Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Wednesday, 10 February 2016

 2                           [Motion Hearing]

 3                           [Open session]

 4                           --- Upon commencing at 9.34 a.m.

 5             JUDGE ORIE:  Good morning to everyone in and around this

 6     courtroom.

 7             Mr. Registrar, would you please call the case.

 8             THE REGISTRAR:  Thank you.  Good morning, Your Honours.  Case

 9     number IT-03-67-R77.5, in the case against Petar Jojic, Jovo Ostojic, and

10     Vjerica Radeta.

11             JUDGE ORIE:  Thank you, Mr. Registrar.

12             I first have the appearances for the Republic of Serbia.

13             MR. OBRADOVIC: [Interpretation] Good morning, Your Honours.  I am

14     Sasa Obradovic, and I'm here as the authorised representative of the

15     Government of the Republic of Serbia in this case regarding its

16     conclusion of the 23rd of May of 2015, and I am completely informed about

17     the current situation in the case.

18             JUDGE ORIE:  Thank you, Mr. Obradovic.

19             I note for the record that Ms. Ellis is not present.  Ms. Ellis

20     submitted a filing last Friday indicating that she wished to be present

21     at the hearing but was unavailable today and requested a re-scheduling.

22     The Chamber decided to proceed with the hearing, and accepts Ms. Ellis'

23     absence and has also informally communicated this to Ms. Ellis.  As a

24     party to these proceedings, she will be provided with today's transcript.

25     And if that causes her in any way to make further submissions or to ask

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 1     for further hearings, she, of course, is in a position to apply for that

 2     or make such submissions, to start with, in writing.

 3             Why are we here?  We are here today to inquire with the

 4     Government of Serbia about its efforts to arrest the accused in this

 5     case.  In this respect, the Chamber recently instructed Serbia to submit

 6     monthly reports on its progress in executing the arrest warrants, which

 7     were issued on the 19th of January, 2015; that's more than a year ago.

 8             The report received by the Chamber on the 2nd of February, 2016,

 9     indicates that, rather than making any effort to fulfil its obligations

10     to arrest the accused, the Government of Republic of Serbia has instead

11     sent a letter to the President of the Tribunal on the 7th of December,

12     2015.

13             One second, please.

14                           [Trial Chamber confers]

15             JUDGE ORIE:  Mr. Obradovic, do you have any comments at this

16     moment on why no meaningful action to arrest the accused has been taken?

17             MR. OBRADOVIC: [Interpretation] Your Honours, if you allow, I

18     will give you an explanation about the steps which the Government of the

19     Republic of Serbia has taken up until now and it would not take longer

20     than eight minutes, if this is acceptable.

21             JUDGE ORIE:  Well, it depends on what kind of steps.  As may be

22     clear from what I said, we are not much interested in what the Government

23     of Serbia did apart from what is its obligation to do, that is, to arrest

24     the accused.  So other actions are not something we are mainly interested

25     in.  We are interested in what you did to arrest the accused.  And if

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 1     there are certain steps to be described in that respect, of course,

 2     you're invited to tell us about those steps.

 3             MR. OBRADOVIC: [Interpretation] Your Honours, if, as the

 4     representative of the state, I need to talk only about the arrest of the

 5     accused, then I would have nothing to say today and I could sit down

 6     immediately.  But what I wish to say has to do with the order which the

 7     Trial Chamber issued to the Republic of Serbia on the 30th of June, 2015,

 8     and what the government did and what steps it took in this case after

 9     that, because it was active with regard to your order of the 30th of

10     June, 2015, as well as the arrest warrants dated the 19th of January,

11     2015.  So if you allow me to continue, the Government of the Republic of

12     Serbia and its --

13             JUDGE ORIE:  Let me then be very clear.  So your answer to my

14     question is:  We've done nothing in order to arrest.

15             So then now I put my next question to you, although it's not of

16     primary interest to us but apparently you are -- you find it important to

17     let us know whether what thoughts are behind doing nothing or what other

18     steps you did although not related to the arrest of the accused, because

19     that's what this Chamber ordered and that is what is your primarily legal

20     obligation.

21             But if you want to say something about the background after we've

22     established that you've done nothing, please proceed.

23             MR. OBRADOVIC: [Interpretation] Thank you for allowing me this,

24     Your Honours.

25             I would say, first of all, that the relevant organs of the

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 1     Republic of Serbia were informed about your decision from the last

 2     session.  They understand quite well the legal reasons that were stated

 3     by the Trial Chamber on that occasion.  As any other government, the

 4     Government of the Republic of Serbia, in addition to fulfil the orders of

 5     the Tribunal, has also to take into account other political and security

 6     concerns of the reality in which it is active, in which it governs the

 7     society, and in which it is held responsible.  The government believes

 8     that the situation, as regards its co-operation with ICTY from the end of

 9     2014 to this day, is not simple.  The reasons why Serbia has been late in

10     acting on the orders I've already informed ICTY in my motions.  And, as

11     you have stated yourself, there is no reason for me to repeat that, not

12     only because the motions are confidential by nature and that the relevant

13     organs of the Republic of Serbia considered that it would be necessary

14     for them to remain confidential - and today we are in public session -

15     but primarily because the arguments of the Republic of Serbia were

16     rejected by the Trial Chamber as having no merit.

17             Therefore, the government organs understood the decision of the

18     Trial Chamber of the 25th of August as one that the Trial Chamber had to

19     take by acting within its authority.  They did not understand the need of

20     the President of the Tribunal to file a report to the Security Council in

21     October 2015, especially if it's taken into account that a report of a

22     country that is a member of the Europe Union which refused to arrest

23     Florence Hartmann in another case before this Tribunal was never

24     submitted.  For people in Serbia, this is proof that not all members of

25     the United Nations have an equal standing before ICTY.  Precisely because

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 1     of that, the relevant organs of the Republic of Serbia followed the

 2     discussion of this issue on the 9th of December, 2015, at the meeting of

 3     the Security Council.  The government learned what the Chief Prosecutor,

 4     Mr. Brammertz, said that he hoped Serbia would continue with its full

 5     co-operation and would implement these orders as well as the comments of

 6     two Member States of the Security Council that mentioned these orders.

 7             On the 7th of December, in accordance with instructions I

 8     received from the relevant organs from the Republic of Serbia, I sent a

 9     confidential letter to the President of ICTY in which I made the

10     initiative that he as the President should, proprio motu, see whether

11     Rule 11 bis could be applied and whether this case might be transferred

12     to the domestic courts.  It was confidential just like my monthly report

13     which I submitted on the 1st of February, rather than the 2nd of February

14    as the Scheduling Order says. It was on the 1st of February, as registered

15     in the Embassy’s Delivery Register, but the information about this

16   initiative was included in the public Scheduling Order for today’s hearing.

17             I would like to emphasise that by its initiative, Serbia tried to

18     find a model that would simultaneously satisfy the interests noted in our

19     earlier confidential motions and the interest of preserving the integrity

20     of the trial proceedings, and therefore the interests of justice.  It was

21     also a response to the Amicus Prosecutor, to her claim from her

22     previous -- from the previous session, when she said that the Government

23     of Serbia created a climate of impunity by its stand. Quite the contrary,

24     Serbia requested by its initiative that its legal organs would act in

25     accordance with allegations contained in the order in lieu of indictment.

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 1             The Serbian organs were also aware that by taking such an

 2     initiative, the arrest warrants of the Tribunal were not suspended.

 3     Serbia's initiative in that sense was parallel with the proceedings that

 4     are ongoing before this Trial Chamber.  I used the past time because

 5     yesterday afternoon I received a response from the President of the

 6     Tribunal in a registered letter and this response - in view of the status

 7     of the initiative of Serbia - is also confidential.

 8             And to summarise, firstly, it is true that the orders of the

 9     Trial Chamber to arrest the three accused have not been implemented to

10     date.  The Government of the Republic of Serbia has still not taken the

11     decision to forward this case to the relevant judge who is in charge of

12     domestic procedure in such cases.  The political and security examination

13     of the case is under way and the Ministry of Justice of the Republic of

14     Serbia is carrying out extensive consultations in this regard.

15             The response which I just received from ICTY President will be

16     treated as an element of special significance in these consultations.

17             And, finally, it is my duty to emphasise that the relevant organs

18     are still acting in accordance with the Law on Co-operation with the

19     International Criminal Tribunal for the former Yugoslavia, even though

20     they are aware that the failure to implement the order to arrest and

21     surrender the three accused is contrary to the rules of ICTY.

22             Thank you.

23             JUDGE ORIE:  Mr. Obradovic, it's clear to the Chamber that Serbia

24     is not co-operating with the Tribunal in this matter.  You've had more

25     than a year to arrest the accused.  You have apparently made up your mind

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 1     what you consider to be the interests of justice, even where primary --

 2     the gist of the case against the accused is contempt of this Court, this

 3     Tribunal.  And, therefore, the orders by this Court in relation to

 4     contempt of this same Court is not subject to your scrutiny or whether

 5     you consider it in the interests of justice, yes or no, to fulfil your

 6     obligations under Article 29 of the Statute.  Well, you know that the

 7     Security Council has been informed of this lack of co-operation and might

 8     take further action.  This notwithstanding, what are Serbian plans for

 9     fulfilling its obligations and arresting the accused?  Because you told

10     us that you were still deciding on -- or preparing a decision on whether

11     or not forward this case to the judge.  I mean, what we would have

12     expected is that once the persons have been arrested, that whatever legal

13     remedies are open would then take place; but, first of all, to arrest the

14     accused.

15             What are your plans?  To think about it for another year?  Or --

16     I mean -- you remember that in the past you were talking about three or

17     four weeks, and that's more than half a year ago that you told us that.

18             Now, what are your concrete plans at this very moment?

19             MR. OBRADOVIC: [Interpretation] Your Honours, if we are to speak

20     in greater detail about my statement from the previous session which was

21     confidential, about the then-expectations of the Government of the

22     Republic of Serbia which were and are still confidential, then I would

23     have to ask for a private session; however, I don't think it's necessary.

24             What I can say is:  I previously didn't say three to four weeks

25     but one to two weeks, because the procedure before the domestic

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 1     authorities regarding the arrest and transfer of the accused to the UN

 2     Detention Unit in The Hague, that's the usual length and the usual

 3     procedure.  I've already mentioned that extensive consultations are under

 4     way regarding the order issued by this Trial Chamber on the 19th of

 5     January, 2015.  The government is not now deciding what is or isn't in

 6     the interests of justice.  I mentioned the interests of justice regarding

 7     the initiative under Rule 11 bis not the orders -- not the arrest

 8     warrants issued by the Trial Chamber which are very clear to the

 9     Government of Serbia.

10             JUDGE ORIE:  Could I stop you for a moment.  Isn't it true that

11     your initiative in relation to 11 bis were to replace and to divert the

12     proceedings in a way Serbia thought to be more appropriate, rather than

13     to just do what this Court ordered Serbia to do?  In that respect, you

14     are telling us what would be better in the interests in the justice,

15     which I commented on.

16             Please proceed.

17             MR. OBRADOVIC: [Interpretation] That's exactly what I said;

18     however, I didn't mean that the government is now considering what may be

19     in the interests of justice in this case, the Rules of the trial are

20     quite clear to the government.  You've asked how long that

21     decision-making will take.  At this moment, I could not say anything

22     about that except that consultations are now intensive and that is the

23     message of the government to the Trial Chamber for today.

24             I regret that I am again in this situation before you today.  I

25     would have liked this issue to have been settled already, as have been

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 1     many other issues between Serbia and the Tribunal in the past.

 2             JUDGE ORIE:  Thank you, Mr. Obradovic.  Please remain seated, if

 3     you wish to do so.

 4             You apparently are very precise on issues like whether your

 5     report was 1st of February or 2nd of February.  It was filed the 2nd of

 6     February, so there was no need to correct that.  Three to four weeks, one

 7     to two weeks.  We are talking about the proceedings that would be

 8     required within Serbia after the arrest.  These are the details.  More

 9     important is that you're telling us you can't tell us when the Government

10     of Serbia will decide and, therefore, apparently you cannot tell us what

11     concrete action will be taken, apart from that you're -- the government

12     is thinking about how to proceed.

13             Mr. Obradovic, the Chamber is seriously concerned by Serbia's

14     lack of efforts and failure - as was established again today - to

15     co-operate with the Tribunal.  Continued assurances such as those found

16     in the report that was filed on the 2nd of February, that Serbia is

17     willing to abide by its obligation - and, as said today - regrets that

18     it's here again.  That all remains meaningless so long as no action is

19     taken.  The time for action, not the words, is long overdue,

20     Mr. Obradovic.  Therefore, the Chamber has decided to increase Serbia's

21     reporting obligations and hereby instructs Serbia to submit a report

22     every two weeks describing in detail the actions it is undertaking to

23     fulfil its obligation - not to circumvent it - its obligation to arrest

24     the accused.  The next report is due on the 24th of February.

25             Are there any points you'd like to raise, because otherwise this

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 1     would conclude today's hearing?

 2             MR. OBRADOVIC: [Interpretation] I would like to put a question,

 3     Your Honour.

 4             My understanding was that you are primarily interested in when

 5     the arrests would take place.  If the arrests of the accused are your

 6     primary interest, from that moment on, it would make sense for the

 7     government to submit detailed reports about the domestic procedures under

 8     way, the rights of the accused that you've referred to, the transfer of

 9     the accused to The Hague, and the creation of technical conditions for

10     that.  Until the arrests take place, I do not see any possibility for

11     detailed reports in that sense, and even my report from the 2nd of

12     February could not be very detailed.  In what sense does the Chamber

13     expect any details before the arrests occur?  So in a situation where the

14     Trial Chamber primarily insists on the arrests of the accused, what would

15     be the details that you expect me to include in my report?

16             JUDGE ORIE:  Mr. Obradovic, you're creating the problem you're

17     now putting on our table yourself.  It's your obligation to arrest,

18     without delay, the accused.  So if you say, if you're telling us what

19     details to bring to the attention of the Chamber, there's no need to do

20     it at all, if you arrest them.  If you do it before the 24th of February,

21     you'll never be in a situation in which you have to explain what action

22     you're preparing.  But this Chamber is not going to sit here, wait for

23     another year, until you have arrested them.  We want to be updated about

24     what you're doing.  That could be details.  And if you say, I'm ...

25                           [Trial Chamber confers]

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 1             JUDGE ORIE:  And if you say for -- it is very sensitive, there's

 2     always a way to do it very confidential.  This Chamber will not finally

 3     accept an imposed confidentiality in order to keep the problem away from

 4     the public.  We're working for the international community, we have

 5     waited for almost a year to make it public, a year in which you promised

 6     all kind of things, and you finally didn't do anything at all, and when

 7     it was at a point to become public, you certainly -- at a certain moment,

 8     you decided that alternative routes would be -- to be preferred, ignoring

 9     the path that was set out by this Tribunal.

10             Therefore, we'd like to hear from you in two weeks whatever

11     details are relevant, and this Chamber hopes that there will be no need

12     to hear any of such.  But to except us to sit and wait until you have

13     decided that the moment was there to arrest the accused and then ask for

14     further details about proceedings, details which we are aware of already,

15     to some extent, is not what this Chamber will do.

16             And may I just remind you that Article 29 states that:

17             "States shall comply without undue delay with any request for

18     assistance or an order issued by a Trial Chamber, including the arrest or

19     detention of persons."

20             That's the obligation imposed upon you in Article 29,

21     paragraph (2) subsection (d).  Therefore, if you have a problem in what

22     to tell us, create a situation in which you don't have to tell us

23     anything anymore.

24                           [Trial Chamber confers]

25             JUDGE ORIE:  And Judge Moloto would like to add something.

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 1             JUDGE MOLOTO:  Mr. Obradovic, just to make it quite clear:  This

 2     Chamber is not only interested in the arrest of the accused, but it is

 3     interested in their arrest and surrender to the Tribunal.

 4             JUDGE ORIE:  Yes, I -- of course, I fully agree with that.  It

 5     was implied for me because the arrest would serve the surrender and the

 6     obligation stands, and the obligation is -- I think I said -- is to be

 7     found in Article 29.

 8             If you have no further comments or questions, we'll adjourn

 9     sine die, and we are awaiting your report.  And when we're talking about

10     date, dates are filing dates, not drafting or signing dates.

11             We stand adjourned.

12                           --- Whereupon the hearing adjourned at 10.03 a.m.,

13                           sine die.