of this action, which he

12 is being accused of.

13 JUDGE ORIE: Mr. Prodanovic, I do understand that in order to

14 assess the gravity of the crimes and the level of responsibility, that

15 sticking literally to the text of the indictment might not give a --

16 could not lead to a proper interpretation of what your client is charged

17 with. On the other hand, if we go too much into details of facts, the

18 merits of the case itself -- this Court has not read a book written by

19 Mr. Bobetko. This Court, this Chamber, has not heard any evidence on

20 that. And the gist of the referral is that these matters will be

21 determined if a referral will take place, by the Court. So would you

22 please limit yourself in dealing with matters of fact at this moment and

23 concentrate on what is really necessary to make a determination on the

24 gravity of the crimes and the level of responsibility as charged. Please

25 proceed.

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1 MR. PRODANOVIC: [Interpretation] Thank you, Mr. President. I

2 have completed the facts -- with the facts; I have dealt with them. And

3 I said that quite simply I wanted to set this out without -- and the

4 Prosecutor has read General Bobetko, but I'm also clear that there are no

5 criteria, legal criteria, on the basis of which we can determine the

6 gravity of a crime because there is no differentiated span of sentences

7 of the international criminal court. So we tried to use some auxiliary

8 criteria in order to help us and to further our position, which is that

9 we consider that they were crimes of such -- on such a scale that they

10 can be backed in this way. So that is what I wanted to say with regard

11 to the gravity of the crime and the level of responsibility of the

12 accused General Ademi.

13 With respect to the legal framework for proceedings to be

14 conducted, the Defence would like to join in the representative -- join

15 in what the amicus curiae stated and the government representative stated

16 that the basis for the proceeding for the aspects of substantive law is

17 the criminal code dating back to 1993, first of all guided by the

18 principle of legality and no retroactive measures.

19 This afternoon as far as I was able to see from our schedule for

20 today, there will be a lot of discussion on the subject of finding legal

21 means and remedies and legal means for the trial. I would like to say

22 that legal means do exist for a trial to take place pursuant to the

23 provisions and rules of the Republic of Croatia by which a certain

24 problem of a command responsibility and everything derived from that,

25 from para 7 of the Statute can be bridged in the way we have presented in

Page 22

1 the legal opinions of the representatives of the government or the amicus

2 curiae, and that is with respect to -- the failure to prevent a crime

3 must be looked at and the perpetration of crimes that the provisions of

4 the criminal code should be applied, as prescribed by the 1993 criminal

5 code, which means that once a crime has been committed the perpetrators

6 must be brought to justice. Also, I wish to draw your attention to

7 Article 18 of the penal code which makes it possible to apply directly

8 international conventions if certain legal situations are not regulated

9 by the provisions of national law.

10 I see that my time is running out, so I will expound our

11 responses in the most concise possible way to the questions put by Your

12 Honours. The courts in the Republic of Croatia have already proceeded

13 applying the regulations in the way described. And I would especially

14 wish to draw your attention to the trial of Dinko Sakic who had been the

15 commander of the Jasenovac Ustasha camp and who was tried for failure to

16 punish his subordinates who had perpetrated crimes in the Jasenovac camp.

17 With respect to the possible problem of providing protection for

18 victims and witnesses, all I can say is that in Croatia this has been

19 provided for relatively well through three laws, the law on criminal

20 procedure, the police law, and other legislation. And we have elaborated

21 on this in detail in our written submission, so I will not belabour the

22 point. Also, there is a commission that has been set up for the

23 protection of witnesses and a judge of the Supreme Court of Croatia has

24 been nominated as the head of that commission. I am aware that there are

25 certain fears that victims' and witness' protection will not be able to

Page 23

1 be fully implemented, in other words that there are certain risks and

2 even dangers, but I do not believe that this will diverge significantly

3 from the measures provided for by the ICTY.

4 As for international legal aid, there is an entire section in the

5 law on criminal procedure regulating international legal assistance.

6 International legal aid has been used in many cases in Croatia when

7 calling witnesses or taking written statements. And there will be other

8 such cases in future, as due to the dissolution of the former Yugoslavia

9 there are many witnesses outside the jurisdiction of the Croatia courts.

10 Therefore these methods have been set up and they are functioning well

11 and legal aid is being provided internationally.

12 My learned friend has touched upon the report of the OSCE on

13 their monitoring of criminal proceedings pertaining to war times in the

14 Republic of Croatia. This report gives a picture of the Croatian

15 judiciary which is not very favourable, but in our view this picture is

16 partially distorted due to the fact that monitoring covered a period of

17 ten years and most of the objections are made to the first years when the

18 Croatian judiciary was not at its best. However, we feel that today the

19 situation is much better and that apart from several proceedings which

20 exemplify not properly conducted trials in Croatia, these have been

21 publicly condemned and overturned by the Supreme Court. There are other

22 examples where trials have been conducted properly and have met the

23 highest standards of the international community. President Meron has

24 expressed a favourable opinion of the current situation, and therefore I

25 believe that the transfer of one case will not be a problem for the

Page 24

1 Croatian judiciary and that the Croatian judiciary will deal with it

2 properly, as has been the case in the Gospic case, which we are all aware

3 of.

4 I believe that my time has run out and I hope I have managed to

5 put forward the points I felt necessary to raise today. And in agreement

6 with the Prosecutor, we feel that there should be no problems and that

7 although of course there are risks, we believe these can all be overcome

8 successfully in the Republic of Croatia.

9 JUDGE KWON: Mr. Prodanovic, you referred to Article 18 of the

10 criminal code of Croatia in relation to the application of international

11 law. I'm not sure the Chamber has the full Article of that penal code.

12 Could you read out that -- that provision of criminal code.

13 MR. PRODANOVIC: [Interpretation] To be quite honest, Your Honour,

14 I mentioned that article. I don't have the text of the criminal code

15 before me, but reading the comments of other authors and checking this in

16 the legislation I quoted it; however, I don't have it before me right

17 now.

18 JUDGE KWON: If you could tell us what is the crux of the article.

19 MR. PRODANOVIC: [Interpretation] The crux is in that if certain

20 crimes are not listed as special crimes in the criminal code of the

21 Republic of Croatia, then the international conventions pertaining to

22 this can be applied directly.

23 JUDGE ORIE: Yes. Perhaps -- I see that both the representatives

24 of the government and amici curiae are busy and trying to find the text.

25 Mr. Prodanovic, I take it that you would gladly accept the assistance of

Page 25

1 the representatives of ...

2 MR. PRODANOVIC: [No interpretation]

3 JUDGE ORIE: Could we be informed about the literal text of

4 Article 18. You referred especially to paragraph 2 in your submissions.

5 MR. HORVATIC: [Interpretation] It is not Article 18 that is being

6 mentioned here. We should be aware of the fact that we have two criminal

7 laws, one which was in force when the alleged crimes were committed for

8 which the accused Ademi and Norac, that they are charged with. That is

9 the law of 1993. And a law in force from the 1st of January, 1998, the

10 new criminal code. It cannot be applied retroactively to this case, but

11 the principles of the new legislation, whereby international law is

12 considered to be a source of Croatian law, these principles will be

13 applied to every trial for crimes committed prior to the entry into force

14 of that law, because of the rule of law. This is not Article 18; this is

15 the general principle underlying that legislation.

16 JUDGE ORIE: Professor Horvatic, of course at a later stage you

17 will be given an opportunity to explain the position of the government

18 you're representing, but at this moment we are just about to find the

19 text Mr. Prodanovic is referring to.

20 Mr. Prodanovic, I must say that in your written submission it's a

21 bit of a general problem, the sources of the positions you defend in your

22 written submissions. But the Chamber would really like to receive from

23 you the text you're referring to, both in your written submission,

24 Article 18, paragraph 2, as you repeated it in your oral submission

25 today, you refer to Article 18. We'd like to receive the text of what

Page 26

1 you're referring to. Would it be possible, perhaps, that you find it

2 during the next break?

3 MR. PRODANOVIC: [In English] I'm afraid not now. Maybe -- I'll

4 try.

5 JUDGE ORIE: I take it it must be possible one way or the other

6 to provide it to us today, because it might be an important element in

7 further submissions, so therefore we would like to be informed about this

8 text.

9 JUDGE KWON: The passage appears on page 4 of your submission

10 dated 3rd of February.

11 JUDGE ORIE: Yes.

12 Then, Mr. Prodanovic, thank you for your submissions. Would

13 there be anything you would like to add or -- because you're afraid that

14 you'll run out of time. Not yet, but if you say I'm finished --

15 MR. PRODANOVIC: You gave me 20 minutes as far as I know?

16 JUDGE ORIE: Yes. But if you look at the clock you're not

17 running out of time; if you look at the time consumed, then you're right.

18 MR. PRODANOVIC: [Interpretation] In any case, I have finished,

19 Your Honour. Thank you.

20 JUDGE ORIE: Mr. Olujic, may I invite you to make submissions.

21 MR. OLUJIC: [Interpretation] Thank you, Your Honour. And I wish

22 to thank my learned friends as well and greet all those present in the

23 courtroom, the representatives of the Republic of Croatia, the amici

24 curiae, and my colleagues from the Defence.

25 We have already seen during the introductory remarks of my

Page 27

1 learned friends, as well as the Defence, that it is very difficult, Your

2 Honours, when debating an issue such as the one we are debating today not

3 to touch upon the facts with regard to the alleged crimes in the

4 indictment. Of course I will try to avoid this, but I do have to touch

5 upon the submissions of my learned friends, when Mr. Scott said that this

6 case could be tried either before the ICTY or before the courts in

7 Croatia. With all due respect, I consider this to be a rhetorical device

8 because what we are dealing with here today is a case initiated by the

9 Prosecution for which the Prosecution moves that it be tried in Croatia.

10 The fears expressed by my learned friends about the courts in

11 Croatia are not justified. If the Prosecution wants the best prosecutors

12 to prosecute this case, that will be done; but we also need the best

13 defence counsel as well because we all want the truth to be properly

14 established. We all know that according to the terms of 11 bis, there is

15 not only the possibility of monitoring the trial at any time, but also

16 that the case may be brought back to the Tribunal, should it be

17 established that anything was being done that was not in accordance with

18 the law. I'm certain, however, that the intention behind this provision

19 is that no trial should be conducted to the detriment of the accused.

20 Speaking hypothetically, the rights of the defence might be violated and

21 this, too, would be a cause for returning the case of the ICTY.

22 Your Honours, you already have a certain guarantee. Although we

23 as the Defence fully support the Prosecution motion, as can be seen from

24 our entire correspondence with the Tribunal and all our motions that have

25 been submitted. But in any case we are deeply convinced that the Chamber

Page 28

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13 English transcripts.

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1 in the Republic of Croatia will be fully objective [as interpreted],

2 should Your Honours decide to refer the case to Croatia. Your Honours,

3 we are absolutely certain that the Chamber in Croatia will not be

4 favourably disposed toward my client, as my client has already been

5 sentenced to 12 years in prison, as has been decided by the appellate

6 court. And this is one of the arguments that Your Honours will certainly

7 consider when you deliberate your decision.

8 By your leave, Your Honours, I wish to briefly touch upon the

9 command responsibility of my client, or rather his level of

10 responsibility because I feel that the Prosecution has not sufficiently

11 described the position of my client. As the Prosecution has done, of

12 course this should be described in two ways, but they have not drawn a

13 sufficient distinction between military rank on the one hand and the

14 command role in the tempore criminus suspecti that my client had. With

15 all due respect for my learned friends, I don't think we should confuse

16 the position of my client, Mr. Mirko Norac, who was a colonel at the time

17 -- we should not confuse his position with the position that that rank

18 normally holds in other armies. The Defence has studied the ranks in the

19 army from the rank of colonel to that of general. Between colonel and

20 general there are also brigadier and staff brigadier. So when we look at

21 the hierarchy we see that staff brigadier and brigadier come above

22 colonel and major in the Croatian army. The ranks in the Croatian army,

23 therefore, in comparison to the hierarchy in Western armies were stozerni

24 general, Field Marshal General Zbora, General; General Pukovnik, major

25 general; and General Potpukovnik, lieutenant general and general major

Page 30

1 brigadier.

2 THE INTERPRETER: Interpreter's note: This is the Defence

3 translation of the ranks.

4 MR. OLUJIC: [Interpretation] The position of Brigadier Ademi at

5 that time has also not been properly clarified with all the other

6 superiors, for example the position of General Bobetko who was directly

7 under the command of the Minister of Defence. Between the Minister of

8 Defence and Brigadier Ademi, there were a number of generals and staff

9 brigadiers, not to mention this relationship with regard to Colonel

10 Norac.

11 As regards the Prosecution position, there is no dispute, of

12 course, that the Security Council issued Resolution 1534 and that

13 pursuant to this resolution this special Chamber understands this

14 resolution to be an instruction regarding the criteria to be applied.

15 For example, in the Aleksovski case, regardless of military rank, this

16 would no longer be tried by this Tribunal pursuant to Resolution 1534.

17 Therefore, I feel there is no need to look back but to look at the

18 motions before you at the present time in the light of Resolution 1534

19 and that doing this, Your Honours, will certainly decide that this is a

20 case that can be transferred or referred to the courts in Croatia.

21 Your Honour, in response to the questions you have put to the

22 Defence, your first question was: What is the relevant law applicable to

23 this case, whether the law of 1993 or the criminal code of 2004? In the

24 view of the Defence, there can be no dilemma. The law to be applied is

25 the one tempore criminus suspecti. That is the one most favourable to

Page 31

1 the accused. Therefore, in view of the Defence, and I see this is also

2 the position of the Republic of Croatia and the amici curiae, it is the

3 law of 1993 that should be applied because the penal system of the

4 Republic of Croatia and of all continental law, all this is based on

5 nullum crimen sine lege and nulla pena sine lege. However, the Defence

6 considers that this legal issue should not play a crucial role when

7 deciding whether or not that refer this case to the Republic of Croatia.

8 Should you so decide what will be important is for the proceedings to be

9 conducted strictly in accordance with the law and that the Chamber when

10 reaching its decision, whether of sentence or acquittal, should do so in

11 accordance with the law.

12 The second question was what forms of protection are available

13 for victims and witnesses in Croatia and on the basis of what such

14 measures would be granted. Your Honour, let me again refer to the

15 proceedings I participated in in Croatia where General Norac was accused

16 and sentenced to 12 years in prison, which is a very high sentence. At a

17 trial there were dozens of witnesses from Serbia and Montenegro who has

18 nothing specific to say about the indictment but who testified before the

19 Chamber, and there were no problems --

20 JUDGE ORIE: Mr. Olujic, you have given similar observations in

21 your written submissions where you're criticising the proceedings in the

22 earlier case against Mr. Norac, and that's not a matter that we can deal

23 with at this moment; whether a witness in that proceedings has lied or

24 has not lied is totally beyond what this Chamber can deal with. I think

25 it should even not have been adopted in your written submissions, but

Page 32

1 certainly a repetition in this oral hearing is not appropriate.

2 Please proceed.

3 MR. OLUJIC: [Interpretation] To be brief, I think that in any

4 case supporting what my learned friends have put forward in their motion

5 after Your Honours hear the arguments of the amici curiae and the

6 representatives of the Republic of Croatia, this case has all the

7 components needed for Your Honours to refer it without any reservations

8 to the Republic of Croatia, which will conduct the proceedings against

9 Mr. Norac and Mr. Ademi in accordance with the law. Thank you.

10 JUDGE ORIE: Thank you, Mr. Olujic.

11 [Trial Chamber confers]

12 JUDGE ORIE: I'd like to give an opportunity to the Bench to ask

13 any further I would say clarifying questions at this moment, so not

14 perhaps to go into every detail, but...

15 Judge Kwon.

16 JUDGE KWON: Mr. Scott, just this observation: You mentioned the

17 possibility on the part of the Croatian court of the application of

18 international law, inter alia the Geneva Conventions Protocol 1. And you

19 also expressed some concerns about some of the applications of domestic

20 laws in such areas as mens rea.

21 MR. SCOTT: Yes, Your Honour.

22 JUDGE KWON: Is it that you are making -- the Prosecution is

23 making this request conditional upon the answers to such questions? And

24 if you make your position be known to the parties, the Chamber will be

25 assisted by hearing the responses of the -- from the Croatian government

Page 33

1 and amicus.

2 MR. SCOTT: Thank you, Your Honour Judge Kwon.

3 The Prosecution assesses the current indictment, the case against

4 these accused, by not hinging entirely by any means on what we would call

5 command responsibility or 7(3) responsibility. Having said that, we

6 would consider that it is an important component of any successful --

7 likely-to-succeed, if I can put it that way, prosecution that we would

8 want to or I think any prudent prosecutor at the ICTY or in Croatia would

9 want to have available to him or her the theory of command responsibility

10 as practiced internationally and at the ICTY. Included in that is the

11 practice of the ICTY, the jurisprudence of the ICTY that allows a

12 successful prosecution, if you will, based on a had-to-reason-to-know

13 standard. And that gets us into these issues of mens rea that, Judge

14 Kwon, you just raised and are featured in the papers.

15 Before I turn to discuss the mens rea issue further, let's come

16 back to what I think your question is: Yes. I think the Prosecution

17 view is that at the end of the day if neither the Prosecution nor the

18 Bench was sufficiently confident that a Prosecution in Croatia would be

19 able to find some basis, some reliable, firm basis for a command

20 responsibility component, then I think it would raise questions about

21 whether the case should be transferred. So, yes, in that sense I think

22 -- I wouldn't say our position is conditional, but we have made the

23 assessment and we think, our assessment is the best answer is

24 international law. But we have made the assessment that there is a basis

25 -- there would be a basis for such a prosecution in Croatia and that's

Page 34

1 why we go forward with our motion. But I would agree, I think as I

2 understand your question, Judge Kwon, if again -- sorry, I'm repeating

3 myself. If at the end of the day there was a question about that, I

4 think it would be a serious consideration.

5 JUDGE KWON: Thank you, Mr. Scott.

6 JUDGE ORIE: I would have a few question for you, Mr. Scott,

7 since you are on your feet anyhow. May I draw you to page 2 of your last

8 submission, that is the Further Submission Pursuant to Chamber's Order of

9 the 20th of January.

10 MR. SCOTT: The Prosecution's submission?

11 JUDGE ORIE: Yes. It's on page 2 and it's the 7th...

12 I tried to understand your observations in view of Article 28,

13 paragraph 2. It reads: "Article 28, paragraph 2, indicates that a

14 failure to prevent liability exists if there is a legal duty to prevent

15 the prohibited consequence, 'if such failure in acts and meaning is

16 identical to the commission of the crime by acting.'"

17 I tried to understand this sentence. I've got two questions.

18 First we have two times, if there is a cumulative test, if there is a

19 legal duty to prohibit a legal consequence, if such failure and meaning

20 is identical to the commission of crime by acting.

21 My second question would be: A failure to act is by its very

22 nature not the same as acting; that's the reason why we need legal

23 constructions to cover these situations. But in this last part of the

24 sentence I read: "If such failure and acts and meaning is identical to

25 the commission of the crime by acting." You say if it's the same then

Page 35

1 it's the same. Then we're trying to deal with differences. Could you

2 please clarify this issue.

3 MR. SCOTT: Yes, I will attempt to do so, Your Honour. I think

4 the language is taken from a translation of Article 28 itself as far as I

5 understand it. So perhaps part of it is an issue of translation or part

6 of it's just a wording of the Croatian statute. But be that as it may,

7 there is of course omission -- an omission I think in most systems, I

8 hazard to say, and including in Croatia, an omission is only criminal if

9 the person who failed to act, who omitted to act had a duty to act in

10 some fashion otherwise. You had -- he or she had a duty to do Z and

11 didn't do Z, omitted to do Z. And in that sense there is a failure to do

12 something that the law or some code required him or her to do, and that

13 is the nature of the offence.

14 I think in terms of the language it talks about: "If such

15 failure in acts and meaning is identical to the commission of the crime

16 by acting," I interpret that, and I stand to be corrected by my friends

17 from the Republic of Croatia and amici, I interpret that to basically

18 mean one who participates, again, in a commission of a crime by failing

19 to prevent in some sense has in some sense a responsibility identical to

20 the one who actually commits the crime, which I don't think is a

21 necessarily unusual concept here, such as aiding and abetting or

22 co-perpetration or members of a joint criminal enterprise, to use that

23 terminology. If one contributes to the crime, in this case by

24 contributing by failure to prevent, one becomes essentially

25 responsibility [sic] identical to the actual, on-the-ground perpetrators,

Page 36

1 as it were. That is my understanding.

2 JUDGE ORIE: At the same time, there is an if. So that means

3 that not all failure is supposed to be identical. Then of course the

4 legal issue is: When yes? When no? That's the problem. As I said

5 before, it reads a bit like if it's true, then it's true.

6 MR. SCOTT: I agree, Your Honour. And again, I'm not -- I'll

7 stand to be corrected by my Croatian colleagues. I think that's the

8 wording of the statute, but I can't be in the position of defending the

9 words of the Croatian statute. I think that is one of the issues and in

10 fact that's what lead us -- that's a number of factors that lead us away,

11 if you will, from relying on finding answers in domestic law, why we

12 prefer and we feel that international law is a clear and firmer

13 foundation for this.

14 Related to that -- sorry, Judge Orie, to respond further to your

15 question I think and it relates partly to what you're saying: Is there a

16 duty to act or not and not all failures are necessarily criminal. That

17 then takes us back into the mens rea question. And there again, unless

18 an adequate -- unless we can get to a point that we feel comfortable that

19 there's some mens rea in Croatian law that is comparable to the Tribunal

20 law, then once again we would not feel confident in relying on that. And

21 that applies to the various Croatian statutes that have been cited by

22 Croatia and amici.

23 It seems to be the position that there is no basis for any

24 negligence or any crimes committed by negligence under Croatian law, and

25 then of course that takes us into this issue of advertent and inadvertent

Page 37

1 negligence. I note that, but at the same time there is a statute which

2 specifically talks about negligence being the basis of criminal law and

3 maybe counsel would like to address that. But that is the set of issues,

4 those are the types of issues that could lead us to have some doubts on which

5 this is a firm basis for us to proceed.

6 JUDGE ORIE: Mr. Scott, you seem to struggle a bit more with

7 Article 28 because Article 28 paragraph 3 is mentioned in paragraph 11,

8 page 4 of your -- of this same written submission. Can you give us one

9 interpretation, of course that's always -- raises the issue what the

10 other interpretation would be. But foremost what the text of Article 28

11 would be. So 18 for the Defence, perhaps 28 for the Prosecution.

12 MR. SCOTT: Yes, Your Honour, I think I have and I can certainly

13 provide it, but I think I have it with me. We can provide it of course.

14 JUDGE ORIE: If you can please do that. This might not be all of

15 my questions, but the first break was scheduled for 10.00. We'll have a

16 break first. We might have a few more questions after the break to the

17 parties, but once we have heard the parties we are -- the next step will

18 be hear the submissions by the amicus curiae and by the Croatian

19 government.

20 We'll adjourn until 10.30.

21 --- Recess taken at 10.01 a.m.

22 --- On resuming at 10.35 a.m.

23 JUDGE ORIE: We resume the hearing and I would have a few more

24 questions.

25 First of all, Mr. Prodanovic, is Article 18 already available or

Page 38

1 is it not?

2 MR. PRODANOVIC: [Interpretation] Thank you, Your Honour. I'm

3 afraid I won't be able to tell you too much at this point because in our

4 desire to illustrate one of the exceptions from the principle of

5 legality, provided an example with legal theory mentioned in one point in

6 an official article. But in talking about it to the professors a moment

7 ago, they consider that it isn't a very good example for this particular

8 instance and situation, so that therefore, I am going to give up on what

9 I said in a little -- in a manner that wasn't critical enough and I will

10 be guided by them. So this was just by way of illustration, that there

11 is the legal source and deviation from the principle of legality, but

12 perhaps I didn't pick the best possible example for the case in point

13 regarding legality for our point in brief.

14 JUDGE ORIE: It was the only example you gave. If you would have

15 any other -- if you say it's not the best example, we'll do with the

16 second best, if you provide to it us. If you do not do that, we have no

17 example.

18 MR. PRODANOVIC: [Interpretation] Thank you.

19 JUDGE ORIE: Then, Mr. Scott, after 18 now 28, do you have a

20 text?

21 MR. SCOTT: Yes, I do, Your Honour. It's not my position to

22 speak for counsel on the other side or alter their position. We do have

23 a copy of Article 18, be whatever counsel's position is, whether it's a

24 good example or not, we're happy to provide it. We're not commenting on

25 counsel's position, just to provide what we believe a copy of the Statute

Page 39

1 to the Chamber.

2 We also have provided a copy of Article 28 and I understand in

3 talking to the representative from the Republic of Croatia that the

4 second "if" apparently has been removed at some point from the

5 legislation and he's able to clarify that more specifically.

6 JUDGE ORIE: Okay. So we'll hear on that at a later stage. I

7 also do understand whether it's the best example or not, the Article 18

8 that has been provided to us at this moment first of all is adopted after

9 the 1993 code, as far as I understand, and it's limited to statutory

10 limitation and not on the positive application of provisions of a

11 criminal nature.

12 MR. SCOTT: That's what it appears, Your Honour.

13 JUDGE ORIE: Yes. But we'll ignore it if you consider it not to

14 be a good example. We'll just ignore it until you have come up with a

15 better example. Yes.

16 Then perhaps -- yes, Mr. Scott, I think there's one issue and I

17 again do not insist on an immediate answer, but it turns out to be rather

18 vital it seems -- well, vital. At least it keeps government amici and

19 the OTP apart where we would expect that if you're confident that you can

20 refer a case, then at least on the basic issues you would take the same

21 view. The issue of direct application of international law, be it treaty

22 law or be it customary law, in -- by a local court. First of all I

23 wonder whether we should not make a distinction on whether a state is

24 bound by obligations it has accepted in treaties or even if not accepted,

25 bound by customary international law, general principles of international

Page 40

1 law and whether courts could directly apply treaty provisions and/or

2 customary law.

3 I just read to you an order - not because it's the answer, but at

4 least it clearly poses the problem. The former president of this

5 institution wrote a book on international criminal law and he says the

6 following: "Normally national courts do not undertake proceedings for

7 international crimes only on the basis of international customary law;

8 that is, if a crime is only provided for in that body of law. They

9 instead tend to require either a national statute defining crime and

10 grant national courts jurisdiction over it, or if a treaty has been

11 ratified on the matter by that state, the passing of implementing

12 legislation, enabling courts to fully provide the relevant treaty

13 provisions." That's on page 303.

14 On page 305 he says this phenomena is all the more serious

15 "because national courts are not prepared to exercise jurisdiction if

16 express national legislation to this effect is lacking."

17 In your submission you said not only that Croatia can - I

18 understand this to be Croatian courts - can but also should apply

19 international law. You gave no authorities for that and from what the

20 Chamber understands, the monistic or the dualistic approach in relation

21 to international law and domestic law is usually governed by rules of

22 constitutional law. The difference is in one country one would take a

23 very strict monistic approach, in which always the transformation under

24 all circumstances for all parts of international law would be needed,

25 whereas in other systems either a direct applicability of international

Page 41

1 law or a treaty is provided for in the constitutional system. For

2 example, in the German constitutional system, from what I remember,

3 general principles of international law can be directly applied; treaty

4 provisions, however, under German law are not directly applicable in

5 German courts. This is just an example. But that's where the problem

6 might lie. And until now you have expressed several times your

7 preference for finding the solution in international law but you have not

8 explained how under Croatian constitutional law this would be possible,

9 and in this respect the OTP takes a position quite different from the

10 representatives of the government and of amicus and even if not immediate

11 -- the matter should be further addressed by the OTP.

12 I have a few more questions for you. On page 7 of your

13 submission you take the position - and that's a position taken also by

14 Defence counsel, at least one of them - that ancillary orders could be

15 given by the Tribunal which seems to indicate that a referral in your

16 view would not mean that the Tribunal is totally out of the picture until

17 the moment that it has applied for the case to be referred again to the

18 Tribunal. But could you briefly explain what in your view still is the

19 role of the Tribunal in, for example, securing international cooperation

20 in criminal matters.

21 MR. SCOTT: Yes, Your Honour. I'll try to do that. I think that

22 that paragraph 18 of our submission, if I can characterise it as such,

23 was frankly a bit of thinking out loud. This whole regime of 11 bis and

24 how it relates to other parts of the Statute and other procedures, such

25 as request for state assistance, potentially binding orders, subpoenas,

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1 summons, et cetera, when you wrap all that together, it just occurred to

2 us that it might - and I think that's all we really said was might -

3 provide a basis that if there was some gap in the procedural law or the

4 aspects of interstate cooperation in particular that for some reason, and

5 I'm just simply picking an example off the top of my head, Croatia

6 couldn't get some needed assistance from Serbia and Montenegro, that

7 perhaps the Tribunal might be in a position as some sort of, I suppose,

8 middleman to assist in using its tools to provide some assistance if it

9 could not be accomplished otherwise. But to be very transparent, again,

10 that was just basically thinking that that might be possible, if the

11 situation arose.

12 JUDGE ORIE: Yes. Mediation is not the same as, as you used it,

13 ancillary orders. The Defence used the terminology also of mediation.

14 Is it the position of the OTP that the Tribunal, even if the case is

15 still referred and not taken back, that it could exercise any powers

16 under -- well, as a consequence of its establishment under chapter 7 of

17 the United Nations Charter? Have we given up the power or do we still

18 have it? Apart from the power to ...

19 MR. SCOTT: It seems to me, Your Honours, particularly with the

20 states of the former Yugoslavia which I think stand in a special relation

21 to the Tribunal, and if there were some problem that the Tribunal could

22 assist with -- I was just looking for some examples. You have Rule 54,

23 the general rule; Rule 54 bis, orders direct to states. There might be a

24 vehicle and perhaps not. There might be some way that if Croatia were to

25 come back to the Tribunal and say: This case has been transferred to us,

Page 44

1 however we're having a problem getting this evidence from Serbia. Might

2 the Tribunal be able to issue some orders or to assist us or mediate

3 and/or issue some orders that would allow us to get that material if it

4 couldn't be obtained, for instance, through a mutual assistance treaty.

5 Again, it was basically trying to be creative and thinking if there are

6 ways to solve problems.

7 JUDGE PARKER: One difficulty I see there, Mr. Scott, is that the

8 powers available to this Tribunal would normally be understood I think as

9 in aid of its exercise of its jurisdiction and the situation we're

10 dealing with is predicated with on this Tribunal having referred the case

11 to the court of another state. I would say that we may not have a

12 jurisdictional foundation to make any order.

13 MR. SCOTT: Your Honour Judge Parker, I think your point is well

14 taken. It may not be -- again, we're all writing on a bit of a clean

15 slate under 11 bis. I think an argument can be made and perhaps the

16 Chamber would disagree, but an argument could be made under 11 bis that

17 it seems to anticipate or provide for by implication the continuing

18 monitoring and oversight of the proceeding. When you look at some of the

19 rules like (F) and (G) it talks about the case being withdrawn. I think

20 there is some sense there that there is some continuing oversight. I

21 hate to use the word jurisdiction, but there is some continuing

22 jurisdiction in the sense of the continuing ability to intervene and pull

23 the case back. I think the Statute -- the rule provides for that. In

24 that sense, if you say in that context that the Chamber or the Tribunal

25 provides jurisdiction at least to that limited extent, then one can make

Page 45

1 the argument that any such arguments would be in assistance or ancillary

2 to its jurisdiction.

3 JUDGE ORIE: Let me put that question quite sharp to you. Mr.

4 Scott, if the OTP would be of the opinion that the case would be

5 prosecuted far better if Witness X would be appear and if the

6 Prosecution, local Prosecution would not call that witness, could the

7 Prosecution ask for an order by the Tribunal to call a witness in the local

8 proceedings? I mean, you're more or less presenting a position where you

9 say: Since we still have the power to call the case back to The Hague,

10 other powers of, minor powers, could be exercised. If you say we could

11 call the case back and hear that witness here, so why should we not

12 exercise our powers to instruct the prosecution in Croatia to call a

13 witness?

14 MR. SCOTT: I see the Court's point. I think one can argue that

15 if you have a power to do a lot, you have power to do something less. If

16 the Chamber has the power to withdraw the case entirely, the argument can

17 be made why can't they intervene in some other way as well. It's an

18 all-or-nothing approach. It's a situation where the Tribunal would do

19 nothing to intervene until it observes something that was so unacceptable

20 that we're simply going to call the whole case back, and we wait until we

21 got to that stage, or whether it would have the ability to intervene more

22 episodically to say this is a problem that needs to be addressed.

23 But Your Honour, I have to say again, this is uncharted territory

24 and we just thought that there might be some means for the Tribunal to

25 assist in this way. But other people may take the view once the case is

Page 46

1 transferred, it's completely gone. Even in that view, Rule subpart (F)

2 clearly provides for the possibility of bringing it back.

3 JUDGE ORIE: That's for sure. I think at a later stage we'll

4 hear from the Croatian government how it perceives its loss of autonomy

5 as presented by the Prosecution in this moment.

6 One more question, Mr. Scott. Does the Prosecution take it,

7 because on page 7 of the last submission you have given an impression on

8 what kind of material you would send. Would the Prosecution consider its

9 obligation to disclose any exculpatory material still existent even if

10 the case is referred?

11 MR. SCOTT: Of course. I think that runs as our responsibility

12 to the case as a whole. I think that's an ethical obligation we have.

13 JUDGE ORIE: Then you would send that to the court to which the

14 case is referred and not directly to the Defence?

15 MR. SCOTT: I would assume it would depend on the system; if you

16 have an investigating judge or a prosecutor, we would probably send it

17 either to the prosecutor or the investigating judge.

18 JUDGE ORIE: It also depends on the -- yes. Then perhaps one

19 final question. You are, on page 10 of your submission, in some dispute

20 about whether responsibility, command responsibility is -- well, the same

21 as a direct individual responsibility and you say, no, there's no

22 difference in level; it's all the same as far as gravity is concerned,

23 there's no principal distinction. This draws my attention to the fact

24 that in footnote 9 we find the penalties that could be imposed for

25 command responsibility under the present law not applicable. But the one

Page 47

1 to five years and one to eight years, depending on the variety --

2 depending on the form of 7(3) responsibility, clearly express a far lower

3 level of punishment. So therefore I see there is some difference of view

4 on whether it's an equal level or a difference of level. My question is:

5 Mainly do you expect the Croatian courts to follow their tradition as

6 expressed in the new legislation, which means a far lower level of

7 criminal responsibility in terms of punishment, or would you expect them

8 to apply or to follow your interpretation that 7(3) responsibility is of

9 a similar gravity, similar level than the 7(1)?

10 MR. SCOTT: Judge Orie, I really wouldn't expect the Croatian

11 judiciary to pay much attention to my opinion one way or the other.

12 JUDGE ORIE: Yes. Whether it would be advisable or not --

13 MR. SCOTT: I think the crucial point is that the Statute does

14 seem to provide for much less of a sentence it would apply here and that

15 would cause us some concern. That takes us back perhaps a bit into the

16 direct application of international law question. I suppose if the

17 Croatian judges were to apply international law, then perhaps they also

18 would look to fashion a sentence consistent with international law. But

19 I do see the discrepancy, and of course, Judge Orie, you're right.

20 JUDGE ORIE: Thank you very much for your answers, Mr. Scott.

21 Let me just have a look at whether I have any additional questions for

22 the Defence. Yes. We've heard a lot.

23 Mr. Olujic, you presented the whole military hierarchy ranks, et

24 cetera, whereas everyone may have seen on the -- on our screen we

25 received the message that the interpreters had some difficulties in

Page 48

1 following the ranks and translating them and they asked our attention to

2 that.

3 May I just ask you in a totally different way, perhaps, this same

4 question: How many troops in your view - and I don't know whether

5 there's any disagreement between your views and the Prosecution - how

6 many troops were under the command of your client, Mr. Norac, at the

7 relevant time, which is the Croatian Medak Pocket?

8 MR. OLUJIC: [Interpretation] At present I cannot say. But in any

9 case it was his motorised brigade and no one else that was under his

10 command. Otherwise, we would be entering into the territory of other

11 units and special units taking part in the operation. He was commanding

12 his own regiment and the number of troops at the tempore criminus

13 suspecti I cannot tell you, Your Honour, at this moment.

14 JUDGE ORIE: Yes. Thank you for that answer. It seems, Mr.

15 Olujic, that in your last submission on page 2 that you take more or less

16 the view that we should strictly adhere to the principle of

17 non-retroactivity. That would mean that the outcome is of no importance

18 for the referral. That would mean, but please correct me if I understand

19 you wrongly, that it is already clear at this moment that certain

20 behaviours and conducts would not be covered by the applicable

21 substantive Croatian law, that we nevertheless should refer the case to

22 Croatia and then head for an almost inevitable acquittal. Is that what

23 your position is?

24 MR. OLUJIC: [Interpretation] No, Your Honour. In my view, the

25 entire indictment and everything being alleged can and does fall under

Page 49

1 Croatian legislation and its provisions.

2 JUDGE ORIE: Even command responsibility, in the specific form of

3 not punishing if you not only have known but if you should have known

4 that the crimes were about to be committed or that the crimes were

5 committed? That would still fall, in your view, under the Croatian law

6 applicable in 1993?

7 MR. OLUJIC: [Interpretation] I think so. I think yes, Your

8 Honour.

9 JUDGE ORIE: If you would perhaps further today -- if you would

10 like to further elaborate on the basis for this position, that certainly

11 would assist the Chamber. These were my questions for the moment.

12 Then I'd like to give an opportunity to Amicus Curiae Professor

13 Krapac, to address the Chamber and to submit whatever you would like to

14 submit in addition to the brief that has been filed by you and Professor

15 Damaska.

16 MR. KRAPAC: [Interpretation] Your Honour --

17 JUDGE ORIE: Let me just -- there's a good tradition in this

18 Tribunal if there's no lectern for someone so he breaks his back, more or

19 less, that it's provided by whoever has one available. If you would like

20 to have something more higher up --

21 MR. KRAPAC: [In English] No, I'm comfortable.

22 JUDGE ORIE: You're comfortable. Then please proceed.

23 MR. KRAPAC: [Interpretation] Your Honour, allow me at the outset

24 to thank you on behalf of Professor Damaska and on my own behalf on your

25 decision in allowing us to appear here as amicus curiae. As you know

Page 50

1 Professor Damaska is one of the prominent experts in the field of

2 comparative penal and criminal law and international criminal law and for

3 many years now he has dealt with issues of international criminal law.

4 And I myself have for a considerable time been observing the efforts of

5 the legal community to contribute through international criminal justice

6 to criminal law and the rule of law and to contribute to the goals

7 enshrined in the ICTY Statute.

8 Today I can speak with only one voice because Professor Damaska

9 was unable to attend for reasons of health, and therefore I can either

10 speak louder or I can speak longer than I would if I was speaking only on

11 my own behalf. That is why I ask you for a little patience.

12 We have made our submission as amici curiae and its content fall

13 into three basic headings: First, whether this case is suitable for

14 referral to the Croatian authorities; secondly, whether the Croatian

15 legislation provides a sufficient normative basis for successful trial

16 and for due process; and what operative problems might arise in the

17 cooperation between the Croatian judiciary and the Prosecution of this

18 Tribunal.

19 At the outset I can say that the first of these issues has been,

20 at least as far as I am concerned, one of the most difficult issues we

21 have tried to resolve: the issue of the level of the accused in this

22 case and their criminal responsibility. And the response to this

23 question represents a precedent. We have attempted to find a solution in

24 a letter sent by the President of the International Criminal Tribunal of

25 Rwanda of the Security Council in May of last year. Therein he lists a

Page 51

1 combination of criteria of what should be taken into account when

2 deciding on whether a certain case is to be retained or transferred, or

3 rather referred, to the national judiciaries. The criteria listed are as

4 follows. I quote in English:

5 [In English] The alleged status of the individual during the

6 crimes committed; the alleged connection an individual might have with

7 other cases; the need to cover the major geographical areas in which the

8 crimes were allegedly committed; the availability of evidence with regard

9 to the individual concerned; the concrete possibility of arresting the

10 individual concerned and the availability of investigative material for

11 transmission to a state for national prosecution."

12 [Interpretation] So this is a series of criteria which cannot be

13 applied automatically in the present case but which may serve as

14 inspiration when considering how such a decision might be made. We are

15 aware, of course, that the greatest difficulty in the application and

16 identification of these criteria is the difficulty faced by the

17 Prosecution. Of all the parties to this case, the Prosecution is the

18 best informed concerning the specific circumstances falling under the

19 above-mentioned criteria, and they are able to decide on the level of

20 responsibility and the gravity of the crimes in this case. As we have

21 heard from Mr. Scott today, the Prosecution has compiled a comparative

22 table to demonstrate the gravity of crimes and the level of

23 responsibility. As for the gravity of the crimes, I think that perhaps

24 the best way to demonstrate this is to refer to a statement made by the

25 chief prosecutor, Mrs. Del Ponte, before the Security Council in which

Page 52

1 she says that this Tribunal, in her view, must retain within its

2 jurisdiction all cases against perpetrators who have committed the most

3 serious crimes falling within its jurisdiction and which, I quote in

4 English -- [In English] "Criminal plan fervently put into action in the

5 area and had blood on their own hands," [Interpretation] referring to

6 their criminal plan. This metaphor is perhaps the best way of expressing

7 what the letter from the President of the Rwanda Tribunal mentions,

8 enumerating the criteria that should guide the Chamber in deciding which

9 cases to refer to national jurisdictions.

10 With reference to these criteria, we have concluded that the

11 criteria of a connection between this case and the courts in the Republic

12 of Croatia could be an argument supporting referral because hearing the

13 case on the territory of the Republic of Croatia would make it possible

14 for what is usually said to constitute an easier communication between

15 the court and the local population. I will not go into the details of

16 what this means. It would make it easier to prove certain facts in

17 relation to both of the accused, both with reference to the crimes

18 alleged against them and with reference to their personal family

19 circumstances, their actions and behaviour when carrying out their

20 command duties; and it would facilitate sentencing. And the Chamber

21 would also be aware of the behaviour of the accused in detention, which

22 also must be taken into account during sentencing.

23 Let me also stress that referral of this case would give the

24 greatest possible role in the proceedings to the victims. Compared to

25 some other legislations, the Croatian legislation has given a large role

Page 53

1 to the victims; they can appear as injured parties in the proceedings

2 with significant rights such as putting forward evidence, investigate --

3 questioning witnesses and expert witnesses, and even putting forward

4 closing arguments. Not to mention other rights that they have, such as

5 for example claiming damages or appearing as a subsidiary prosecutor in

6 addition to the state prosecutor.

7 As for the second issue, Your Honours, as you have seen we have

8 focused on the issue of command responsibility, or better said, the

9 responsibility of the commander. We are aware of the fact that this is

10 one of the central concepts of international criminal law and that it is

11 thanks to the jurisprudence of this Tribunal that this concept has

12 developed significantly. On the other hand, we have to bear in mind that

13 the jurisprudence of this Tribunal in defining and developing the concept

14 of command responsibility and bringing it up to the level of a very

15 sophisticated legal concept has met with misunderstanding in Croatia.

16 Let me mention in passing that it is precisely due to the needs on the

17 national level that the Croatian legislators in their most recent

18 updating of the criminal code have introduced new provisions providing

19 for three types of command responsibility. These are Articles 167(A),

20 subparagraphs 1, 2, and 3. They are not relevant to this case, but I

21 mention them as an illustration of the disposition of the Croatian

22 authorities and the Croatian parliament who wish to solve this issue of

23 command responsibility in accordance with on the one hand the development

24 marked by the jurisprudence of this Tribunal and on the other hand in

25 compliance with the national tenets of law. This is of course a matter

Page 54

1 that Your Honours will deliberate on.

2 The forms of command responsibility which existed under the

3 Croatian criminal legislation of 1993, can these be harmonised or applied

4 in such a way that they are not in disharmony with the demands of the

5 Prosecution which they have put forward today and in their submission of

6 the 7th of February? We have in our written submission identified the

7 contentious issues, and I assume that this is where the Prosecution finds

8 the greatest discrepancies between the concept of command responsibility

9 applied by this Tribunal and command as understood by the Croatian

10 legislation in 1993. We have concluded, however, that these

11 discrepancies are not such that they could not be removed, regardless of

12 whether the solution to this issue is to apply the first of the solutions

13 we proposed, that is applying the norms of international law, the

14 relevant laws of international law which existed even before the Croatian

15 legislation of 1993 or whether this solution is sought through the

16 creative application of the provisions of the law of 1993. To borrow the

17 Prosecutor's phrase: either way, should the accused be found guilty, the

18 concept of command responsibility can be applied in a manner to satisfy

19 the Prosecutor.

20 The third part of our written submission --

21 JUDGE ORIE: Mr. Krapac, if you do not mind just dealing with one or two

22 matters that we're dealing with. I found in your amicus brief in footnote

23 15, a reference to Article 167(A), as you just mentioned. You also on

24 page 21 have provided us with the text of 167(A), and although we are all

25 aware that it is not applicable law, I noticed that on page 21 it seems

Page 55

1 to be a version of 2003, whereas in footnote 15 you're referring to a

2 version adopted in June 2004. I wondered whether there's any difference

3 between the two texts because if we orient ourselves, even if not

4 applicable, just to understand Croatian law, I would like to avoid

5 whatever confusion might arise, around which version, 2003 or 2004 of

6 Article 167(A).

7 MR. KRAPAC: [Interpretation] Your Honour, that is a mistake in

8 the writing. The new legislation was in 2003 and it contained Article

9 167 (A). However, by a decision of the constitutional code of the

10 Republic of Croatia in November 2003, it was declared formally

11 unconstitutional because when the vote was taken in parliament, a smaller

12 number of deputies than was provided for by the rules voted for it. The

13 new government again initiated the whole process, and this same provision

14 has now entered the legal text because this time parliament carried out

15 the procedure in a proper way. So that the information you have in

16 footnote 15 on page 9 is correct, Your Honours.

17 JUDGE ORIE: Thank you, Professor Krapac. So the text is the

18 same, but the one was validly adopted, the other one was not validly

19 adopted. I understand the problem. Then -- no, I leave it to that at

20 this very moment.

21 Please proceed.

22 MR. KRAPAC: [Interpretation] I will by your leave only briefly

23 address the last part of our submission which is a brief overview of the

24 main characteristics of the criminal judiciary in Croatia. This shows

25 that criminal proceedings have been dealt with exhaustively by the law on

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1 criminal procedure in 1997, but this is not the only source of criminal

2 procedural law. There are other relevant provisions which would be

3 applied in this case. This is a tradition continental-mixed type of

4 procedure which has provisions on pre-trial proceedings; the issue of the

5 admissibility or inadmissibility of evidence; the division of the roles

6 in the proceedings, and so on and so forth. I will not go into this now,

7 but the fact that all these detailed provisions exist serves to convince

8 us that the Croatian courts are fully able to undertake these proceedings

9 in a way that is referred to as a fair and efficient manner.

10 When compiling our submission, we were conscious of the

11 objections raised against the Croatian judiciary, especially in the

12 earlier period of its activity in the mid and late 1990s. This is a fact

13 which follows from numerous testimonies and is partly referred to in the

14 letter which the representative of the OSCE, Mr. Semneby, addressed to

15 the President of this Tribunal. The facts are also listed in an OSCE

16 report of the spring of last year concerning the situation in the

17 Croatian judiciary. In our view, however, based on previous experience

18 in war-crimes trials, for instance the crimes committed in Gospic which

19 the Defence has referred to today as well as the experience already

20 gained during the trial of Dinko Sakic, which has also been mentioned by

21 the Defence today, based on the fact which counsel for the Prosecution

22 has mentioned today, that is that there are high-quality courts that can

23 easily be identified in Croatia and that the proceedings would be held

24 before the best courts, in our view there should be no doubt that the

25 referred case could be dealt with by the best Croatian courts.

Page 58

1 JUDGE PARKER: Would you mind if I interrupted there, Professor.

2 I've tried to see what is the legislative scheme which ensures that the

3 case will be dealt with by one particular court or another in Croatia,

4 and I haven't succeeded. You indicated that we could be confident the

5 case would be heard by the -- a special court. Is there a legislative

6 structure that ensures that?

7 MR. KRAPAC: [Interpretation] That's correct, Your Honour. This

8 legal framework exists, yes, and it is to be found in the law on the

9 application of the Statute of the International Criminal Tribunal and on

10 prosecutions under international law, and this was enacted on the 24th of

11 September -- October --

12 THE INTERPRETER: Interpreter's apology.

13 MR. KRAPAC: [Interpretation] And it refers to the cooperation of

14 the Republic of Croatia with the ICC. However, part of these provisions

15 are also applicable to cooperation with the ICTY. Article 49 of this law

16 expressly provides that Article 28 is to be applied when cooperating with

17 the International Criminal Tribunal for the former Yugoslavia. If Your

18 Honours have at their disposal a translation of Article 28, I will not

19 read it out aloud now.

20 JUDGE PARKER: Thank you. I have it. I missed the significance

21 of it as I looked, so I'm very grateful for your assistance. Thank you.

22 And I'm sorry to have interrupted you.

23 MR. KRAPAC: [Interpretation] By your leave, Your Honours, I will

24 now bring my contribution to a conclusion, and of course I'm willing to

25 discuss the details at a later stage. We have concluded our submission

Page 59

1 by saying that the key issues which will arise if this case is referred

2 to the Republic of Croatia can be solved through cooperation and, as we

3 have said, a creative interpretation of certain provisions of the

4 substantive and procedural law of the Republic of Croatia.

5 If I may, I would like to refer to a paper published by His

6 Honour Judge Orie commenting on the Statute of the ICTY, where mention is

7 made of the fact that judicial interpretation of the norms of statutory

8 law is one of the key elements of its successful application. I

9 apologise if my quotation was not verbatim, but that is how I understood

10 it.

11 Therefore, I would like to conclude by asking that this Chamber

12 decide to refer the case to the Republic of Croatia, as there are no

13 significant obstacles to such a decision. I believe that such a decision

14 would be in line with the Security Council Resolution 1503 of 2003

15 regarding the completion strategy of this Tribunal, which is based on the

16 fact that the strengthening of national jurisdictions is of crucial

17 importance for the principle of the rule of law.

18 I would also like to mention in passing a report from the

19 Secretary-General from the United Nations about the rule of law and the

20 transitional judiciaries in post-conflict societies issued by him on 23

21 August 2004 where among numerous conclusions a request is made, and I

22 will quote it in English:

23 "A request is made [in English] and Security Council's

24 Resolutions and Mandates, point (H): Avoid the imposition of

25 external-imposed models and mandate and fund national needs assessment

Page 60

1 and national consultation processes with the meaningful participation of

2 government, civil society, and key national constituencies to determine

3 the course of national justice and restoration of the rule of law."

4 [Interpretation] Seeing this recommendation in a broad manner, we

5 believe that the decision to refer this case to the Republic of Croatia

6 would meet such a purpose.

7 Thank you, Your Honours, for giving us leave to put forward our

8 amicus curiae brief.

9 JUDGE ORIE: Thank you very much, Professor Krapac, for your

10 intervention.

11 I'd now like to give an opportunity to the representatives of the

12 Government of Croatia. Professor Horvatic, you may proceed.

13 THE INTERPRETER: Microphone, please.

14 MR. HORVATIC: [Interpretation] This is an opportunity for me to

15 greet you all, Your Honours, the representatives of the Prosecution as

16 well, members of the Defence, and one of the two amicus curiae, friends

17 of the court, Professor Krapac, who has been a colleague of mine for many

18 years.

19 It was very well stated at the beginning of this session that

20 we're dealing with a very important issue because we are deciding for the

21 first time on a matter of deferral, pursuant to Rule 11 bis, to another

22 court. For me, as a man of science and as a man of practice, I find this

23 especially dear to my heart, that is to say as a representative of the

24 Republic of Croatia and as a representative of the country who, following

25 a decision of this Honourable Trial Chamber, will be given this

Page 61

1 opportunity for the first time. Within my professional curriculum, this

2 will be a red letter day.

3 International criminal law in its development has truly been not

4 only creatively but otherwise faced with numerous challenges, challenges

5 of a legal understanding and interpretation of the matter in hand and

6 political assessments as well. This particular case and the application

7 of Rule 11 bis will bear up this observation of mine and I hope that I

8 shall convince you of the properness of the case in hand.

9 The second observation of the case I would like to make

10 addressing this Tribunal is that it happens very rarely that we have

11 before a court of law almost complete agreement on the part of the

12 Prosecution, putting forward a request; the Defence, which agrees; and

13 amicus curiae, who fully supports what is being proposed; and the

14 Republic of Croatia, which welcomes it and would be happy to take it upon

15 itself to conduct the case. So I don't think there's any conflict or

16 dispute in this matter that the parties, the amicus curiae, and the state

17 to which the indictment may be referred agree that that is what Rule 11

18 bis enables. But of course, there are a series of questions linked to

19 this that have to be discussed because the court ruling, the decision

20 made by the Tribunal, will not base itself on general agreement because

21 this Trial Chamber is duty-bound and it will fulfil its duties, I will am

22 convinced, and respect them fully, apply Rule 11 bis as it deems that it

23 is stipulated, as is written, and that it will interpret it as the rule

24 has been written, and this will be a first.

25 In the reasonable demands made by the Court and in an effort to

Page 62

1 adopt the request by the Prosecution under Rule 11 bis, referral of

2 indictment to another court in the case of Ademi/Norac, and precisely to

3 the Republic of Croatia in this example, the Republic of Croatia is fully

4 able and has answered all questions in two briefs, one the 20th of

5 January and the other in November. And this makes it all the more

6 justified -- the demands made by the Prosecution even more justified.

7 And we express our views and standpoint by which we consider that there

8 are no impediments or obstacles that the Trial Chamber should issue an

9 order to refer the indictment to another court in keeping with Rule 11

10 bis, that is to say to refer it to the Republic of Croatia and its

11 courts.

12 However, the series of questions that have been raised here

13 during this morning's meeting I should like to deal with, but I would

14 especially like to select something that I thought was most

15 controversial, which is the application of the possibility of command

16 responsibility as interpreted by this Honourable Tribunal to a case to

17 which the indictment refers and which undoubtedly is applied -- in which

18 Croatian criminal code -- the criminal code of 1993 is applied, which

19 does not contain the provision which was quoted earlier on from the new

20 criminal code on express command responsibility. However, I do have the

21 official position taken by the State Attorney of the Republic of Croatia

22 and the State Attorney office, which discussed this question. And

23 thereby I would like to supplement what the Prosecutor said, Mr. Scott.

24 And allow me to quote this in English in order to avoid any possibility

25 of insufficient understanding due to interpretation.

Page 63

1 [In English] "It has been assessed so far that difficulties could

2 arise due to the differences in the provisions of the Statute and Rules

3 of Procedure and Evidence and the Hague Tribunal evidence in relation to

4 the legislation of the Republic of Croatia. One of the central topics

5 discussed at the seminars mentioned above," that was the seminars for the

6 education of judges and prosecutors with participation of honourable

7 members of this Tribunal and from the Prosecutors, "mentioned institution

8 of command responsibility which institution is contained in the provision

9 of Article 7(3) of the Statute and which institution as such is not

10 contained in the criminal code of Republic of Croatia in the time of the

11 commission of the crime accused in this case."

12 And after that: "A position was reached through discussion at

13 the seminars and of opinion of the judges of Supreme Court and the

14 general prosecutor and other prosecutors does an institution of command

15 responsibility concerned can nevertheless be substituted for the most

16 part by the application of Article 28 of the criminal code from 1993,

17 which regulates the perpetration of a criminal offence by omission.

18 "Following this, it is the opinion of the public prosecution

19 service that the provision mentioned of Article 28 of this criminal court

20 with the application of the Geneva Conventions and additional Protocols

21 could for the most part substitute the institution of command

22 responsibility in the manner contained in Article 7(3) of The Hague

23 Tribunal Statute."

24 [Interpretation] Your Honours, in communications with the

25 representative of the Prosecutor today, at one point you raised a

Page 64

1 question. You asked about the application of international law before

2 Croatian courts of law in three ways: May, shall, or should.

3 [In English] Let me direct that it is not possible to say

4 "should," but I am convinced that the criminal courts in Croatia shall

5 apply this international criminal-law standards and international

6 criminal sources for this case and other case.

7 [Interpretation] I'm going to switch back to Croatian now. It is

8 the position of the Republic of Croatia in complete agreement and accord

9 with what we had heard here today, both as presented by the Prosecution

10 and Their Honours in their interventions and by the amicus curiae and by

11 the Defence counsel, the key words are "creativity, a new situation, the

12 newly arisen situation, created newly by referring an indictment to

13 another court; great flexibility in interpreting international --

14 national law in the sense of bringing it closer to the general standards

15 of international criminal law, which today is rapidly gaining in content

16 and substance, something we couldn't have dreamed about 20 or 50 years

17 ago -- not to go into the question of belonging to the international

18 community, how each state belongs to the international community and the

19 relationship of sovereignty and duties binding it to the international

20 community, not only through ratified conventions but also through the

21 standards of customary law but that step out from just customary law and

22 are the rights of each state accepting them in their own interests, the

23 principles of Jean-Jacques Rousseau, in actual fact. Or the principles

24 of creating law and laws that we use or utilitarianism.

25 Today we have come to a time when states quite consciously and

Page 65

1 intentionally look at their sovereignty and dovetail it with the general

2 principles of international interests and the international community at

3 large, not only when it comes to new forms of terrorism and organised

4 crime, but also when it comes to trying individuals and making them

5 accountable and holding them responsible to what happened. The Croatian

6 judiciary knows this full well. Even when there are individuals who

7 disagree with the fact that they have been elected as attorneys and

8 judges, they must respect the will of the Croatian state, the Croatian

9 constitution, and the decisions of the Croatian authorities.

10 Rule 11 bis, to which I should like to refer once again as the

11 basis and grounds for the ruling and decision-making of this Honourable

12 Trial Chamber, can be interpreted restrictively or intensively -- or

13 extensively. If it is interpreted extensively it might go too far, if it is

14 restrictive, it might be too narrow. Today we have already mentioned

15 should it be (F) or (G).

16 Now, if the Trial Chamber would like to ask me any specifics, I

17 would be happy to answer their queries, but if you're asking me as indeed

18 the Prosecution asked itself whether and in what case -- how would you --

19 what would you do if witness X was proposed to testify or not, would you

20 ask the state attorney of the state of Croatia to intervene or whether

21 you yourselves would intervene, whether the Tribunal and Trial Chamber

22 would intervene, what the responsibilities therein would be, then I have

23 to say that a correct interpretation of Rule 11 bis as -- and the views

24 already presented that paras (F) and (G) in fact give full reign and

25 then, ad minore ad maius, we know we can act thereupon.

Page 66

1 But that, Your Honours, thatís what we're all about. We're

2 creating something for the future and we have to see what will happen in

3 future. And the first referred case, in this case a referral to the

4 courts of Croatia will be a test, a pilot programme in fact, which will

5 show us the possibilities open to us, opportunities well seized, and the

6 President of this Tribunal, Mr. Meron, said something on the subject and

7 he was quoted by the Prosecutor about the trust and confidence placed and

8 what the amicus curiae said, the advantage to establishing a rule of

9 war --

10 THE INTERPRETER: Rule of law, interpreter's correction.

11 MR. HORVATIC: [Interpretation] Then we shall see that Rule 11 bis

12 was not only a possibility and an opportunity, but a very good and valid

13 instrument by which the jurisdiction of this Tribunal is adequately

14 expanded to other states to which the indictment is being referred and

15 the entire case is being referred. It is -- we must strike a good

16 balance between the extensive and the restrictive interpretation of Rule

17 11 bis, strike the proper balance --

18 JUDGE KWON: I note the transcript is not working.

19 MR. HORVATIC: [In English] Am I too fast?

20 JUDGE KWON: Could you wait a minute?

21 MR. HORVATIC: Okay. I do believe that's not my fault. Because

22 if I am guilty for that, I'm afraid a little bit.

23 JUDGE ORIE: Not even negligence.

24 MR. HORVATIC: But before the court always is something where the

25 court said -- not only surprised but I'm afraid a little bit.

Page 67

1 JUDGE ORIE: I'm afraid your words will not be on record because

2 that's exactly the problem.

3 MR. HORVATIC: Of course.

4 JUDGE ORIE: We got stuck at page 59, line 19 at this moment.

5 The Chamber would like to be informed if the transcript is restored.

6 MR. HORVATIC: So the Chamber would like to be informed --

7 JUDGE ORIE: Yes, but those are not your words.

8 MR. HORVATIC: I do not remember my last words.

9 JUDGE ORIE: As a matter of fact -- We can restart the program,

10 but I could read to you what at least on the record were your last words.

11 You said, "and the first referred case, in this case, referral to

12 the courts of Croatia will be a test, a pilot programme, in fact which

13 will show us the possibilities open to us, opportunities well seized.

14 And the President of this Tribunal, Mr. Meron," and that's where the

15 transcript stops. So if you please resume from that point.

16 MR. HORVATIC: In English it sounds better than in Croatian.

17 JUDGE ORIE: Yes, that's my point. So please resume from that point.

18 MR. HORVATIC: So, really, intention, not the penal code issue

19 of intention, but intention of the Croatian government and

20 criminal justice system is to prove that it is possible, it can, and it

21 should do this task if it will be delivered to the Croatian criminal justice

22 system Thank you for this moment.

23 JUDGE ORIE: Thank you. Thank you, Professor Horvatic.

24 On our programme we have as next point, but it was scheduled

25 after the break an intervention by the registrar. I take it that the

Page 68

1 registrar is not yet present and since we have put you on a very tight

2 schedule, perhaps it would be better to have a break now and to perhaps

3 take even a bit more time because you're all keeping so strictly to your

4 time limits that we proceed in an organised way. Then --

5 [Trial Chamber confers]

6 JUDGE ORIE: Then we'll adjourn until a quarter to 1.00, which

7 gives us almost 65 minutes for a lunch break.

8 --- Luncheon recess taken at 11.52 a.m.

9 --- On resuming at 12.52 p.m.

10 JUDGE ORIE: So we resume our 11 bis hearing. On our agenda at

11 this moment an intervention under Rule 33(B) of the Rules of Procedure

12 and Evidence by the registrar because it's not only new for all of us but

13 also new for the registrar and it may have all kind of practical

14 implications which we might need to be aware of. Who appears for the

15 registrar? Is that Mr. Christian Rohde?

16 MR. ROHDE: That's correct, Your Honour, with Jacqueline Geis

17 assisting.

18 JUDGE ORIE: Mr. Rohde, there is circulating a short list of

19 issues we would like to address. Has that been provided to the parties

20 as well?

21 MR. ROHDE: Your Honours, I'm not aware of that at the

22 moment, but we will stick to the list and it will be provided to the

23 parties.

24 JUDGE ORIE: Thank you. Please proceed. Well, whatever position

25 you feel best. You're addressing us as a representative of the registry,

Page 69

1 so I would not mind if you stick to your position where the registry

2 usually sits.

3 MR. ROHDE: Thank you, Your Honour. On behalf of the

4 registrar we would like to add a couple of practical points to today's

5 hearing that mainly relate to small items which we feel will come up to a

6 transfer of process, if any. However, on previous experience of working

7 with this we have identified some points which we would like to raise and

8 we hope they are for the benefit of the Court.

9 The first area that I would like to refer to is the transfer of

10 case files and confidential materials. Obviously the transfer of

11 referral data is something that would be very crucial for smooth

12 procedures in the referral stage, if any. That includes, for example,

13 the responsibility of an office for transferring files, for keeping

14 files, copies of files, for records of the Tribunal. The question is:

15 Who in the new jurisdiction receives those files so that they can be

16 quickly processed? Question: Also how do these files -- how are these

17 files given to the new Defence and Prosecution teams in the referral

18 state? How to deal with ex parte material, for example, is another issue

19 here.

20 As to the transcripts that have been made at this Tribunal,

21 there's a question as to whether and how they would be transferred and

22 accessible, particularly transcripts that are confidential, in private

23 session; redactions that have taken place or not taken place have to be

24 taken into account; there is a question of possibly the availability of

25 audio recordings of the proceedings in B/C/S, I believe is the correct

Page 70

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8

9

10

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13 English transcripts.

14

15

16

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18

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Page 71

1 word. That may help, actually, both parties and the Judges in the new

2 jurisdiction. The supporting material should be thought of, perhaps the

3 initial materials supporting an indictment. There's another question

4 whether correspondence and other miscellaneous material could be

5 interesting for a new jurisdiction.

6 Again, a major issue is going to be, we believe, the proper

7 control of access and dealing with confidential documentation, the

8 variation or the possible variation of protective measures orders should

9 be considered; very important obviously. And then perhaps -- that sounds

10 administrative, but there is of course a question as to the cost of

11 producing extra files and the cost of transferring those files. They --

12 there may be a large volume in a case. Much easier, though, the transfer

13 of electronic version of files that I think could be facilitated by the

14 Tribunal.

15 This to the files and materials. The second item we have on our

16 list, we propose, are witness protection issues. We propose that these

17 issues --

18 JUDGE ORIE: Mr. Rhode, would you mind if I interrupt you and ask

19 you one question. Under Rule 11 bis (D)(iii), it looks as if the

20 Prosecutor is primarily responsible, that's also how I understood the

21 last submission by the Prosecution in which they say: We'll prepare an

22 appropriate set of documents. Has there been any discussion between the

23 registry and the Prosecution on who is primarily responsible whether

24 there's any complementary task for the registry, for example, providing

25 originals of documents that have been filed. Is there any progress made

Page 72

1 in this respect?

2 MR. ROHDE: Your Honour, there have been initial discussions

3 between the management of the registry and the Prosecutor's office in

4 this regard. No details have been discussed yet, but certainly it would

5 be the view of the registry that the Prosecution has to play a large role

6 in this. Yet, as the registry is sort of the custodian of documents and

7 materials, we would proceed in this area.

8 JUDGE ORIE: Yes, please proceed.

9 MR. ROHDE: Thank you. I was going to say a few words on

10 witness protection issues. They will be taken into account by the

11 Chamber, of course. One should keep in mind the Tribunal provides

12 certain services to witnesses, certain assistance to witnesses.

13 Obviously relocated witnesses or witnesses earmarked for relocation,

14 which I'm not aware whether this is the case here, but this must be taken

15 into account we feel. Witnesses with other protective measures, not as

16 far going as relocation, their concerns should be addressed. We suggest

17 that with the Prosecution the Victims and Witnesses Section of the

18 Tribunal -- of the registry would assist with these things to ensure that

19 as much as possible the witnesses are being treated in a way that allows

20 them to give testimony in the new jurisdiction in conditions that are

21 proper, I would say security-wise and in other relations.

22 A I believe tiny issue in this case would be the transfer

23 modalities of an accused. That obviously doesn't play such a role in

24 this case. However, we feel that one point we should make, that is it

25 would be perhaps useful to determine an exact point when the let's say

Page 73

1 legal or custodial responsibility of the Tribunal could be transferred to

2 another jurisdiction. That's obviously relevant for liabilities and

3 judicial responsibilities.

4 The third point the registrar would like to raise is essential

5 for the accused. That would be the transition of his defence that

6 obviously raises a basket of issues. The registrar feels that immediate

7 assistance for accused in the new jurisdiction is essential, the question

8 of whether the current defence teams are able to assist plays a role

9 before a national court. If they don't, there is a question of the

10 transfer of files to a new defence team. That should obviously go

11 speedily --

12 JUDGE ORIE: Perhaps to cut this short I think one of the

13 questions put to the Defence and if my recollection does not betray me,

14 then I did understand Mr. Prodanovic and Mr. Olujic would continue to

15 represent and to defend Mr. Ademi and Mr. Norac. Is that correct?

16 MR. PRODANOVIC: [Interpretation] That's correct.

17 JUDGE ORIE: And Mr. Olujic?

18 MR. OLUJIC: [Interpretation] Yes, Your Honour. By all means. I

19 do have the intention of completing these criminal proceedings.

20 JUDGE ORIE: Therefore, in these circumstances, Mr. Rohde, I can

21 imagine that in future cases, issues such as right of standing and issues

22 such as remuneration for counsel that are being paid by the state might

23 create problems, but in this case it is a matter that does not raise that

24 many questions and I think that was also the position taken by the

25 government of Croatia in its recent submission. Please proceed.

Page 74

1 MR. ROHDE: Thank you for your direction, Your Honour.

2 Perhaps one last point I would like to raise, perhaps individuals benefit

3 from legal aid at the Tribunal, and that would be an important point.

4 I'm going to move to two issues that may have been covered by the

5 Chamber before. I'm going to raise them quickly. One of them is if ever

6 the new jurisdiction would feel that the testimony and any form of staff

7 of the ICTY, possibly from the Prosecutor's office would be required,

8 then I would point the attention of the Chamber to the immunities of the

9 United Nations staff according to agreements and that this immunity would

10 have to be waived for any testimony by the Prosecutor and the

11 Secretary-General.

12 I assume any Rule 70 material has been addressed. I assume it

13 has that's why I will just mention the Rule and I won't say anything on

14 it.

15 I would like to conclude with one point on the question as to how

16 to address these issues. In principle of course there is the possibility

17 of court orders; however, if there are administrative issues that the

18 Court feels can be regulated through other matters, then obviously the

19 registrar will be able to consider an understanding on behalf of the

20 United Nations with Croatia on technical administrative points, for

21 example as on liaison functions and focal points for contacts and these

22 sort of things which are usually very, very helpful in practice. And

23 that concludes our presentation. Thank you, Your Honours.

24 JUDGE ORIE: Thank you, Mr. Rohde. As far as your observations

25 in respect of Rule 70 materials is concerned, it's my recollection that

Page 75

1 the Prosecutor addressed the issue in the transfer of documents to the

2 new jurisdiction and that until now at least we have heard no responses

3 or no comments or observations in that respect. Thank you very much, Mr.

4 Rohde.

5 Then next on our agenda is that if the Bench would have any

6 questions or any additional questions to either amicus or the Croatian

7 government or the representative of the registry, they would have an

8 opportunity to put them now.

9 JUDGE ORIE: I would have a few questions first of all to amicus.

10 If I may draw your attention, Mr. Krapac, to page 4 of your submission, I

11 noticed that quite some facts appear in your submission. You're

12 certainly aware that this Chamber has not heard any evidence in relation

13 to this case and what actually happened. And it's not quite clear for me

14 on what basis you introduced these facts and you may understand that we

15 might have to ignore them if there's no clear explanation whether these

16 are which I would not think facts, notorious facts or something like

17 that, which would not need any evidence. But if it's just your

18 assumption and just some thoughts about it, then it's at least clear.

19 But if you have any other basis for the facts you introduce here, we'd

20 like to hear if you.

21 MR. KRAPAC: May I respond immediately?

22 JUDGE ORIE: Yes, please do so.

23 MR. KRAPAC: [Interpretation] Your Honour, some of these

24 assertions made, if I may call them that, or perhaps I should call them

25 statements are actually something that the friends of the Court learned

Page 76

1 about through the mass media that were made available to them. But these

2 are Croatian mass media. We did not really wish to rely upon the media

3 in the belief that these were basic facts, both for the Prosecution and

4 the Defence because we assume that the parties in these proceedings have

5 been following the media.

6 JUDGE ORIE: Yes. Thank you very much for clarifying the source

7 of the facts you assumed here.

8 Another question also relating to page 4, the last few lines.

9 You've written: "It concerns the likelihood that convictions rendered by

10 Croatian courts in the instant case would greatly contribute to the

11 reconciliation of affected ethnic groups."

12 A conviction might have that effect. Would an acquittal have an

13 oppose effect? To clarify my question: Not only your submission but in

14 more submissions we find a high level of expectations on what a trial

15 would bring about, where most of the expectations seem to be based on a

16 conviction as a result of that trial, which of course is still to be

17 considered by the domestic jurisdiction.

18 Yes, please.

19 MR. KRAPAC: [Interpretation] We proceeded from the fact that the

20 trial, if there is a referral of the case of the Croatian authorities,

21 that the trial due to the qualities that we already mentioned because of

22 the regulations that were passed in the meantime will be efficient and

23 fair. If the judgement passed on the basis of such proceedings is either

24 a conviction or an acquittal, it has to rely on the support of the

25 public, regardless of whether this public -- well, you referred to this

Page 77

1 ethnic category, regardless of whether it is Croat or Serb -- this public

2 I mean. Of course one can always expect a dissatisfaction on either

3 side, but what I do wish to say is the following: For us, the key issue

4 is that the conduct of the proceedings and the passing of the judgement

5 should be in line with Croatian legislation and the rules of this

6 Tribunal, which will have to be applied in accordance with Article 28

7 which I already mentioned. In that case, the reaction of the public

8 would have to be the same, regardless of whether the end result is a

9 conviction or an acquittal. In my opinion, that is the key matter.

10 JUDGE KWON: Can I take up the question raised by Presiding Judge

11 and ask some more questions in relation to that.

12 In your oral submission, Professor Krapac, you mentioned role of

13 victims, inter alia closing arguments. And here on page 4 you said that

14 likelihood that convictions rendered by Croatian courts would greatly

15 contribute to the reconciliation of ethnic groups. What Judge Orie and I

16 are concerned about is, as you put, the other side of the coin. Even if

17 it is a result of a fair trial, if the accused are to be acquitted on the

18 ground that international criminal law is not applied to this case and if

19 it is the case that had they been tried in the international Tribunal,

20 conviction might have been possible. Then the things can be worsened.

21 If you can address that matter as well, please.

22 MR. KRAPAC: [Interpretation] If we link this up to the question

23 that we will discuss at greater length later on, and that is the

24 differences in the structure of command responsibility between Croatian

25 law and the law applied by this Tribunal, if we proceed from the fact

Page 78

1 that these differences can be remedied by creatively interpreting the

2 provisions of Croatian law, then this fear which you voiced just now is

3 at a level of a purely abstract fear, as far as I'm concerned, which is

4 conceivable. But, I repeat, on the basis of a fair and efficient trial

5 or criminal proceedings, the possibility is a minimal one. If we look at

6 this case by weighing what the Prosecution will put forth, and that will

7 be dealt with on the basis of Croatian legislation in Croatia, by the

8 state attorney's office, and at the end of the proceedings they will be

9 assessed in line with the provisions of Croatian law when deciding

10 ultimately.

11 May I remind you once again that Croatian procedural law, which

12 like any other continental law is based on a free assessment of

13 pre-evaluation [as interpreted] of evidence does not allow it to be

14 arbitrary, this evaluation. It has to be subjected to a structured

15 process. When a Court reaches a verdict, regardless of whether it is

16 conviction or acquittal, the Court must explain the verdict and express

17 in great detail not only the legal views that guided it when evaluating

18 particular matters, but it also has to set out in great detail how it

19 evaluated and assessed every piece of evidence individually and also in

20 relation to other evidence and how they made their ultimate conclusion,

21 either in terms of conviction or acquittal. The process is a very

22 transparent one. Any mistake in procedure which makes this process of

23 evaluating evidence nontransparent, according to Croatian procedural law

24 is considered to be a grave mistake in respect of applying the law and

25 that results in re-trial.

Page 79

1 Judges are very cautious about this. I would say that they

2 totally shun any possibility of the possibility of abolishing their

3 judgements in such a situation that would lead to re-trial. When this is

4 presented in the judgement, then it makes it possible to the higher

5 court, that is to say the court of second instance, in this particular

6 case it would be the Supreme Court of Croatia, then there would be a

7 total court review, just as this Tribunal does when there is first the

8 Trial Chamber and then the Appeals Chamber and then the entire case is

9 reviewed and then it is established what kind of mistake was made in the

10 evaluation of the evidence and then there is an appropriate intervention.

11 May I say this once again: I understand your concern, your

12 fears, but I believe that at this point in time there is -- there are

13 sufficient provisions procedurally for redressing this or minimalising

14 this possibility.

15 JUDGE KWON: Professor, for the sake of transcript, page 69, line

16 20, just before disappearing, you said pre-evaluation; whether it should

17 be free evaluation.

18 MR. KRAPAC: [Interpretation] Free evaluation, yes. I said free

19 evaluation.

20 JUDGE KWON: Thank you.

21 JUDGE ORIE: Mr. Krapac, on page 6 of your submission you deal

22 with Articles 120 and following with the Fundamental Criminal Statute of

23 Croatia. I do not find in the attachment Article 123. Would there be a

24 possibility to provide that to the Court as well, because most of the

25 other articles are provided? Yes. I see you're nodding, so that's not

Page 80

1 on the transcript.

2 Then my next question would be on page 9 you explain to us that

3 like co-perpetrators, instigators are responsible only in the limits with

4 what they intend to bring about. And you say: "However, with respect to

5 most serious crimes with respect to chapter 15 of the criminal code of

6 Croatia, Croatian law departs from the otherwise adopted line between the

7 line between perpetration and complicity.

8 It's not entirely clear to me how Croatian law departs from that.

9 Is there any statutory provision? Is there any case law? And how

10 exactly does Croatian law depart from the otherwise adopted line between

11 perpetration and complicity?

12 MR. KRAPAC: [Interpretation] As regards the first question, I

13 don't know whether the Honourable Trial Chamber will now allow me to read

14 Article 123, which I have here. We've left it out intentionally because

15 its title is: "The organisation of a group and instigation to the

16 commission of genocide and war crimes." We believe that it would not be

17 applicable here. However, if the Court wishes, I can read this

18 particular provision or perhaps we can have it copied and we can submit

19 it to you in the Croatian language.

20 JUDGE ORIE: That's perhaps a very practical way and we'll find a

21 way to have it translated. So I do understand it, you left it out

22 because in the -- in this case it's not -- well, let's say group

23 responsibility or what you call it joint criminal enterprise or whatever

24 name you give it, but a kind of collective conduct which results in

25 individual criminal responsibility for those who contributed to it. If

Page 81

1 that's it and if you just wanted to say that in this situation that

2 Croatian law departs from that but not applicable, then we would be

3 grateful if you would just hand over the -- provide us with the text of

4 Article 123.

5 Yes, please proceed.

6 MR. KRAPAC: [Interpretation] The second question -- I'm not sure

7 that I understood it fully. Could you repeat it, please.

8 JUDGE ORIE: I'll have to re-read my question. I think it was

9 about -- let me just see...

10 MR. KRAPAC: [Interpretation] Which page were you referring to?

11 JUDGE ORIE: I was referring to page 9 and I think Croatian law

12 departs from the otherwise -- and I was wondering how it departs but it

13 might even be that the clue is found in Article 123 or -- you say: "Like

14 co-perpetrators, instigators are responsible only within the limits of

15 what they intend to bring about; however, with respect to most serious

16 crimes from chapter 15 FCSC, Croatian law departs from the otherwise

17 adopted line between perpetration and complicity."

18 You continue by saying: "As already indicated, a person in

19 position of authority who orders another to commit a crime is treated as

20 a perpetrator rather than as an accomplice."

21 MR. KRAPAC: [Interpretation] The concept of co-perpetrator -

22 co-perpetrator in English, the term is - is defined in Article 20 of the

23 basic law of the Republic of Croatia and that law speaks of it as being

24 more individuals, a number of individuals committing an act through being

25 an accomplice perpetrate jointly a criminal act. And each of them is

Page 82

1 sentenced to the sentence provided for the crime in question. In

2 Croatia, the commentators of this provision agreed that it was based --

3 the provision was based on the so-called theory of authority over the

4 act, which for joint perpetration demands the subjective and the

5 objective component. The subjective component is made up of the

6 collective will of the co-perpetrators jointly to commit an act -- or

7 perpetrate an act. And the second objective component is their

8 contribution to the realisation of that act, which by virtue of its

9 importance as such that it makes up an important part of the plan to

10 commit the act. A co-perpetrator need not directly participate in

11 committing the act itself, the crime itself, but he must contribute to

12 its implementation by acting effectively during the time of its

13 commission.

14 Each and every perpetrator shall be held accountable and

15 responsible with regard to his own intent. And our commentators agreed

16 over the fact that the text of another article, Article 23, para 1, of

17 this 1993 law allows for the possibility of co-perpetration to be held

18 with conscious intent, advertent intent, and that it allows

19 co-perpetration in crimes through inadvertent intent.

20 THE INTERPRETER: Rather, nonperpetration of the crime.

21 Interpreter's correction.

22 MR. KRAPAC: [Interpretation] Now, if more than one person takes

23 part in an act, which your question has to do with, relates to the

24 instigation question. And in Article 21, para 1 of the 1993 law, the

25 provision provided as for a form of co-perpetration for a number of

Page 83

1 persons through intent to commit a crime together with others. The

2 consequence of this with the individual in question is its decision to

3 commit a crime -- to commit an act and the commission of that act itself.

4 That is why in Croatian law for instigation, the instigator must have

5 committed a criminal act and that that criminal act should be deemed a

6 crime, an attempt at crime. And then the sentence prescribed would be a

7 sentence for a perpetrator of an act committed.

8 The third form of an act or third form of co-perpetration for a

9 number of people is aiding and abetting, the aiding and abetting

10 regulating in Article 22 of the 1993 law. And that provision defined

11 aiding and abetting as a form of co-perpetration on the part of a number

12 of persons with intent and therefore contributing to the commission of

13 somebody else's criminal act. The aider and abetter is meted out the

14 same sentence or a milder sentence than the actual perpetrator. The 1993

15 law provided for that aiding and abetting can be extended in different

16 ways, intellectual ways, physical ways, or by intellectually giving

17 guidance, instructions, trying to mask the crime that has been committed

18 and so on and so forth or providing the means for a crime to be

19 committed, et cetera, et cetera.

20 For the existence -- for aiding and abetting to exist, a crime

21 must have been committed or attempting and the perpetrator themselves

22 need not be held criminally accountable. Aiding and abetting can also be

23 seen to have been committed by omission. I think that in that way

24 briefly speaking about in that abridged sentence we see reflected

25 everything that I have been saying and how Croatian law stood in 1993 and

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1 how it differs from the usual construction of complicity, which is

2 applied in the practice of this Tribunal.

3 JUDGE ORIE: Thank you, Professor Krapac. It certainly helps in

4 understanding your submission in this respect. May I take you to page 10

5 of the amicus curiae brief. Almost at the bottom you write: "Another

6 way to induce Croatian courts to recognise indirect command

7 responsibility is to maintain that Protocol 1 of the European Convention

8 for the Protection of Human Rights, incriminating that neglect failures

9 to prevent or to punish breaches of Geneva Conventions supersedes

10 Croatian law."

11 I have some difficulty in finding this in Protocol 1 of the

12 European Convention for the Protection of Human Rights and Fundamental

13 Freedoms, which deals with property rather than criminal matters.

14 MR. KRAPAC: [Interpretation] That is an error in the question.

15 It wasn't Protocol 1 -- or rather, in the writing of it. It wasn't

16 protocol of the protection for human rights, it was Protocol 1 of the

17 Geneva Conventions. So that was a printing mistake and I thank you for

18 bringing that to my attention to the lapsus that took place.

19 JUDGE ORIE: Thank you for that clarification.

20 On page 11 you explained to us that if the failure to punish

21 contributed to the continuation of criminal activity by the subordinates,

22 then the superior would be liable as an accomplice, that is for aiding in

23 this activity.

24 May I assume that you have had access to the consolidated

25 indictment against Mr. Norac and Mr. Ademi. May I also assume that you

Page 86

1 are aware that the crimes allegedly were committed in a relatively short

2 period of time during the Medak Pocket operation. Would the short period

3 of time in which both the commission of crimes and the failure to punish

4 would be situated diminish the chance of criminal liability for the

5 impact of the behaviour of the superior on the continuation of criminal

6 activity which lasted only very -- very short period of time; we're

7 talking about a couple of days.

8 MR. KRAPAC: [Interpretation] Our position is this, Your Honour:

9 We are here to propose this third approach for the solution of this

10 question, that is to say to creatively apply the provisions of the 1993

11 law in a creative manner, which means that -- but I should like to

12 emphasise that would because it is a speculative question which depends

13 of an unknown quantity and quality of exhibits and evidence that the

14 Prosecution has in supporting their indictment. If the Prosecution were

15 to enable the Croatian state attorney to prove before the Court that

16 these shortcomings can be brought into relation with the dolus eventualis

17 on the side of the accused, then in that case their condemnation - and

18 I'm saying -- once again this is speculative - their conviction on the

19 basis of Article 28, para 2 would be known and certain. But as I say,

20 this depends on the quantity and quality of the evidence available, and I

21 am not in a position to give a definitive answer to that question here

22 and now. So hypothetically, yes; if we have or if the Prosecution has

23 sufficient evidence to ensure that the court trying the case is assured

24 that it is dolus eventualis. Maybe in that short period of time, maybe

25 two days or several hours, during the time in which the events took place

Page 87

1 described in the indictment.

2 JUDGE KWON: Professor Krapac, since you mention creativity,

3 while we should welcome creativity in most of our lives, should we not

4 deal with creativity in the field of interpretation of criminal law?

5 To put it simply, is it not contrary to the principle of in dubio pro

6 reo?

7 MR. KRAPAC: [Interpretation] Your Honour, we are talking here

8 about an interpretation of legal provisions in conformity of the doctrine

9 of in dubio pro reo in Croatia and in some other countries as well. That

10 principle is applied in cases when there is doubt as to the factual

11 position and this doubt and doubt over legal matters is solved by another

12 principle what you're going to call, and I'm sure you'll remember, in

13 dubio mitius. Who resolving a question such as this, in our opinion,

14 would require creatively because we are dealing with legal concepts which

15 on the one hand are -- we are confronted with the Tribunal's practice and

16 concepts and on the other side we have Croatian legislation and their

17 practice. And striking a balance, the right balance there. And to

18 strike that right balance, you will need the creatively that we talked

19 about. So in my opinion, this Tribunal should not be afraid of applying

20 the in dubio pro reo principle in the sense that the Croatian court in

21 applying the in dubio pro reo concept in a given situation which stems

22 from, let us say, a piece of evidence of a lower-level standard than the

23 one required by Croatian standards would lead to an acquittal. So I stem

24 from the fact that the Prosecution of this Tribunal will cooperate

25 closely with the state attorney's office in the Republic of Croatia, and

Page 88

1 that this contact will not be unilateral at -- not a one-term contact for

2 one case, but that it would be an ongoing process, a continuing process

3 over a longer period of time, or rather throughout the duration of the

4 cases tried in a first-instance court. And in such cases any

5 shortcomings that the state attorney of the Republic of Croatia must feel

6 with respect to the quantity or may feel with respect to the quality of

7 the evidence provided supporting the indictment, may be made up for

8 rapidly with a joint action, if I could put it that way, between the two

9 Prosecution offices.

10 [Trial Chamber confers]

11 JUDGE PARKER: I'm sorry, Professor, but you've been so helpful

12 that I'm tempted to burden you with yet a further question. This

13 concerns Article 28 of the 1993 code and subparagraph 2, which provides

14 that a criminal act is committed by omission only if the offender abstain

15 from performing an act which he was obligated to perform.

16 What do you see to be the source of the obligation in Croatian

17 domestic law of the obligations which we know as command responsibility

18 under our Article 7(3), that is to prevent crimes by a subordinate and to

19 punish them? Where does that obligation come to be part of the

20 domestic law of Croatia so as to attract the operation of the

21 subparagraph?

22 MR. KRAPAC: [Interpretation] Let me answer that question -- or

23 rather, in order to answer that question, I should ask Their Honours to

24 take a look at the incriminations which we stipulated which would be

25 applicable to that case and we listed a series of those when we wrote it

Page 89

1 -- wrote down the material elements of a crime. We provided a list of

2 incriminations with respect to war crimes. And from these

3 incriminations, either war crimes against the population or war crimes

4 against the sick and wounded, against prisoners of war, et cetera, et

5 cetera, all these stipulations, we can see there in that list that in the

6 commission of an act we also imply the behaviour of the person

7 perpetrating the act issuing an order for such an act to be committed

8 violating the norms of international law. So it is from these provisions

9 that we clearly see what is the guarantee obligation of a commander of

10 military units to do everything in his power, everything that should be

11 done, to prevent the commission of a crime, or rather, to react in the

12 appropriate manner, faced with a situation like that.

13 Now, we can discuss this at length, the guarantee obligations in

14 Croatian law. We can discuss that. But in Croatian law as in other law

15 systems, stem from not only the direct provisions relating to certain

16 categories of persons such as military commanders, commanders in the

17 police force, et cetera, et cetera; they can also be deduced from some

18 general principles. So in the practice of the Croatian courts you will

19 find decisions, come upon decisions whereby for omission to act as a form

20 of perpetrating an act people are punished who through the natural course

21 of events are responsible for the behaviours of somebody else, such as a

22 parent, for example, is responsible for the actions and crimes of their

23 offspring, for having prevented them from the act, although this is not

24 provided for in the criminal law. But if a child, and I emphasise this a

25 child, so a minor who is not criminally accountable, has committed an act

Page 90

1 and the parent failed to prevent the commission of that act or crime,

2 they will be held responsible pursuant to Article 28, para 1. So the

3 guarantee obligation is not expressly provided for in such a case.

4 JUDGE PARKER: Did I understand from your answer that you saw the

5 obligation on a commander in this situation arising from the customary

6 international law?

7 MR. KRAPAC: [Interpretation] It does arise from customary

8 international law, but also from the incriminations I mentioned. When

9 you look at these incriminations, you'll always see commanders involved,

10 too, saying: Those are order such-and-such a crime, et cetera, the

11 commission of such-and-such a crime. In my opinion, this is a simpler

12 and more efficient way of proceeding in order to establish responsibility

13 in this particular case, to go through Article 28, not through

14 international law.

15 JUDGE PARKER: Thank you.

16 JUDGE KWON: Let me be clear, Professor Krapac. Those

17 incriminations you referred to, when were they enacted?

18 MR. KRAPAC: [Interpretation] In 1993.

19 JUDGE KWON: Thank you.

20 JUDGE ORIE: Professor Krapac, you explained to us that

21 cumulative charging is not permitted and perhaps I take a bit of a

22 different course. Do I understand that, for example, that you could not

23 charge the accused with murder, a crime against humanity, and that same

24 murder as a violation of the laws or customs of war, or in an alternative

25 way. Is that a correct understanding of your brief? Yes.

Page 91

1 My next question would be to you, Mr. Scott. Would you consider

2 the impossibility of charging in the consolidated indictment under Counts

3 2 and 3 a problem for the OTP or ...

4 MR. SCOTT: I think, Your Honour, we'd have to look quite

5 specifically at the Croatian law for that to know how much of an issue it

6 might be in the difference of the elements of the offences and what the

7 practical problems would be presented. The reason that we -- well, one

8 of the reasons we do it here at the ICTY is because sometimes there's

9 different elements between the Article 3 charge or the Article 5 charge,

10 and therefore we want to cover both possibilities. But I can't say,

11 frankly, in the abstract what the differences might be if Croatia were to

12 charge it, say, under Article 50 - I'm just making this up - under

13 Article 50 as a certain set of elements and Article 51 as a different set

14 of elements. It may be that unlike our Statute it doesn't present itself

15 so much as a problem. But having said all that, yes, of course there

16 could be situations where the prosecutor would find himself -- a local

17 prosecutor might find himself more constrained.

18 JUDGE ORIE: Yes. But then of course the question would be

19 whether -- you were quite clear in your earlier submissions saying that

20 if the indictment would not cover what is acceptable in our view -- my

21 question is now whether this would be acceptable because there seems to

22 be an impossibility for the local prosecutors to charge both murder as a

23 crime against humanity and murder as a violation of the laws and customs

24 of war. So what would that -- would you say, fine? Or would you say no,

25 let's get the case back?

Page 92

1 MR. SCOTT: I'm sorry, Your Honour, maybe I wasn't clear. I

2 think I understand the concern and it's a fair concern, but I was just

3 saying under Croatian law -- let's say the Croatian prosecutor wants to

4 charge murder and there is no issue under Croatian law which -- murder

5 can be charged alternative ways under Croatian law, there is just one

6 murder charge. So in that context, alternative charge wouldn't come up

7 at all.

8 JUDGE ORIE: Let's say if you would charge as murder as a crime

9 against humanity and you had some difficulties in proving that it was

10 widespread and systematic, then you would have to restart all over again

11 and to then charge the accused after an acquittal on murder as a crime

12 against humanity as a murder as a violation of the laws and customs of

13 war.

14 MR. SCOTT: The problem I'm having, Your Honour, and I'm sorry --

15 I understand the conceptual concern. I don't know enough about Croatian

16 domestic law to say how it would come up, whether that is a real scenario

17 or not. If there is one murder -- again, sorry to repeat myself, but if

18 there is only one murder statute in Croatia and you either charge it

19 under that statute or you don't charge it at all, then there's no issue

20 of an alternative charge, unlike here at the Tribunal where we have

21 Article 3 or Article 2, Article 5 charges.

22 JUDGE ORIE: Yes, well, we have the problem that crimes against

23 humanity were not enacted in 1993. So to that extent. But you have a

24 solution for that as well, by saying that that should then be taken into

25 consideration, the widespread and systematic aspect in sentencing.

Page 93

1 MR. SCOTT: We would think it would be an aggravating factor in

2 sentencing.

3 JUDGE ORIE: Professor Karpac, if you do not charge someone with

4 a crime against humanity because it's nonexistent in the law applicable

5 at that time, would you nevertheless take into consideration the

6 widespread and systematic way of committing those crimes as aggravating?

7 Or would you have to say, well, it's not charged, it was not punishable

8 at the time, so therefore we have to refrain from taking that into

9 account while sentencing? And if any of the representatives of the

10 government would have any idea on that, they are invited to respond to

11 the question as well.

12 MR. KRAPAC: [Interpretation] With your permission I will try to

13 answer that question briefly, but I assume the Croatian government will

14 have something to say in this respect, too. First of all, in response to

15 what Mr. Scott said on behalf of the Prosecution as regards this

16 particular matter, of key importance the page we wrote on 12: [In

17 English]: "The indictment must include a specific description of the

18 factual basis for the charges."

19 [Interpretation] So if the Croatian state attorney at the very

20 beginning of the proceedings constructs in the indictment a broad enough

21 factual basis, then during the trial this will make it possible for the

22 Court to rely on this indictment and take into consideration when

23 reaching the verdict those legally valid facts which are in line with the

24 letter of the law. It is important for the state attorney's office to

25 start with a broader factual basis, if I can put it that way very

Page 94

1 briefly.

2 As for the legal qualification of such an offence, that is in the

3 exclusive domain of the court according to Croatian law. And then as we

4 said today, the Court will decide whether this is a crime in accordance

5 with regular criminal law, that is to say whether it is murder or killing

6 or whether it is a war crime, a crime in respect of humanitarian law, and

7 so on and so forth. But the important thing is to have this kind of

8 factual basis. Because if the Court does not have a sufficient factual

9 basis, not a single conviction, either according to regular criminal law

10 or these special regulations that have to do with responsibility for the

11 commission of war crimes, will not be possible. That is where we can

12 find the set of the most important practical questions that could be

13 raised if this case were referred to the Croatian authorities. It's not

14 that important whether it will be qualified as a war crime against the

15 civilian population or a war crime according to the provisions of

16 international humanitarian law and so on, or whether it is an ordinary

17 murder according to general criminal law.

18 JUDGE ORIE: Yes.

19 Professor Horvatic.

20 THE INTERPRETER: Microphone, please.

21 MR. HORVATIC: [Interpretation] We heard the friend of the Court

22 and you said that perhaps the Croatian government could say something in

23 this respect, too. It seems to me on the basis of the debate is the

24 problem is smaller than it may seem. I'm saying this both on the basis

25 of what I heard from the Prosecution and from the friend of the court,

Page 95

1 namely in accordance with the position held by a Supreme Court judge

2 which I obtained while preparing for this, there is a comparative

3 analysis that I fully concur with, an operational analysis of crimes

4 against humanity from the law of 1993, the Statute of this Honourable

5 Tribunal, according to which a single conclusion can be reached. Since

6 the protocols in the Geneva Conventions are referred to, practically the

7 outcome is the same on both scores. It is a question of the technicality

8 of the accusations. When reading the indictment against Ademi and Norac

9 that was issued by the Prosecution before this Tribunal, of course

10 Croatian Prosecutor will adjust it to Croatian needs. But I am convinced

11 from a legal point of view that this factual material which is presented

12 here can be part of the indictment before the Croatian courts on the

13 basis of the 1993 law by resorting to the relevant possessions of that

14 law, certainly those that are in chapter 15, crimes against humanity and

15 international law.

16 When perceiving crimes against humanity in international law and

17 individual murders that are a result of such activity, and also the

18 jurisprudence of Croatian courts to date has not denied the possibility

19 of acting in accordance with dealing in an adequate manner according to

20 the 1993 law with crimes against humanity, it is possible to have an

21 indictment; and if what is proven is what was attempted to be proven

22 before this court, too, there is no reason why the court in Croatia would

23 not rule in the same way.

24 JUDGE ORIE: Thank you, Professor Horvatic.

25 Yes, Mr. Scott.

Page 96

1 MR. SCOTT: Your Honour, if I might intervene for a moment. Just

2 focusing on the discussions over the last few minutes and the question

3 that you put to me some minutes ago, Judge Orie. I think that now that

4 I've heard some more, if the question came up that could the Prosecutor,

5 Croatian Prosecutor, in the same indictment, say indict the charge, both

6 murder as a typical domestic crime and at the same time charge a

7 violation of war crimes under Article 120, I guess that's the question

8 and I don't know what the answer is to that or perhaps each the amici or

9 the Croatian representative could tell us that. If that's what they

10 would consider to be a cumulative charging, that's one question. Then I

11 could see the scenario where the Prosecutor is going to say I'm going to

12 charge murder and I'm going to charge war crimes against a civilian

13 population. I'm not sure whether that would be allowed or not. The

14 second part of that --

15 JUDGE ORIE: You would say, apart from the example I gave, where

16 are the limits of cumulative charging, because you could say that it was

17 -- I would say all the charges are related to a same conduct, limited

18 area, limited time.

19 MR. SCOTT: That's right, Your Honour.

20 And the second part of that for the Chamber to consider if it

21 wants to put these -- raise this or not. But at looking at the amici

22 brief for submission on page 12, I'm wondering whether perhaps, and I say

23 perhaps, not again so much differences might appear they talk about at

24 that same paragraph where it says: "Nor are cumulative charges

25 permitted." But it goes on several lines below that: "If proof-taking

Page 97

1 at the trial points to a different set of facts than the one described in

2 the charging papers, the prosecutor must amend."

3 Now, I'm not sure if that's prosecutors from a common-law system,

4 and Judge Parker may -- I'm not sure about the practice in Australia, but

5 conforming the indictment to the evidence, were that change to be made,

6 right at the end of the trial -- you get to the end of the trial and say

7 we didn't really prove murder, you proved a war crime, so we're going to

8 amend the indictment at the end of the trial before it goes to verdict.

9 If that was the situation, I don't see that is so different than what we

10 do here in cumulative charging. What we say is you can cumulative

11 charge, but once you get to conviction and sentencing, you can only have

12 one sentence. To that extent, they may both be coming to the same point,

13 the same conclusion by different means. You can't cumulative charge, but

14 at the end of the case you can conform the indictment to the evidence.

15 You should have charged this or not this. Or, at the ICTY, you charged

16 murder under Article 3, murder under Article 2. You can't get a sentence

17 for both so they merged essentially for that purpose.

18 JUDGE ORIE: At least I notice at this moment that if you amend

19 the indictment at the very end of the proceedings, then at least the

20 Defence might have a problem because they have defended against another

21 indictment and have not presented any evidence which suddenly becomes

22 relevant due to the change of the indictment at the end of the trip.

23 MR. SCOTT: I understand that, Your Honour, and it varies -- I

24 realise that it varies from system to system. My limited understanding

25 that in some systems conforming the indictment, the charging document, at

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1 the end of the evidence is not uncommon. That's as far as I can take it.

2 JUDGE ORIE: Judge Parker, if you would like to --

3 JUDGE PARKER: I don't know that the position in Australia will

4 help very much in the determination of this case, but it is there

5 possible to amend the indictment at the end of the proceedings to conform

6 with the evidence, but only within the framework of the existing charge.

7 So that if in some detail or particular the evidence has varied, then the

8 indictment may be amended in that respect. But one cannot substitute a

9 different charge for that which is charged. However, we do have

10 cumulative and alternative charging so that an indictment may well

11 contain many, many charges, some of them cumulative, some of them

12 alternative to others.

13 MR. SCOTT: Judge Orie, my intervention may or may not have been

14 helpful. I was just trying to see if that could be assistance on --

15 JUDGE ORIE: I'm not going to express myself on how helpful it

16 was now.

17 Yes, Professor Horvatic, you would like to add something?

18 Because this is a discussion of cumulative charging which --

19 MR. HORVATIC: [Interpretation] I must say that my legal knowledge

20 and experience once again leads me to say that I don't see a problem in

21 the dimension of alternative and cumulative that we were presenting here,

22 those factors. So I'll allow more experienced lawyers than myself to say

23 that I am an ignoramus. But if I read Article 120 of the crime against

24 the civilian population, for example, from Article 163 and it reads, you

25 have it in English, I believe, in the catalogue of incriminations from

Page 100

1 the -- provided by the friends of the court. It says: "If anybody

2 violates the international laws during war, occupation, et cetera, and

3 orders an attack against civilian population, or settlement, or

4 individual civilians or individuals incapable of combat, the result of

5 that -- and if it resulted in death" -- then I feel that if death here is

6 explained as well as heavily bodily harm or harm to health, et cetera,

7 "can be a manner in which we can transcend the cumulative and the other

8 form.

9 But what we said with respect to the amendment of the indictment

10 according to the practice of our law courts does not present a

11 significant problem, because debates in their continuity have their

12 dynamics. But those who say it would be difficult are also right, or

13 difficult to implement, or difficult to the accept for the court if at

14 the end of a debate or in its final stages one would appear with some new

15 vital facts and evidence which would significantly change the indictment.

16 But here we have a factual substrate which from the very beginning of the

17 proceedings before a Croatian court of law or jurisdiction in the case

18 this Trial Chamber should rule positively, would be sufficient for it to

19 adapt to the needs and requirements of the criminal code and material

20 laws of the state of Croatia. And the overall construction of giving way

21 was started and lasted here this morning when we reached agreement. We

22 agreed that there were no vital problems and essential problems in the

23 application of law before this honourable Tribunal and what would be

24 applied in the national courts of the Republic of Croatia.

25 JUDGE ORIE: Mr. Krapac, you would like to add something to that?

Page 101

1 THE INTERPRETER: Microphone, please.

2 MR. KRAPAC: [Interpretation] I just wanted to add to that the

3 representative of the Prosecution, Mr. Scott, noticed very well that in

4 the sentence -- the penultimate sentence on page 12 it said that the

5 Prosecutor must amend the indictment. I should like to remind you that

6 in the Croatian criminal law, the basic principle and substantive law,

7 the basic principle regulating the state attorney is the principle of the

8 legality of criminal persecution or the principle of mandatory

9 persecution, as it is in English. So as soon as he sees that the

10 evidence has changed during the examination-in-chief, the indictment must

11 be amended and added on to.

12 Now, this brings us to the question that you raised as to how the

13 Defence will react in a case like that, and in a case like that, the law

14 on criminal proceedings provides that the provision that the basic

15 proceedings be put off for as long a time is necessary for the Defence to

16 prepare itself for the new indictment and the charges under the new

17 indictment. And I'd also like to remind you that the basic trial and

18 proceedings is slightly different in structure than the trial is -- than

19 a trial is in the Anglo-Saxon process. The trial is a concentrated

20 process and it is an event which evolves quickly from beginning to end,

21 from the indictment via the evidence to the rulings at the end. The

22 trial or main proceedings under Croatian law is subject to a longer

23 period of duration with the possibility of delays along the way to settle

24 legal questions, but even more so to amass new evidence or to react to a

25 situation highlighted earlier on if the evidence shows that the situation

Page 102

1 was otherwise. And this brings us to the difference which at first

2 glance seems to be great when we say that we do not have cumulative

3 charges in our own system is not that great upon closer inspection.

4 JUDGE ORIE: Yes. Mr. Krapac, we are close to having heard the

5 parties and the other participants in this hearing for another one hour

6 and a half. I would briefly return to some very specific questions on

7 the matter of the relationship between domestic law and international

8 law, and I'd like to ask you or the representatives of the government

9 about the constitutional aspects of that. The nulla pena rule, or the

10 nullum crimen rule as it's sometimes said, is as I understand it

11 correctly at this moment part of the constitution of Croatia. Is it

12 correct that we find this in Article 31 of the constitution? Yes, I see

13 you're nodding yes and I see nodding everyone yes.

14 Has this provision, this constitutional provision been amended

15 recently or has it taken its form especially in view of what I - it's not

16 from an official source - understand it refers to, not only law but

17 international law? Was that in this provision already in 1993? And I

18 read to you what text of Article 31, Section 1 I have in front of me, and

19 please correct me if I have got a wrong version.

20 It says: "No one shall be punished for an act which before its

21 commission was not defined as a punishable offence by law or

22 international law; nor he may be sentenced to a penalty which was not

23 defined by law if a less severe penalty is determined by law after

24 commission of an act such penalty shall be imposed."

25 First of all, is that the correct language of Article 31, Section

Page 103

1 1, of your constitution? I see again nodding. And for the sake of the

2 transcript I translate nodding in an affirmative answer.

3 Then was the reference to international law in Article 31 already

4 there in 1993? Yes.

5 THE INTERPRETER: Microphone, please.

6 MR. HORVATIC: [Interpretation] It is the constitution dating to

7 1990 which was in force during the time that the criminal code was

8 applied, this one, and as a constitution it had stronger force than the

9 law. In the new law, that is to say the 1997 law which comes into force

10 in 1998, this was literally taken over and that's why the existing law

11 from 1993 was not changed, was not amended, but it was subject to the

12 constitutional provision with nullum crimen sine lege was interpreted on

13 the basis of what you read out from Article 31.

14 JUDGE ORIE: Yes. My next question would be about what I think

15 might be Article 140 of the Croatian constitution, which, at least in the

16 text I have in front of me reads: "International agreements concluded

17 and ratified in accordance with the constitution and made public and

18 which are in force shall be part of the internal legal order of the

19 Republic of Croatia and shall be above law in terms of legal effects.

20 Their provisions may be changed or appealed only under conditions and in

21 the way specified in them or in accordance with the general rules of

22 international law."

23 First, is this the correct wording of Article 140 of the

24 Croatian... Yes?

25 MR. HORVATIC: [In English] Yes, it is.

Page 104

1 JUDGE ORIE: My question to you would be: Article 140 refers

2 only to international agreements but not in whatever way to general

3 principles of international law, neither to customary international law.

4 Should we understand this to limit the effect of Article 140 to

5 international agreements only?

6 THE INTERPRETER: Microphone, please.

7 JUDGE ORIE: Would you please put your microphone on, Mr.

8 Horvatic.

9 MR. HORVATIC: [Interpretation] Is that a question to the amicus

10 curiae or to the state?

11 JUDGE ORIE: It's a question to whomever could answer it, as a

12 matter of fact.

13 MR. MULJACIC: [Interpretation] Your Honours, the constitutional

14 provision which speaks about the fact that international conventions or

15 international agreements are above the law and that they are

16 automatically applied precisely indicates that in cases of this kind the

17 provisions which were prescribed in the Geneva Conventions and Additional

18 Protocols and which the Republic of Croatia in continuity, when it was

19 part of the former Yugoslavia and after its independence as of the 8th of

20 October, 1991, pursuant to international law throughout the time was a

21 party to those conventions and was duty-bound by international law to

22 respect those conventions. And by that very fact this constitutional

23 provision, that is to say the 1990 constitutional provision, speaks of

24 the force which has a greater force than the law, and in our

25 interpretation than the criminal law as well with the possibility of

Page 105

1 direct application.

2 Now, the entire sense would lie in this, the meaning of it is

3 this: In a specific concrete case through Article 28, para 2 of the

4 criminal code of 1993 and also the application of the Geneva Conventions

5 which were in force and which were contain international customary law

6 codified according to the Geneva Conventions, could according to the

7 judge -- not only could but in our opinion must be applied in this case

8 because the law -- or rather, the system of legal provisions is the

9 spirit of something, it expresses the spirit of something. And if these

10 provisions express the spirit of the law and the conventions pursuant to

11 the 1990 constitution, then they should be directly applied through the

12 existing relevant provisions of the 1993 criminal code, which did not

13 provide for command responsibility, as we call it, but the Croatian

14 courts applied this command responsibility and we mentioned a case in

15 point here, the Sakic case, and Sakic was convicted according to -- he

16 received the greater sentence, on the basis of Article 28, para 2 of the

17 criminal code that was in force at the time and the Geneva Conventions

18 and their application, because Croatia was a party to the conventions.

19 Thank you.

20 JUDGE KWON: Mr. Muljacic, I'm very assisted by your submission,

21 but can I ask whether it is consistent interpretation with the provision

22 of Article 28, paragraph 2 of assignment of proceedings by the

23 International Criminal Court, which says: "The proceedings in the

24 Republic of Croatia shall be conducted with the implementation of

25 national substantive criminal law and criminal procedure."

Page 106

1 MR. MULJACIC: [In English] Yes, Your Honour.

2 [Interpretation] However, a Judge has to apply international

3 conventions that were in force as well. A Judge cannot only abide by the

4 criminal code from that year that was applicable at the time. And of

5 course, there are tragic principle can be applied, but the constitutional

6 provisions have to be applied and the provisions of the Geneva

7 Conventions. And they include a strict prohibition of that and there is

8 the provisions of the Statute of the International Tribunal for the

9 former Yugoslavia. So that is our provision.

10 JUDGE KWON: Thank you.

11 MR. HORVATIC: If I may add, as I said this morning, the position

12 of the general prosecutor of the Republic of Croatia is the same just has

13 explained. A position was reached through discussion at the seminars, et

14 cetera, that Article 28 of the criminal code of 1993, which regulates the

15 perpetration of a criminal offence by omission, following this it is the

16 opinion of the public prosecution service that the provision mentioned of

17 Article 28 of this criminal court with the application of the Geneva

18 Conventions and Additional Protocols could for the most part substitute

19 the institution of command responsibility in the manner contained in

20 Article 7(3). That's the official document aide memoire given by the

21 general prosecutor of the Republic of Croatia in July 2004 and again

22 repeated before this hearing.

23 JUDGE ORIE: Thank you.

24 We're close to -- one small question before we...

25 The small question is: In the interpretation of Article 31 and

Page 107

1 140 of the constitution, would the constitutional court play any role?

2 Would that be imaginable? Would it be all in the hands of the criminal

3 lawyers or the constitutional court be involved in the interpretation of

4 these provisions?

5 MR. HORVATIC: [Interpretation] Your Honour, I cannot say that.

6 If such a question were to be submitted to the constitutional court, it

7 would have to give it due attention with the intention underlying the

8 constitution. The constitution has a proper sequence but then also a

9 certain spirit of getting close to the application of international law

10 as a law that supersedes national law, because Croatia by joining the

11 international community espoused such a position, accepting international

12 law as a law that supersedes national law when it is constrained by a

13 national framework only.

14 So it is hard to envisage what could happen, but I think that the

15 constitutional court have to bear into mind everything that we have been

16 discussing so far and it would be hard to believe that they would take a

17 position that would be contrary to this, but it is very hard to predict

18 what would happen, really.

19 JUDGE ORIE: Yes, but not from initio. That would not be an

20 incompetence to deal with the matter by the constitutional court.

21 Then we'll have to adjourn again. I take it after we have this

22 break that we perhaps spend -- at least hear a bit more from the

23 prosecutor about the apparent friction or tension between international

24 and international customary law and domestic law.

25 One of the issues that have not been highlighted that much at

Page 108

1 this moment is the practical application of witness protection under the

2 new law in Croatia. Perhaps that's -- would be a matter that could have

3 some additional attention.

4 And finally there has been a lot of criticism on the OSCE report

5 as covering only the last ten years, covering a past practice rather than

6 the actual situation. I noticed that in the November 2004 report it's

7 more actual information that is provided, which is to some extent

8 encouraging but perhaps not in every respect. If the parties would

9 address that matter, whether the improvement is such -- and not by saying

10 in general terms that it's improved, but by either using statistics or

11 using the details given in the OSCE report, that would certainly assist

12 the Chamber.

13 And further, we have the thematic issues 1, 2, 3, and 4, which

14 some of them have been dealt with quite extensively already. I would

15 like to see whether perhaps in the next round, and we'll adjourn until

16 3.00, whether we could conclude this hearing. We adjourn until 3.00.

17 --- Recess taken at 2.26 p.m.

18 --- On resuming at 3.02 p.m.

19 JUDGE ORIE: We resume the hearing and the Chamber expects that

20 we could finish in the next one to one and a half hours. Perhaps I first

21 give an opportunity to the Prosecution to make some final submissions.

22 And if you could include in those submissions how vital command

23 responsibility, especially command responsibility in the form of not

24 preventing, not punishing if the superior perhaps would not have known

25 but should have had reason to know how vital that is for the

Page 109

1 Prosecution's case.

2 Please proceed, Mr. Scott.

3 MR. SCOTT: Thank you, Judge Orie. I'll try to pull together the

4 various parts of what's been said partly -- actually, mostly what's been

5 said in the course of the day, including by my colleagues on the other

6 side representing the state of Croatia.

7 As we started out this morning, it does indeed seem to the

8 Prosecution that the more reliable basis and the more firm foundation for

9 the application of command responsibility in a Croatian prosecution would

10 be international law, partly for the very reasons that Judge Kwon

11 mentioned in the last session, that is, that we're less -- a little bit

12 less optimistic - let me put it that way - in terms of the creative

13 application of domestic law. Yes, those things -- all those things could

14 happen and Croatian judges might interpret their law to reach those

15 results. But again, we think that the application of international law

16 would provide a better foundation for these -- for such prosecutions.

17 We did provide -- I have provided to the registry, and if that could be

18 distributed perhaps, a copy of Article 140 of the Croatian constitution.

19 We had had that -- we did that over the lunch-hour and then it came out

20 over the last session in some of the questions. I think it's there, I

21 believe. If that could be provided. It is as I believe Judge Orie has

22 already referred to, but I didn't want to interrupt the Chamber before

23 with the distribution of those. The handout for the benefit of counsel

24 is also the topic -- I think it's also in the Croatian language and the

25 English language on the bottom.

Page 110

1 As Your Honour, Judge Orie, has already indicated this is the

2 fundamental basis for answering Your Honour's question earlier today:

3 What is the real authority for our position. This would be the most

4 fundamental authority, and that is that under this constitutional

5 provision, which was in effect in 1990 prior to the conduct that would be

6 at issue in this case, international agreements properly ratified did

7 have the force of national law and in fact not only did they have the

8 force of national law but were so-called above law or superior law in the

9 Croatian national system. I've also attached to that same handout is a

10 -- some commentary which also touches on a difference between the dualist

11 and monist systems. And again counsel on the other side can correct me,

12 but it appears from what research that we've been able to do that Croatia

13 tends towards being a monistic, a so-called monistic system in which

14 there is the direct application of international law. We believe that

15 characterisation plus constitutional Article 140 provides a firm

16 foundation for the application of treaty law at least, the Geneva

17 Conventions, to Croatian prosecutions, including those provisions

18 providing for command responsibility. In that respect -- well, let me

19 back up for a moment. Our research indicates that the Geneva Conventions

20 and the Additional Protocols, including protocol -- Additional Protocol 1

21 have been binding law in Croatia national law since at least as early as

22 October 1991 as a successor state to the former Yugoslavia, which was

23 affirmed in the Milosevic Rule 98 bis decision, and certainly no later

24 than 22 May 1992, when its -- when Croatia's documents were lodged or

25 deposited. So they were in effect at the time of the conduct at issue in

Page 111

1 this case.

2 Article 86 of Additional Protocol 1, paragraph 2 provides that:

3 "The fact that a breach of the conventions or of this protocol was

4 committed by a subordinate does not absolve his superiors from penal or

5 disciplinary responsibility as the case may be if they knew or had

6 information which should have enabled them to conclude in the

7 circumstances at the time that he was committing or was going to commit

8 such a breach and if they did not take all feasible measures within their

9 power to prevent or repress the breach."

10 In a similar way Article 87, duty of commanders, section 1

11 provides: "The high contracting parties and the parties to the conflict

12 shall require military commanders with respect to members of the armed

13 forces under their command and other persons under their control to

14 prevent and where necessary to suppress and to report the confident

15 authority breaches of the conventions of this protocol."

16 That might be viewed as somewhat failure to prevent. And under

17 section 3 it also goes on to say: "The high contracting parties and

18 parties to the conflict shall require any commander who is aware that

19 subordinates or other persons under his control are going to commit or

20 have committed a breach of the conventions or of this protocol to

21 initiate such steps as are necessary to prevent such a violation of the

22 conventions or this protocol and, where appropriate, to initiate

23 disciplinary or penal action against violators thereof," which we suggest

24 is essentially the failure to punish.

25 That is the -- those are the most applicable provisions of

Page 112

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Page 113

1 Additional Protocol 1, Article 86 and Article 87. Given the fact that

2 those laws -- both of those provisions have been adopted specifically and

3 expressly adopted by Croatia, at least by May of 1992 and given the

4 effect of Croatian constitution Article 140, this law clearly would apply

5 to domestic prosecutions and provides a basis for not only the

6 Prosecution of command responsibility, but in the language in 86,

7 paragraph 2, the -- had reason to know language, because that provision

8 talks about "or had information which should have enabled them to

9 conclude in the circumstances."

10 So we believe it also addresses that particular additional

11 feature.

12 We would also mention then in passing the Vienna convention on

13 the Law of Treaties 1969, Article 26 which provides: "Every treaty in

14 force is binding on the parties to it and must be performed by them in

15 good faith."

16 And Article 27: "A party may not invoke the provisions of its

17 internal law as justification for its failure to perform a treaty."

18 So, Your Honours, again that is the fundamental basis of the

19 treaty law or the application of the Geneva Conventions treaty law in

20 Croatia prosecutions.

21 Now, going beyond that of course we also then have the effect of

22 international or customary international law as found in the

23 Hadzihasanovic case here, that as of the time, as of the early to

24 mid-1990s at least, command responsibility was a part of customary law.

25 Now, it may be, and I am anticipating some of the discussion that's gone

Page 114

1 on earlier today, since Article 140 specifically talks about treaties or

2 international agreements, it may be that there is some question about

3 customary law. It may be that in this situation customary law doesn't

4 really take us much further because the very Geneva Conventions

5 themselves and those provisions have been adopted and enforced as a

6 matter of treaty law. So in that sense, it may be that in this

7 particular context international customary law is less important but

8 could still be -- we don't dismiss it. It could still be another further

9 argument, a further basis, but it seems that the direct application of

10 the Geneva Convention as ratified and adopted by Croatia provides a

11 foundation.

12 Further, Your Honours, it seems to us that based on both the

13 papers that have been filed, especially by Croatia, and the discussion

14 today that Croatia in particular seems to support the application of

15 Croatian law. I've heard all of Croatia's representatives this afternoon

16 and the amici, I think, express fundamental agreement with that

17 principle. And I think in response -- just as one example, there was a

18 response to a question from Judge Parker in which I think the amici's

19 answer was that: Indeed, one of the source documents or items for a duty

20 to act was international customary law.

21 When you look -- I think our position or that position is further

22 reinforced when you look at the Croatian war crimes provisions

23 themselves. In the submission that Croatia made on law, when you look at

24 Article 120, Article 121, Article 122, Article 124 and following, all of

25 them start out with essentially this language: "Whoever in violation of

Page 115

1 the rules of international law."

2 So it appears that again on the face of Croatia's own statutes as

3 in effect in 1993 there is an explicit incorporation of international

4 law. It's Croatia's submission on page 3 - and this came out in earlier

5 questioning between Judge Orie and counsel - the reference to the -- to

6 the Additional Protocol 1 of the European Convention for the Protection

7 of Human Rights, which we had understood was indeed an erroneous

8 reference citation to Additional Protocol 1 of the Geneva Conventions,

9 which is just exactly the reference or the discussion that we've just

10 had.

11 So I think without belabouring it further, Your Honour, those are

12 the fundamental points that we would make in terms of the application of

13 international law to -- in particular as it relates to the issue of

14 command responsibility.

15 I might also just mention before turning then finally to, Judge

16 Orie, your specific question, we might -- we would also point back -- we

17 mentioned it briefly this morning, but perhaps in light of today's

18 discussion we would point back to the European Convention on Human

19 Rights, Article 7(2) which again does provide for as an exception to the

20 law against retroactivity the application of criminal law which allows

21 for the Prosecution of any person for any act or omission which, at the

22 time when it was committed, was criminal according to the general

23 principles of law recognised by civilised nations. And indeed there's

24 some commentary on this, including some commentary by Robertson and

25 Merills, Human Rights in Europe, which says that this Article 7(2) was

Page 116

1 included specifically for the purpose of making sure that war crimes were

2 covered, even if not part of national law at the time.

3 So we think that it may very well be as an additional part of the

4 Court's consideration, the Chamber's consideration, if there's any aspect

5 of retroactivity that still lingers around this issue, and we would

6 suggest that there isn't, because we would suggest that it was in force

7 in 1993, and there is not an issue of retroactivity. But if somewhere along

8 the way the Chamber has a concern that there is some continuing issue of

9 retroactivity, we would just point the Chamber to the European Convention

10 on Human Rights, Article 7(2).

11 Judge Orie, to respond to your specific question: How vital is

12 command responsibility to a prosecution. I would have to say - I think I

13 cannot give any other answer - that I think that it's very important. I

14 think to prosecute these cases - we've learned from our experience at the

15 ICTY to prosecute these cases without the possibility of a 7(3) charge,

16 especially the higher -- the further you get away from the ground,

17 especially in the military context, you get away from the actual actors

18 on the ground that 7(3) provides an important part of prosecution. And I

19 certainly would have to say, however that cuts, if you will, that command

20 responsibility needs to be provided. And I think, as we said this

21 morning, if it turned out that at the end of the day the Chamber was of

22 the view that there could not be -- we could not be confident that that

23 would be provided for, then I think it would indeed raise a serious

24 question. Those are my answers, Your Honour.

25 JUDGE ORIE: Thank you, Mr. Scott.

Page 117

1 May I ask one question in respect of what you just submitted to

2 the Chamber. You said, well, customary law might not play such a role

3 because we have no Additional Protocol 1 to the Geneva Conventions, we

4 have the Geneva Conventions. Could you please clarify. In the

5 consolidated indictment, the alleged crimes are situated in a context of

6 an armed conflict, not an armed conflict of an international character.

7 Am I wrong in understanding that Protocol 1 applies to international

8 armed conflicts and would we therefore not have to rely extensively on

9 the customary law rather than on Article 86 which might not directly

10 apply to this armed conflict?

11 MR. SCOTT: Yes, Your Honour. I think that's right. And that's

12 exactly one of the reasons I qualified my answer to say I don't think we

13 want to completely abandon the issue of customary law because in some

14 contexts - and particularly in this case - I think it would be important.

15 There might be another referral case which specifically is in the context

16 of an international armed conflict and in that context it would be less

17 of an issue. But I agree with the Chamber for those -- if you have only

18 an internal conflict without the international aspect, it is an

19 additional concern and one in which you would hope to address with --

20 based on customary law.

21 JUDGE ORIE: Yes. Let's keep problems for other referral cases

22 for the future, Mr. Scott.

23 Then I'd like to invite Defence counsel to make final

24 submissions. Perhaps you first, Mr. Prodanovic. And may I draw to your

25 attention that in the additional reports as attached to the last

Page 118

1 submission by the Prosecution, the representative of the OSCE expresses

2 some concerns of accused in Croatia that fear that the pressure to

3 convict might be such at this moment where it might have been different

4 in the past where acquittals of Croat accused and convictions of Serb

5 accused and even convictions in absentia would be concerned, that now it

6 might be the opposite, that is, that Croat accused fear that the pressure

7 is such that they -- the pressure upon the courts is such that they fear

8 a conviction more than they did in the past. Could you please include

9 that in your final submissions.

10 JUDGE KWON: And if I may add whether you could include whether

11 you agree on the part of Defence counsel with the direct application of

12 international law.

13 JUDGE ORIE: I take it you mean counsel for the Prosecution? You

14 said Defence counsel.

15 JUDGE KWON: On the part of Defence counsel, whether Defence

16 counsel is in agreement, could agree to the allegation that international

17 law could apply to this case.

18 MR. PRODANOVIC: [Interpretation] Just a question, Your Honour.

19 Did I understand you correctly that these are my final submissions?

20 Should I deal with all the facts now or should I just focus on the

21 questions that you've actually put to me now?

22 JUDGE ORIE: You are given the opportunity, having heard all the

23 submissions that are made today, to give your final comments on it. That

24 means that you don't have to repeat matters that are already in writing,

25 but if you want to highlight certain matters, then you are in a position

Page 119

1 to do so. And we ask you specific attention for these two questions.

2 MR. PRODANOVIC: [Interpretation] Well, then I'm going to start

3 with the two questions. In our submission we dealt with the question

4 that Judge Kwon put just now, and we think that the amicus also referred

5 to the three ways of resolving legal problems, and that includes the

6 possibility of directly applying international law by invoking provisions

7 of our constitution and conventions that the Republic of Croatia signed

8 before the time the charged crimes were committed. There is no need for

9 me to repeat what I said this morning. We believe that Croatian

10 legislation and Croatian law - I'm talking about substantive law now -

11 that it provides a good basis for charging the crimes according to

12 Croatian law, both in terms of the penal code itself and also when

13 talking about regulating command responsibility, that is to say indirect

14 command responsibility as in Article 3, omission to punish can be dealt

15 with within the scope of aiding and abetting a criminal after the

16 commission of a crime. And Article 28 deals with omission, and that is

17 one of the ways in which it can be dealt with.

18 As for the OSCE report and the pressures that perhaps may be

19 resent in the Croatian public and also the very own feelings of the

20 accused who are supposed to be tried before Croat courts, I must say

21 that, personally speaking, I don't think they'll feel any worse than they

22 felt until now; namely, any trial and any situation when you've been

23 charged with such grave crimes regardless of the court that you stand

24 before causes feelings of concern and anxiety. However, the social

25 situation in the Republic of Croatia have changed considerably,

Page 120

1 profoundly, over the past few years. Trials against the members of the

2 Serb minority are a matter of the distant past; we can put it that way

3 now. And they are the ones that figured most prominently before and they

4 were certainly below the level of acceptable standards of trial.

5 It also seems to me - and we've already said that this morning - that the

6 OSCE presented certain facts which certainly are not incorrect. The facts

7 that were mentioned are objectively speaking there. But I think that the

8 time dimension should be borne in mind, namely that certain things that

9 were unfavourable in the work of the Croatian judiciary are basically a

10 thing of the past. The new cases that the Croatian courts are hearing

11 now show that some headway has been made. We will not be taking too

12 great a risk if the case were to be referred to a Croatian court, the

13 Zagreb court to be precise, and of course justice will be done. That

14 does not mean that we are anticipating the verdict, whether we're talking

15 about conviction or acquittal. But we are satisfied that the proceedings

16 will be fair and that justice will be done in a professional manner.

17 JUDGE ORIE: Yes, that's what you wanted to submit, Mr.

18 Prodanovic?

19 MR. PRODANOVIC: [Interpretation] If I will have no other

20 opportunities to speak, Your Honour, perhaps I should add two more

21 sentences to what I've already said or would you like to ask us to make

22 some final statements in conclusion? So this is it?

23 JUDGE ORIE: Please proceed. Whatever you would like to say,

24 because otherwise we might end up in repetition.

25 MR. PRODANOVIC: [Interpretation] Very well. I'm not going to

Page 121

1 repeat myself and I'm not going to say many new things. But anyway,

2 after today's hearing I'm absolutely confident that all the prerequisites

3 are there for the referral of this case to the Republic of Croatia, both

4 in terms of the gravity of the crime and Brigadier Ademi at the given

5 time, that is to say, the position he held in the military hierarchy.

6 There is a new closing strategy, completion strategy, and quite simply

7 the Tribunal will not be able to try all the cases that are here. I also

8 concur with the proposal made by the Prosecution and they provided

9 arguments to that effect. In a way I understand their ambivalent

10 position. On the one hand they have to defend the indictment and the

11 seriousness of the charges, and on the other hand that newly established

12 criteria have to be met. However, it seems to me that the Trial Chamber,

13 especially after having heard the representatives of the Republic of

14 Croatia and the amicus curiae has been assured that the Croatian

15 judiciary is absolutely capable of dealing with this at a proper level.

16 And the normative preconditions are there, too, namely the relevant

17 provisions are there for carrying out the trials in Croatia.

18 Thank you.

19 JUDGE ORIE: Thank you, Mr. Prodanovic.

20 Mr. Olujic.

21 MR. OLUJIC: [Interpretation] Thank you, Your Honours.

22 In our written submissions we have explained in detail the

23 reasons why we believe that this case should be referred to Croatian

24 courts for further processing. And virtually we agree regarding the

25 basic views presented by the Prosecution.

Page 122

1 In scheduling this hearing a rather interesting legal synthesis

2 has been achieved, and that is that on one hand we had Professor Krapac

3 as a par excellence expert for procedural law and the government of the

4 Republic of Croatia engaged a professor of substantive law. And all the

5 arguments presented today can actually be reduced to the basic conclusion

6 that this case should be referred to the Croatian courts.

7 One of the members of the Chamber and the president of the

8 Chamber this morning asked me a question which I will try to answer. Of

9 course there's always some skepticism. We are lawyers; theory is

10 wonderful, practice, too, up to a point. But there's always a certain

11 doubt. And I think that this dilemma - and I consider it to be an

12 academic issue - should not cause any suspicion in our views, especially

13 if we look at the various charges and the questions put both by the

14 Chamber -- by members of the Chamber to the Prosecution and to

15 representatives of the Government of Croatia. And this concern was

16 included in the question that was put. And I would like to try and

17 answer it.

18 Certainly, Your Honours, no one can be convicted for acts or

19 charges which tempore criminus suspecti were not prescribed in his

20 country. However, the criminal legislation in Croatia has taken over the

21 punishment of all crimes envisaged by the Geneva Convention. And

22 punishment is envisaged both for the prosecutors and for those who

23 ordered the prohibited act.

24 Now, the question arises as to Article 7(3), that is failure to

25 prevent, which is not explicitly mentioned. But, Your Honours, according

Page 123

1 to logic, not only in war but in war in particular, they are part of the

2 institute that is known as co-perpetration. A commander has the duty to

3 prevent any criminal action by his soldiers, and by failure to prevent or

4 to punish, he becomes a co-perpetrator according to the laws of my

5 country. Therefore, failure to punish a crime leads to new crimes and

6 instigation is punished equally as perpetration of crimes, especially war

7 crimes, when many soldiers may be watching what their commander is doing.

8 And of course this is punishable and of course this is part of the

9 overall structure of Croatian criminal law.

10 Of course the Chamber has also asked the Defence what our

11 positions are regarding some conclusions from the OSCE report. As

12 Defence counsel for Colonel Norac, I would like to point out with respect

13 to that report that actually these are only excerpts from the report and

14 one doesn't realise the actual context. All this is merely statistics.

15 Therefore, without taking too much time, it is my submission that all the

16 preconditions have been met for this criminal case, this consolidated

17 case against Ademi and Norac should be referred to the Croatian courts.

18 And I do not wish to be repetitious and refer to monitoring and all the

19 other forms of control that exist for the Tribunal to take back the case,

20 should that be necessary. Of course, I do not believe that that will be

21 necessary.

22 The legislative structure from 1993 is fully compatible with the

23 crimes that my client is being charged with. Of course the actual facts

24 and everything else will be produced during the legal proceedings

25 regardless of whether the judgement is acquittal or conviction.

Page 124

1 Thank you, Your Honour.

2 JUDGE ORIE: Thank you, Mr. Olujic.

3 Professor Krapac, I would like to give you an opportunity also to

4 add whatever you would like to add. And I would put one question in this

5 respect to you: We have been provided with later reports by the OSCE in

6 which some case law by the Croatian Supreme Court is mentioned. The case

7 of Republic of Croatia versus Milijan Strunjas and the Republic of

8 Croatia in what is called the Vila Vidiva [phoen] case.

9 It appears from the way it is presented that the Supreme Court

10 used Articles 86 and 87 of Protocol 1 of the Geneva Conventions, at least

11 I take it that they were referring to the protocol rather than to the

12 conventions themselves, that used it to establish an obligation to act

13 but did not use it as a direct basis for criminal liability. If you

14 could include that in your final observations, the Chamber would highly

15 appreciate that.

16 MR. KRAPAC: [Interpretation] Your Honour, you're mentioning a

17 judgement of the Supreme Court of the Republic of Croatia which is quoted

18 in the OSCE report. I have tried -- after receiving the Prosecution's

19 submission dated the 7th of February, I tried to find that judgement from

20 he Supreme Court of the Republic of Croatia. They have an electronic

21 database which became operational about a year and a half ago, if I

22 remember well, but it is still not complete. And the judgement that you

23 mention I'm afraid I couldn't find in the database. And I didn't have

24 time to obtain it in paper form so that I am unable to comment on that

25 judgement unless, perhaps, the government of the Republic of Croatia may

Page 125

1 be able to do that.

2 But in preparing for today's hearing I came across another

3 decision of the first instance court in Bijelovar which was later

4 confirmed from the Republic of Croatia from 1999. And that decision was

5 commented on later in our professional literature on criminal law. True

6 enough, it does not relate to command responsibility for a war crime, but

7 it does relate to a criminal offence of illegal arrest. And in this case

8 the liability of the commander was adjusted to the provisions on

9 non-action or omission to act. I think this is an example of how

10 Croatian courts at the first instance and the Supreme Court implement

11 provisions on command responsibility. This was a case in which a

12 commander of a prison was convicted because he did not release illegally

13 -- an illegally arrested person in November 1991 and the guards treated

14 this person in a cruel manner. And also he was wounded when endeavouring

15 to escape and he was convicted for failure to act.

16 And the court came to the conclusion that the commander of the

17 prison had the real power in that prison where this victim was detained

18 and also at a certain point in time he did halt the mistreatment of the

19 victim in prison that the guards had caught trying to escape, but he did

20 not fully prevent further mistreatment and efforts -- the person was

21 threatened. He tried a second time to escape. He was seriously wounded

22 and sent to hospital.

23 In the sentencing of this prison commander, the court came to the

24 conclusion that he ignored information on the illegal conduct of the

25 guards which was indicative of this criminal offence of illegal arrest

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1 and cruel treatment of the victim, and he tried to stop such behaviour as

2 a superior in the police on the basis of his command position had the

3 duty to prevent criminal offences by his subordinates. And as he failed

4 to do that, the court came to the conclusion that he was liable as a

5 perpetrator who, through failure to act, even though there were

6 perpetrators who actually acted but they were not identified and they

7 couldn't be prosecuted. This is an example from judicial practice that I

8 managed to find in the short time available to me.

9 As for the others referred to in the OSCE report, I'm afraid I

10 cannot comment on at present.

11 JUDGE ORIE: Thank you. Is there any further matter you would

12 like to address or is it --

13 MR. KRAPAC: [Interpretation] Is this some kind of closing

14 statement on the part of the amicus?

15 JUDGE ORIE: Yes. Take your time to raise whatever you would

16 like to raise at this moment.

17 MR. KRAPAC: [Interpretation] I may have erred in the expression

18 used, because according to the law the closing submissions is an

19 opportunity given to the parties at the end of the proceedings to try and

20 bring some influence to bear on the Trial Chamber to decide in their

21 favour. For amicus curiae, that is not unnecessary because there's no

22 need to try and persuade somebody of something that his friend is telling

23 him. There are just two things very briefly that I should like to

24 comment on.

25 It is our submission, Your Honour, our opinion that the

Page 128

1 Prosecution's decision to propose the application of Rule 11 bis does not

2 mean the introduction of any new criteria for selecting criminal

3 prosecution of people who will be prosecuted in this court and those who

4 will not be prosecuted at all. The Prosecution representative Mr. Scott

5 himself said that if a decision is made to refer the case, the

6 Prosecution will watch very closely over what is happening to the

7 referred case and how the state prosecution in the Republic of Croatia is

8 acting in that given case, in the instant case. Therefore, any fear that

9 this could mean refraining from prosecution in order to achieve some kind

10 of economy in proceedings is out of place. And I think this should be

11 pointed out, not only for our own benefit but for the general public as

12 well. That is the first point.

13 The second, Your Honour, I'm still upholding the position which I

14 tried to intimate when I quoted the opinion of Judge Orie in his comment

15 of the Rome Statute. It is still my opinion that your decision to

16 possibly refer the case to the Republic of Croatia in accordance with

17 Rule 11 bis, and I shall now quote in English will represent only a

18 general framework.

19 [In English] "The smooth functioning of which will depend

20 ultimately on the procedural protagonists, especially the Judges."

21 [Interpretation] Therefore, if through this debate today we have gained

22 some confidence towards the judges in Croatia, and especially judges in

23 these four specialised courts which have undergone appropriate training

24 and attended courses together with representatives of the ICTY and

25 others, I believe that your decision, Your Honour, in this case should be

Page 129

1 an easy one after all.

2 JUDGE KWON: If I could ask some minor questions I omitted in the

3 previous session.

4 Professor Krapac, it's -- I'm sorry all the questions are pointed

5 to you, but it may be due to the courtesy of the representative of

6 Croatia, but I will leave them at liberty if they wish to answer to my

7 question.

8 Page 8 at the bottom of your -- at the first paragraph you

9 referred to a crime of aiding a perpetrator after the crime and failure

10 to report a crime. If you could tell us the statutory sentence or the

11 scope of punishment possible, according to those provisions.

12 MR. KRAPAC: [Interpretation] Your Honour, Judge Kwon, may I quote

13 the provisions of the law from 1993, then I'm going to refer to Article

14 22, which reads as follows: "Whoever aids anyone in the commission of a

15 crime shall be punished as if he committed it himself or can receive

16 milder punishment."

17 That means that if the court declares someone guilty of aiding

18 and abetting, the court --

19 JUDGE KWON: Professor Krapac, you referred to Fundamental

20 Criminal Statute of Croatia, Article 116 and criminal code of Croatia

21 Article 176. If you can find those Articles, you can forward them later.

22 MR. KRAPAC: [Interpretation] That is what I meant to do, to quote

23 Article 120. But Article 22 that pertains to aiding is in the so-called

24 general part of that law, whereas 120 and the other ones are in a

25 separate part that only contain a list of crimes and the punishment

Page 130

1 envisaged.

2 May I just add one more sentence: "A judge who finds someone

3 guilty of aiding the commission of a crime has the power to mete out

4 punishment which is equal to that -- mete it out to the perpetrator."

5 That is to say, that if Article 120 envisages a minimum sentence of five

6 years imprisonment, up to 20 years imprisonment as a maximum sentence,

7 then he can punish him with any sentence within that scope.

8 JUDGE KWON: I'm afraid you're not following my question. Do you

9 have your report with you? Amicus report?

10 MR. KRAPAC: [Interpretation] Yes.

11 JUDGE KWON: If you could draw your attention to page 8 of your

12 report. The last line of first paragraph in English page you say:

13 "Article 116 of FCSC and Article 176 of CAC."

14 MR. KRAPAC: [Interpretation] Correct. I focused on the basic

15 question of aiding and abetting and the possibility of punishing an aider

16 and abetter if a causal relationship can be established in terms of the

17 commission of the principal crime, whereas you have referred to a

18 different case when this is not possible. In such a case, then the

19 conduct of that behaviour falls under a different part of the criminal

20 law. That is Article 116 that you referred to just now. If you do not

21 have the Article in question here, I can read it out. But if you believe

22 that is not necessary, we can provide actual copies subsequently.

23 May I just mention that according to Article 116, the punishment

24 envisaged is between one and ten years' imprisonment.

25 JUDGE KWON: Thank you.

Page 131

1 My next question is related to the limit to the duration of

2 preliminary detention. I wonder, the meaning preliminary has the same

3 meaning of pre-trial, whether that -- am I correct in so understanding?

4 Does that limit also apply to the trial period or not?

5 MR. KRAPAC: [Interpretation] Yes. According to the provisions of

6 the current law there are time limits in terms of what you call

7 preliminary detention until a verdict is passed. Therefore, these time

8 limits of preliminary detention are actually calculated twice. In the

9 preliminary proceedings, in the pre-trial proceedings, there is one

10 particular limit; and then from the moment when the trial begins and

11 until the very end, until the passing of the verdict, there is a

12 different amount of time that may be spent in preliminary -- in

13 detention. We thought that in the preliminary proceedings before the

14 actual trial begins, the time spent in preliminary detention could be

15 calculated according to the special law on preventing corruption and

16 criminal behaviour. That had to do with the preliminary procedure

17 involved.

18 JUDGE KWON: Let me be clear: Do you have to finish the trial in

19 a year's time from the date of his arrest?

20 MR. KRAPAC: [Interpretation] No.

21 JUDGE KWON: Thank you.

22 My last question is: Could you turn to page 17 of your report,

23 or rather, from the bottom of page 16, which is a part of your summary of

24 argument. There you said: "Nevertheless there would be no problem under

25 the existing Croatian law to convict a commander for failure to prevent a

Page 132

1 crime, provided that he knew that the crime was in preparation."

2 And then you go on to say: "And even if he did not know that the crime

3 of his subordinates was foreseeable he could still be liable on the basis

4 of a type of culpability that shades into advertent form of negligence."

5 Is it a fair description or summary of what is stated in the main text?

6 MR. KRAPAC: [Interpretation] I think that the answer is yes

7 because we tried in two or three sentences to actually summarise what we

8 wrote about what mens rea is about as far as command responsibility is

9 concerned.

10 May I just add one more point. A key question that will be

11 raised here is the question of evidence. Will the Prosecution or the

12 state attorney's office in Croatia have proper evidence in their hands

13 which will be conducive to this possibility of establishing that a

14 commander knew of crimes that were being prepared and committed, or even

15 if he did not know, could he have known about that, or rather could he

16 have foreseen that these crimes could have been committed. If the

17 Prosecution has evidence to that effect, the court will not have any

18 obstacles in the path of reaching such a verdict.

19 JUDGE KWON: Thank you, Professor.

20 JUDGE ORIE: Professor Krapac, I'm a bit ashamed of myself. You

21 have drawn the attention two times to a quote of myself. I think the

22 parties are entitled to know the context, so if you could provide them

23 the context in which I wrote or said that, and this would certainly help

24 me to find it for myself as well, because it's not clear in my

25 recollection anymore. But I take it that the quote is correct.

Page 133

1 Then I'd now finally like to ask the representatives of the Government of

2 Croatia to address this Chamber.

3 Professor Horvatic, I would invite you also to perhaps pay a

4 little bit more attention to the phrase you used twice when you were

5 referring to a statement or a document not known to me but two times you

6 used the phrase that for the most part the problems covered by Croatian

7 law. Of course my concern is: What happened with that part which is not

8 -- which does not belong to that most part. And I earlier invited you to

9 give us further information to extend possible on the statistics on the

10 performance of Croatian courts in view of the criticism expressed before

11 by the OSCE, because if taken knowledge of your general approach but if

12 there's any more detailed material. And I also invited you before the

13 break to give us some more information on the practical application of

14 the legislation which has been adopted in view of witness protection.

15 Please proceed.

16 MR. HORVATIC: [Interpretation] Thank you for your questions, Your

17 Honour.

18 First of all, talking about statistics I personally and as a

19 representative of the government believe that statistical data are

20 sometimes such that even when we expect them to provide an answer they

21 are very unreliable bases for such an answer. Insight into each and

22 every case was for me the basic source of knowledge. I'm resolutely

23 against statistical data regarding the number of acquittals or

24 convictions being used for any kind of judgement about any kind on this

25 globe. Only insight into the file and the final judgement of the court.

Page 134

1 Is it possible to scientifically comment on the application of the law?

2 And when certain reports, such as those mentioned here, refer to

3 first-instance judgements which the second-instance court in the Republic

4 of Croatia, that is the Supreme Court, reversed or rescinded, then my

5 understanding was not that this was criticism of the conduct of the

6 first-instance court, but rather an expression of the way in which the

7 judicial system in Croatia is functioning and that the final decision

8 rests with the Supreme Court.

9 The number of cases processed before Croatian courts could be

10 divided, as we heard this morning and the afternoon, into two time

11 periods. The second period that covers the last two or three years, it

12 is difficult to be more precise in terms of days and months, but this is

13 a period of a definitely different approach resulting from education,

14 realisation, and the approach of Croatia to meeting the higher standards

15 of the rule of law. And when that even a young country, if counted from

16 the moment when it became independent, has shown to have matured in all

17 respects of state powers, executive, legislative, and judicial in

18 particular.

19 As regards witness protection, I take the liberty of drawing

20 attention to our report. The second from January this year and on page

21 15 under the heading, I'm quoting the law: "The Witness Protection Act

22 of October the 1st, 2003, People's Gazette, 163 -- [In English] And all

23 articles contained. I must say, and I'm fully convinced that this act is

24 not only in accordance with similar acts in other countries, but it is

25 also in accordance with the spirit and the behaviour and the sources in

Page 135

1 this court.

2 So this Witness Protection Act --

3 JUDGE ORIE: Professor Horvatic, perhaps I have not been clear

4 enough in my question. The law is quite clear. It's -- in full detail

5 it has been presented as an annex with all the different temporary

6 measures or final measures, relocation, everything's there. But the

7 question was mainly, and I could have put that question to Professor

8 Krapac as well because he also did not elaborate that much on the

9 application of that law, the -- is it already used in practice, what are

10 the results? That's what I was mainly interested to hear about.

11 MR. HORVATIC: [Interpretation] Yes, Your Honour. I can say that

12 in the Ministry of Interior and the Ministry of Justice, a special

13 service has been set up to implement this law. We have had several cases

14 in connection with organised crime. We had several cases connected to

15 war crimes, and I'm quite confident that only now if the case is referred

16 and if the need arises for witness protection, only then will the

17 implementation of that law come fully into practice. The state of

18 Croatia guarantees that that law will be implemented organisationally and

19 in actual fact. It is in our interest, as opposed to some other laws

20 which may be of lesser significance, and we have certain difficulties in

21 implementing them of an organisational and financial nature, this law

22 certainly has priority.

23 Allow me to use this opportunity to respond to some questions

24 from the secretariat if I may, from the registry, Your Honour.

25 JUDGE ORIE: Yes, you may. May I understand that where the

Page 136

1 Prosecution on page 5 of the January [sic] submissions said that this

2 legislation is not well tested yet, that that's to some extent true. And

3 that as a matter of fact this first referral case might be the test case

4 for the application of this Witness Protection Act? Because you were

5 rather vague in your answers that by saying in some organised crime cases

6 and in some war crime cases -- I mean, the system works upon an

7 application to be decided by this committee. How many applications have

8 been made in war crime cases?

9 MR. HORVATIC: [Interpretation] In war crimes, to the best of my

10 recollection, there were two requests and they were withdrawn because

11 those witnesses did not appear at all. That is as far as I can remember

12 about war crimes.

13 But the service for witness protection that has been established,

14 including identity protection, this service in the Ministry of Internal

15 Affairs and the Ministry of Justice is there on a stand-by basis should

16 such a request be made indeed in this referral case or in any other.

17 That is why I'm saying that the Croatian state guarantees that the law

18 will be implemented. We don't have enough experience to be able to give

19 you the number of cases that we have had to apply this law. We had three

20 cases in crime prevention when this law was applied, but all the services

21 are in place and it is quite clear what needs to be done at a given

22 moment.

23 JUDGE ORIE: [Previous translation continues]...

24 MR. HORVATIC: [Interpretation] Thank you.

25 JUDGE ORIE: Please proceed.

Page 137

1 MR. HORVATIC: [Interpretation] Regarding the question by the

2 registry about the transfer of the file and the material, an answer has

3 partially been given because Rule 11 bis provides for this and you quite

4 correctly said that the Prosecution is duty-bound to provide the court

5 with all the necessary material and especially supporting material with

6 the indictment. As to whom this material will be given and in what way,

7 our answer at this moment would be primarily to the public prosecutor, to

8 the state prosecutor in Croatia.

9 We're a bit skeptical with respect to any delivery of material

10 electronically because this can cause certain problems which we are

11 already encountering and which have been informed about by Defence teams

12 in this Tribunal. There's so much material so that delivery and copying

13 and selection of that material can be of course of difficulty. So I

14 would suggest that the Prosecution and our prosecutor's office could

15 easily come to an arrangement through a liaison officer as to how this

16 should be done.

17 And finally, the question of testimony by persons enjoying

18 immunity. This may not be acceptable for the Court if I say: If that

19 should occur then the instruments legally available will be resorted to.

20 But I believe that the Croatian judicial system, as it has done in

21 relation to persons with diplomatic immunity which could have testified

22 in other cases that are not related to these were very cautious and

23 preferred to give up that witness than place him in a position which

24 could deprive him of diplomatic immunity. So I think the matter will be

25 discussed, should it arise.

Page 138

1 And finally, fully agreeing with what Professor Krapac as an

2 amicus has said, I as a representative of the government also should not

3 have any closing argument to offer. But at the end of this very tiring

4 day for you and for us, I would like to say that in this courtroom,

5 regardless of the outcome and your decision, which I hope will be a

6 positive one and will be in favour of the Prosecution, in doing so we

7 would be taking a step forward in the development of international

8 criminal law. And I assure all those with any interest in the matter and

9 above all this Trial Chamber, that the Republic of Croatia is -- will

10 accept and take over the indictment and the case with the highest

11 possible responsibility. We're obliged to do this for many reasons, but

12 one which I consider to be of the greatest importance is the one listed

13 under (F) of Rule 11 bis, and that is: "At any time after an order has

14 been issued pursuant to this rule and before the national court acquits

15 or convicts the accused, the Trial Chamber may at the request of the

16 Prosecutor, and upon having given to the state authorities concerned upon

17 it opportunity to be heard, revoke," that is the point, revoke the order

18 and make a formal request for referral under the terms of Rule 10. If

19 this were to happen, and the Croatian government and its judiciary will

20 do everything it can to avoid it, then this would send a very bad message

21 for The Hague Tribunal, which we respect, and for the Croatian judiciary.

22 That is why very seriously and with full responsibility we shall

23 participate in this undertaking which has been embarked upon and when

24 cases will be distributed to other courts as well, I hope will be

25 successfully completed to the benefit of mankind, helping to avoid the

Page 139

1 horrors committed through war crimes and crimes against humanity.

2 Thank you.

3 JUDGE ORIE: Thank you very much, Professor Horvatic.

4 May I ask for one clarification. You said in relation to

5 immunity and in response to one of the observations made by the

6 representative of the registry, you said: "The question of testimony by

7 persons enjoying immunity, this may not be acceptable for the Court if I

8 say if that should occur then the instruments legally available will be

9 resorted to."

10 I did not fully understand what court you were specifically

11 referring to, whether it was this court or the -- one of Croatian court

12 and what instruments legally available you were referring to. If you

13 could please explain that in order to avoid whatever misunderstanding.

14 MR. HORVATIC: [Interpretation] A representative of the registry

15 of this Tribunal, among the questions and problems highlighted in

16 connection with referral mentioned testimony of certain persons with

17 immunity from this Tribunal should they be called to testify in a

18 Croatian court in connection with the referred case. And my response was

19 that as for the two, when certain persons that do enjoy immunity in other

20 cases, but not war crime or crimes against humanity, may be in some very

21 low-level slander or something like that, every effort was made to avoid

22 questioning people with immunity. So I believe that they will not insist

23 on such persons testifying unless it is of absolute crucial importance to

24 establish the guilt or innocent. So no request would be made to remove

25 immunity from persons who may be called to testify. But I also added

Page 140

1 that one cannot foresee things but that one would always act, that we

2 would act in accordance with the rules. So this is something that never

3 really occurred to me, but as the representative of the registry

4 mentioned it, I felt it my duty to comment on it.

5 There were some other administrative questions such as liaison

6 officers, et cetera, I think that this all can be resolved very simply

7 through contact with the Ministry of Justice and the state attorney. And

8 I think that we have experience with cooperation of this kind hitherto as

9 well. Our own attorneys have provided assistance to the Prosecution.

10 And after a telephone call or an e-mail, these things can function

11 easily.

12 JUDGE ORIE: I would like to say a few words about that because

13 there might be some misunderstanding. And if, Mr. Rohde, I have

14 misunderstood your comments, please tell me.

15 I understand it is a general UN policy which is written down in

16 instruments that UN employees for reasons of their safety and apart from

17 that also for reasons to not -- not to be obstructed in performing their

18 duties in the future, that the UN requires whatever court before calling

19 a UN employee as a witness to request that immunity will be lifted. It

20 is the experience at this Tribunal that if you keep a close eye on the

21 interests involved, that the United Nations usually has an open eye for

22 the needs of court to hear testimony of witnesses. So it's the

23 experience in this court at least that usually an agreement can be

24 reached so that the court will have available the necessary information

25 for making its determinations and, at the same time, that the interests

Page 141

1 of the UN and the safety of UN employees is sufficiently guaranteed.

2 Mr. Rohde, if I misunderstand the position, then please tell me.

3 MR. ROHDE: Your Honour, thank you for the statement. No, you

4 interpreted this correctly. The only point that was important for us

5 that Croatia recognises the immunity but of course is aware of the

6 possibilities to waive such immunities.

7 JUDGE ORIE: Thank you. Thank you, Mr. Rohde.

8 I take it that everything has been said, asked, and answered what

9 we thought that would need to be said, need to be asked, and need to be

10 answered.

11 Since I see no nodding "no," I'd like to conclude this hearing.

12 We have paid attention to those requirements under Rule 11 bis of this

13 Tribunal, especially gravity and the level of responsibility. We have

14 not even touched upon others which are, I would say, self-explanatory,

15 which do not need any attention. We have also paid broader attention to

16 the question of whether the applicable substantive law of Croatia, if the

17 case would be referred, whether that substantive law would cover the type

18 of conduct and the type of responsibility for which the accused were

19 charged before this Tribunal. We have spent ample time on the procedure,

20 the criminal procedure in Croatia, both on the abstract level and on the

21 concrete level, and have addressed the question whether it has reached or

22 is at a level which would allow the Tribunal to refer cases or at least

23 this case with full confidence. We've also raised issues in respect of

24 the relation between this institution, the International Criminal

25 Tribunal for the former Yugoslavia, and the Croatia courts once the case

Page 142

1 would be referred, but as long as no final judgement has been delivered.

2 The Chamber is grateful for the parties in assisting the Chamber

3 in preparing a decision. The Chamber is also grateful for the

4 representatives of the Government of Croatia, Professor Horvatic, Mr.

5 Muljacic, and Mr. Milevoj, to have informed the Chamber and to have

6 answered all the questions we have put to you. And finally, the Chamber

7 would like to thank Professor Krapac for acting as an amicus, and through

8 his observations he made perfectly clear that he fully understands what

9 it means to be a friend of the court, that is no closing argument but

10 finally in the final submissions to draw the attention to those matters a

11 friend should know.

12 We invite you, Professor Krapac, to also thank Professor Damaska

13 for having contributed and having participated in the preparation of the

14 amicus curiae brief.

15 Finally, I'd like to draw the attention of the parties but also

16 of the Croatian government and the amici curiae that Rule 11 bis has been

17 amended on the 11th of February. The amendment has been published on the

18 15th of February and enters into force - so it's not in force yet - on

19 the 22nd of February. It's just for your information that I draw your

20 attention to that.

21 The Chamber will consider the matter. The Chamber will see

22 whether it will deliver a decision right away or whether it needs further

23 information in due course. You will either receive a decision or you

24 will be addressed in another way if the Chamber thinks that a final

25 decision cannot yet be made at this moment.

Page 143

1 We stand adjourned.

2 --- Whereupon the hearing adjourned at 4.28 p.m.

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