1 Friday, 4 March 2005

2 [Motion Hearing]

3 [Open session]

4 [The accused entered court]

5 [The Accused Gruban not present]

6 --- Upon commencing at 2.25 p.m.

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

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

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

10 Fustar, and Dusko Knezevic.

11 JUDGE ORIE: Thank you, Mr. Registrar. I see that the -- that the

12 parties are represented by counsel as they were yesterday. I just see

13 that the OTP is one member stronger than it was yesterday, Ms. Somers, but

14 you are there as representing the Office of the Prosecutor.

15 Counsel, I see that the six counsel are the same as yesterday, and

16 I also see that the representatives of the Republic of Bosnia and

17 Herzegovina and the representatives of Serbia and Montenegro are the same

18 as yesterday. This for the record.

19 May I again check for the accused whether they hear me in a

20 language they understand.

21 Yes, Mr. Mejakic.

22 THE ACCUSED MEJAKIC: [Interpretation] Yes, I can hear and

23 understand the proceedings.

24 JUDGE ORIE: Mr. Knezevic.

25 THE ACCUSED KNEZEVIC: [Interpretation] Yes, I can hear and

1 understand the proceedings, Your Honour.

2 JUDGE ORIE: Mr. Fustar.

3 THE ACCUSED FUSTAR: [Interpretation] I can hear the proceedings.

4 JUDGE ORIE: Thank you. We'll continue this afternoon. The

5 Chamber expects the representatives, I would say the more technical

6 experts, the more legal technical experts, to further elaborate on what is

7 at this moment we will have to focus on, and that is whether a case

8 against these four accused could be referred in accordance with the Rules

9 -- with the Statute and with the Rules and what legal problems we might

10 face if we would take a decision to refer these cases.

11 We heard yesterday -- we heard quite some information, as we had

12 in the written submissions already, expanding on the efforts the states in

13 the former Yugoslavia have made until now to improve their legal systems,

14 to improve especially the administration of justice in the area of serious

15 violations of international humanitarian law. I will very much focus

16 today on the specific aspects of this case, because although we really

17 appreciate -- this Chamber in the Tribunal in general, very much

18 appreciate what is done, of course we are not here at this moment, for a

19 beauty contest, who is the best, but it is a matter of what would be the

20 best to do in these cases. Can we refer the cases to the jurisdiction

21 proposed by the Office of the Prosecution? And at the same time, as you

22 may have noticed, the Chamber has not closed its ears and eyes entirely

23 for the question whether the interest of justice would be better served if

24 referral to another jurisdiction would take place, although at this moment

25 we are dealing with a motion to refer these cases to Bosnia and

1 Herzegovina.

2 May I first give an opportunity to the representative of Republic

3 of Bosnia and Herzegovina to address the Chamber on the technical matters,

4 and that, I take it, Madam President, would be -- would be Ms. -- yes, Ms.

5 Donlon. Please proceed, Ms. Donlon.

6 MS. LAUTH: Thank you, Your Honours. Please let me introduce

7 myself again. My name is Mechtild Lauth. I am the legal counsel of the

8 registry for war crimes and organised crime of the court of Bosnia and

9 Herzegovina, and I don't think it's necessary at the very moment to

10 elaborate again on whether we think the court is ready. I think it's

11 important to concentrate on the issues that were raised in the hearing

12 yesterday.

13 If you will allow me, I would just like to give you a brief

14 background on how the laws that have been discussed and mentioned already

15 in the course of this proceeding have been developed. In December of 2003

16 the Office of the High Representative had established immunity agency task

17 force and working group to draft legislation and amendments to legislation

18 that may be necessary in the context of establishing the war crimes

19 chamber within the court of BiH. This package that was developed in the

20 course of the discussions of this working group is also commonly referred

21 to as the war crimes legal package.

22 The working group was comprised of a number of institutions. It

23 had representatives of the court of Bosnia and Herzegovina,

24 representatives of the Prosecutor's office of BiH, representatives of the

25 BiH Ministry of Justice, the ICTY was involved, and the Office of the High

1 Representative itself. I myself was involved as a staff member of the

2 OHR.

3 The laws that were drafted in this working group are the

4 following, and I think some of them have been mentioned a few times

5 already in the course of this proceeding. It's the law on the amendments

6 to the prosecutor's office of BiH, the law on the amendments to the law on

7 court, the law on the transfer of cases from the ICTY to the prosecutor's

8 office of the BiH, the law on the amendments to the Criminal Code, and

9 finally - and this is where I would like to proceed because I understand

10 there may be some need to further explain - the law on the amendments to

11 the law on protection of vulnerable witnesses.

12 The drafting of the complete package was finalised in June 2004

13 and the laws were then submitted to other international organisations and

14 national bodies for further comments. It was submitted to the OSCE and

15 the Council of Europe and both of them had additional comments which were

16 also addressed in the complete package. The complete package was then and

17 submitted to the national authorities for adoption, and after some

18 additional debate within parliament itself, the whole package was adopted

19 in December 2004 and was published in the Official Gazette of Bosnia and

20 Herzegovina in number 61/04.

21 In relation to witness protection, which I understand is maybe a

22 specific area of interest for the Bench and the Defence and the specific

23 issue of anonymity of witness that was repeatedly raised in the course of

24 this proceeding. The original law on the protection of vulnerable

25 witnesses and witnesses under threat was enacted in January of 2003. And

1 the working group that I just elaborated upon was trying to address

2 concerns that judges and prosecutors encountered in the application of

3 this very law. And admittedly many of the amendments that were made later

4 on are minor technical changes, however there have also be some very

5 substantial changes, and one of them relates to Article 13 of the old law,

6 which carried a maybe somewhat misleading title "Measures to provide for

7 the anonymity of the witness." And this title and the terminology in the

8 law was changed to actually the nondisclosure of the identity of the

9 witness, which is what this provision and the whole witness protection law

10 is actually all about.

11 The measures that the law itself provides are very similar, I

12 would argue, to measures that the ICTY applies or many other jurisdictions

13 within their domestic courts, such as voice and face distortion, the

14 testimony via videolink, or the removal of the accused from the courtroom,

15 if necessary. And we do not consider that these measures as such would

16 constitute a violation of the rights of the Defence.

17 Let me maybe briefly speak about one very specific witness

18 protection measure that the law also provides, and I understand the

19 Defence yesterday was referring to that also, which is the measure of a

20 witness protection hearing according to the Articles 15 to 22 of this very

21 law. Article 14 of the law -- if you allow me, I would just like to

22 briefly read it out to you. "In exceptional circumstances where there is

23 a manifest risk to the personal security of the witness or the family of a

24 witness and the risk is so severe that there are justified reasons to

25 believe that the risk is unlikely to be mitigated after the testimony is

1 given or is likely to be aggravated by the testimony, the court may

2 conduct a witness protection hearing in accordance with Articles 15

3 through 23 of this law."

4 So already this general provision indicates that this is a very

5 limited -- that there is a very strong restriction on the possibility of

6 actually applying this protective measure of a witness protection hearing.

7 And the procedure as to how to bring about such a witness protection

8 hearing is as follows: It is either the court that can ex officio decide

9 or determine whether there is a need to hold such a hearing, or at the

10 request of either the Prosecution or the Defence of the accused. And the

11 motions of the parties would have to comprise already amongst other,

12 according to Article 15, paragraph 2(B) of this law, facts indicating that

13 the personal security of the witness is at risk through his participation

14 in the proceedings.

15 The decision of the court as to whether to hold a witness

16 protection hearing or not can be appealed by both parties, including the

17 defence. If a witness protection hearing does take place, it takes place

18 before a panel of three judges who would then interview the witness in

19 person and the statement would then later be read out in the courtroom, in

20 trial. However, according to Article 22 of the law, the Defence - in fact

21 both parties but certainly also the Defence - can request that the

22 protected witness be heard again on additional questions to clarify.

23 So I would submit here that the rights of the Defence are

24 sufficiently addressed in this law because it has built in itself some

25 checks and balances. Finally, it shall also be noted that Article 23 of

1 this law provides that the court shall not base a conviction either solely

2 or to a decisive extent on evidence provided under the just described

3 measure. The court, by the way, is also bound to interpret this law or

4 any other law in the light of the European Convention on Human Rights,

5 which, according to the constitution of BiH, takes precedence over all

6 domestic law.

7 One final practical remark also on the issue of witness protection

8 hearings: According to my knowledge, this mechanism has only been applied

9 once in court and in fact it seems that the Prosecution itself is very

10 reluctant in requesting this very measure. So in the end this is -- as

11 the law prescribes, it's only to be applied in extremely exceptional

12 circumstances and so far we have not -- we did not have to actually apply

13 it that often.

14 This would be the submission in relation to witness protection. I

15 don't know whether you would like to proceed with questions on that aspect

16 or --

17 JUDGE ORIE: Perhaps you first finish and deal with the other

18 matters as well such as the -- perhaps you first continue and deal with

19 matters such as the applicable law as well.

20 MS. LAUTH: Okay. I understand another question in the context of

21 the possible transfer of the case to the court of Bosnia and Herzegovina

22 is the issue of he command responsibility, and if you allow me, I would

23 implicitly address the issue as to which is the applicable law.

24 We understand that it is possible to charge the accused with

25 command responsibility under national law. It is submitted here that all

1 crimes contained in the ICTY Statute have a correlating provision under

2 the national law in force at the time of the commission of the crime,

3 except for command responsibility, probably, and some others, but I would

4 elaborate on that a little bit later. And what the BiH Criminal Code of

5 2003 does, it codifies legislation that we maintain was already in force

6 at the time of -- or applicable at the time of the commission of the

7 crime.

8 Article 180, paragraph 2, of the BiH Criminal Code provides for

9 command responsibility in the same form as Article 7(3) of the ICTY

10 Statute, and the application of this provision we do not consider as a

11 retroactive application of the law which would be prevented by or

12 forbidden by Article 7, paragraph 1, of the European Convention on Human

13 Rights. Although command responsibility as such was not specifically

14 provided under the domestic law of Bosnia and Herzegovina at the time of

15 the commission of crimes.

16 We maintain that command responsibility is a concept accepted as

17 part of customary international law. And Article 16 of the constitution

18 of the SFRY of 1992 states that international treaties and generally

19 accepted rules of international law shall be a constituent part of the

20 internal legal order. So by applying the concept of command

21 responsibility as contained in Article 180, paragraph 2, of the BiH

22 Criminal Code of 2003, the court would not violate the principle of

23 non-retroactivity.

24 In that regard I would also like to briefly point to Article 4(A)

25 which was included in the recent amendment of the BiH Criminal Code,

1 according to which Articles 3 and 4 of the Criminal Code shall not

2 prejudice the trial and punishment of any person for any act or omission

3 which at the time of commission was criminal according to general

4 principles of international law. And the wording may sound very familiar

5 and in fact it does repeat the wording of Article 7(2) of the European

6 Convention of Human Rights as well as Article 15(2) of the International

7 Covenant on Civil and Political Rights.

8 Now, let me briefly move on to whether the court will in fact

9 reach these conclusions. I think that's a separate question and I can't

10 preempt it at the very moment. This will be a decision, obviously, by the

11 court to take at a later stage; however, in that regard I would like to

12 just briefly point to one provision that was also recently introduced into

13 domestic legislation into the law on the court of Bosnia and Herzegovina,

14 and Article 13(B) as amended now provides for the possibility of the court

15 to issue practice directions on -- or a practice direction on this very

16 matter. The relevant provision provides that the court shall be competent

17 to issue practice directions on the application of the substantive

18 criminal law of BiH, falling within the competence of the court on

19 genocide, crimes against humanity, and war crimes.

20 So --

21 THE INTERPRETER: Would the speaker please slow down for the

22 interpreters.

23 JUDGE ORIE: You're invited to slow down a bit because the

24 interpreters have difficulties in following you.

25 MS. LAUTH: Would you like me to repeat the last paragraph?

1 THE INTERPRETER: It will not be necessary, Your Honour.

2 JUDGE ORIE: Yes, you may proceed.

3 MS. LAUTH: Thank you. I actually have come to the end on that

4 part of our submission.

5 There is one other issue also that I understand -- I'm not sure

6 whether I am jumping topics, but there is one issue I understand you had a

7 specific interest in yesterday which relates to the ratification of

8 international agreements in the area of cooperation.

9 [Trial Chamber confers]

10 JUDGE ORIE: You may first proceed. We might have some questions.

11 MS. LAUTH: You had a specific question yesterday in relation to

12 whether Bosnia and Herzegovina does not intend to ratify the European

13 Convention on Mutual Assistance on criminal matters. Please allow me to

14 inform you that in fact on the 22nd of February, 2005, the House of

15 Peoples of the BiH parliament has adopted the very -- this very convention

16 and it is now in the process of being signed by the Presidency and it is

17 expected that it will be published in the next edition of the Official

18 Gazette sometime in the next week. The same could be said or can be said

19 certainly about the European Convention on Transfer of Proceedings in

20 criminal matters. It was adopted at the same time by both the House of

21 Representatives and the House of Peoples of parliament. And last but not

22 least, Bosnia is also in the process of -- or in the final stages of

23 ratification of the European Convention on Extradition.

24 JUDGE ORIE: Thank you very much.

25 [Trial Chamber confers]

1 JUDGE ORIE: Perhaps if first we put some questions to you, but I

2 first of all would like to thank you for your very helpful information.

3 Perhaps I would have my -- as a first question to you, you referred to --

4 I take it that the newly adopted Article 4(A) to the Criminal Code of

5 Bosnia and Herzegovina which appears, on the basis of its numbering, to be

6 also part of the package that was adopted. You referred to Article 16 of

7 your constitution, saying that international law is an integral part of

8 your law, but many commentaries on this issue will tell you that

9 especially in the field of criminal law, although you accept a rather

10 monistic approach, international law to be part of your own law, that's

11 for criminal law, that you would have to transform that or to make any

12 implementation legislation, and especially in that field therefore one

13 could doubt whether by -- in the absence of any specific rule that

14 customary international criminal law could be applied. Is there any case

15 law you could refer us to or is there any -- because this is -- if you

16 would look at other constitutions, you would see that in all those systems

17 where one adopts international law as being an integral part, nevertheless

18 specific legislations would be needed. And in answer to that, you said,

19 well, we don't know whether the state court will also apply this in a

20 similar way, but then you helped us out, at least -- it seemed as if you

21 helped us out to see whether this court could give guidance to the other

22 courts, but that still doesn't answer the question what direction that

23 guidance will go.

24 Could you elaborate on that and especially on the constitutional

25 problems involved in this.

1 MS. LAUTH: Just to clarify, I think I was referring to Article

2 16(2) of the SFRY constitution. And if you allow me, I can also briefly

3 quote I think relevant provisions of the BiH constitution that was enacted

4 in 2000 -- sorry, in 1995. If you -- I agree it very much is probably an

5 interpretation issue rather than being able to give you precise case law

6 on the matter, but if you, for example, have a look at the preamble of the

7 constitution of BiH and if we bear in mind when the constitution actually

8 entered into force, which was after the horrible events in the region, in

9 the country, there is in the sixth paragraph in the preamble a reference

10 to international humanitarian law, "determined to ensure full respect for

11 international humanitarian law. "

12 And there is also transitional provisions in annex 2 to the

13 convention [Realtime transcript read in error "confession] provided which

14 provides for the continuation of laws that were in force at the time of

15 this very constitution, the Dayton constitution, entered into force.

16 JUDGE ORIE: May I take it that your reference to annex 2 was not

17 to the convention but to the constitution?

18 MS. LAUTH: Sorry, the reference to --

19 JUDGE ORIE: You said annex 2 -- it now says "the confession"

20 which is perhaps even worse, but I heard you say "convention." But I take

21 it you were referring to the constitution.

22 MS. LAUTH: Yes, I was referring to the constitution of BiH. So

23 again, we would maintain that this concept as being part of international

24 law at the time of commission would be accepted or was accepted implicitly

25 already by the constitutional order of the previous system as well as,

1 what is probably more important, the new constitutional order of Bosnia

2 and Herzegovina.

3 [Trial Chamber confers]

4 MS. LAUTH: My colleague would like to add something.

5 MR. KOUMJIAN: If I could just give an argument on behalf of the

6 Prosecution in that point. Your Honours indicated that the commentaries

7 discussed the lack of implementing legislation to apply a norm of

8 international law to criminal matters. Bosnia and Herzegovina has that.

9 It was created after the acts occurred, but in the current legislation and

10 the code, command responsibility is provided for and crimes against

11 humanity are provided for. The real issue is: Can you retroactively

12 apply that to an act that occurred in 1992? We would say you can. The

13 act itself was clearly illegal and recognised as an illegal act by

14 international law. And just as this Tribunal can apply its Statute to

15 acts that occurred before the Statute was written, we believe the domestic

16 legislation of Bosnia in place today provides that these acts that clearly

17 violated international law in 1992 can be prosecuted under the

18 implementing legislation.

19 JUDGE ORIE: Thank you, Mr. Koumjian.

20 JUDGE PARKER: Could I follow that up with a question. What is

21 the provision you say is now in force about command responsibility?

22 MS. LAUTH: According to our understanding, it would be Article

23 180, paragraph 2, of the BiH code of 2003.

24 JUDGE ORIE: Which seems to be almost a perfect copy of Article

25 7(3) of the Tribunal's Statute, including the negligence form that if

1 someone had reasons to know.

2 JUDGE PARKER: Which has been held to be a statutory recognition

3 of customary international law in force at least in 1992, if not earlier,

4 and that's the basis of your submission? Yes.

5 JUDGE KWON: I remember that yesterday a question in relation to

6 the relation between the Criminal Code of Social Republic of Bosnia and

7 Herzegovina and that of the Social Republic -- I'm -- I beg your pardon,

8 SFRY, I haven't heard that question today, if anybody could elaborate on

9 that matter.

10 MS. LAUTH: My understanding is -- but I would probably answer --

11 invite my national colleagues from Bosnia to maybe elaborate on that a

12 little bit further. My understanding is that the SFRY Criminal Code

13 regulated the special crimes that were deemed to be appropriate to be

14 dealt with at the state level and that the Criminal Code of the Republic

15 of Bosnia and Herzegovina rather dealt with the general aspect and lower

16 crimes. For example, in relation to the crimes that are under

17 consideration here, it was only the SFRY Criminal Code that in fact had

18 provisions on genocide and war crimes. So -- and you would not have found

19 them in the Criminal Code of the Republic of Bosnia and Herzegovina.

20 JUDGE KWON: As far as I remember, some counsel of the Defence

21 raised the issue that the code of -- Criminal Code of Social -- I beg your

22 pardon, SFRY was not applied at all in -- at the time of 1992. Is that

23 right or not?

24 MR. KOUMJIAN: As I recall, my colleague yesterday indicated that

25 Bosnia, soon after the declaration of independence, adopted the federal

1 code as the applicable code in Bosnia and Herzegovina in 1992. I believe

2 it was April of 1992.

3 JUDGE KWON: So both the Criminal Codes were in fact applied

4 simultaneously? Thank you.

5 JUDGE ORIE: We have at this moment no further questions for you.

6 Then I would like at this moment to give an opportunity to the

7 representatives of Serbia and Montenegro to address the Chamber. May I

8 ask you, Mr. Loncar, whether it would be you or whether it would be one of

9 your technical experts on criminal law and who would it then be.

10 MR. LONCAR: [Interpretation] Your Honour, I will repeat what I

11 said yesterday when I addressed you yesterday: Today the colleagues

12 Bogdan Stankovic, the deputy prosecutor for war crimes, will address you

13 on the technical issues.

14 JUDGE ORIE: Thank you.

15 Mr. Stankovic.

16 MR. STANKOVIC: [Interpretation] Good day, Your Honours. Thank you

17 for hearing our delegation on certain issues, and we feel that what we

18 have to say may assist you in reaching a decision on this highly complex

19 issue.

20 As regards the procedural position of our delegation, we are very

21 grateful that you have permitted us to become involved in these

22 proceedings because, looking at it formally in terms of the Rule 11 bis,

23 we would not have the right to address the Court. However, by accepting

24 our initiative, we feel that you have shown that you feel that what we

25 have to say may assist you in arriving at a decision in this case. We

1 feel that legal grounds could be found for our appearance here in the

2 principle of proprio motu and we understand that our appearance here means

3 that we may address this Court formally with a request to refer the case

4 to Serbia and Montenegro.

5 JUDGE ORIE: Mr. Stankovic, may I just -- I think that we

6 expressed in earlier correspondence that as a matter of courtesy and in

7 order to be completely informed, this Chamber invited you to make your

8 submissions, but now you extend it a bit by saying that you may address

9 this court formally with a request to refer the case. In the Rules, we

10 find that the Chamber can do that proprio motu or that it can do it on the

11 request of the Office of the Prosecution. So where you earlier said that

12 your submissions might be of relevance for whatever action we would like

13 to take proprio motu, I fully understood that, but now the next step you

14 put that you're formally in a position to request the referral, there I --

15 at least this Chamber cannot agree with that at this moment. But that

16 doesn't deprive you from the possibility to make whatever submissions

17 you'd like.

18 MR. STANKOVIC: [Interpretation] You're quite right, Your Honour.

19 Yesterday you gave us a very difficult task. You told us to put forward

20 our arguments without appearing here as competitors. This is really not

21 our intention. We know that the completion strategy of the Tribunal is a

22 very complex matter, as were the trials you have dealt with here. I will

23 attempt to explain why we feel that when reaching a decision in this case

24 you should bear in mind very many important aspects, in our view. Of

25 course, you need not adopt our position but we feel that we are

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1 duty-bound, in line with the arguments put forward by my colleagues here,

2 to conclude that there are certain reasons showing that in this case you

3 should bear in mind all the different aspects of the issue.

4 To be brief, I will put forward certain facts. On the 1st of

5 July, 1993, a law on the organisation and competence of state organs in

6 connection with war crimes was passed and certain judiciary and other

7 organs were established to deal with these issues. The law is applied to

8 discover, prosecute, and try crimes against humanity and international law

9 as in Article 16 of our basic Criminal Code and for serious violations of

10 humanitarian law on the territory of Yugoslavia from January 1991 listed

11 in the Statute of the ICTY.

12 Our work so far has been evaluated on several occasions by several

13 relevant institutions so that I will quote only a few of these. The

14 organs of this Tribunal, or rather the Office of the Prosecutor, has

15 spoken of this on several occasions. If the Chamber feels that this is

16 useful, I can go into greater detail as to the assessment of our work.

17 Now there is --

18 JUDGE ORIE: I think the Chamber would be especially interested in

19 your views on -- because we have not received that much information on

20 this subject until now, but the Chamber would like to know, for example,

21 whether the legislation you're referring to which was adopted or became

22 into effect on the 1st of July, 1993, would also apply to whatever events

23 that might have happened in 1992, for example. You see, the applicable

24 law is a very technical issue and the Chamber would very much like to

25 receive analysis on, for example, that question.

1 MR. STANKOVIC: [Interpretation] Yes, Your Honour. In connection

2 with the crimes committed in 1992, we will apply the law that was in force

3 at that time. Serbia and Montenegro have legal succession in relation to

4 the laws of the former SFRY. And the crimes that are dealt with by this

5 court and a court to which the case would -- might possibly be referred

6 would both apply this. In relation to the law now in force in Serbia,

7 this law is more lenient toward the accused. That is why the law that was

8 in force at the time the crimes were committed would be applied in this

9 case.

10 JUDGE ORIE: Could you expand a bit more on what you consider to

11 be more lenient. Is that in terms of maximum sentences or as -- you may

12 have noticed that part of the discussion has been whether the modes of

13 liability, especially command responsibility, whether that existed already

14 under the old law, and even if a new law gives -- that's at least how I

15 understood some of the argument of the Defence, that even if the new law

16 has a lower maximum penalty, the law which does not have the relevant mode

17 of liability at all could not result in anything else than not being

18 punished at all so therefore would be, for that reason, the more lenient

19 law. So therefore, could you please expand on how you precisely consider

20 this leniency.

21 MR. STANKOVIC: [Interpretation] At the time the crimes were

22 committed, the death penalty was provided for these crimes. Later

23 amendments to the law abolished the death penalty and the appropriate

24 sentence prescribed was 20 years of imprisonment. Under the present law,

25 the sentence prescribed for the same crimes would be 40 years; that is why

1 we feel that according to the principle of applying the law that is more

2 favourable to the accused, the law that is applied should be the one with

3 a more lenient sanction. As for command responsibility, we feel that this

4 can be applied even under the old law.

5 In the new law which I quoted, serious violations of humanitarian

6 law can also be applied according to the principle of subordination and

7 superiority, especially with respect to negligence. Under the law of 19

8 -- that was valid in 1992, there are forms of co-perpetration which cover

9 the liability of persons who failed to act in accordance with their

10 authority over their subordinates.

11 JUDGE ORIE: Would that include negligence? Let me make it --

12 let's try to make it very simple. If a commander in 1992 had reasons to

13 know, although he did not know, that some of his subordinates was about to

14 commit a crime or had committed a crime, and if he took no action, neither

15 to prevent nor to punish, he didn't know it, one might argue that for that

16 reason there was no intent, would that be covered by the law in existence

17 in 1992?

18 MR. STANKOVIC: [Interpretation] Yes, it would be covered. It

19 would be covered as follows: In 1977, the SFRY signed the additional

20 protocol, which in Article 68, paragraph 2, provides for this -- rather,

21 86, paragraph 2, provides for this mode of liability. In our

22 constitution, international treaties form a part of domestic law. And for

23 this reason, in my view, this form of culpability must be punished under

24 the law in force in 1992.

25 JUDGE ORIE: Yes. I take it that you're referring to protocol 1

1 of the Geneva Conventions, which applies only in an international armed

2 conflict, which is not -- or is it charged in this case? Let me just look

3 to Ms. Somers.

4 MS. SOMERS: No, sir.

5 JUDGE ORIE: It's not charged in this case that the events took

6 place in the context of an international armed conflict. And Article 86

7 applies in an international armed conflict, unless you could point at a

8 similar provision in additional protocol 2; I would have some difficulties

9 to find it.

10 MR. STANKOVIC: [Interpretation] My colleague Mr. Ristivojevic will

11 address the Court on this point.

12 MR. RISTIVOJEVIC: [Interpretation] Your Honour -- Your Honours, my

13 name is Branislav Ristivojevic. I am advisor to Mr. Loncar, the head of

14 our delegation today. Allow me to expound our position in relation to

15 command responsibility. Various legal systems have the same problems.

16 They may solve them in different ways. The first additional protocol in

17 Article 86, paragraph 2, was intended to solve the problem of commission

18 of war crimes by failure to fact. The Yugoslav delegation at that

19 diplomatic conference proposed the solution of this legal problem in 1998

20 in the form of rules on the application of international law on the armed

21 forces in Yugoslavia. These were instructions on the application of the

22 laws of wars to the armed forces of the SFRY. Our Criminal Code of 1992

23 in Article 30, paragraph 2, has a provision on the punishment of

24 commission of war crimes by failure to act.

25 A person who is duty-bound to act and fails to act may be

1 punished. And in this way, he is put on an equal footing with a person

2 who commits an act by acting. This then covers the person who commits a

3 crime by failure to act. There are also several forms of co-perpetration

4 in our Criminal Code --

5 JUDGE ORIE: You wouldn't mind if I interrupt you. From what I

6 understood until now is that these solutions, failure to act or other

7 offences, would help out, if you could say that, in cases of intent. But

8 therefore I gave the specific example which is an example of a situation

9 where it is rather negligence than intent. It's therefore the issue is

10 not primarily liability for failure to act but liability, as we've just

11 heard in Article 182 -- Article 180, paragraph 2, of the present BiH code,

12 where the negligent form of such failure to act is included and is made an

13 offence. And your answer doesn't help us out.

14 MR. RISTIVOJEVIC: [Interpretation] Yes, I see your point and

15 understand the question. As I mentioned, Article 30, paragraph 2, does

16 not discuss the modes of responsibility for a perpetrator. Both

17 negligence and intent can in principle be applied. So it in fact does not

18 say anything about the forms of culpability; they are provided for

19 elsewhere in the law. At any rate, there is a possibility for a person to

20 be held responsible, both for his negligent failure to act when he was

21 duty-bound to act depending on what form of culpability is envisaged for

22 the criminal offence that he is charged with. So this is just a

23 principle. This is a provision that deals just with the matter on the

24 level of principle, not with the specific form of culpability that will

25 apply.

1 I would also like to say that the constitution of the Socialist

2 Federative Republic of Yugoslavia in 1990, which was also in force in

3 Yugoslavia, and the next constitution also included the provisions for

4 providing for the primacy of international law over domestic law. But

5 since this is the question that you ask -- asked also of the Bosnian

6 delegation, our case law was not very substantial. I would just like to

7 stress that we have a number of options that our courts can avail of

8 themselves if they face the problem of command responsibility or command

9 responsibility based on negligence, and I do not want to speculate as to

10 which one of them the courts will apply, because the courts, of course,

11 are independent in our country and they are free to decide. But this is

12 the range of options that they have at their disposal.

13 JUDGE ORIE: Yes, thank you.

14 Could I just ask, Ms. Lauth, whether the ICBiH is referring to the

15 new law, would you share the interpretation whether the failure to act

16 provisions would also cover negligence in the old law, because as you say,

17 you have some common history.

18 MS. LAUTH: It is my understanding that it is not possible to

19 construe the concept of command responsibility as contained in Article

20 7(3) of the Statute or Article 180, paragraph 2, of the BiH Criminal Code,

21 by using only the general principles of criminal law that admittedly the

22 SFRY code provides for. But when the BiH Criminal Code was drafted, there

23 were in fact long discussions as to whether it is needed to incorporate a

24 provision on command responsibility or whether it would not be possible to

25 rely on the general provisions on negligence and omission. And it was

1 agreed that it is not possible to really reach exactly the same level as

2 is provided for in Article 7(3) of the ICTY Statute.

3 JUDGE ORIE: Yes.

4 May I ask the representatives of both governments whether they

5 studied the indictment carefully. I mean, are you fully aware of --

6 perhaps I first ask it to Serbia and Montenegro. Are you fully aware of

7 how vital or how pivotal the command responsibility is in these cases? Is

8 it in all cases the same? I'm just wondering what analysis has been made

9 so as to better assess your assistance.

10 MR. RISTIVOJEVIC: [Interpretation] Your Honour, if I understood

11 the charges against the accused in this case correctly, they have been

12 charged alternatively both under Article 7(1) and 7(3) of the Statute of

13 the ICTY, including both modes of liability. According to paragraph 652

14 of the Krstic judgement, the responsibility of General Krstic was

15 established beyond reasonable doubt under Article 7(1) and therefore his

16 possible responsibility under Article 7(3) was not established; there was

17 no need to do so. What I wanted to say, that the scope of command

18 responsibility in some future judgement will be smaller, if the

19 responsibility of the accused according to Article 7(1) is established.

20 So perhaps this problem is smaller than it appears to be right now.

21 JUDGE ORIE: Yes, the future will learn that.

22 I just wanted to draw your attention that the situation is not for

23 all accused the same and perhaps Defence counsel might come back to that.

24 That is what I meant, that we have to specifically look at these cases --

25 this case or these four accused when we are talking about referral of the

1 case. I interrupted you several times, Mr. Stankovic. Are there any

2 other matters you would like to bring to our attention?

3 MR. STANKOVIC: [Interpretation] Well, I would prefer to answer the

4 questions put by the Court.

5 JUDGE ORIE: Yes, well, we have put already some questions to you.

6 JUDGE KWON: Ms. Somers.

7 JUDGE ORIE: Yes, Ms. Somers.

8 MS. SOMERS: Excuse me, I hope I'm not interrupting my learned

9 colleague. I just wanted to bring to the Court's attention something that

10 was brought to my attention, that in the SFRY code of 1977 there is an

11 article on negligence, and the translation I have indicates that the

12 perpetrator shall be -- sub 2 --

13 THE INTERPRETER: Could the counsel please slow down when reading

14 articles from the law.

15 MS. SOMERS: Exactly. "The perpetrator shall be criminally

16 responsible for a criminal offence committed by negligence only when so

17 provided by Statute."

18 So the statute effected, if it's a locum statute, would have to

19 have those terms, as I understand it. I can add nothing more to

20 enlighten, but this was conveyed.

21 JUDGE ORIE: I'm not aware of any war crimes statute with

22 negligence, but if there is, we'd like to know.

23 Yes.

24 MR. RISTIVOJEVIC: [Interpretation] Your Honour, I would like to

25 note that, for instance when it comes to the criminal offence of genocide

1 described in Article 141 of our Criminal Code, it would not be possible to

2 apply Article 30, paragraph 2, that relates to criminal offences committed

3 by failure to act and which includes both intent and negligence. Why?

4 Because genocide has to include the specific genocidal intent, and intent

5 must be present there. And another article states that a person that

6 fails to act when duty-bound to act is considered to be the perpetrator,

7 which means that he must have the mode of liability, as prescribed by the

8 law. And since, when it comes to genocide, only intent is possible, that

9 means that a commander that prevented -- that failed to prevent his

10 subordinates from perpetrating genocide cannot be held responsible on any

11 other basis except for intent. So he is presumed to have intent.

12 JUDGE ORIE: Yes.

13 JUDGE KWON: Can I ask --

14 JUDGE ORIE: Yes.

15 JUDGE KWON: -- this: Either Ms. Lauth or Mr. Ristivojevic could

16 correct me if my understanding is wrong. As for applicability of

17 international law in relation to command responsibility, the situation or

18 the base would be all the same, either for Bosnia and Herzegovina or for

19 Serbia. Am I right?

20 MR. RISTIVOJEVIC: [Interpretation] Your Honour, the constitution

21 of the Socialist Federative Republic of Yugoslavia was in force both in

22 Socialist Republic of Bosnia and Herzegovina and in the Socialist Republic

23 of Serbia. In 1992, after the breakup of the state, both successive

24 states more or less copied the old constitution. So the provisions

25 stipulated that the international law shall have primacy over domestic law

1 have been adopted both in the constitution of Bosnia and Herzegovina and

2 of Yugoslavia.

3 The Criminal Code of the Socialist Federative Republic of

4 Yugoslavia is present also in the Federal Republic of Yugoslavia and in

5 Bosnia and Herzegovina; it was adopted. In my country, it was simply

6 renamed into the Criminal Code of the Federal Republic of Yugoslavia,

7 which means that many of the provisions are quite similar, in fact

8 identical.

9 JUDGE KWON: Yes, Mr. Koumjian.

10 MR. KOUMJIAN: Your Honour, I'm not that familiar with the code of

11 the -- the current code of Serbia and Montenegro, but our position is that

12 command responsibility is in our law because of the current Criminal Code

13 that provides for it. I don't know and I don't believe, but I'm not sure,

14 that that is provided for in the current law in Serbia and Montenegro. So

15 we are not relying on what the constitution said only in 1992, we're

16 relying on the current law applied to acts that were recognised under

17 customary international law as illegal acts in 1992 applied retroactively.

18 JUDGE KWON: Thank you.

19 JUDGE ORIE: I have one question on the issue of what is called

20 the U-turn. You supported yesterday the Defence position that you could

21 not send someone to another state if he voluntarily turned himself in in

22 your territory. One of the four accused has turned himself in voluntarily

23 from the Republika Srpska. Would you consider that this Chamber could

24 decide that the case would be referred to Serbia and Montenegro? Yes,

25 you're standing, Mr. Lukic.

1 MR. LUKIC: I really apologise, Your Honours, but we have to

2 correct that data. Two of the accused surrendered voluntarily in

3 Yugoslavia, two of them directly to the United Nations. None of them

4 surrendered voluntarily to the authorities of Republika Srpska or Bosnia

5 and Herzegovina.

6 JUDGE ORIE: When I said "from Republika Srpska" I meant to say

7 from the territory of, not through the intermediary of the -- through the

8 intermediary of the authorities of Republika Srpska and -- whether it's

9 one or two doesn't make that much difference for the fundamental question,

10 because whether it was extradition or whether the issue was, as I said

11 yesterday to Ms. Somers, that the issue might be if you report yourself to

12 an international jurisdiction, would you consider it appropriate for the

13 international jurisdiction to refer the case to a state jurisdiction but

14 another state jurisdiction from where - and I again say territory - from

15 where the person came when he reported to the Tribunal?

16 Could I have an answer? Perhaps from you, Mr. Ristivojevic.

17 MR. RISTIVOJEVIC: Just a moment, please.

18 JUDGE ORIE: Or from Mr. Stankovic, whoever has the best answer.

19 MR. RISTIVOJEVIC: Could you please repeat the question, Your

20 Honour.

21 JUDGE ORIE: Yes. It was a very long question. Yesterday we

22 discussed re-extradition. By putting some questions, I wondered whether

23 it was a matter of extradition or not, but at least, as I put it to the

24 Prosecution yesterday, at least one of the issues is that if someone turns

25 himself in to a certain jurisdiction whether or not -- by way of

1 extradition, whether or not through the intermediary of the government,

2 but if I turn myself in coming from Republika Srpska territory, could the

3 final result, in your view, be that he finally ends up in a court in

4 Belgrade?

5 MR. RISTIVOJEVIC: [Interpretation] Your Honour, it is our position

6 -- we're in fact applying to this Court to refer this case to us on the

7 basis of the fact -- one of the facts, that we are willing, ready, and

8 able to try this case and many other cases before our courts. I mean the

9 ICTY cases. And in the future many such cases will be referred to other

10 courts because of the completion strategy. So as far as we're concerned,

11 we don't see it as a problem whether somebody surrendered him or herself

12 in this territory or other territory. It is a fact that in our view it

13 would be the best solution for our citizens to be tried before our courts,

14 seeing that we are able to do so and willing to do so and we feel that

15 this is in the interest of this Tribunal and in the interests of achieving

16 reconciliation in this territory.

17 MR. OBRADOVIC: [Interpretation] Your Honour, my name is Sasa

18 Obradovic and I would like to add something in regard to your question. I

19 think that we are in a logical loop here. If only two accused existed in

20 this case, only two accused that surrendered themselves in the territory

21 of Bosnia and Herzegovina, as you said, Serbia and Montenegro perhaps

22 would not be applying to the Tribunal for the referral. But in this case,

23 Serbia and Montenegro is interested in its own citizens that surrendered

24 themselves in the territory of our state and who are now before an

25 international Tribunal. Since now we have four accused, two of whom are

1 our citizens and another one is about to get our citizenship, we're

2 interested in having this case before our courts. As the hearing was

3 drawing to a close last night you indicated that our denial of the

4 territorial principle as one of the basic principles in Rule 11 bis would

5 be to simplify the case too much. But we feel that in this case -- this

6 case is really very complex. And we tried to note other aspects of this

7 case. We are in fact trying to show that a strict application of the

8 principle of territoriality would simplify the case too much in a

9 different way. So in this way it is our interest to try our citizens in

10 the territory of Serbia and Montenegro. And we feel that it would be --

11 that this was -- would better serve the interests of reconciliation of the

12 peoples from the Balkans than would be the case if you grant the

13 application made by the Prosecution.

14 JUDGE ORIE: Thank you, Mr. Obradovic, for that.

15 Mr. Koumjian.

16 MR. KOUMJIAN: Would it be -- Your Honour, on behalf of Bosnia and

17 Herzegovina, we feel we do have an interest in this issue because we have

18 an interest in trying people for crimes that were committed in the

19 country. And I'd like to briefly address some of the issues that were

20 raised yesterday.

21 We don't believe that an accused can condition his surrender on

22 the fact that he be tried in a particular jurisdiction. The Statute of

23 this Court and the Security Council Resolutions that established it

24 provide for concurrent jurisdiction. This court has primary jurisdiction,

25 but there -- the United Nations in the Statute of this Court recognises

1 concurrent jurisdiction. In effect, when the accused surrenders himself

2 to this Tribunal, at least while the Court has exercised its jurisdiction,

3 he's not available to the domestic court. But if this Court is not going

4 to exercise primary jurisdiction, it needs, I believe, to respect the

5 normal principles of which states would get primary jurisdiction over the

6 crime that occurred in their territory.

7 I would also like to point out the issue that was raised about

8 whether Rule 11 bis, having been altered, can be applied now in its

9 current form. It's our position that that the right of this Court to

10 refuse jurisdiction over a case that was before the Court existed even

11 though it was not in 11 bis at the time that these accused surrendered.

12 It's inherent in the powers of this Court that the Court could decline

13 jurisdiction. The Statute recognises concurrent jurisdiction. I believe

14 the Defence gave an interpretation of 11 bis that when it was written

15 originally it was contemplated in the situation that somebody was arrested

16 for a war crime that, say, just as an example, if Mr. Mejakic had been

17 arrested in Bosnia and Bosnia had said at that time we want to try him

18 here, this Court could say, go ahead and we'll suspend our indictment.

19 And it really was not written with the situation in mind of the completion

20 strategy and referring cases back. But inherent in the Statute which

21 provides for the current jurisdiction would be the power of this Court to

22 decline to exercise its jurisdiction and to allow the domestic court to

23 have that. The situation was simply not contemplated.

24 JUDGE ORIE: Yes. Isn't the difference -- would you agree with me

25 that the difference is whether you have the accused available yet or not.

1 I mean, it is not a matter - but I put that to you - it's not a matter of

2 whether or not you have jurisdiction, whether you could exercise that

3 jurisdiction, but also whether you could exercise that jurisdiction in the

4 presence of the accused. And that, of course, in the original situation

5 was, if someone was arrested, you would say, I'll not exercise my primary

6 jurisdiction so go ahead with your domestic jurisdiction, that would still

7 be in a situation where the accused was present. And I think that the

8 core of the problem of the Defence is that where the accused was present

9 in one jurisdiction, when the Tribunal called the accused to exercise its

10 primary jurisdiction, that the final result is that the accused ends up in

11 a domestic jurisdiction but a different one from where he was sent to the

12 Tribunal. I think that's the issue.

13 MR. KOUMJIAN: Well, we think there is a danger in this scenario

14 that an accused can, of course, shop for the forum that he wants to be

15 tried in. I will also point out, when the accused surrender everyone

16 realises at that time they're going to be out of the Balkans for quite

17 some time, and during this time since they've surrendered, they've been

18 unavailable to be arrested. Who knows what would have happened, in what

19 part of the world they would have been in had they not been in the custody

20 or under the legal jurisdiction of the Tribunal during this time. So in

21 our view, the Tribunal --

22 JUDGE ORIE: Do I understand you well that you say if the accused

23 who now report themselves in Belgrade and are sent to the Tribunal, if

24 they would not have been at the Tribunal, you never know whether they

25 could have been arrested in Bosnia and Herzegovina at a certain day. Is

1 that true?

2 MR. KOUMJIAN: I believe that is the truth.

3 JUDGE ORIE: Then I did understand your argument. Yes. Any

4 further -- Mr. Koumjian, is that what you wanted to say?

5 MR. KOUMJIAN: Yes, I believe it is.

6 JUDGE ORIE: Thank you.

7 [Trial Chamber confers]

8 MR. IVETIC: Your Honour, if I could briefly respond to the

9 comments of Mr. Koumjian --

10 JUDGE KWON: Just a second.

11 JUDGE ORIE: One second, please.

12 [Trial Chamber confers]

13 JUDGE ORIE: The Chamber has considered how to proceed at this

14 moment. This hearing on 11 bis has taken the form a bit of an exchange of

15 views and debate on legal matters, which certainly will assist the Chamber

16 in making the determinations that we'll have to make. But since we have

17 an extensive exchange of views, we have had that with the governments now

18 and you've answered most of our questions.

19 Ms. Somers, the Chamber would like to give you some five to seven

20 minutes for any final observation. Would that do or would you say, no,

21 that's by far not enough?

22 MS. SOMERS: No, I think brevity is very much in order. Thank

23 you, Your Honour.

24 JUDGE ORIE: Yes. And then I would like to ask whether the

25 Defence -- I mean, the problems are clear now. Perhaps you would like to

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1 add a few things, that if you would get another, let's say, ten minutes

2 for a joint response or final observations, would that do? It's not

3 necessary, I think, to go into details, and apart from that the Defence

4 will have an opportunity anyhow to respond in writing to the submissions

5 made by the Government of Bosnia and Herzegovina. Would that be an

6 acceptable suggestion?

7 MR. SIMIC: [Interpretation] Your Honour, I speak on behalf of all

8 the Defence counsel. We will make our closing remarks. But as we have

9 not received the material and as the Defence has established that some

10 questions have not been sufficiently clarified, we wish to submit a

11 written submission within a deadline prescribed by Your Honours and we ask

12 for another hearing perhaps so that the remaining issues might be

13 clarified.

14 JUDGE ORIE: Well, whether there would be another hearing is

15 another matter, but as I said yesterday, you will be allowed to make

16 further written submissions in response to what the BiH government has

17 submitted.

18 Ms. Somers. Yes -- I thought. Do you have any very specific

19 remark or could that be included in the final observations?

20 MR. IVETIC: Simply, Your Honours, that the Defence had prepared,

21 based upon the agenda yesterday, a joint closing argument that I was going

22 to be presenting on behalf of everyone, so we will be doing a joint

23 response. However, the Court -- we believe we anticipated that there was

24 going to be a total of 20 minutes and therefore it will be tight to get it

25 smaller than maybe 18 minutes. According to the agenda, we had five

1 minutes per team and that came out to 20 minutes, and that's what we

2 prepared for the advocacy of the Court. I can speak faster but the

3 translators would have a problem, I'm sure.

4 JUDGE ORIE: Let me be quite clear to you: If it's really -- if

5 you count -- first of all, on the original agenda, of course, it was not

6 expected that there would be further written submissions so that is in

7 addition to the 20 minutes that would have been your last 20 minutes.

8 That's one.

9 The second issue is a very practical one: If we could conclude

10 now, then there will be another hearing on a similar matter in this

11 courtroom. If we would have to continue, even if it were for five more

12 minutes once we are running out of our tape, then we would have to

13 re-start the courtroom, which takes almost 20 minutes, two times. So to

14 the extent it would be possible to make it as compact as possible and see

15 whether we can finish within the time the tapes allow us, it would be

16 appreciated.

17 First I would like to give an opportunity to Ms. Somers to make

18 any final observations.

19 MS. SOMERS: Bearing in mind, Your Honours -- and thank you very

20 much. Bearing in mind some of the concerns that were raised yesterday and

21 again brought up today, Prosecution wishes to reinforce its view that the

22 issue of extradition is not an issue; it is a non-issue in this case.

23 Extradition is not the process that we are looking at. We are looking at,

24 and it is clear in your view, an enforcement measure provided to the

25 Tribunal pursuant to the chapter 7 responsibilities and dictates of the

1 Security Council and its mandate to carry out the work that it has to do

2 under that mandate. I call attention to the fact that -- and again,

3 accepting not for one minute that it is extradition but in distinction the

4 powers that are retained by this Tribunal by virtue of the very terms of

5 11 bis distinguish it immediately from anything like extradition. The

6 power to bring it back to the Tribunal should the Tribunal make that

7 determination that it is necessary; the monitoring aspects that are

8 provided for by the -- for the Prosecution suggests that there is a --

9 clearly an enforcement side to it, it is a measure of enforcement and

10 nothing more. The fact that proprio motu -- this Chamber or a Chamber of

11 the Tribunal -- a Tribunal, shall we say, can move to have a case referred

12 are clear evidence of the fact that this is a measure of enforcement

13 provided in execution of the Security Council's mandate which comes from

14 chapter 7.

15 The concerns raised about the impact of Rule 6(D) with the

16 evolving changes in the 11 bis Statute -- I'm sorry, the 11 bis rule, are

17 also, I believe, unfounded in that -- and I share the views that

18 Mr. Koumjian had raised. The issue of forum shopping is not one that is

19 allowable, that albeit perhaps disappointing to the accused, it is not a

20 denial -- or has not been shown to be a denial of due process. Indeed it

21 is a power that is given to this Tribunal after it makes its assessment

22 that cases that -- excuse me, that jurisdictions do comport with the

23 requirements of due process, that this Tribunal does in fact have the

24 power to make the referral.

25 I'm reminded, of course, that Bosnia and Herzegovina is party to

1 the European Convention on Human Rights which incorporates the very

2 significant due process safeguards in its provisions.

3 Excuse me just a moment.

4 The determination on applicable law will ultimately be made by the

5 trying Chamber. I think this Chamber --

6 [Trial Chamber and registrar confer]

7 MS. SOMERS: I think this Chamber has certainly been given ample

8 argument - granted there is very little precedent but ample argument - to

9 accept that the court in Bosnia and Herzegovina has adequate laws to deal

10 with the facts that were the subject or that are the subject of the

11 indictment in and before this Tribunal, that the character -- the

12 essential character of the charges can be preserved and certainly

13 adequately tried if referral is granted, and that all other aspects of due

14 process, including the concerns about witnesses, are provided for in the

15 court in Bosnia and Herzegovina.

16 I just need to take one minute to see if there is any point I have

17 omitted.

18 The integral parts -- the integral provisions of 11 bis as

19 currently applied are indeed an integral mandate of the Security Council

20 which, by confirming what I indicated to the Chamber yesterday but I

21 believe it bears repetition, is the case is here by virtue of chapter 7 of

22 the Security Council with its resolutions, what happens to it is also

23 governed by those same provisions and that no judiciary external to this

24 institution can affect the provisions that are set down or that are

25 permitted to exist in execution of the Security Council mandate.

1 I think that, in the interests of brevity, covers it. If there's

2 anything, I would be happy to answer.

3 JUDGE ORIE: Yes, thank you.

4 Mr. Ivetic. First of all I have to ask the interpreters if we

5 would continue for another not more than 15 minutes, that would save us an

6 interruption two times. That would mean also that in the next case we --

7 hopefully we could perhaps have a bit longer break than the 35 or 40

8 minutes and then start the next case and finish it right away.

9 Mr. Ivetic, since I hear no firm objections yet from the booth,

10 could you try to exchange your opportunity to make further written

11 submissions well in exchange for some 6 to 7 minutes so we will finish

12 from now in not more than 15 minutes.

13 MR. IVETIC: I should be able to.

14 May it please the Court and those present for these hearings, as

15 you know, I am co-counsel for Mr. Fustar, but my comments this afternoon

16 are going to be on behalf of all of the various Defence teams and

17 therefore I'm speaking on behalf of all of the four accused that are

18 before this Tribunal because we are all uniform in our opposition to the

19 Prosecution's Rule 11 bis submission. The Trial Chamber has heard oral

20 submissions yesterday and today relative to that submission and we of the

21 Defence believe that even after these submissions by the Prosecution and

22 the state authorities of Bosnia and Herzegovina, that our objections to

23 the Rule 11 bis submission and the problems inherent in the proposed

24 transfer are still ever-present, and I will highlight those.

25 First, we wish to stress that the application of Rule 11 bis is a

1 very serious matter that requires this Trial Chamber to thoroughly

2 consider each proposed case on a case-by-case basis to see if the facts

3 and circumstances would guarantee a fair trial and ensure that the accused

4 are not deprived of the rights of due process or unjustly prejudiced by

5 the application of this rule; i.e., that they do not lose those rights

6 that were guaranteed to them by the Statute of this Tribunal. It is

7 respectfully submitted that this level of scrutiny prescribed by the rule

8 requires that all questions raised by the Defence and those raised by the

9 Trial Chamber as part of these proceedings must be the subject of concrete

10 and unequivocal answers, definite answers, from the moving party which has

11 the burden, to allow the Court to have no reasonable doubt that a transfer

12 to the jurisdiction of the state court of Bosnia and Herzegovina would not

13 infringe upon the due process rights of these accused to have a fair

14 trial. The Prosecution's motion simply cannot be supported by and cannot

15 be sustained by submissions of the Prosecution and the Bosnian authorities

16 that are uncertain, vague, conditional, or, as the

17 Prosecution has conceded --

18 THE INTERPRETER: Could the counsel please slow down when reading.

19 MR. IVETIC: The OTP's motion cannot be sustained based on

20 representations that are uncertain, vague, conditional, or, as the

21 Prosecution conceded yesterday, subject to potentially differing results

22 due to the admitted grey areas that exist in the Bosnian court's

23 application of the law.

24 Further, the Defence respectfully submits that this Trial Chamber

25 must base its decision on the actual and verifiable facts and

1 circumstances as they currently exist, not as the Prosecution or the state

2 of -- the Bosnian state authorities hope they will be in the future. As

3 such, it is not possible to grant the Prosecution's motion based on

4 changes in the law that are foreseen or an exercise of the law that is

5 discretionary, which would address the concerns raised by the Defence.

6 If the judiciary system currently in place and currently

7 functioning as written by the laws in the state court of Bosnia and

8 Herzegovina are insufficient to meet the burden of establishing a fair

9 trial would result for these accused, then it is respectfully submitted in

10 those circumstances Rule 11 bis is not proper for this case and transfer

11 should be denied.

12 The Prosecution simply cannot ask this Trial Chamber to assume and

13 trust that another court will exercise its discretion and powers in a fair

14 way; rather, the burden of proof under 11 bis shows that the requested

15 judicial body that is recommended by the Prosecution must in fact and in

16 practice meet the requirements of due process and a fair trial in the same

17 manner as would have occurred before this Tribunal, this Tribunal being

18 the ICTY. Essentially, the rule specifically states that the accused

19 shall receive a fair trial, not merely that a fair trial is possible or is

20 likely. Therefore, the Prosecution has failed to meet its burden.

21 Rule 11 bis as a prerequisite requires that the Chamber conclude

22 that basic fundamental guarantees of fairness are in place and that the

23 conditions and procedures of being tried in the state court of Bosnia and

24 Herzegovina would not be less favourable to the accused than the ICTY and

25 would not prejudice the accused. This is particularly important in light

1 of the fact that we mentioned yesterday, that Rule 11 bis was amended

2 after most of these accused had submitted themselves to the jurisdiction

3 of the Tribunal. Therefore, Rule 6(D) requires that these amendments to

4 Rule 11 bis cannot worsen the condition of the accused. And Mr. Koumjian

5 stated that they don't believe that this is -- that this is a problem, but

6 one thing the Court has to consider is that in surrendering to the

7 Tribunal these defendants had certain expectations of guarantees that the

8 ICTY Articles and the Rules of Procedure and Evidence gave to them. And

9 in exchange for submitting themselves to the Tribunal, they gave up

10 certain rights, including the rights that were guaranteed to them under

11 Bosnian law. So perhaps knowing that they would not have a trial

12 completed in one year and six months, as foreseen by the laws, they came

13 to the Tribunal instead because they thought the guarantees of the

14 Articles of the Tribunal were much more important. Now, were the case to

15 be transferred under Rule 11 bis, they would be denied the applicability

16 of the one year and six month speedy trial provisions of Bosnian law,

17 insofar as most of them have been in custody and awaiting trial for longer

18 than that time period. Over three years, for my client.

19 So under the proposals given by the state authority of Bosnia and

20 Herzegovina, these accused would have the prospect of waiting at least

21 another year and six months to see if -- that their case be concluded and

22 that their Defence be completed, meaning that they would have had to wait

23 almost five years for the same trial and the same proceedings that other

24 defendants in Bosnia would have. It's a fundamental practice that accused

25 must be treated equally and cannot be treated in such a manner that would

1 allow that prejudice.

2 Turning to the state court of Bosnia and Herzegovina, we of the

3 Defence believe that everything is still in flux over there, thus making

4 it impossible to judge the certainty of whether they would get a fair

5 trial or not. It is our opinion that the state court of Bosnia and

6 Herzegovina is not yet operational and able to do a trial of this nature.

7 And based upon our information, at the earliest, the organs of that

8 Tribunal would be operational in July of 2005, therefore the time period

9 that these accused would have to wait for trial would be even longer than

10 the one month -- one year and six months that we indicated. At this point

11 we are prepared to proceed with trial in The Hague and could probably

12 complete that within a matter of months, so that has to be taken into

13 account by this Trial Chamber.

14 I would also ask the Trial Chamber to take into account the

15 present situation as we have seen in the various organs of Bosnia and

16 Herzegovina, in particular the prison system. The state court of Bosnia

17 and Herzegovina by its own plan needs to build and construct a separate

18 prison for inmates who would be convicted under their rules, i.e., persons

19 tried for war crimes by the state court of Bosnia and Herzegovina.

20 Although the Detention Unit has been completed, the jail has not, the

21 prison has not. The -- this is crucial insofar as the existing prison

22 facilities are very problematic and one might say catastrophic for

23 individuals of the ethnicity of our clients. In particular, according to

24 the information available to the Defence and matters of public record,

25 ethnic Serbs prisoners in these Bosnian prisons have been abused and

1 severely beaten in the past. This is documented in the matter of the

2 Tepes, which actually resulted in a judgement from Bosnia that concluded

3 that an ethnic Serb prisoner had been severely beaten while incarcerated

4 by the authorities, and this was a recent decision. I ask the Chamber to

5 consider that all four of these accused are ethnic Serbs and the same fate

6 could await them if this case is referred to Bosnia and Herzegovina.

7 Further, the Defence submits that the law on protection of

8 witnesses that has been recently instituted in Sarajevo, although

9 appearing pro forma to set forth some of the same protections set forth

10 under this Tribunal, that law has not been successfully implemented or

11 practiced by the judiciary of Bosnia and Herzegovina. We can point to

12 specific examples in the practice of the prosecutors of the Federation of

13 BH that demonstrates serious breaches of these protective measures wherein

14 identities of Defence witnesses were disclosed to the public by the

15 Prosecutors, the very same people we would be entrusting this case to.

16 Furthermore, even though these protections are presented on paper,

17 they do not -- they do not create the same guarantees that would be

18 available here. And likewise, these laws give protective measures

19 available to the prosecution such as this issue of confidential or

20 anonymous witnesses which violate the due process rights of the accused.

21 It is simply not enough to have a witness, a crucial witness, examined ex

22 parte by the court without the presence of the defendant or Defence

23 counsel and with the identity of that accused being kept confidential

24 under seal for 30 years. The submission that follow-up questions could be

25 submitted by the Defence simply is not enough because this runs afoul of

1 the fundamental rights to confront a witness and makes impossible for the

2 Defence test the credibility of these witnesses if they cannot find the

3 identity --

4 THE INTERPRETER: Could the counsel please slow down.

5 MR. IVETIC: Furthermore, the rules of the state court of Bosnia

6 and Herzegovina, as we understand them, allow for the possibility to

7 re-open matters that have been already adjudicated by the ICTY Tribunal

8 and thus to effectively annul the findings of the past three years with

9 respect to the pre-trial proceedings and force the Defence to basically

10 start from the beginning again in this case, which I submit would be

11 unjust.

12 Further, under the existing rules of the Bosnia and Herzegovina

13 court, it is not at all certain that any of the Defence counsel present

14 before you today, after three years of intensive preparation, would even

15 be allowed to continue to represent their clients. Even if the state

16 court of Bosnia and Herzegovina were to exercise its discretion to make an

17 exception, the finances of this state court, as have been revealed to us,

18 do not foresee for the compensation of Defence counsel or the compensation

19 of Defence teams -- Defence support staff, including investigators, that

20 would be needed for the Defence to provide an adequate defence for our

21 clients. Under these circumstances the Defence counsel, practically

22 speaking and ethically speaking, would be hard-pressed to be able to

23 professionally and adequately defend and represent their clients if this

24 case were to be transferred to the state court of Bosnia and Herzegovina.

25 Simply put, the budget does not envision Defence teams and Defence counsel

1 being compensated by -- according to the clients' indigent status, and

2 they would therefore again annul the findings of this Tribunal that these

3 accused are indeed indigent and should be given counsel of their choosing

4 as appointed counsel.

5 Further, as conceded by the Prosecution, in Bosnia and Herzegovina

6 there is not yet a clarity or consensus as to which law will apply or, the

7 more important question, which law legally should apply. We believe that

8 all legal principles dictate that the 1992 law should apply, as in fact

9 has been found by the highest court in the Federation of Bosnia and

10 Herzegovina. Today the state authorities from Bosnia and Herzegovina

11 talked about how we don't believe that we're going to be treating them

12 retroactively and we don't believe that our laws are unfair to the

13 accused, but who is the "we" that they are talking about? Because there

14 seems to be an inconsistency in Bosnia. In a particular case,

15 specifically the customary practice has been, contrary to the

16 representations that have been made here yesterday and today before this

17 Tribunal -- before this Trial Chamber, the highest court in the Federation

18 of Bosnia and Herzegovina, in case number KZ20802, delivered on --

19 delivered in the year -- delivered in Sarajevo in 2002 specifically states

20 in the matter of Hodzic Osman and Ibrisevic Mehe that in fact, contrary to

21 the submission made here today, the law from 1992 is the law that applies;

22 and under that law, the maximum sentence allowable is 15 years. So which

23 is it? With such uncertainty this Trial Chamber simply cannot transfer

24 the case to Bosnia and Herzegovina and allow that question to be up in the

25 air; it is a very critical question.

1 The office -- the OTP and the Bosnia and Herzegovina authorities

2 have thus far focused on guarantees of safe conduct for witnesses

3 travelling to Bosnia from third countries; however, they have said nothing

4 about any guarantees of safe conduct for witnesses travelling from within

5 Bosnia itself. This is critical because for all of the Defence teams a

6 significant majority of their witnesses would be coming from within Bosnia

7 itself. Based upon the lack of any guarantee of safe conduct and the

8 justifiable fears of threats, arrest, or mistreatment if travelling to

9 Sarajevo, as we've specified in the briefs and spent much time discussing,

10 it is submitted that - and it's not an estimation, these Defence counsel

11 have spoken with their witnesses - and it is a fact that many witnesses,

12 including virtually all Bosnian Muslim Defence witnesses have

13 unequivocally stated that they have no intention of testifying in Sarajevo

14 due to their fears and in fact will not testify in the defence of this

15 case if it is referred there. Simply put --

16 JUDGE ORIE: Mr. Ivetic --

17 MR. IVETIC: Yes.

18 JUDGE ORIE: -- I'm looking at the clock. I said in exchange for

19 the five minutes you would make further written submissions. You've

20 chosen, to some extent, to repeat some of the arguments without adding

21 anything to it. I'd like you to wind up now within the next two minutes.

22 MR. IVETIC: Next two minutes, I will do that.

23 One matter I wish to stress is with respect to the monitoring

24 envisioned, and we believe it's not adequate simply to have the Office of

25 the Prosecutor monitoring the cases. By the very virtue of their role as

1 prosecutors, it would be a conflict of interest for them to determine

2 whether in fact the due process rights of the accused are being properly

3 followed if this case is transferred.

4 I would again stress for the members of the Tribunal that you must

5 look at the re-extradition issue that was discussed yesterday by my

6 colleague Lukic and that the accused who surrendered directly to the UN

7 and directly to the Serbia and Montenegro authorities and who are all

8 citizens of Serbia and Montenegro - my client who was never a Bosnian

9 citizen - had certain rights afforded to them by the Tribunal, including

10 the right of their own personal security and the security of their

11 families when visiting them, the right to be tried under the practice and

12 standards which had been established by the Tribunal, the right to paid

13 legal assistance and a Defence team which would defend them if they were

14 to found to be indigent, and indeed they have all been found to be

15 indigent and these rights would not be given to them if the case were to

16 be referred to Bosnia and Herzegovina.

17 JUDGE ORIE: Thank you, Mr. Ivetic.

18 MR. IVETIC: Therefore, we would ask that the submission be

19 denied.

20 JUDGE ORIE: Yes, thank you. That was a conclusion we were about

21 to draw from what you said.

22 I am afraid that if I do not quickly thank the delegations and the

23 representatives of Bosnia and Herzegovina and Serbia and Montenegro for

24 their presence, I address you Madam President Kreso as the leader of the

25 representation, and I address you, Mr. Loncar, if I would not do that

1 quickly, it might be lost for the record, so it's done now.

2 I would like to thank the parties for the submissions they made,

3 the way they assist the Chamber in reaching a decision in this case which

4 is a complex matter in terms of legal technicalities, but it's not only a

5 matter of legal technicalities, it's also a very important step to take or

6 not to take by this Chamber in this case. I thank you very much.

7 Madam President Kreso, I think we will see you again very soon

8 this afternoon.

9 Yes, I had not yet indicated what reasonable time limit would be

10 for written submissions. Would seven days be -- submitting end of next

11 week. If you would like to have the weekend in addition to that. Yes,

12 Mr. Simic.

13 MR. SIMIC: [Interpretation] Your Honours, could you please give us

14 at least two weeks, 14 days, because the material is really quite

15 voluminous. We would have to read about 1200 pages and we do not know

16 what is contained there. So I feel that the deadline of about two weeks

17 would be reasonable.

18 JUDGE ORIE: If you would see the material, even if it is a lot of

19 pages, I would not go through all the offences that you find, for example,

20 theft 15 years ago, theft 10 years ago, or traffic offences, whatever,

21 there's a lot of material you really don't have to read. We went through

22 it and that's for sure. Apart from that, most of it might be even already

23 familiar to you where it was not to us.

24 [Trial Chamber confers]

25 JUDGE ORIE: 14 days are granted to the Defence.

1 MR. SIMIC: [Interpretation] Thank you, Your Honour.

2 JUDGE ORIE: [Previous translation continues]... allowed.

3 MR. SIMIC: [Interpretation] We make this promise.

4 JUDGE ORIE: We will adjourn this case. We have heard the request

5 to have further written submissions. The Chamber will consider it and

6 will let you know whether they will be given any further opportunity.

7 Ms. Somers.

8 MS. SOMERS: Mindful of the need to adjourn, may I just ask if the

9 Prosecution deems it necessary for seek leave to apply, will the Chamber

10 entertain that application for leave?

11 JUDGE ORIE: We'll consider it, but of course I do understand that

12 the Prosecution has had at least the material timely available so that

13 would put the Prosecution in a different position compared to the Defence.

14 MS. SOMERS: Understood, sir. Just we don't know what will be

15 raised. Thank you.

16 JUDGE ORIE: Yes. We'll adjourn.

17 --- Whereupon the hearing adjourned at 4.13 p.m.

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