1 Friday, 13 October 2006
2 [Rule 11 bis Hearing]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 4.04 p.m.
6 JUDGE ORIE: Good afternoon. Madam Registrar, would you please
7 call the case.
8 THE REGISTRAR: Good afternoon, Your Honours. This is case number
9 IT-96-23/2-PT, the Prosecutor versus Dragan Zelenovic.
10 JUDGE ORIE: Thank you, Madam Registrar.
11 We're here today for a hearing under Rule 11 bis. May we have the
12 appearances. Prosecution first.
13 MS. SOMERS: Good afternoon, Your Honours; counsel. For the
14 Prosecution, Susan Somers; to my left, Mr. Aleksandar Kontic, legal
15 officer; to my right, extreme right, Ms. Verica Balikic, case manager;
16 assisted by Mr. Greg Bodulovic.
17 Thank you.
18 JUDGE ORIE: Thank you.
19 And for the Defence.
20 MR. JOVANOVIC: [Interpretation] Good afternoon, Your Honours. I'm
21 attorney-at-law Zoran Jovanovic from Belgrade appearing on behalf of
22 Mr. Dragan Zelenovic.
23 Thank you.
24 JUDGE ORIE: Thank you. And then we have a videolink with
25 Sarajevo. Perhaps I should have first have checked whether the -- I do
1 not receive interpretation at this moment, but -- yes.
2 Could you please introduce yourselves from Sarajevo. That's --
3 you're representatives of the -- of Bosnia and Herzegovina. Please
5 MS. BASIC: [Interpretation] Yes. Your Honours, on behalf of the
6 government of Bosnia and Herzegovina and the delegation of Bosnia and
7 Herzegovina, we would like to thank the Referral Chamber for allowing us
8 to participate via videolink.
9 I would now like to introduce to you the members of the
10 delegation. Mr. Emir Neradin, registry office for section 1 and 2 of the
11 court of Bosnia and Herzegovina; Ms. Mechtild Lauth, office of the
12 registrar for department 1 and 2 of the court of Bosnia-Herzegovina;
13 Mr. Philip Alcock from the Prosecutor's office of Bosnia and Herzegovina;
14 Ms. Stephanie Godart of the Prosecutor's office of Bosnia and Herzegovina;
15 and I as head of the delegation, Fatima Basic come from the Ministry of
16 Justice of Bosnia and Herzegovina.
17 JUDGE ORIE: Thank you, Ms. Basic, for introducing yourself.
18 Mr. Zelenovic, I had not yet asked you whether you could hear us
19 in a language you understand. Yes, you can?
20 THE ACCUSED: [Interpretation] Yes. Yes.
21 JUDGE ORIE: Mr. Zelenovic, it maybe clear that additional
22 opportunity will be given to the parties now and to the government of
23 Bosnia and Herzegovina to add whatever they would like to add to their
24 written submissions. You may remain seated.
25 I had in mind to give a short opportunity to the Prosecution to
1 make any further submissions, or to reserve their time, as you have done
2 before, I take it, I remember, Ms. Somers, to say, well, nothing to be
3 added at this moment, but I'd like to have some time at a later stage. I
4 think that altogether some 20 minutes would do.
5 Would you like to add anything at this moment, Ms. Somers, or
6 would you rather reserve your time?
7 MS. SOMERS: May I reserve, please?
8 JUDGE ORIE: Yes.
9 MS. SOMERS: Thank you.
10 JUDGE ORIE: So 20 minutes still available to Ms. Somers.
11 Mr. Jovanovic, is there anything you'd like to add to the
12 submissions you've given already and annexes attached to it, or if you
13 would like to summarise at this moment? You have also -- altogether you
14 have 20 minutes available to -- and if there is any need, if there is a
15 lot of new stuff, then of course you could apply for more time.
16 Anything you'd like to add or to summarise?
17 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.
18 Very briefly, given that all of the arguments of the Defence were
19 included in our motion on the 22nd of September, now I would just like to
20 briefly point out some additional issues which were contained in our
21 motion, but I would like to give you additional clarification. Not even
22 in relation to all of the points, just some of the points. I can do it at
23 any time that the Chamber deems convenient.
24 JUDGE ORIE: If you want to give any additional clarification,
25 you're invited to do that right now.
1 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.
2 Your Honours, as I have stated, the arguments of the Defence are
3 contained in our written motion. In a way, the Defence found itself in a
4 situation where we not only challenged the arguments listed by the
5 Prosecution in this referral case, but we also had to challenge some other
6 decisions issued here at ICTY in the case against Stankovic and Jankovic,
7 which is a bit of an awkward situation.
8 I would now like to point out some of the issues that I consider
9 relevant. I am fully aware of the position taken previously by the
10 Referral Chamber about the fact that there exists in Bosnia and
11 Herzegovina a court that can accept the cases referred by the ICTY and
12 that there are no impediments for cases being tried there. What I think
13 needs to be further clarified, and perhaps additional clarification can be
14 given by the representatives of Bosnia and Herzegovina, is the application
15 of the law.
16 In Stankovic and Jankovic cases, the Referral Chamber already took
17 the position considering the law that is to be applied, whether it is
18 going to be the law of the SFRY, which was in force at the time when the
19 crimes were committed, or whether it is going to be the law on criminal
20 law of Bosnia-Herzegovina, which was adopted in 2003, the Criminal Code of
21 Bosnia-Herzegovina. And in Annex I of Defence submission, I attached the
22 indictment issued by the prosecutor of the Brcko district dated the
23 13th of July, 2005, which is to say at the time when the state court of
24 Bosnia and Herzegovina and the war crimes chamber in Sarajevo had already
25 been established and when the new Criminal Code of Bosnia and Herzegovina
1 had already been adopted, the code with amendments, particularly those
2 pertaining to Article 4(A) of the Criminal Code.
3 I would like to draw the attention of the Chamber to the fact that
4 this was the case referred by the Prosecution of this Tribunal to the
5 Brcko district. The OTP here did not issue an indictment. However, they
6 completed the entire investigation and referred the case to Bosnia and
7 Herzegovina. The decision of the Prosecution was quite clear. They
8 qualified the crimes in that indictment in the light of the law that was
9 in force at the time when the crimes were committed, which was the
10 Criminal Code of the SFRY.
11 I additionally emphasise that --
12 JUDGE ORIE: Yes, Ms. Somers.
13 MS. SOMERS: I'm sorry. I beg your pardon for interrupting at
14 this time. But in order -- at this moment so that there is no
15 misunderstanding, it was not a referral by the Office of the Prosecutor.
16 At best, it was a Rules of the Road case. It is not a referred case. So
17 the language I think needs to be clarified considerably.
18 JUDGE ORIE: Yes. Mr. Jovanovic, Ms. Somers draws our attention
19 to the fact that it was not a referred case but that it was a case
20 which -- I understand the Rules of the Road with the full consent of the
21 OTP was dealt with by a court in Brcko and not by this Tribunal. They
22 gave the green light to have the case prosecuted over there.
23 Unless you would disagree, you're invited to proceed.
24 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.
25 Naturally this was a case where the indictment had not yet been
1 issued by this Tribunal. However, the evidence accompanied by the letter
2 of the Prosecutor was sent to Bosnia, to the Brcko district. This was not
3 a case where -- this was not a case of a referral under 11 bis. I fully
4 agree with that.
5 This case pertain to the events in the Luka camp in Brcko. Goran
6 Jelisic was convicted by this Tribunal for the same events, and in this
7 case the same events were included. So as I said, as long as the law of
8 Bosnia and Herzegovina was in force, the Prosecution of Bosnia and
9 Herzegovina qualified these acts, among other things, in Count 4 -- or,
10 rather, in Count 6 of the indictment as rape and other acts based on
11 Article 4.
12 Article 4 speaks of the principle of legality and the principle of
13 lex mitior, that is to say that, namely, the law more beneficial to the
14 accused needs to be applied. The different approach taken by the
15 Prosecution in Bosnia and Herzegovina, even though it concerns in this
16 case the Brcko district, can lead to legal uncertainty; namely, the
17 accused finds himself in a situation where the Referral Chamber submits to
18 the Prosecution and to the Chamber in Bosnia and Herzegovina -- rather,
19 when they allow them to choose which law is going to be applied should the
20 case be referred. So the accused does not know in advance which law is
21 going to be applied.
22 I think that it is necessary to establish very clear criteria --
23 JUDGE ORIE: Mr. Jovanovic, this seems to be a big
24 misunderstanding. The only thing this Referral Bench has done in the past
25 is to make sure that whatever law will be applied in accordance with the
1 local legislation, the legislation in Bosnia-Herzegovina, not knowing
2 exactly what case law would develop, that there is nothing in either the
3 old law or in the new law which would result in a situation where the
4 applicable law would not enable to try these cases, without saying
5 anything on which law had to be applied, because it's not within the
6 competence of this Referral Bench to decide for the courts in Bosnia and
7 Herzegovina, how they should interpret their legal system, especially in
8 view of the applicability of law in terms of time.
9 So there's a consistent case law of this Referral Bench which
10 makes abundantly clear, I would say, that this Referral Bench is not
11 saying apply this law or apply that law. We're just having an overview
12 and see that no results could be expected which would be, our law does not
13 provide for the instruments which would allow to punish those who are
14 found guilty of the crimes covered by the indictment as it lies before
15 this Tribunal at this moment. That's the only thing we're doing.
16 So it seems that your argument was based upon a wrong
17 understanding of the task of this Referral Bench.
18 Please proceed and keep this in mind.
19 MR. JOVANOVIC: [Interpretation] Yes. Thank you, Your Honour.
20 At the outset of my presentation, I said that given the previous
21 rulings of this Chamber has established that there is a firm legal
22 framework in Bosnia-Herzegovina, regardless of which law is going to be
23 applied, be it the one which was in force at the time when the crime was
24 committed or the one that was adopted later, and this is all pursuant
25 Article 4(A).
1 The important distinction that I would like to draw your attention
2 to is the sentence which is provided in the law. At the time, when these
3 crimes were committed, the law which was in force when the crimes were
4 committed stipulated that the maximum sentence was 20 years, whereas the
5 new law specifies that the minimum sentence is 10 years and maximum
6 sentence is 20 to 40 years.
7 I just wanted to reiterate that regardless of the role of the
8 Chamber that you have just explained yourself, at the time when the
9 Chamber rules on whether this case is going to be referred to Sarajevo or
10 not, the accused finds himself in a situation where he doesn't know which
11 law is going to be applied. I think that Bosnia and Herzegovina needs to
12 establish clear criteria as to exactly which law is going to be applied
13 under those circumstances. Naturally, both laws facilitate unhindered
14 proceedings, and naturally there is a possibility that the charges would
15 be dropped and proceedings suspended.
16 Now, as to Bosnia and Herzegovina, I think that they need to
17 clarify the following: Once the case is referred and once --
18 JUDGE ORIE: Mr. Jovanovic, are you telling -- at this moment are
19 you saying that Bosnia and Herzegovina should clarify for this Referral
20 Bench, or are you saying Bosnia and Herzegovina should clarify in its
21 future case law, well, whatever you'd like to address? Is it relevant at
22 this moment for our decision, or is it just for future development in the
23 case law of Bosnia and Herzegovina?
24 MR. JOVANOVIC: [Interpretation] I think that in general their
25 position needs to be clarified. As for the jurisprudence of the Referral
1 Bench, it is quite clear.
2 JUDGE ORIE: Before we continue, we have some difficulties with
3 the videolink at least.
4 [Trial Chamber and registrar confer]
5 JUDGE ORIE: It seems to us that the videolink with Bosnia and
6 Herzegovina has been re-established. Did you miss important parts? Are
7 you long already deprived from what was said in The Hague?
8 Could I ask you, Ms. Basic, to inform me?
9 MS. BASIC: [Interpretation] Your Honours, we didn't miss anything.
10 We heard everything that was said, and we can even reply to the question
11 raised by the Defence.
12 In accordance --
13 JUDGE ORIE: I would first, as a matter of fact, give an
14 opportunity to Mr. Jovanovic to finish had his argument and then there
15 will be an opportunity to -- to make your observations in relation to
17 Mr. Jovanovic, I consulted with my colleagues. The future
18 development of case law in Bosnia-Herzegovina is not something that would
19 be very important, very relevant. We are looking forward to -- to see
20 what happens there, but it's not relevant for our decision at this moment.
21 So you are invited to proceed and to leave this.
22 One question, you said maximum sentence was 20 years under the old
23 law. Isn't it true that death penalty was the maximum sentence?
24 MR. JOVANOVIC: [Interpretation] Yes.
25 JUDGE ORIE: Then you're referring to the term of imprisonment
1 that could be imposed. Then that's well understood.
2 Please proceed.
3 MR. JOVANOVIC: [Interpretation] Yes, Your Honour, I was referring
4 to the term of imprisonment, because the 20-year imprisonment was in fact
5 a substitute for the death penalty. However, pursuant to further
6 developments, it became impossible to implement the death penalty any
8 I have nothing else to add, Your Honours. I would just like to
9 draw your attention to the fact that it is possible to qualify the act in
10 two different -- significantly different ways given the sentence envisaged
11 for that act, and that it would be beneficial if clear criteria were to be
12 established so that the accused know exactly, even though it's not going
13 to be contained in the decision as you stated, the decision only specifies
14 that it's possible to conduct the proceedings in Bosnia-Herzegovina.
15 However, I think that Bosnia and Herzegovina needs to establish very clear
16 criteria so that the accused knows which law is going to be applied.
17 JUDGE ORIE: Mr. Jovanovic, now I think for the third time you try
18 to revisit a matter on which I first said that it was based on a
19 misunderstanding, then I said it was irrelevant, and now you try it for
20 the third time, which is -- well, let's say not very intelligent to do.
21 Please proceed.
22 MR. JOVANOVIC: [Interpretation] No, Your Honours. I just
23 announced that this was it as far as my arguments were concerned in
24 relation to this issue.
25 As for all other directions given to the Defence as to stating our
1 position, it is fully explained in our motion dated the 22nd of September,
2 and I have nothing further to add to it.
3 Thank you.
4 JUDGE ORIE: We've read that carefully.
5 Ms. Basic in Sarajevo, I would like to give you an opportunity to
6 add anything you think of relevance to the submissions, the extensive
7 submissions, including case law, full text case law for us.
8 May I ask you also to keep in mind what I just said to
9 Mr. Jovanovic about the relevance of some of his submissions and that
10 further development of case law in Bosnia and Herzegovina is not within
11 the competence of this Chamber to further elaborate on.
12 Please proceed.
13 MS. BASIC: [Interpretation] Your Honours, we believe that given
14 the gravity of the crime and the level of criminal responsibility, this
15 case meets the criteria under Rule 11 bis for referral to the BH
16 Prosecutor, especially if we bear in mind the fact that the Stankovic and
17 Jankovic cases were referred and are being successfully tried, all the
18 more reason to back the motion to have this trial, too, referred to
20 As for the application of law, perhaps my colleague Mr. Neradin
21 can provide an answer to that.
22 JUDGE ORIE: Yes, Mr. Neradin, you're invited to deal with the
23 matter. Please keep in mind that of course this Referral Bench has
24 already received a lot of information and has in its decisions I think
25 also already explained what our role in this is.
1 Please proceed.
2 MR. NERADIN: [Interpretation] Thank you.
3 Given the fact that this is not what this hearing is really about,
4 all I can say is that the BH court has already established a body of case
5 law in a number of trials that have been completed so far. The Abduladhim
6 case, the Appeals Chamber of the BH court has passed a judgement in that
7 one. There are three other cases where we have sentences; in the
8 Samardzic, Simsic, and Paunovic cases. The court applied the Bosnia and
9 Herzegovina Criminal Code in these proceedings. These judgements have
10 already been forward and fully explained.
11 Thank you.
12 JUDGE ORIE: Yes. Thank you very much, because we have received
13 the full text of the judgements you're referring to now. I must admit I
14 have not read them in full yet but will do so before a decision will be
15 taken, that we are acquainted with these developments in the case law of
17 Is there anything else, Ms. Basic, you would like, or Mr. Neradin,
18 you'd like to add at this moment?
19 MS. BASIC: [Interpretation] At this point in time, I have nothing
20 to add. Thank you very much.
21 JUDGE ORIE: Yes. Then I am moving to you, Ms. Somers. You
22 reserved your time. We're now in the second round, more or less. Would
23 you like to make observations either in addition to what you have put on
24 paper already or in response to what the Defence or the government of
25 Bosnia and Herzegovina has submitted?
1 MS. SOMERS: Thank you, Your Honour. Just a couple of points and
2 very briefly.
3 JUDGE ORIE: Yes.
4 MS. SOMERS: With respect to what has been raised by my learned
5 friend opposite, Mr. Jovanovic, the case, just to set the record straight,
6 that was referred to in Brcko was not an OTP investigation. It was at all
7 times a Bosnian investigation. Strictly rules of road and received a
8 green light in August of 2000 for continued processing in
9 Bosnia-Herzegovina. So that there is no misunderstanding that it was not
10 subject to indictment here as was alleged on page 5, line 16, I believe,
11 in the record.
12 In terms of the level and gravity, which are the principal issues,
13 we stand, of course, on our submissions that this case falls squarely
14 within the contemplated level of the accused, lower to intermediate, and
15 the gravity of offence falls squarely as has been effectively confirmed by
16 this Bench and the Appeals Chamber in the sister case of Jankovic. The
17 fact that those cases are well under way provides a body of law that
18 should be allowed, as I understand it, to be applied to this case should
19 it be referred and allow for a speedy trial in Bosnia-Herzegovina in the
20 state court; that the designation of Bosnia-Herzegovina is correct as we
21 indicated in our submissions. There really should be no issue on that.
22 And that the direct perpetration, 7(1) charges, are the gravamen. There
23 is no 7(3) in this case as both we emphasise and BH.
24 If there is anything we can help the Bench with, please let us
25 know, but I think that we just want to stand on our submissions and
1 correct the record that was made today, as done.
2 JUDGE ORIE: Yes.
3 Mr. Jovanovic, is -- do you feel any need at this moment to
4 respond to what Ms. Somers just said?
5 MR. JOVANOVIC: [Interpretation] No, Your Honour. I believe the
6 matter has been clarified in relation to Annex I.
7 As for the other matter, this is something that has already been
8 raised by the Prosecution and the Defence has already replied to that.
9 JUDGE ORIE: Yes. Thank you.
10 [Trial Chamber confers]
11 JUDGE ORIE: I have one question for you, Mr. Jovanovic.
12 You're explaining in your submission that you're concerned about
13 witnesses living in Serbia which under the European Convention on Mutual
14 Assistance in Criminal Matters could not be forced to appear before a
15 court in Sarajevo and might not be inclined to go to Sarajevo. It is not
16 entirely clear to me what your -- what your concern is. Are you afraid to
17 lose them as witnesses at all, or are you concerned about the way in which
18 they'll bring their information, bring their knowledge of the events
19 before the court in Sarajevo?
20 MR. JOVANOVIC: [Interpretation] Your Honour, it's certainly not
21 the latter. I'm not concerned about that, what the witnesses might
22 possibly say before the court. It's only about the accessibility of
23 witnesses or their desire to respond to a Defence summons to appear in a
24 trial held before a Sarajevo court. There is the ECMACM that exists
25 pursuant to an agreement or a treaty signed between Bosnia and Herzegovina
1 and Serbia. This sort of assistance would be provided only in cases where
2 witnesses living in Serbia was in a position to testify via videolink at
3 the Sarajevo trial. It is pursuant to that agreement that the Belgrade
4 court would then make sure that all the conditions, technical conditions,
5 were in place for something like that to be done.
6 However, based on a brief preliminary investigation, there are a
7 number of witnesses potentially essential for our case who reside in
8 Belgrade. Any binding summons by a BH court, and this has been explained
9 on a number of occasions because in keeping with the BH Criminal Code it
10 is the duty of a witness to respond to a summons, which is the same as
11 applies in Serbia, and a failure to respond to a summons is liable for
12 penalty. However, a summons cannot be served on citizens of the Republic
13 of Serbia or those residing there.
14 JUDGE ORIE: Yes. That's all clear from your written submissions
15 already, but let me then be more concrete.
16 If they, even after you've explained to them, because you write in
17 your submission they are afraid of being prosecuted, I think the treaty as
18 such, do we agree on that, protects whatever witness who is called to
19 appear on the basis of this convention is -- has a, how do you say, has a
20 safe conduct if he appears? Do we agree on that?
21 MR. JOVANOVIC: [Interpretation] Your Honours, I apologise. I may
22 have misunderstood, but it is precisely safe conduct that was discussed
23 when the ruling was made in the Stankovic and Jankovic cases, and doubt
24 was cast on the possibility of their having such a measure implemented.
25 Let's say there is a person who is charged with specific crimes in
1 Bosnia-Herzegovina. If this person resides in Serbia, at the moment this
2 person reaches Bosnian soil this person will be arrested. So safe conduct
3 does not apply in this case. At least that's my position.
4 JUDGE ORIE: Yes, that's your position. Although the -- if he is
5 summoned under the convention you just mentioned, he has a safe conduct
6 under that convention. Isn't the convention not quite clear on that?
7 Isn't it true that the European Convention says that someone who is
8 summoned on the basis of this convention and appears before a foreign
9 court could not be arrested, prosecuted, whatever? I mean -- and if you
10 say that's not in the convention -- I haven't got that text here at this
11 moment, but ...
12 MR. JOVANOVIC: [Interpretation] Your Honour, I think the position
13 of Bosnia and Herzegovina is that any such person would be arrested, any
14 persons being investigated or under detention measures. The moment they
15 step on Bosnian soil they will be arrested.
16 JUDGE ORIE: We'll ask Bosnia and Herzegovina. But let's just
17 assume that that is then not a way to get these people in before the court
18 in Sarajevo. Isn't it true that under that same convention you could ask
19 a witness to be heard or to be examined in Serbia in the presence of the
20 parties who come from Bosnia and Herzegovina and even could attend the
21 examination of a witness in accordance with that treaty, what they call an
22 examination under letters rogatory?
23 MR. JOVANOVIC: [Interpretation] Yes, Your Honour. We're now
24 talking about those witnesses willing to respond to the prompting by the
25 Defence, and then it's down to them to organise a videolink.
1 JUDGE ORIE: Mr. Jovanovic, isn't it true that if through letters
2 rogatory a witness would be examined on the territory of Serbia not as
3 part of the trial but perhaps in pre-trial proceedings, that where you
4 couldn't force a witness to come from Serbia to Sarajevo, that you could,
5 however, force a witness to appear before in his local court and be
6 examined there so that at least the transcripts or the report of that
7 testimony or -- perhaps I shouldn't call it testimony, but that statement
8 can then be used abroad in Sarajevo? And isn't it true that under those
9 circumstances it depends on Serbian law that the situation were exactly
10 the same if someone if -- if someone was summoned before a Serbian court
11 and is therefore under an obligation to appear?
12 MR. JOVANOVIC: [Interpretation] Your Honour, you're entirely
13 right. My interpretation is much the same as in Bosnia-Herzegovina there
14 is the obligation of a witness to attend a Serbian court for proceedings
15 being held before a Serbian court. The Law on Criminal Procedure applies
16 to proceedings before Serbian courts. Therefore, if there's a summons by
17 a BH court and the person receiving the summons lives, resides in Serbia,
18 there is no obligation whatsoever to appear and to respond to the summons,
19 unlike a situation with a tribunal which has the power to issue a binding
21 So a Bosnian court has no power to issue any form of binding
22 summons to anyone, resident or citizen of the Republic of Serbia.
23 JUDGE ORIE: It seems, Mr. Jovanovic, we still do not yet
24 understand each other. Let me try to be clearer.
25 If -- and we are still talking about the European Convention on
1 Mutual Assistance in Criminal Matters. If a court in Bosnia and
2 Herzegovina would like to receive the information available to a witness
3 who lives in Serbia and who is unwilling to come to Bosnia and
4 Herzegovina, couldn't they then ask the Serbian authorities to examine
5 that witness in Serbia before a Serbian judge, add to that request that
6 the parties in the Bosnia and Herzegovina case could attend that
7 examination of the witness? Would the witness under those circumstances
8 not be under an obligation to appear before the Serbian court where he
9 gives testimony which will then be relayed on paper to the court in Bosnia
10 and Herzegovina? That's the situation I'm talking about.
11 Is that a possibility, in your view; and would he be under an
12 obligation then to appear before his Serbian court?
13 MR. JOVANOVIC: [Interpretation] Your Honour, my interpretation of
14 the agreement is that this means assistance. A court in Serbia can and
15 indeed must, within the terms of this agreement, make sure that a witness
16 is heard, but I don't think this is binding for any citizen of Serbia to
17 appear and testify before a Sarajevo court. So although this may be done
18 before a court in Belgrade, this is still a trial that is held before a
19 court in Bosnia and Herzegovina. In that sense, there is nothing binding
20 and no obligation.
21 Perhaps we could imagine a similar situation. Say the OTP are
22 summoning a person in Serbia for --
23 JUDGE ORIE: Mr. Jovanovic, have you any case law to rely upon,
24 any practice which would support your position?
25 MR. JOVANOVIC: [Interpretation] Your Honour, this is not an
1 example from the case law. I am in touch with the justice ministry of the
2 Republic of Serbia, their legal assistance department, and they told me
3 about this position that I'm informing you about now. There have been
4 videolinks between the Belgrade court and the Sarajevo court, and this
5 seems to work very well, but that still doesn't mean that a witness can be
6 subpoenaed to appear at a Sarajevo court in any way.
7 My grievance was therefore related to the impossibility to ensure
8 the presence of a witness before the court in Sarajevo. I was just
9 telling you that this Tribunal has the power to order a witness to appear,
10 irrespective of the witness's place of residence or nationality. This
11 Tribunal has the power to subpoena a witness and to issue binding orders
12 to the witness's country, whereas the BH court does not have the same
13 powers, and I don't think an agreement has been signed that might further
14 this process and cooperation in legal matters.
15 JUDGE ORIE: Yes. Thank you for these answers, Mr. Jovanovic.
16 JUDGE ORIE: Then I'd like to give an opportunity to you,
17 Ms. Basic, to respond to what was said by Mr. Jovanovic. He suggested
18 that if through the channels of the European Convention on Mutual
19 Assistance in criminal cases, if someone would be summoned living in
20 Serbia that that witness would not enjoy a safe conduct as provided for in
21 that convention.
22 Could you please respond to that, because it was not totally clear
23 to me on what basis Mr. Jovanovic took that position.
24 MS. BASIC: [Interpretation] Thank you, Your Honours. I would like
25 to pass the floor to Mr. Neradin for this issue.
1 Thank you very much, Your Honours.
2 JUDGE ORIE: Yes, Mr. Neradin, you may understand that I was
3 specifically referring to -- I think it's Article 12 of that -- of that
5 Yes, please.
6 MR. NERADIN: [Interpretation] As you've already stated,
7 Bosnia-Herzegovina is a signatory to the ECMACM. It is pursuant to
8 Article 12 of that convention there is guarantee of immunity to all
9 witnesses summoned before this court that are nationals of a different
10 country. Bosnia and Herzegovina has ratified a contract with Serbia and
11 Montenegro in legal assistance in criminal and civil matters. On the 2nd
12 of June, 2005, Article 14 guaranteed the same sort of immunity to those
13 subject to criminal prosecution. These witnesses are free to leave within
14 15 days after their presence is no longer legally required.
15 As for forcing a witness or subpoenaing a witness from Serbia,
16 generally speaking, if there is a witness who refuses to appear, there is
17 the possibility of using the instrument of legal assistance and legal
18 cooperation, be it by videolink, as counsel has mentioned, or by taking a
19 deposition from a witness pursuant to all these international agreements
20 that are after all binding for Bosnia and Herzegovina.
21 Thank you.
22 JUDGE ORIE: Thank you for your clarification, Mr. Neradin.
23 I have at this moment no further question. I'm looking to my
24 colleagues. They have no further questions.
25 Then I would give a brief opportunity to the parties, if there is
1 need to add anything which has been said, you have an opportunity to do
2 that now.
3 Ms. Somers.
4 MS. SOMERS: Your Honour, I can see nothing further that would
5 need to be added.
6 JUDGE ORIE: Thank you.
7 Mr. Jovanovic.
8 MR. JOVANOVIC: [Interpretation] Your Honours, I have nothing to
10 JUDGE ORIE: Yes. Ms. Basic, is there anything you'd like to add
11 from Sarajevo?
12 MS. BASIC: [Interpretation] No, Your Honour, there is nothing we
13 would like to add.
14 JUDGE ORIE: Thank you.
15 Finally, Mr. Zelenovic, you have been here listening to argument
16 which is of a rather high technical nature, legally technical nature. I
17 can imagine that there is nothing you would like to add to that, but if
18 there's anything at this moment you'd like to say, and you are aware
19 we -- I mean, we are dealing with these legal technical matters because
20 it is of course for you not a legal technical matter, but it's what will
21 happen to you, but if you'd like to add anything, you may do so.
22 THE INTERPRETER: The microphone was not on.
23 JUDGE ORIE: Could you switch on your microphone if you say
24 something. Mr. Zelenovic, the interpreters couldn't hear you.
25 THE ACCUSED: [Interpretation] I have nothing to add.
1 JUDGE ORIE: Thank you very much, Mr. Zelenovic. Please be
3 The Chamber will consider everything that has been submitted and
4 will give its decision in due course, or if it feels that it's not able
5 yet, to return to the parties.
6 We stand adjourned.
7 --- Whereupon the Rule 11 bis Hearing adjourned
8 at 4.53 p.m.