1 Thursday, 12 May 2005

2 [Open session]

3 [Motion Hearing]

4 [The accused entered court]

5 --- Upon commencing at 9.11 a.m.

6 JUDGE ORIE: Good morning to everyone.

7 Madam Registrar, would you please call the case.

8 THE REGISTRAR: Yes, Your Honour. Good morning, Your Honours.

9 This is case number IT-95-13/1-PT, the Prosecutor versus Mrksic, Radic,

10 and Sljivancanin.

11 JUDGE ORIE: Thank you, Madam Registrar.

12 Today there is a hearing on the 11 bis motion. Prosecution

13 appearances first.

14 MS. SOMERS: Good morning, Your Honours, counsel, esteemed guests.

15 For the Prosecution, Susan L. Somers, to my right Ms. Marie Tuma,

16 Mr. Aleksandar Kontic, and Ms. Lise-Lotte Karlsson, case manager. Thank

17 you.

18 JUDGE ORIE: Thank you Ms. Somers. For the Defence, Mr. Mrksic's

19 Defence first, please.

20 MR. VASIC: [Interpretation] Good morning, Your Honour. Good

21 morning to all those in the courtroom. Appearing for Mr. Mile Mrksic

22 attorney Miroslav Vasic.

23 JUDGE ORIE: Thank you, Mr. Vasic.

24 For Mr. Radic.

25 MR. BOROVIC: [Interpretation] Good morning, Your Honour. Good

1 morning my learned friend. Appearing for Miroslav Radic, attorney

2 Borivoje Borovic of Belgrade and his legal assistant Ms. Gerasimovic.

3 JUDGE ORIE: Thank you, Mr. Borovic. Then for the Defence of

4 Mr. Sljivancanin.

5 MR. LUKIC: [Interpretation] Good morning, Your Honours. Good

6 morning to everyone in the courtroom. Appearing for Mr. Sljivancanin

7 Novak Lukic, attorney from Belgrade, and Mr. Momcilo Bulatovic also from

8 Belgrade, and our assistant, Maja Dokmanovic from Belgrade.

9 JUDGE ORIE: Thank you, Mr. Lukic. Then the government of Serbia

10 Montenegro and the Government of the Republic of Croatia are invited.

11 Could we have the appearances first of the Government of Serbia and

12 Montenegro.

13 MR. LJAJIC: [Interpretation] Good morning to all participants

14 today. The delegation of Serbia and Montenegro includes me as the

15 president of the Council for Cooperation with The Hague Tribunal,

16 Mr. Djeric, legal advisor, Mr. Svetoslav Obrenovic, the legal advisor of

17 the office.

18 JUDGE ORIE: Then for the Government of the Republic of Croatia.

19 Or is there -- is there a misunderstanding? It's -- you introduced

20 yourself as the president of the Council for the Cooperation with The

21 Hague Tribunal, and your name was?

22 MR. LJAJIC: My name is Rasim Lajic.

23 JUDGE ORIE: Yes Mr. Lajic. Yes. In the translation and on the

24 transcript it did not appear in full, so I was confused.

25 Then for the Republic of Croatia.

1 THE INTERPRETER: Microphone, please.

2 JUDGE ORIE: Could you please switch on your microphone.

3 MR. HORVATIC: Yes, of course. [Interpretation] Good morning,

4 Your Honours. Good morning to all. My name is Zeljko Horvatic, I am a

5 professor emeritus of Zagreb University and a special advisor of the

6 Minister of Justice of the Republic of Croatia, and I represent the

7 Republic of Croatia before this Court. With me is Mr. Jaksa Muljacic, the

8 assistant to the Minister of Justice, and Ms. Irena Cacic from the embassy

9 of the Republic of Croatia in the Netherlands.

10 JUDGE ORIE: Thank you Mr. Horvatic.

11 Before the first break I'd like to before an opportunity to the

12 Office of the Prosecution and then to three Defence counsel to make

13 further missions to what has already been submitted in writing. After the

14 break I'd like to give an opportunity to the -- both governments involved

15 to add what whatever they want to add to the written submissions and the

16 Bench might have some questions then for the parties and the governments.

17 Ms. Somers.

18 MS. SOMERS: Thank you, Your Honour. Given the number of persons

19 opposite me as it were, not in the literal sense but in the courtroom, I

20 will try to be brief to enable those persons to field any questions that

21 the Chamber -- that the Bench may have. I do want to point out that in

22 this instance which is unusual in some of the 11 bis filings, there are

23 two states that have been included in the request. Pursuant to Rule 11

24 bis (B) which authorises the Prosecution for the Bench proprio motu to

25 make the request, the Prosecution has pursuant to 11 bis A invoked both

1 sections (i) and (ii) -- I'm sorry (i), and then in an exceptional set of

2 circumstances has included the Government of Serbia and Montenegro because

3 of ongoing related trials which are set forth in paragraphs, I believe, 34

4 and 36 of our filings of February 8th, just to make it clear as to why

5 there are in fact two parties. The normal designation would be for the

6 territory where the crimes were committed.

7 Further, the Prosecution wishes to emphasise that pursuant to its

8 submission of the 28th of April, referring you to paragraph 30 of that

9 submission with the footnote, the materials it intends and deems

10 appropriate to submit are set forth there. Nothing further. There were

11 some additional indications in the Defence's further submissions about a

12 continued engagement by the Prosecution above this and beyond this and

13 this is not contemplated nor appropriate in our view.

14 The extensive record that is available also to the parties -- I'm

15 sorry, to the governments from a case although did not reach a case of

16 decision, which is the Dokmanovic case, nonetheless presents it is our

17 submission a wealth of potential facts which could prove to be useful and

18 certainly makes the transition to prosecuting this case in whichever

19 jurisdiction the Bench deems it appropriate should it order referral. It

20 will facilitate the Prosecution of the case.

21 We do want to emphasise that in sharp contrast to the existing

22 prosecutions now in Belgrade, this case does involve command

23 responsibility and some other crimes, of course, that are -- that perhaps

24 were not covered in the criminal codes that may have dominated at the time

25 of the offences.

1 Command responsibility issue is indeed a major focal -- it is a

2 focal point of the case and the Chamber in its deliberations will have to

3 consider how best that aspect of the Prosecution can be handled given all

4 positions on what laws may be applied.

5 Certainly the jurisprudence of this Tribunal has been enriched

6 recently with command responsibility determinations, and yet we want to be

7 sure that the character of the Prosecution remains effectively intact

8 should referral be granted. And the level of the accused which we deem

9 appropriate for referral nonetheless has to be factored in with the nature

10 of the allegations.

11 The issue of monitoring is -- appears to be well in hand. The

12 reports that have come out concerning the abilities of the countries to

13 carry on war crimes trials are available to the public and to the Referral

14 Bench, and I'm sure that any further inquiry can be made of the -- the

15 states if they speak on this issue or if the Chamber wishes further

16 information on the issue of the process of monitoring as has been taking

17 place in their domestic jurisdictions on war crimes cases. It is pointed

18 out that both territories do have war crimes chambers, and we want to also

19 indicate that any inquiries by the Bench may also want to be as to the

20 nature of cooperation between the various states on issues of

21 documentation, witness protection which we think is something that of

22 course must be very much factored in. There appears to the Prosecution to

23 be a bit of a dispute as to the number of Croatian witnesses who have gone

24 to the Serbian proceedings, and I would ask the Chamber perhaps to inquire

25 into that of the parties. Croatia has one opinion. The Serbian

1 Montenegrin representatives have another.

2 At this time I would not go further but would reserve if the

3 Chamber -- if the Bench will permit as issues may come up in the course of

4 the hearings today if we may seek any possible further comment at a later

5 time.

6 Thank you very much.

7 JUDGE ORIE: Thank you, Ms. Somers.

8 Next would be Defence counsel for Mr. Mrksic. Mr. Vasic.

9 MR. VASIC: [Interpretation] Thank you, Your Honour. As I have

10 been assigned the role of speaking first on behalf of the Defence team, I

11 wish to inform you that the Defence teams with a view to presenting their

12 views concisely and succinctly divided the topics to be presented. Some

13 topics may be dealt with at greater length than others, but I wish to

14 assure you that the Defence teams will abide by the time frame assigned

15 us.

16 The Defence has put forward most of its standpoints in its two

17 submissions, so we would like now to present some new arguments dealing

18 with particular issues and responses to the positions of my learned

19 friends in their submission, and the representatives of Serbia and

20 Montenegro and the Republic of Croatia.

21 Bearing in mind the Defence submissions, one may conclude that in

22 the view of the Defence, this case meets the requirements for the

23 application of Rule 11 bis (C) of the Rules of Procedure and Evidence.

24 The Defence would like to point out, however, that it is crucial for the

25 rights of the accused to be respected, that the decision made by

1 Your Honours with respect to Rule 11 bis (A), this is extremely important,

2 and these are two issues, is the issue of extradition and the issue of a

3 fair trial.

4 The Defence has already put forward its standpoint that all three

5 solutions are provided for in Rule 11 bis (A) and that they are of equal

6 importance and make it possible for more than one state to aspire to have

7 the case transferred to that state. However, when reaching a final

8 decision on this issue, Your Honours should bear in mind the issue of

9 extradition, which the Defence has raised in its response to the

10 Prosecution motion for referral.

11 The Defence submits that were the case to be referred to the

12 judiciary of the Republic of Croatia and the accused handed over to the

13 authorities of that state, the universally accepted principles of

14 extradition would be seriously breached and those governing

15 re-extradition, and this has already been put forward in the Defence

16 submission.

17 Whether --

18 JUDGE ORIE: May I just interrupt you for one second. One of the

19 basic underlying issues is whether the defendants voluntarily came to The

20 Hague or whether they were brought as a result of the force exercised upon

21 them by a state. Could you please address that issue also as one of the

22 vital underlying matters.

23 MR. VASIC: [Interpretation] Yes, Your Honour. I will answer your

24 question right away.

25 Mr. Mile Mrksic voluntarily surrendered to the Tribunal in The

1 Hague, and he arrived here escorted by members of the organs of the state

2 security of the then Federal Republic of Yugoslavia. He voluntarily

3 surrendered, and the state merely mediated in his transfer to The Hague

4 and his surrender to the organs of the Tribunal.

5 JUDGE ORIE: I take it that we will get a response for the other

6 defendants on this issue. So he came by his own free will although

7 escorted by state officials.

8 MR. VASIC: [Interpretation] He came of his own free will after

9 expressing his desire to surrender. And in view of the law on cooperation

10 that had been adopted, he surrendered himself to the authorities of the

11 Tribunal.

12 JUDGE ORIE: Just a very simple question. If you want to come by

13 your own free will, he could have travelled to The Hague himself as well

14 or not?

15 MR. VASIC: [Interpretation] He arrived to The Hague on his own.

16 We bought an air ticket and travelled on a commercial flight, but escort

17 was provided by security organs, which doesn't change the fact that he

18 came to The Hague of his own accord, of his own free will. He had not

19 been arrested prior to that.

20 But since according to the previously adopted law on cooperation

21 with the ICTY, it was the state that was the vehicle of cooperation with

22 the Tribunal. Mr. Mrksic expressed his will to come to The Hague, and the

23 state simply organised his transfer to the organs of the ICTY.

24 If you're asking me if there was any coercion brought upon

25 Mr. Mrksic, no, there hasn't been any. His surrender was voluntary.

1 JUDGE ORIE: May I take it that I hear from other counsel on the

2 position in respect of their clients?

3 MR. VASIC: [Interpretation] Your Honours, in this part of the

4 proceedings, each Defence team will present the position of their own

5 clients separately because we are not sure they're all in the same

6 situation.

7 JUDGE ORIE: Mr. Vasic, I got the impression that your client

8 wanted to share or at least to address the Court. As you know, it's usual

9 in this type of proceedings that counsel represents the -- I would say

10 primarily the accused person who is the subject of a 11 bis request. If

11 there's -- would be any need to consult with your client, please do so,

12 and if not, please proceed.

13 MR. VASIC: [Interpretation] Thank you, Your Honours. I need just

14 a moment for that.

15 [Defence counsel and accused confer]

16 MR. VASIC: [Interpretation] Thank you, Your Honours. I should

17 like to pick up where I left off.

18 So could Mr. Mrksic who surrendered voluntarily be transferred to

19 the authorities of the Republic of Croatia despite the fact that at the

20 time when he surrendered the Rule 11 bis envisaged that a case could be

21 referred only to the jurisdiction of the state from which he had come and

22 once the legislation of that state prohibits extradition of its citizens,

23 especially when the authorities of that state are prepared and willing to

24 try him. In this connection, we should take a look at the way this issue

25 was resolved in Article 146 of the fourth Geneva Convention on the

1 protection of civilians during the war.

2 In para 2 of this article, it is stipulated that "each contracting

3 party will be under obligation to detect persons suspected of having

4 committed or having ordered grave violations and to bring them before

5 their own courts regardless of their nationality and citizenship. The

6 contracting parties will also be in a position, if they wish so, under the

7 conditions stipulated in their own legislation to transfer them to another

8 contracting party that has a vested interest in such a trial if such a

9 contracting party has in its possession a sufficient amount of evidence to

10 try that person.

11 Bearing in mine the general rule according to which a state may

12 decide whether it is going to try perpetrators of crimes itself or will

13 transfer them to another state, then the obligation envisaged by Article

14 29 of the Statute of the ICTY, in the view of this Defence, would be an

15 exception that could only be justified in case of a transfer to the

16 International Tribunal. In case of referral to the State of Croatia,

17 there has been actually an extradition in two stages with the mediation of

18 the ICTY, and the very provisions of Article 29 of the Statute do not

19 provide for transfer of suspects or indictees by the Tribunal to third

20 states.

21 Therefore, in the view of this Defence, this would be an

22 extradition rather than a transfer of an indictee because, in our mind,

23 transfer of the accused is possible only in one direction, to the

24 International Tribunal.

25 Corroboration for possible transfer or extradition to the Republic

1 of Croatia and its authorities cannot be found even in the Rules of

2 Procedure and Evidence of the ICTY itself as pointed out in the submission

3 of the state union of Serbia and Montenegro, para 52.

4 Looking at the generally accepted rules on extradition and

5 re-extradition, this Defence team respectfully suggests to this Chamber to

6 request clarification of this issue from the representatives of Serbia and

7 Montenegro during this session. Thus, in the view of this Defence, the

8 provisions of 11 bis (A) give the Chamber an alternative, that is to make

9 a decision that would not be in violation of generally accepted principles

10 governing extradition and the fundamental right of the accused to a fair

11 trial.

12 The positions of the Defence concerning possibilities of an

13 independent and impartial trial before the courts of the Republic of

14 Croatia or the state union of Serbia and Montenegro will be dealt with at

15 a later stage by my learned colleague, Mr. Lukic.

16 One of the issues asked by the Referral Chamber of the parties was

17 which law should be applied to a trial in this case if it were to be

18 referred to national jurisdictions. The Defence stands by its previously

19 expressed position that pursuant to Article 2, para 4 of the basic

20 Criminal Code, it is necessary to apply the law which is the most

21 favourable to the accused, which is the Criminal Code of the Federal

22 Republic of Yugoslavia from 1993.

23 We wish to emphasise that in the view of this Defence and in view

24 of the previously cited legal provisions, that is -- or that would be the

25 right decision, although it is the privilege of the Referral Chamber to

1 decide.

2 And finally, I would like to say a few words about the submission

3 of the representatives of the Republic of Croatia in which they expressed

4 their views in response to the questions of the Referral Chamber regarding

5 possible advantages of trying the accused in the Republic of Croatia

6 rather than in Serbia and Montenegro.

7 As to the conclusion that the case should be tried in the state

8 where the crimes were be committed, we expressed our position in our

9 written submission under the heading "Issue of forum delicti comisi," so

10 we shall not repeat that position here. The Defence cannot agree with the

11 other conclusions either, namely that the laws are more favourable on the

12 territory of the Republic of Croatia.

13 Bearing in mind that the special chamber for war crimes in

14 Belgrade is currently trying a case against 17 accused who are charged

15 with ordering and committing crimes against prisoners of war perpetrated

16 at the Ovcara farm at Vukovar between the 20th and 27th November, 1991,

17 and bearing in mind the fact that this Defence team has been closely

18 following the proceedings, we are able to express our view that the

19 greatest number of the witnesses and most of the material evidence

20 regarding documentation from that time are located precisely in the state

21 union of Serbia and Montenegro.

22 The indictments under which the aforesaid proceedings are taking

23 place cover the same events as the indictments brought by the ICTY

24 wherefrom referral is requested. If we compare these two indictments, we

25 can see that the first and the second accused who, under the Belgrade

1 indictment, are charged with ordering the crimes are in fact persons whom

2 the OTP cites in their indictment as participants in a joint criminal

3 enterprise together with the accused Mrksic, Radic, and Sljivancanin. In

4 both these indictments, the victims are the same, persons from the Vukovar

5 Hospital, with the proviso that the Belgrade trial is dealing with those

6 who issued orders for this crime, whereas the indictment under discussion

7 here is an indictment where the Prosecutor claims that these persons are

8 responsible as participants in the joint criminal enterprise under Article

9 7(1) of the Statute and as superior commanders under Article 7(3) of the

10 Statute.

11 Concerning the trial in Belgrade and the claims expressed by the

12 representatives of Croatia regarding the ability of witnesses to come to

13 the trial, we will hear more from my learned colleague, Mr. Borivoje

14 Borovic.

15 However, before that, I should like to make a few remarks about

16 one fact, namely the confidential submission regarding protective measures

17 filed by my learned friends from the OTP on the 17th of December, 2004,

18 and the 31st of January, 2005. After the Defence expressed its views,

19 that is after the response of the Defence, the Trial Chamber issued its

20 decision on the 9th of March, 2005.

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 JUDGE ORIE: Please proceed, Mr. Vasic.

9 MR. VASIC: [Interpretation] Thank you, Your Honours. I appreciate

10 the concern of my learned friend from the Prosecution, and I wish to thank

11 her. But I will stop here for a moment only to ask the Honourable Chamber

12 to pay attention to the request of the OTP for protective measures of the

13 31st of January, 2005, attachments A and B included, and the response of

14 the Defence to this motion, paras 13, 14, and 15, as well as the decision

15 of the Trial Chamber including confidential annex A.

16 I thank you, Your Honours, most sincerely. My learned friend

17 Borivoje Borovic will continue.

18 JUDGE ORIE: Mr. Borovic.

19 MR. BOROVIC: [Interpretation] Thank you, Your Honours. Dear

20 colleagues, I will present the views of the Defence which will include

21 some observations and comparative analysis of the positions of the

22 representatives of Croatia and the jurisprudence of this Tribunal.

23 The Prosecution has requested certain protective measures for a

24 certain number of witnesses. This motion has partially been granted, and

25 the Defence believes that if the case were to be transferred to the

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1 Special Chamber for War Crimes in Belgrade, these protective measures will

2 remain in force in keeping with Article 14(A) of the law on proceedings in

3 war crimes cases, which we will hereinafter refer to as the law on war

4 crimes. In Article 5 of this law, we read that the measures for the

5 protection of witnesses ordered by the ICTY shall remain in force.

6 In its submission of the 28th of March this year, the Defence --

7 or, rather, the Prosecution expressed its view that some other witnesses

8 will also need protective measures. Before this special chamber for war

9 crimes in Belgrade this principle has been upheld. And in view of all the

10 positions expressed in our submissions, special protective measures for

11 victims and for witnesses would not even be necessary. In proof of this

12 claim, the Defence has presented cases Ovcara and Severin currently under

13 review in Belgrade, and in paragraphs 46, 47, and 51 we elaborated on

14 this.

15 The OTP has in its submission given a review of the legislation in

16 Croatia. From this we see that although the legislation does provide for

17 protection of witnesses, which is a very important issue which will recur

18 in all these proceedings, practice has shown that many of these protective

19 measures for witnesses are still at the stage of development or are

20 failing to be applied.

21 In the special report on the situation of Croatian legislation

22 that was under review by this Tribunal of the 26th of April, 2005, there

23 are passages regarding the negative atmosphere in the courtroom, coercion

24 of witnesses, and other negative phenomena. So far we have seen 500 cases

25 of trials in absentia in Croatia against Serbs. In the case of Petar

1 Sailovic, who was convicted in absentia after spending some time in

2 prison, we saw that eventually it was decided that it was a case of

3 mistaken identity. This Chamber also knows that out of a total of 28

4 accused, there were 14 Serbs convicted in absentia.

5 In this report on page 23, item 2, we read that during the trial

6 monitored by the mission, witnesses claimed that they were being

7 threatened before interrogation, before proofing, rather, in cases Hubelic

8 and Gavron.

9 This is also the right moment to correct a slight error in our own

10 submission. When we spoke about the witness Milan Lever the case of the

11 so-called Gospic Group where we stated in our submission that it was a

12 witness of Serb ethnicity. Milan Lever is in fact a Croat who was

13 supposed to be an important witness in the Gospic trial, and we have

14 information that he was also to be an important witness in the Norac

15 before this Tribunal. However, before he ever appeared before the court,

16 he was killed.

17 In the report on page 25, item 3, we read special passages about

18 testimony of witnesses from the former Yugoslavia. This report says that

19 the greatest number of witnesses were afraid of going back to Croatia to

20 testify.

21 On page 23, item 1 regarding Zoran Banic, a Serb tried before the

22 parish court in Zadar, it is said that several journalists disturbed the

23 closing arguments of both the Defence and the Prosecution, and it was very

24 difficult to restore peace in the courtroom.

25 Another important case is very important. The parish court in

1 Vukovar -- the county court in Vukovar, that is. With the explanation of

2 the county court in Vukovar regarding the possibility of transfer of these

3 cases, we read that there is a plan to try these persons in absentia.

4 That involves Judge Ante Zekovic, and the state defender Bozidar Piljic,

5 who received information on the 24th of March this year that there is an

6 active case in the county court in Vukovar. And they are trying precisely

7 our accused. This is an example of the court which has priority over the

8 national court of Croatia. In fact, this county court was challenged for

9 trying a case in which the national court has priority, and the response

10 was that the accused should be defended by lawyers who are appointed, by

11 appointed Defence counsel.

12 We are, therefore, arguing that it is a unique case where we have

13 a parallel trial before the county court in Vukovar and the ICTY against

14 the same accused. I will not exaggerate if I say that in the view of this

15 Defence, this is a gross violation of the Rules of the ICTY.

16 The support for this claim that the Rules of the ICTY are being

17 violated is to be found in the application of the rules of the ICC. In

18 Article 21, para 1, it says that the same accused cannot be tried on the

19 same charges in the Republic of Croatia and before the ICTY at the same

20 time. The Croatian state has not yet enacted a law which would apply also

21 to the ICTY regarding this same issue. However, the judiciary of the

22 Republic of Croatia would have first of all to abide by their own

23 constitution, the Croatian constitution, which does uphold the principle

24 non bis in idem.

25 As for the immunity of witnesses, that is potential witnesses in

1 this -- in the event that the case is transferred to Serbia and

2 Montenegro, in our joint submission of the 28th of March of this year, in

3 para 49, we stated that it was precisely Article 14 on the law on war

4 crimes that is cited, and it says verbatim, Article 14 of the law

5 says: "A person who is located abroad cannot be detained, imprisoned or

6 criminally prosecuted for a crime committed earlier in the Republic of

7 Serbia." In criminal cases from para 2 of this law, this victim or

8 witness concerned will be adequately protected.

9 With regard to immunity of witnesses should this case be referred

10 to the Republic of Croatia, according to the ICTY Statute and the Croatian

11 law, Article 49, para 2, it provides that Article 28 of the said law is to

12 be applied to the ICTY in Article 28 on taking over cases from the ICTY by

13 the Republic of Croatia. However, in para 5, Article 28 of the law of the

14 application of the Statute of the ICTY, it says that the Croatian

15 government may conclude a separate agreement with the ICTY. The Defence

16 of these accused has not found any information that there is a special

17 agreement, and thus we have arrived at the view that there is no immunity

18 for potential Serb witnesses who are to testify in Croatia.

19 The comment by the OTP of The Hague Tribunal on the fact that

20 Serbia and Montenegro have no special law on the protection of witnesses

21 and that such a law is yet to be enacted, but in response to that, the

22 Defence wishes to point out that the bill which exists has been tabled in

23 parliament. However, in commenting on this, the Defence in its submission

24 and now in our oral presentation of arguments, we wish to remind everyone

25 that not only Article 109 of the Law on Criminal Procedure but also

1 Article 173, paragraph 1, Article 292, and Article 504 of the Law on

2 Criminal Procedure deal with this issue. Also, Article 15(M) of the law

3 on organised crime, as well as the law on war crimes, Articles 11 and 14.

4 All these deal with issues of videolink. Article 14(A) referring to the

5 implementation of protective measures and an article that we discussed in

6 our submission of the 28th in Article -- in paragraph 44.

7 At the proposal of the investigating judge or the president of the

8 Trial Chamber, the state prosecutor or the president of the court may

9 require the interior affairs organs to take special measures to protect

10 witnesses, and this is in Article 109, paragraph 3 of the Law on Criminal

11 Procedure. I will not go any further.

12 The standpoint of the OTP on a special law providing for the

13 protection of witnesses is something that the Defence can comment on as

14 follows: It is true that such a law is necessary, but the constitutional

15 charter regulating the relations between the Republic of Serbia and the

16 Republic of Montenegro, which deals with the status of the joint state of

17 Serbia and Montenegro, contains the following provisions: The Law on

18 Criminal Procedure valid in Montenegro, which is part of the state union

19 of Serbia and Montenegro, regulates the issue of protection of witnesses

20 in Articles 108 to 109, that is Articles 108 and 109 of the Law on

21 Criminal Procedure of the Republic of Montenegro. The Republic of

22 Montenegro has adopted a special law on witness protection in the Official

23 Gazette of the Republic of Montenegro, number 65 of 2004, and this has

24 been in force as of the 1st of April, 2005.

25 This law on the protection of witnesses encompasses the conditions

1 and procedures for providing protection for witnesses, a commission for

2 the implementation of witness protection programmes, a unit for witness

3 protection, the application and extension of the programme of protection,

4 the kinds of protection, and so on and so forth. I will not go into this

5 any further.

6 The regulations from this law which I have just quoted are in

7 accordance with Article 75 of the Rules of Procedure and Evidence of the

8 ICTY providing for witness protection measures. It is fully in harmony

9 with this.

10 To clarify to the Court, the Defence also states that the law on

11 the criminal procedure of the Republic of Serbia in Article 220 regulates

12 the issue of legal aid, which has been made more specific in Article 8,

13 paragraph 1, of the law on the organisation of courts in the Republic of

14 Serbia as the lex specialis.

15 Article 220 on the Law on Criminal Procedure of the Republic of

16 Serbia provides for all organs participating in criminal proceedings to

17 provide the necessary assistance. The special Article 8 of the law on

18 courts of the Republic of Serbia reads that courts are duty-bound to offer

19 each other legal aid, and other state organs and organisations are

20 duty-bound to provide the necessary aid and the necessary information to

21 the courts.

22 What does this mean in practice? In practice, this means that

23 should a problem arise in the case of a witness from the Republic of

24 Croatia who does not wish to testify in Serbia, such a witness by a

25 decision of the Trial Chamber for war crimes of the court in Belgrade can

1 be sent to testify before a court in Podgorica in Montenegro, and the

2 testimony of this witness can then be treated as evidence in the criminal

3 proceedings before the war crimes court in Serbia. This means that this

4 witness can make his statement with the protection contained in the Law on

5 Criminal Procedure of Montenegro.

6 As for the Defence response to the positions of the Republic of

7 Croatia, and I will speed up a little, the Croatian government considers

8 that the proceedings should be conducted on the territory where the crime

9 was perpetrated. Also, Croatia feels that it -- for reasons of

10 expedience, this should be done and also that witnesses testifying before

11 the courts in Serbia in the Ovcara case were intimidated.

12 The Defence, however, wishes to point out that in the report of

13 the NGO Foundation for Humanitarian Law in Belgrade, the director of which

14 has been given authority or, rather, is protecting the rights of the

15 victims of Ovcara before the court, in his report of the 6th of April,

16 2005, says as follow: "The proceedings before the war crimes court in

17 Belgrade are conducted in a professional manner with a view to

18 establishing the truth and the individual criminal responsibility of each

19 accused and establishing the facts which might help to identify the

20 victims."

21 This report was signed by the regional team, which includes

22 observers from Croatia, Bosnia, Serbia, and independent observers. From

23 this report, it follows that the impression they had --

24 JUDGE ORIE: I'll just interrupt you. The report, has that been

25 submitted?

1 MR. BOROVIC: [Interpretation] Your Honour, in order not to lose

2 time, allow me to conclude with a few sentences and then I will tender

3 this report and the three bills I have mentioned. I will submit this to

4 the Court at the end of my address. I do have these both in English and

5 in Serbian.

6 It is incorrect that most of the evidence is on the territory of

7 the Croatia, as the Croatian government claims. It is true that the

8 material traces are there, that an on-site investigation has been

9 conducted, forensic reports have been submitted, and the victims are from

10 Croatia. However, most of the witnesses are in Serbia. And how the

11 Defence will bring these witnesses before the court -- may I proceed?

12 Thank you.

13 As most of these witnesses will be military personnel who are now

14 in Serbia and people who are members of various volunteer organisations as

15 well as persons who are accused in the Ovcara case and large numbers of

16 politicians in important positions as representatives of the local

17 government in Slavonia, Baranja, and Western Srem, there is an objective

18 danger that none of these witnesses will appear before the courts in

19 Croatia.

20 I wish to point out to Your Honours a recent case, and this is a

21 case which is well known and refers to the arrest of

22 Colonel Cedomir Brankovic. Cedomir Brankovic was arrested as a member of

23 an official military delegation from Belgrade to Bulgaria. He is a

24 colonel in the Army of Serbia and Montenegro, and there was an arrest

25 warrant issued by the Croatian judiciary saying that he had participated

1 in crimes around Novska in 1991. In the meantime, he has been released by

2 the judiciary in Bulgaria.

3 And I wish to conclude by saying that a fair trial cannot be

4 conducted in Croatia because most defence witnesses will be from the group

5 of people I have described.

6 Your Honours, to conclude, as I have sufficient copies, I tender

7 Article 21, paragraph 1, on the law on the application of the Statute of

8 the ICTY [as interpreted].

9 I think that in the transcript -- I have an objection to the

10 transcript. When I was discussing Article 21, I said "Article 21 of the

11 law on the application of the Statute of the ICTY -- of the ICC," and the

12 transcript reads "ICTY," and this is of crucial importance.

13 Furthermore, I wish to tender as Exhibit number 2 the Law on

14 Criminal Procedure of the Republic of Montenegro. As Exhibit 3, I tender

15 Article 220 of the Law on Criminal Procedure of the Republic of Serbia and

16 Article 8 on the law on the organisation of courts of the Republic of

17 Serbia. And furthermore, I wish to tender the report of The Front For

18 Humanitarian Law dated the 6th of April, 2005. Thank you.

19 JUDGE ORIE: Thank you, Mr. Borovic. One very factual question

20 just for myself to see whether there will be any legal issue. You talked

21 about witnesses who would not appear in Croatia, and you mentioned among

22 them those accused in the Ovcara case at this moment. Are they -- are

23 these accused in detention at this moment?

24 MR. BOROVIC: [Interpretation] All the accused in the Ovcara case

25 are, of course, in detention except perhaps for one or two who are not in

1 detention for health reasons. However, as accused before the court in

2 Belgrade, they -- as themselves have said in war crimes proceedings where

3 we as counsel were observers, they will not agree to testify as witnesses

4 should be -- should the proceedings be conducted before a Croatian court

5 in Croatia.

6 I assume that perhaps there are indictments under seal in the

7 Croatian judiciary for other crimes, and there are proceedings in

8 absentia, so that I am quite sure of this. And what I mentioned, that is

9 the case of Colonel Brankovic, this shows that large numbers of military

10 personnel are not sure that they have not been indicted in indictments

11 under seal by the Croatian judiciary.

12 JUDGE ORIE: You're finished?

13 Mr. Lukic.

14 MR. LUKIC: [Interpretation] Your Honours, there is a technical

15 problem here in view of the schedule we received. I know that a break is

16 supposed to start soon, and my contribution should take about 15 minutes.

17 It would be better for me to finish without the break if Your Honour

18 agrees.

19 JUDGE ORIE: If you finish within 15 minutes, you're allowed to do

20 so. Please proceed.

21 MR. LUKIC: [Interpretation] Your Honours, and all the parties to

22 these proceedings, I will cover three topics that have not been covered,

23 at least not in a detailed way in our written submissions.

24 One concern has become the core discussion about the possible

25 referral of this case to national jurisdiction, that is the focal point of

1 the entire Article 11 bis of the Rules of Procedure and Evidence and the

2 concept over which all the swords of arguments of the parties are being

3 crossed here, both in written submissions and in oral arguments. That is

4 the concept of fair trial. And your decision, if you find that all the

5 requirements from the Rule 11 bis C have been met, must be based on a firm

6 conviction that the accused will have a fair trial.

7 We have to discuss one aspect of a fair trial which follows from

8 Article 10(2)(b) of the Statute, that is the presumption of innocence and

9 that a trial has to be independent and impartial. The judiciary both in

10 Serbia and Montenegro and in Croatia is formally independent of the

11 executive and legislative authorities. Maybe the representatives of these

12 authorities present here will not like our observations, but it is our

13 obligation to act first and foremost in the interest of our clients and to

14 try to provide for them within the remit of our powers the best conditions

15 for a trial to be fair.

16 One of the most important, if not the most important, principles

17 of a fair trial is the presumption of innocence. It is the obligation of

18 all state authorities not only to refrain from any statements regarding

19 the outcome of the proceedings but also to influence the public opinion

20 not to threaten this fundamental right of the accused.

21 In the general comment number 13, paragraph 7, adopted by the

22 Commission for Human Rights of the United Nations of the 15th of August,

23 1997, as an instruction for interpreting the international covenant on

24 civil and political rights that has been adopted by both states

25 represented in this courtroom stipulates as follows regarding the

1 presumption of innocence: "The presumption of innocence implies the right

2 of the accused to be treated in keeping with this principle." Therefore,

3 all representatives of the authorities are duty-bound to refrain from

4 pre-judging the outcome of the trial.

5 The accused and their Defence counsel have just concern, just

6 reason to -- to be concerned that a possible trial in Croatia could be

7 affected interests by the vested interests of the executive authorities.

8 It is obvious that the Ovcara case and a possible trial of our clients,

9 who are frequently referred to as the "Vukovar troika," has considerable

10 weight in the Croatian public opinion. The officials of the Croatian

11 authorities have frequently given statements about the importance of this

12 trial and their interest in having the case referred. This in itself is

13 not perhaps a reason for our concern, but if such statements contain

14 certain qualifications whereby the authorities show that they are

15 interested not only in having their case referred but also in the outcome

16 of the trial, then this is cause for deep concern of the Defence that the

17 trial may not be independent or impartial. Some of this has been dealt

18 with in our response to the motion of the Prosecution for the referral in

19 paragraph 41.

20 We now have to be precise. Specifically the Minister of Justice

21 of the Republic of Croatia who also signed the submission before you

22 stated --

23 THE INTERPRETER: Slow down.

24 MR. LUKIC: [Interpretation] Stated the ongoing proceedings for

25 referral of this case, and this was broadcast in the news bulletin of the

1 Croatian television of the 9th of February, 2005.

2 JUDGE ORIE: You're invited to slow down. Please proceed.

3 MR. LUKIC: [Interpretation] I am trying to keep my promise to

4 finish soon.

5 I will repeat the quotation. "Since this is the gravest crime

6 ever committed in Croatia, we will present all the necessary arguments for

7 Croatia to receive this case."

8 In the news bulletin of the same Croatian television broadcast on

9 the 12th of March, 2005, the same Minister of Justice states as follows, I

10 quote: "I believe it would be a very good thing if Croatia got the

11 Vukovar troika, because that is where the greatest genocide after

12 Srebrenica that was committed after the Second World War."

13 Deputy Prime Minister of Croatia, Mrs. Jadranka Kosor made another

14 statement published by Vjesnik on the 30th of March, 2005: "I personally

15 believe that the Vukovar troika should be held accountable before the

16 International Criminal Court, because we would not achieve anything by

17 transferring this case to the Croatian judiciary, and anyway, the

18 International Criminal Court stipulates the severest sentences for this."

19 And finally, let us take a look at the submission of the

20 Government of Croatia in this case, conclusion IV page 6, I will quote it

21 in English: "After referral it will transfer the case to the competent

22 courts for further proceeding and sentencing.

23 "... croatian criminal law provides a suitable normative framework

24 for prosecution and trial of the case."

25 In other words, the Croatian government demands in its written

1 submission to take over this case that the -- so that the accused should

2 be tried and convicted before the competent Croatian court. A possible

3 acquittal is never mentioned in this submission, only sentencing.

4 Regarding the Ademi Norac case and the Croatian submission concerning

5 this, which is also the subject of your decision, Your Honour, the

6 Croatian submission never mentions the word "sentencing." It reads:

7 "Croatian criminal law provides a suitable normative framework for

8 Prosecution and trial of the case." Both submissions were signed on

9 behalf of the Croatian government by the Minister of Justice whose

10 statements I have just quoted.

11 Maybe there are people who do not see any reason for concern

12 regarding the independence of the judiciary in such political statements.

13 However, according to these statements as expressions of the opinion of

14 the highest representatives of the Croatian executive authorities, these

15 accused are a priori considered as persons who are planned to be convicted

16 and given the highest sentences. If we put all this in the context in

17 which the Republic of Croatia has filed a case at the ICC here in The

18 Hague against the Federal Republic of Yugoslavia, that is Serbia and

19 Montenegro, for genocide, then we clearly see the vested interest of the

20 executive powers in the outcome of these proceedings.

21 One of the grounds for the charge of genocide are the events that

22 are the subject of these proceedings. You can see that in paragraph 12 of

23 the -- of the suit filed by Croatia against the FRY of the 2nd of July,

24 1999. We haven't prepared a copy but we can give you one after the break.

25 JUDGE ORIE: This shows you how much time the interpreters need to

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1 translate what you say.

2 May I take it when you refer to a case filed at the ICC that you

3 are actually referring to the ICJ? International Court of Justice rather

4 than the International Criminal Court.

5 MR. LUKIC: [Interpretation] Yes. Yes. It is the ICJ. That is a

6 case between states.

7 JUDGE ORIE: Please proceed.

8 MR. LUKIC: [Interpretation] I will move on to another subject.

9 That is the subject that we have covered in our response of the 1st of

10 March, and our second submission dated the 28th of March, 2005. That is

11 the issue of the right to chosen counsel. From what the representatives

12 of the states have written, it follows unequivocally that the currently

13 appointed counsel in this case could continue to represent the accused

14 only before the judiciary of Serbia and Montenegro. As we already pointed

15 out -- what we already pointed out in our first submission has been

16 confirmed by the government of the Republic of Croatia in its submission,

17 paragraph 4, page 5, namely the fact that before Croatian courts only

18 Croatian citizens can act in the capacity of counsel.

19 I probably don't need to particularly emphasise to what extent the

20 relationship of trust and privilege between the accused and counsel is

21 fundamental to the preparation of defence and to what extent it is a sine

22 qua non of the right to chosen counsel. All the Defence counsel appointed

23 here have been named because they meet the necessary requirements, have

24 the necessary qualifications and have been chosen be by the accused

25 themselves. Without wishing to give ourselves special importance, we do

1 have to point out two important facts: In view of the time we have

2 already spent working on this case, we are all of us ready for a trial to

3 begin immediately, and the second fact is that all the Defence teams have

4 already implemented a great number of contacts out of which a great number

5 are contacts with confidential sources, sensitive sources.

6 We provided a detailed explanation in para 63 of our first

7 response to the motion of the Prosecutor.

8 Our clients are fully convinced that the lawyer/client privilege

9 could not exist with lawyers from Croatia because of the peculiarities of

10 this case, at least not at a levelness for an adequate defence. This

11 conclusion also follows from the prevailing public opinion in Croatia

12 regarding this indictment, a public opinion that has existed for many

13 years now, that concerns also the role of the JNA in the Vukovar events

14 and concerning our clients themselves.

15 Such an attitude, such a relationship, that is, the privileged

16 client/lawyer relationship could not be established on the level of

17 cooperation between counsel through the authorised Croatian law offices

18 either. Such representation through mediators without direct involvement

19 in the courtroom and without direct participation in the proceedings would

20 considerably restrict professional conduct and would jeopardise the most

21 important principles prescribed in the preamble of our professional Code

22 of Conduct as Defence counsel before this Tribunal.

23 In view of all our arguments already provided on this issue in our

24 written submissions, the Defence believes that the principle of chosen

25 counsel and adequate defence as one of the important segments of a fair

1 trial in this specific case can be achieved fully only if the case is

2 transferred to the judiciary of Serbia and Montenegro.

3 And finally in our oral arguments we would like to touch upon one

4 other subject, namely the problems regarding the application of the

5 provisions from Rule 11 bis (D)(iv), which gives the Prosecution the

6 possibility to send monitors to attend the trial before a national court

7 as well as the possibility to replace the order for a referral and request

8 deferral to the ICTY as envisaged by Rule 11 bis (F) of the Rules.

9 We have already presented our views on this in our last

10 submission, paragraph 65, 68. To a certain degree the vision of the

11 Defence, the views of the Defence, are compatible with the position of the

12 OTP as expressed in paragraph 31 of their latest submission. Still, the

13 Defence believes that it is necessary to point to the Chamber to what

14 extent this problem is important from the aspect of independence of the

15 judiciary and the principle of a fair trial.

16 In one of previous proceedings concerning the issue of referral -

17 I believe it was in the Ademi Norac case - I heard the position of one of

18 the participants in this discussion that the greatest guarantee that a

19 trial would be fair is the fact that at every stage of the proceedings the

20 Tribunal may request deferral again, which would have far reaching and

21 negative consequences on the confidence of the international community in

22 that national jurisdiction.

23 Such an understanding can be only one side of the coin. The other

24 side of the coin is the awareness of all those who would be taking an

25 active part in the proceedings, I mean the Judges and the Prosecutors on

1 behalf of the state concerned, the awareness that their conduct is not

2 consistent with the requirements for a fair trial of somebody who is

3 monitoring the trial. The highest standard for ensuring a fair trial

4 wherever it is taking place must be the independence and impartiality of

5 the trial. We all have to be aware of fact that the provision on the

6 monitoring of a national trial and the possibility to request deferral of

7 case back at any stage is a huge pressure on a national court.

8 We have no reason to doubt that it is your purpose to contribute

9 in any event under any circumstances to a conduct of the trial without any

10 pressure at all. That is why we stated in our written submission that we

11 are concerned by the solution provided by Rule 11 bis (F), namely that the

12 Prosecution is authorised to initiate proprio motu a deferral to the ICTY.

13 According to the Statute, the mandate of the Office of the

14 Prosecutor is to prosecute -- is to prosecute. If we interpret this

15 provision of Rule 11 bis (F), it follows that there is an expectation for

16 the trial to be impartial and competent only in favour of the accused but

17 not to his detriment. What if it turns out that the trial is partial to

18 the detriment of the accused? Would the Prosecution even then request

19 deferral?

20 I am concluding now. In view of all these facts, we believe that

21 is only the Tribunal, personified by this Trial Chamber, either the Trial

22 Chamber or the Referral Chamber that must within its own authority ensure

23 an objective monitoring of a national trial without exerting at any moment

24 any pressure on an independent jurisdiction. Only then would the highest

25 standards for a fair trial be accomplished, attained, and only would such

1 a trial shed light on the truth. We will come to the truth and that is

2 one of the mandates for -- with which this Tribunal has been established,

3 that is to re-establish reconciliation among the nations of Yugoslavia.

4 Thank you.

5 JUDGE ORIE: Thank you, Mr. Lukic. We will have a break now for

6 half an hour. The Defence counsel of Mr. Radic and Mr. Sljivancanin are

7 invited to give notice to this Chamber if their position in respect of

8 voluntary surrender would be any different from that of Mr. Mrksic. You

9 could do that immediately after the break.

10 Ms. Somers.

11 MS. SOMERS: May I ask the Court's indulgence for one moment,

12 please. We didn't want to interrupt during proceedings but we were trying

13 to raise an issue that perhaps would merit explanation. Page 16, line 7.

14 I believe my learned counsel opposite Mr. Borovic may have inadvertently

15 made a speculative reference or perhaps a knowledgeable reference to an

16 OTP witness list. We accept that perhaps with regard to other proceedings

17 this individual may have been on a list. We -- we do not wish to have any

18 comment on possible witness lists that are not public. That's it.

19 JUDGE ORIE: We have considered whether there would be -- need a

20 redaction. At the same time, I think a list -- the witness is the witness

21 who was -- who was -- who died since then.

22 MS. SOMERS: No contest on that. The issue was simply not

23 referring to --

24 JUDGE ORIE: Yes.

25 MS. SOMERS: -- OTP witness lists that are confidential.

1 JUDGE ORIE: Yes, you do that because we have considered --

2 MS. SOMERS: Thank you.

3 JUDGE ORIE: -- whether we would need a redaction. But because of

4 the death of the --

5 MS. SOMERS: Understood.

6 JUDGE ORIE: -- of the witness involved --

7 MS. SOMERS: And we would --

8 JUDGE ORIE: -- we decided not to do so.

9 MS. SOMERS: I'm sorry, Your Honour. We would of course seek to

10 have additional comment afterward having heard additional comment. Thank

11 you.

12 JUDGE ORIE: After the break.

13 We will have a break until ten minutes past eleven and then the

14 governments are invited to give their views.

15 --- Recess taken at 10.42 a.m.

16 --- On resuming at 11.16 a.m.

17 JUDGE ORIE: Before I give an opportunity to the representatives

18 of Serbia and Montenegro and Croatia, I'd like to hear from Defence

19 counsel on their position in respect of voluntarily surrender. Of course

20 the Chamber expects that it would not be the same for all three accused.

21 Yes, Mr. Borovic.

22 MR. BOROVIC: [Interpretation] Thank you, Your Honour. Miroslav

23 Radic surrendered voluntarily under the only method at the time under the

24 law on cooperation with The Hague Tribunal, that is he surrendered to the

25 organs of the state of Serbia and they transferred him to The Hague

1 according to the prescribed procedure. Had Miroslav Radic wished to

2 travel to the Hague Tribunal on his own, he would have been arrested at

3 the border, and this would have meant that he did not fulfil the condition

4 of voluntary surrender.

5 JUDGE ORIE: So I do understand that he came from his own free

6 will and not as a result of coercion by Serbia and Montenegro. Yes.

7 MR. BOROVIC: [Interpretation] Yes, Your Honour. Thank you.

8 JUDGE ORIE: Mr. Lukic, as far as Mr. Sljivancanin is concerned,

9 it might be different.

10 MR. LUKIC: [Interpretation] Your Honour, the position of the

11 Defence of Mr. Sljivancanin is that he was arrested. We do not challenge

12 what the Prosecution said in paragraph 30 of their initial submission.

13 The conditions under which he was arrested is something we do not wish to

14 go into now. We wish to leave that for our Defence case. It is a matter

15 that is of relevance to our defence.

16 JUDGE ORIE: That is not at this moment at stake. I'd like to

17 give -- Mr. Borovic.

18 MR. BOROVIC: [Interpretation] Your Honour, it seems that I still

19 owe a response to the OTP with respect to the witness I mentioned who was

20 killed. He was a Croatian national, and he was to have testified in the

21 so-called Gospic case. As there is a misinterpretation or mistranslation

22 in the transcripts, read -- I did not state anything that might be

23 detrimental to the interests of the OTP. I simply put forward the

24 assumption that that witness could or might have been a witness before The

25 Hague Tribunal in the Gospic group case. Thank you.

1 JUDGE ORIE: Yes. It was, I do understand, just an assumption of

2 yourself of a possibility.

3 MR. BOROVIC: [Interpretation] Yes.

4 JUDGE ORIE: I don't know whether there was much need to have

5 this, I again doubt that, but at least it's perfectly clear now.

6 Mr. Ljajic, could I -- I'd like to give you an opportunity to make

7 further submissions on behalf of Serbia and Montenegro.

8 MR. LJAJIC: [Interpretation] Mr. President, Your Honours, allow me

9 first of all to express my satisfaction that I am in a position to take

10 part in these proceedings today on behalf of my country. These

11 proceedings are of special importance to us, particularly in view of the

12 fact that Serbia and Montenegro wish to completely fulfil their

13 obligations towards the Tribunal in the process of facing the past and the

14 process of reconciliation, and also in order for justice to be done.

15 I also wish to thank the Office of the Prosecutor, because they

16 did not bypass Serbia and Montenegro this time in their motion for

17 referral.

18 In the continuation of this discussion, the representatives of

19 Serbia and Montenegro will acquaint the Chamber with the substantive and

20 procedural requirements for referring this case to the judiciary of Serbia

21 and Montenegro and provide answers to all the questions that might be

22 asked in this respect.

23 Let me point out several issues that will arise in today's

24 discussion. Your Honours, one of the basic pre-conditions for a

25 successful completion strategy of the Tribunal is to enable national

1 judicial systems to try the accused for war crimes fairly, impartially,

2 and expediently. In that respect, Rule 11 bis is not only a vehicle for

3 relieving the Tribunal of a great number of cases, but it is also a means

4 to test national judicial systems as well as to encourage and empower them

5 to try war crimes and other crimes as well, not only those that are

6 currently before the Tribunal. And finally, this is the best way for the

7 public opinion to face the crimes that have been perpetrated and for that

8 same public opinion to fully accept the decisions of courts already taken

9 in trials.

10 Serbia and Montenegro is firmly and unequivocally committed to

11 having the greatest possible number of cases under indictments against

12 citizens of Serbia and Montenegro to be referred to our courts, which have

13 demonstrated that they are ready and willing to prosecute and try the

14 accused in war crime cases respecting the highest international standards.

15 I'm firmly convinced that the case against the accused Mrksic,

16 Sljivancanin, and Radic, should be referred to Serbia and Montenegro.

17 There is many reasons in favour of such a decision and I will point out

18 among them the principle of expediency and economical nature of

19 proceedings.

20 As we have pointed out several times here, the Special Chamber for

21 War Crimes of the District Court in Belgrade is already conducting

22 proceedings in the case of crimes on the Ovcara farm that has been started

23 in cooperation with the Office of the Prosecutor of this Tribunal, and by

24 merging these two cases we could save a considerable amount of time and

25 financial resources without any prejudice to the accused. At the same

1 time, we would achieve a unity of justice because all the persons accused

2 of this crime would be tried in the same place, under the same criteria,

3 and that in its turn would enable us to find out the full truth about this

4 tragic event.

5 I have to state on this occasion that referring this case to

6 another court in another state would have considerable negative

7 consequences. Namely, that could heighten the resistance in Serbia and

8 Montenegro to cooperation with the Tribunal in The Hague. And I have also

9 to point out that considerable progress has been achieved in the past

10 period in terms of cooperation of Serbia and Montenegro with the Tribunal.

11 Of course, I'm perfectly aware of the fact that cooperation with

12 the Tribunal is an obligation and it cannot depend on the attitude of our

13 public opinion.

14 JUDGE ORIE: I would like to ask you to slow down a little bit,

15 because the interpreters might have a difficult job following you. Please

16 proceed.

17 MR. LJAJIC: [Interpretation] I will repeat my last sentence,

18 namely that I'm perfectly aware of the fact that our cooperation with the

19 Tribunal cannot depend on the disposition of our public opinion or any

20 other circumstances. It is primarily our moral, political, and legal

21 obligation that I believe we will meet fully.

22 However, one of the most important functions of the legal process

23 is to do justice. Justice can be done only if it is seen to have been

24 done in the public and if it is accepted as such, and that is why I

25 believe the Tribunal, just as national courts, will take that into

1 account.

2 And finally, two of the three accused present here surrendered

3 voluntarily in Serbia and Montenegro. When surrendering, they did not

4 have in mind the possibility that they could be transferred to another

5 state.

6 From the submissions and contributions of Defence teams, we can

7 see that at this moment, they do not resist the possibility of referring

8 the case to Serbia and Montenegro, but they are against referral to

9 Croatia. I am convinced that by referring this case to Serbia and

10 Montenegro, we would see a considerable encouragement of the process of

11 facing the past and reconciliation in the region. The cooperation of our

12 state with the Tribunal, with the OSCE, has resulted in the initiation of

13 a project whose purpose is to make the public face the past and the crimes

14 that have been committed and in this way contribute and strengthen the

15 process of reconciliation in the region. I believe that the referral of

16 this case will also make a significant contribution in this respect.

17 Allow me, Mr. President, to give the floor to Mr. Djeric who is a

18 member of the delegation of Serbia and Montenegro, and he will present our

19 views on some legal issues in this case.

20 JUDGE ORIE: Thank you, Mr. Ljajic.

21 Mr. Djeric, please proceed.

22 MR. DJERIC: Thank you very much. Your Honours, it's always an

23 honour to appear again as counsel before the International Tribunal. I am

24 aware of the pressing time concerns, and I will try to be brief. I will

25 deal with three issues which in the opinion of Serbia and Montenegro

1 deserve further explanation.

2 The first issue is interpretation of Rule 11 bis. One of the most

3 important questions before the Referral Bench is how Rule 11 bis should be

4 interpreted when two or more states are interested and willing to try the

5 case. Rule 11 bis provides that it may be referred first to the state on

6 whose territory the crime was committed; second, to the state in wit

7 accused was arrested; or, third, to the state having jurisdiction and

8 being willing and able to accept such a case. According to the

9 Prosecution, these criteria should be ranked in a descending order of

10 importance. However, we submit that there is nothing in Rule 11 bis that

11 would lend support to such a conclusion. On the contrary. The use of the

12 word "or" after each of the criteria set forth in the Rule indicates that

13 they are of equal importance.

14 According to Croatia, and I'm quoting their submission of 27 April

15 at page 5, "International criminal law and customs prefer that proceedings

16 are conducted by the court on whose territory the offence was committed."

17 However, Croatia fails to provide any evidence for this conclusion, any

18 evidence of international custom that would prefer that proceedings are

19 conducted by the court on whose territory the offence was committed.

20 We submit that there is no such rule in international law. For

21 example, former president of this Tribunal, Judge Cassese in his treatise

22 on international criminal law does not indicate any hierarchy on the basis

23 of jurisdiction for international crimes, and I quote: "Traditionally

24 states bring alleged perpetrators of international crimes to trial before

25 their courts on the basis of one of three principles territoriality,

1 passive nationality, the victim is a national of the prosecuting state; or

2 active nationality, the perpetrator is national of the prosecuting state."

3 Furthermore, he adds: "Recently the universality principle has

4 emerged." This is in Professor Cassese international criminal law at page

5 277. "Therefore, we submit that the three criteria in Rule 11 bis are of

6 equal importance. The fulfillment of any of these criteria is the

7 objective precondition or the second step under Rule 11 bis, and it is

8 this second step which involves an assessment by the Bench of whether the

9 accused will receive a fair trial and that the death penalty will not be

10 imposed or carried out."

11 We submit that these are the two fundamental considerations that

12 should govern the decision of the Bench under Rule 11 bis. And as we

13 explained in our written submission, these are the only two express

14 requirements under Rule 11 bis once this jurisdictional basis requirement

15 is fulfilled.

16 Consequently, if and only if the Bench deems that these two

17 requirements, fair trial and the prohibition of the death penalty, are

18 equally fulfilled by the states concerned, it should take into account

19 other considerations such as the principle that justice should be rendered

20 as closely to the victims as possible, the expediency of the trial, the

21 availability of evidence, et cetera, et cetera.

22 Now, in this context of these two express requirements of Rule 11

23 bis, we wish to point out that there have been some reservations as to

24 whether the accused in the present case could receive a fair trial in

25 Croatia. These reservations are based on the reports made by the OSCE

1 mission in Croatia. It is submitted that the Bench should give utmost

2 consideration to these reports because they are directly related to the

3 fundamental criterion under Rule 11 bis and that is the fair trial.

4 Furthermore, these reports have been made by an impartial international

5 monitoring body and this obviously adds a lot to their credibility.

6 In this regard, I would like to draw the attention of the Bench to

7 the recent presentation by Ambassador Semneby, head of the OSCE mission in

8 Croatia, made to the OSCE permanent council, which is the highest body in

9 the OSCE, on 10 March 2005. This presentation was made after the

10 Prosecution's submission of 8 February this year which contained other

11 OSCE statements in its annex 3. And I will have a copy of this statement

12 from Ambassador Semneby for the Bench and the parties later.

13 Now, in the presentation Ambassador Semneby said that ethnic bias

14 existed in lower court trials in Croatia and concluded that the mission's

15 monitoring of war crimes issues was likely to continue, and I quote: "As

16 long as there are significant problems related to bias against Serb

17 defendants in lower courts and conversely laxity towards Croatian

18 indictees." End of quote.

19 Your Honours, with your permission I would now move to the second

20 issue. The accused are nationals of Serbia and Montenegro and were

21 nationals of the Federal Republic of Yugoslavia. At the time of their

22 transfer or surrender, it was prohibited to extradite Yugoslav nationals

23 under the constitution. It was only possible to transfer Yugoslav

24 nationals for a trial before an international court or tribunal.

25 Now, if the transfer of the accused to the International Tribunal

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1 would only be a first step towards their transfer to a third state, a

2 first step on their trip to the third state, we submit this would amount

3 to extradition. This would ex post facto put the government of Serbia and

4 Montenegro in a very uncomfortable situation and would amount to a breach

5 of confidence.

6 The government acted pursuant to Article 29 of the Statute.

7 Article 29 is an exception in a rule that states have a first call to

8 prosecute persons within their jurisdiction that are accused of

9 international crimes. This exception should be interpreted narrowly and

10 cannot reasonably encompass the authority of the International Tribunal to

11 perform what would amount to a two-step extradition. Therefore, we submit

12 the state which transferred or surrendered the accused should be given

13 preference to prosecute if it's willing and able to do so and if it

14 fulfils the requirements of Rule 11 bis.

15 Further, it is important to note the provisions of the European

16 Convention on extradition. Both Croatia and Serbia and Montenegro as well

17 as all other states of the former Yugoslavia are parties to the

18 convention. Article 6 of the convention recognises the right of states to

19 refuse extradition of their own nationals, and this also shows that

20 Article 29 of the Statute should be interpreted narrowly. In all other

21 situations not covered by Article 29, states may refuse the transfer of

22 their own nationals for trial in other states. Furthermore, both Croatia

23 and Serbia made declarations under the European Convention on Extradition.

24 In these declarations they asserted their right to refuse to extradite

25 their own nationals. None of them objected to others' declaration. It is

1 submitted that this way, a reciprocal obligation was constituted between

2 Croatia on the one side and Serbia and Montenegro on the other, the

3 obligation not to request extradition of each other's nationals in cases

4 where their state of nationality opposes such a request. I will recall

5 that the accused in the present case are nationals of Serbia and

6 Montenegro.

7 Finally, I would refer to Article 15 of the European Convention on

8 Extradition. This article allows extradition to a third state only with

9 the consent of the original surrendering state. This is also evidence of

10 the firm position of Croatia, Serbia and Montenegro, and other states of

11 the former Yugoslavia that re-extradition is not allowed without the

12 consent of the original surrendering state. It is submitted to the Bench

13 that this practice, an opinion juris should be taken into account by the

14 Bench when it considers the request of Croatia in the present case.

15 Finally, Your Honours, I would conclude but by just pointing out

16 that annex 3 of our submission of 28th April, contains all the relevant

17 provisions in our domestic law on the witness protection. It, in our

18 opinion, presents a more comprehensive outlook of this issue than the one

19 presented by the Defence and the Prosecution in their written submissions.

20 This will conclude my presentation, Your Honours, and we stand at

21 your disposal for any further questions. Thank you.

22 JUDGE ORIE: Thank you very much, Mr. Djeric.

23 I'd like to give an opportunity now, Mr. Horvatic, to you to make

24 any further submissions on behalf of Croatia.

25 THE INTERPRETER: Microphone, please.

1 JUDGE KWON: Microphone.

2 MR. HORVATIC: The old professor always forgets something, but I

3 do hope I will not forget what is the main point in my explanation.

4 It is my great honour to be the second time here in this room with

5 almost the same colleagues and with the same Chamber, of course.

6 When we received the invitation for this hearing carefully listing

7 what is our position and now because of the majority of the participants

8 in this hearing, I will continue in Croatian language.

9 [Interpretation] The government of the Republic of Croatia has

10 been invited to attend this hearing and, if it wishes, to orally present

11 additional arguments to the submission dated the 27th of April of this

12 year. My intention was to clarify certain details, but the course of

13 these proceedings has led me to conclude that it would be much more useful

14 and acceptable to the Chamber were I to refer directly to what has been

15 said here in relation to the standpoints of the government of the Republic

16 of Croatia.

17 My fundamental approach, which seems to me to be correct, is to

18 focus on the legal issues at stake here and to exclude as far as is

19 possible other issues which are not primarily legal but can, under certain

20 circumstances, possibly affect a decision which is primarily a legal

21 decision. I will begin with the legal issues on which the Prosecutor

22 focused, and the Prosecution has a good understanding of what the main

23 legal issues are.

24 At the outset, the Prosecution stated, "We wish to be sure that

25 the standpoints of the OTP will be taken into account in the judiciary to

1 which the case will be referred." This applies primarily to the comment

2 that unlike the case being tried in Belgrade, which does not include

3 command responsibility, and command responsibility is one of the main

4 issues. So the question is, will the applicable law be comparable to the

5 applicable law at this Tribunal? The second issue is the ability of the

6 state or, rather, the courts of the state to which the case is referred to

7 conduct the proceedings. Thirdly, the cooperation between the Republic of

8 Croatia and the Republic of Serbia and Montenegro, the cooperation between

9 the two states in criminal proceedings and how this will be manifested in

10 this particular case. And the fourth issue that was raised was that of

11 witnesses in Belgrade, discrepancies in the number of testimonies before

12 the trial of the 17 accused in Belgrade.

13 With respect to the first issue, in the Ademi and Norac case on

14 the 17th of February, 2005, before this Trial Chamber, we presented

15 material in which we attempted to respond fully to all the legal issues

16 raised in connection with the applicable law, with command responsibility,

17 and especially command responsibility as the foundation for responsibility

18 in specific cases during the time that both these cases originated or,

19 rather, the time that the events took place. This is all available to the

20 Chamber, so I will not repeat it here.

21 By force of law and the international sources of law which are

22 part of the Croatian legal system, the court would be duty-bound to apply

23 those legal provisions.

24 With respect to the ability to conduct the proceedings, I must say

25 quite sincerely that from public opinion and the reports of non-government

1 organisations to certain individual cases which were commented upon while

2 they were still in the first instance or trial stage, there were very many

3 misconceptions about whether a certain judiciary was competent, able to

4 conduct the proceedings or not. I will use a metaphor here, a comparison,

5 and I will say that the situation in Serbia and Montenegro and in Croatia,

6 in both these states, the situation today is different from what it was

7 some time ago or perhaps a decade ago.

8 As for the witnesses who testified in the case of the 17 in

9 Belgrade, I will not go into this because it is a complex issue to which I

10 will refer when I speak about whether witnesses from one state dare go to

11 another state to testify, whether the victims and witnesses and their

12 relatives wish to testify or can testify and so on.

13 The Defence in its standpoints expressed on behalf of Mrksic and

14 Radic stated expressly in response to a question by Judge Orie that these

15 were voluntary surrenders and they mentioned Rule 11 bis, which speaks of

16 cases of referral to the authorities of a country in which the accused was

17 arrested.

18 The brilliant interpretation by two attorneys that I have heard

19 here, as well as by the representative of Serbia and Montenegro of the

20 relation of surrender, extradition, and re-extradition can be of great

21 interest for the legal literature. However, in this case, only Rule 11

22 bis applies. The government of the Republic of Croatia submits that this

23 has no correlation with extradition and re-extradition as mentioned here

24 and even the documents of the council of Europe.

25 As for two or three arguments referring to the three

1 possibilities, I will speak in English now. [In English] "The territory

2 the crime was committed or in which the accused was arrested or having

3 jurisdiction and being willing and adequately prepared to accept such a

4 case," [Interpretation] In our view, these three cases are not of equal

5 standing. I think the representative of the Republic of Serbia and

6 Montenegro overlooked something, and I esteem the gentleman in question,

7 that were the case referred to a third country having jurisdiction and

8 being willing and adequately prepared, this is only one of two solutions

9 where according to the principles of international law and customary law

10 absolute priority is to be given to the state and criminal justice system

11 in whose territory the crime was committed.

12 We can discuss whether 11 bis put these three cases on the same

13 level or not, but if Croatia is asked to prove that (A)(i) has priority,

14 we can point to the Statute of The Hague Tribunal, and we feel that this

15 is a well-known fact which needs no proof. Even the penal code of the

16 former Yugoslavia to which we were subjected until 1990 and the new

17 Yugoslav law of 1993 and the new penal code of Serbia and Montenegro, as

18 well as the new Croatian code puts the territorial principle first. The

19 other considerations and principles are all subsidiary when it comes to

20 competence and the application of law.

21 I will not touch upon the cases mentioned by the Defence and the

22 attempts made to link these with confidence in the Croatian judiciary.

23 Whether a witness was killed or died a natural death is something we could

24 discuss in a separate hearing, but I do not feel the need to counter this

25 argument, because it is not something that supports the claim that the

1 Croatian judiciary is not able to conduct the proceedings.

2 As for one of the important aspects of the judiciary and its

3 ability to conduct the trial, that is witness protection, the situation

4 presented by the Defence was not quite clear to me. They compared the

5 laws of the Republic of Montenegro and the laws of the Republic of Serbia.

6 In one of these states, witness protection is provided, and in the other,

7 international assistance between these two countries is provided for. I

8 feel that this is something that complicates matters and obscures the

9 clarity and transparency of the legal proceedings in this or any other

10 trial referred to Serbia and Montenegro.

11 It seems to me that the coherence of criminal law and the other

12 elements of the legal system in that country are not sufficiently

13 guaranteed as is the coherence of the legal system in the Republic of

14 Croatia. It seems to me that in this situation, the arguments put forward

15 to challenge the suitability or the ability of the Croatian judiciary are

16 simply at the level of speculation. The Defence stated that the accused

17 before the Belgrade court, as far as the Defence are aware, will not

18 appear as witnesses in Croatia because they suspect that there are secret

19 indictments against them in Croatia. This assumption is not of a legal

20 nature, neither is the assumption that the Croatian judiciary will judge

21 according to statements made by the government.

22 In Croatia, there is a division of powers between the judiciary,

23 the executive, and the legislative branches. People can express different

24 opinions, not only in Serbia and Montenegro or Croatia, but also in

25 France, the USA, or any country in this world. When the president of a

1 large federal state states on one occasion, "We will condemn this

2 severely," and he was speaking about a military crime, nobody doubted that

3 the judiciary would be impartial. The same goes for statements made by

4 the Ministry of Justice and the Deputy Minister Jadranka Kosor which were

5 cited on Croatian television. This can only show that the Croatian

6 government wants the territorial principle to be applied in the Croatian

7 judiciary and that the courts will have the competence they have under the

8 constitution. And should the Minister of Justice or the Deputy Prime

9 Minister really during the trial, or whether even if the statements

10 already made were considered to be attempts to influence the court, they

11 would be held criminally responsible for attempting to influence the

12 court.

13 This interpretation also applies to a rather skilful discussion of

14 the difference between the words trial and sentence. In the Ademi Norac

15 case it was said that a trial would be held, and in this case the Croatian

16 state is quoted to have said, "[In English] "After referral it will

17 transfer the case to the competent courts for further proceedings and

18 sentencing."

19 [Interpretation] My poor knowledge of English asks me to conclude

20 that whoever wrote this, and it was not me, that when they

21 said "sentencing," what they meant was "to hand down a judgement."

22 If and when this Honourable Chamber decided to refer the case to

23 the Croatian judiciary based on legal interpretations of Rule 11 bis and

24 the competency of the Croatian judiciary, I wish to assure you, not only

25 the Chamber but also the representatives of Serbia and Montenegro and the

1 Defence, that there will be cooperation not only between the two states in

2 this case on the basis of the convention of the Council of Europe and on

3 the basis of what our consciences ask of us but also on the basis of our

4 cooperation in other cases, which was demonstrated when there was a

5 videolink recently between the county court in Zagreb and the District

6 Court in Belgrade, which were in direct communication. This also, of

7 course, supports the argument that there would be such cooperation were

8 the case to be referred to Serbia and Montenegro.

9 And to conclude this part of my presentation, and I am willing to

10 answer any questions, I must say that the claims made about the trust in

11 the counsel that would be chosen, because foreign nationals cannot appear

12 as Defence counsel in the Republic of Croatia, it has been shown in many

13 cases that the chosen Defence counsel was a national of the Republic of

14 Croatia, but he was able to have co-counsel even in the courtroom who were

15 attorneys in other countries, and their only limitation was that they

16 could not address the Chamber directly but they could assist in the

17 defence. This is what any counsel in Croatia would do, and this is also

18 what counsel in Serbia and Montenegro do when they are acting as Defence

19 counsel for Croatian nationals, and this is the principle that is applied,

20 and professionally we feel there is no doubt that this would be the case.

21 What leads to uncertainty and mistrust are the political aspects,

22 which of course must be taken into account. But the extent to which such

23 political considerations can be allowed to oppose or influence the legal

24 considerations is up to you to decide, Your Honours.

25 Thank you.

1 JUDGE ORIE: Thank you, Mr. Horvatic. The Chamber highly

2 appreciates that the representatives of Serbia and Montenegro and Croatia

3 have focused on the most important parts and both limited themselves to

4 less than 25 minutes where 30 minutes was scheduled.

5 One question for you, Mr. Horvatic, at this very moment, a very

6 factual question, could you give us any information about plans that were

7 mentioned by one of the Defence counsel of trying, as he said, the Vukovar

8 troika before a local court in Croatia.

9 MR. HORVATIC: Yes. Many questions are here, and I -- I leave it

10 for your question and direct answer.

11 There are many indictment in Croatia from 1991, 1992, 1993, 1994,

12 1995, and many trials in absence. As I know, there are one indictment

13 against these three gentlemen sitting here. But anyhow, any communication

14 between the public prosecutor from Vukovar and from the president of the

15 court of Vukovar, I have no evidence that this communication was and this

16 conversation was here, but let us say if it was two or three weeks ago,

17 that was only communication unofficial, and the official is statement by

18 the general prosecutor any case, if it is in trial here, in any stage of

19 procedure is immediately stopped with any -- in spite of the fact that we

20 have some evidence if the Prosecutor from The Hague ask for the -- any

21 documents and evidence. So there is no any trial, no any procedure there

22 official.

23 JUDGE ORIE: Yes.

24 MR. HORVATIC: And I'm not sure that I'm quite clear. And there

25 is some -- in addition, there are some possibility that one possible

1 witness is also one of the person who is in absence is condemned. That is

2 possibility. But in such a case, it will be our obligation to obey the

3 rule of the international law, and if the witness is coming to Croatia or

4 his statement or has statement, it will be by link --

5 JUDGE ORIE: I was just asking about --

6 MR. HORVATIC: Okay.

7 JUDGE ORIE: -- the three persons, Mr. Mrksic, Mr. Radic, and

8 Mr. Sljivancanin.

9 MR. HORVATIC: Okay. I will not extend my ...

10 JUDGE PARKER: If I could ask a further question --

11 JUDGE ORIE: Mr. Djeric, I will give you an opportunity to address

12 the Chamber, but first Mr. Parker would have a question.

13 THE INTERPRETER: Microphone, please, for Judge Parker,

14 Your Honour, please

15 JUDGE PARKER: Could I ask you, what court in Croatia would try

16 this case if it were to be referred to Croatia? Is that an exclusive

17 jurisdiction or is it possible that this case could be referred, for

18 example, to a court in Vukovar? Could that be clarified, please?

19 MR. HORVATIC: Yes. The clarification is there was some opinion

20 in our public opinion that if the case would be transferred, referred to

21 Croatia, the competent court would be Vukovar. No way. The only court,

22 it will be Zagreb. The only one. There are four courts for the trial.

23 We explained that in the previous cases, Zagreb, Rijeka, Osijek, and

24 Split. In this case it will be Zagreb. That will be decision of the

25 Ministry of Justice in accordance with the president of Supreme Court.

1 There is no any possibility to come to Vukovar because of the law,

2 existing law which not shall be changed.

3 JUDGE PARKER: Thank you very much for that, and I apologise that

4 I interrupted ahead of what had earlier been an indication of counsel.

5 JUDGE ORIE: Before I give Mr. Djeric an opportunity to add,

6 because it seems that he would like to add something, I'd first address

7 Defence counsel.

8 Mr. Horvatic just referred to the Ademi Norac materials submitted

9 by the Croatian government. I take that it's sufficiently clear to

10 counsel that whatever submissions were made with a -- of a general

11 character as to the law and the competence of organs, the legal structure

12 in Croatia that this Chamber will take that into consideration as well,

13 that reference can be made to it, and that counsel are aware of that and

14 have had an opportunity to look at that material. Since I do not see any

15 vehement objections, I take it that my assumption is right.

16 Mr. Djeric.

17 MR. DJERIC: Thank you, Your Honour.

18 THE INTERPRETER: Microphone, please.

19 MR. DJERIC: Thank you very much. Perhaps I'm pre-empting some of

20 your questions, but I -- we think that we are here to assist the Court, so

21 I would just briefly outline a couple of points that perhaps need to be

22 outlined. We understand this is not a contest and we are here to assist

23 the Court. Therefore, I will say just a couple of sentences on superior

24 responsibility.

25 This issue was extensively discussed in Norac case, and in Mejakic

1 case where Serbia and Montenegro was represented was discussed to some

2 extent. It was -- I look at the transcript. I was not here at the time.

3 It was not really thoroughly discussed, but for the sake of the efficiency

4 of the present proceedings, I can say that the analysis of the amicus

5 curiae in Norac of Professor Damaska Krapac is in our opinion fully

6 applicable to the law which in -- which before the courts of Serbia and

7 Montenegro would be applicable in the present case.

8 Now, in essence both in Croatia and in Serbia and Montenegro, the

9 same provisions will apply, and this is in essence the Criminal Code of

10 the Socialist Federal Republic of Yugoslavia which was then adopted as

11 Croatian law some -- at some point mid-1991. It continued to be under the

12 same name -- our Criminal Code had some amendments in our case related to

13 the sentence which was now in 1993 the sentence was only 20 years, but

14 otherwise the concepts, the provisions, the analysis provided by

15 Professor Damaska Krapac and especially very helpful discussions by

16 Professor Krapac in this tribunal are fully applicable to the present

17 case. Of course, should you wish to go into any of the details of

18 superior responsibility, we can -- we are able to assist you. But I can

19 say that for the sake of the economy of the proceedings, the same analysis

20 applies.

21 JUDGE ORIE: Yes. I do understand that the legal basis is exactly

22 the same. It's your common legal origin. If, of course, there would be

23 any case law developed after you separated, then of course the Chamber

24 would very much like to know. But if there is none, then of course could

25 accept that it's the analysis of the legal texts that is valid not only

1 for Croatia but also for Serbia and Montenegro.

2 MR. DJERIC: I'm afraid that I'm not aware of any cases that would

3 be relevant to the issue of superior responsibility or to the concepts

4 that are related to this -- to this concept of international law. I could

5 only say that with respect to Ovcara case before the Belgrade court, there

6 we have a trial of persons accused to be hands-on perpetrators, and I

7 don't think that with respect to most of these persons the concept of

8 superior responsibility would apply at all.

9 It is true, as my learned colleague from Croatia said, there is no

10 issue of superior responsibility before the -- before the Belgrade court,

11 but there are [inaudible] perpetrators. Now, if I may just say a couple

12 of more sentences on 11 bis, if you allow me.

13 JUDGE ORIE: Yes, if you -- because I have many questions also for

14 counsel --

15 MR. DJERIC: I will be very brief. I would just say, first, that

16 my colleagues and myself looked at the Statute of the ICTY, and we don't

17 see any provision which could be related to the -- to the issue of 11 bis,

18 and that is, what is the international basis of jurisdiction in situations

19 of international crimes? There is no territoriality principle in the

20 statute of the Tribunal except for the fact that it is territorial --

21 territorially it has the jurisdiction over the territory of former

22 Yugoslavia. That is the only thing.

23 Now, my learned colleague said that it's traditional concept that

24 territorial jurisdiction, the jurisdiction of the place where the crime

25 was committed is the primary source and primary criterion on jurisdiction,

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1 but I would submit that this is indeed the case but within internal

2 domestic legal orders. It is true that the place where the crime was

3 committed should be the source of jurisdiction in the first place.

4 However, and as I demonstrated by quoting Professor Krapac, in

5 international law you don't see a hierarchy. In international practice, I

6 am not aware of the hierarchy between territorial jurisdiction and other

7 forms of jurisdiction.

8 Finally, I really don't see in words of article -- of Rule 11 bis

9 any distinction between the three criteria.

10 As for the question of whether political considerations should be

11 taken into account in this trial, this proceeding, I completely agree that

12 this -- that we have legal issues in front of ourself. However, the

13 requirement of fair trial in order to be given substance in the current

14 proceedings needs to take into account the facts which can be political

15 facts, and one of the facts is the danger for witnesses. Another of the

16 facts is that there are, according to our information, over 1.000,

17 probably to 2.000 secret indictments which were not published in Croatia

18 against persons of Serb origin who are, most of them, located on the

19 territory of former -- of Serbia and who could -- some of them could be

20 witnesses in the present case.

21 Finally, I may say just one sentence on the issue of arrests and

22 voluntary surrender. I think that this is important for the Chamber.

23 We submit that 11 bis does not make a distinction between

24 universal jurisdiction, territorial jurisdiction, and the place where the

25 accused was arrested. That's the first point.

1 Second point is that if you follow the express wording of 11 bis,

2 you would -- one would say that, all right, an indictee who was arrested

3 can be returned for trial in the state where he was arrested, but that

4 would put a person who was arrested and who did not in a substance respect

5 this court and come for a trial by himself. That would put the person who

6 was arrested in a better position than the person who surrendered

7 voluntarily to the court. And I don't think that judicial -- that

8 propriety -- that this would be proper, not only considering the

9 cooperation but considering the principle that one situation shows respect

10 for the court, another situation which shows a natural reaction of the

11 accused not to surrender or should not be the same as the situation as in

12 which the accused surrendered. This is -- with this I conclude. Thank

13 you very much and sorry for taking your time.

14 JUDGE ORIE: I would have one question directly related to your

15 last observation. That's the following: If a French citizen voluntary

16 goes to a Spanish court because he is indicted there, instead of waiting

17 to be extradited, would that person who voluntary surrendered not also be

18 in a disadvantageous position? Is that not true whenever someone

19 voluntarily try surrenders to a foreign court and does not wait for -- to

20 be extradited?

21 MR. DJERIC: My answer will be short. You will have to take into

22 account a third state, a French citizen --

23 JUDGE ORIE: Yes, but I'm talking now about re-extradition by

24 Spain to, for example, Italy. Isn't it true that the person who

25 voluntarily surrendered to Spain, this French citizen, would be subject to

1 extradition to Italy whereas the one who did not voluntarily surrender to

2 Spain but was extradited is protected by the rule of speciality? Isn't

3 that not a general situation?

4 MR. DJERIC: Well, I can concur that it is, but in the situation

5 of cooperation with the Tribunal, you have another -- another situation in

6 the sense that you have a pressure to surrender or a pressure on the state

7 to have one person arrested. And the second issue is that Article 29 is

8 an exception. And Article 29 speaks about transfer and surrender and

9 makes, really carves an enormous exception in the traditional, customary

10 normal international law. And I see your point, but I think that this is

11 a completely different situation. It is not a simple extradition

12 situation.

13 JUDGE ORIE: No, of course. But I mean the rules of extradition,

14 re-extradition were invoked so that is the context in which we deal at the

15 moment with the matter.

16 I know, Professor Horvatic, you would like to. Could I give you

17 two minutes and then because --

18 MR. HORVATIC: Only one minute.

19 JUDGE ORIE: Only one minute. Okay.

20 MR. HORVATIC: So I will not be involved in this -- such a nice

21 discussion of extradition and re-extradition. My answer to your question

22 is completely clear, that is not if you have something like that without

23 this addition but colleague knows international and domestic criminal law

24 maybe better than I, but only what I must say it is again one unacceptable

25 statement from the representative of Serbia and Croatia -- and Montenegro

1 that there is information of 1.000 or 2.000 secret indictment. Please be

2 so kind and exclude that from your expression.

3 JUDGE ORIE: Thank you.

4 MR. HORVATIC: Information is not for nothing -- discussion in

5 this court.

6 JUDGE ORIE: Thank you.

7 Ms. Somers, you have been very brief in the beginning, and I'm not

8 inviting you to take a lot of time, but of course you were very brief and

9 did not expand on many subjects. If there would be any need at this

10 moment to further expand on one of the issues that was raised, then I

11 would like to give you an opportunity to do so.

12 MS. SOMERS: Very much appreciate --

13 JUDGE ORIE: If you would say "well, we have many questions

14 perhaps I could ask" --

15 JUDGE KWON: Could I ask the representatives to switch off your

16 microphones when you're not speaking.

17 MS. SOMERS: I'm sorry, Your Honour, I missed the last comment

18 that you --

19 JUDGE ORIE: No, I said if you would say there are some questions

20 by the Bench that might already -- well, that might cover the subjects

21 you'd like to address and therefore you'd prefer to wait, then we would

22 accept that.

23 MS. SOMERS: The Bench raised a point that perhaps could cut down

24 some of the areas of inquiry. The reason extradition has been raise the

25 at all because it was framed in a response. We fully concur with

1 Professor Horvatic that extradition is in no way implicated in this 11 bis

2 proceeding, and if you will allow me perhaps it might assist any further

3 discussion on it.

4 11 bis, like much of the provisions putting in place the Tribunal

5 is a very specialised proceeding. Our position which I think is borne out

6 eminently clearly in the Security Council mandates is that this is the

7 other end of the spectrum. There is the Croatian getting primacy, always

8 recognising concurrent jurisdiction, but giving primacy for conduct which

9 is and should be in civilised nations universally condemned.

10 The accused has no right in this instance to determine the forum

11 in which that conduct which is to be condemned will be held when it comes

12 through this Tribunal which has primacy. The first end of the spectrum

13 is, if there is something out there that we have a reason under Article 9

14 to reel in, deferral. The referral is clearly the other end of the

15 spectrum. It is fully a part of the obligation on all nations to assist

16 in completion of the work of this Tribunal which from its inception was

17 always ad hoc. Other nations who have contemplated bringing any actions

18 have known effectively from day one that there would come a day where

19 legal systems and financing, political will and maturity will have to

20 merge and be ready to accept that which cannot be done by an ad hoc

21 Tribunal which by definition does not have an infinite lifespan.

22 Accordingly, I would ask that the Chamber simply, as I believe we

23 are in agreement, accept that any concept of extradition is a red herring

24 taking away the more important issues about what fairness procedural

25 matters in place in the various courts that -- the various jurisdictions

1 that seek now to take these cases. We of course don't need to remind the

2 Chamber but just for the record that this case was confirmed in 1995 and

3 the first accused only appeared before this Tribunal in 2002, the other

4 two, 2003. So there was no apparent rush to set anything up.

5 Referral or deferral of course has been invoked in some

6 occasions -- on some occasions by the Office of the Prosecutor and the

7 Tribunal. Again, there has been no evident rush by a number of states

8 that could have jumped in recognising the need to try or bring these cases

9 to justice to do so, and I think that that might assist in neutralising

10 some of the apparent overbearing arguments on the extradition issue.

11 I'll just try to finalise it. I think -- there maybe some things

12 that are raised in your questions, Your Honour, that could cut short

13 anything I have to say. One second, please, if I may.

14 If I may, then, I would just defer to the Chamber's questions.

15 JUDGE KWON: May I ask one thing, Ms. Somers. Although Mr. Djeric

16 didn't touch upon the issue but Serbia and Montenegro in its written

17 submission raised the issue related to the ICC rules in paragraph 52, I

18 guess it is Rule 185, if you had the chance to ponder upon that issue, if

19 you could elaborate on the similarities and dissimilarities with this

20 case.

21 MS. SOMERS: Well, I would ask first of all just to consider the

22 difference in the ICC and we are a Security Council organ creation, that

23 is a treaty creation. So if that has any bearing, that may be of

24 relevance.

25 JUDGE KWON: So you refer to the principle of complementarity

1 there.

2 MS. SOMERS: Secondly, Your Honour, the only thing that we would

3 accept there is in common with the concept of extradition is the fact that

4 it, like 11 bis, deals with a change of forum, and really that is where

5 the likeness stops given the very special nature of the -- the reasons for

6 its implementation -- I'm sorry, for its actual drafting as an

7 implementation of a Security Council mandate to effect a completion date.

8 JUDGE KWON: Thank you.

9 JUDGE PARKER: I would like to ask a further question of the

10 representatives of Serbia and Montenegro concerning the case which was

11 mentioned which is under way in -- already related in facts to the present

12 case. I'm wanting assistance to learn how far that case has progressed.

13 In view of the suggestion made in submission that if this case were

14 referred, it might be possible to merge this case with that one. Is that

15 still a legal and practical possibility? I leave it to the

16 representatives to determine who might most easily reply to that.

17 MR. DJERIC: Thank you, Your Honour. According it our

18 information, the case is tried before the Belgrade court, Belgrade

19 District Court. What -- according to our information, it is somewhere in

20 the middle, to put it roughly, of the proceedings.

21 Our prosecutor will have two possibilities. He will either try

22 this -- if the case is referred, he would either try this case as a

23 separate case, but he would be able to use all the experience, evidence,

24 from the other case. And the -- another option is to merge the cases.

25 But according to our information, this case has now been in progress for

1 about a year before the court. However, if you take -- if you say one

2 year, it's not one year of continuous trial. It was about 44 days of

3 trial within this calendar year, but hopefully this will improve. The

4 reason for such a small number of days of trial was that there were other

5 trials for organised crime which are conducted in the same building.

6 However, most probably we expect that the pace of the trial will improve

7 in the future.

8 I don't know whether that sufficiently answers your --

9 JUDGE PARKER: Is it a legal and a practical, feasible idea that

10 there could be a merging of the two trials when the trial under way

11 already in the District Court has progressed, as you say, to something

12 like the middle stage?

13 MR. DJERIC: I think that -- that it's quite a likely idea that

14 case -- that the cases could be merged. They can be merged until the end

15 of the main hearing of the currently going case before the Belgrade

16 District Court. So until the hearings are concluded, the case is -- this

17 case and the other case can be merged. And I -- from what we know from

18 the -- from the people in special prosecutor's office and special court,

19 their idea is to merge the cases.

20 JUDGE PARKER: Thank you.

21 JUDGE ORIE: I would have a few very technical questions for

22 Defence counsel.

23 Mr. Borovic, you, and not you alone, paid a lot of attention to

24 the absence of safe conduct. Witnesses would not go to Croatia, afraid of

25 being arrested. Whether these are secret indictments or not, I'm not --

1 why would you not accept on the basis of the European Convention on the

2 mutual assistance in criminal matters to which both Croatia and Serbia and

3 Montenegro are a party and which provides clearly for a safe conduct, why

4 would you expect just on the basis of absence in Croatian domestic law,

5 why would you expect that Croatia would not fulfil its treaty obligations

6 under that treaty which clearly provides for safe conduct for witnesses?

7 MR. BOROVIC: [Interpretation] Your Honour, I deliberately quoted

8 examples that deal with violations of the rights of the accused,

9 especially when Defence witnesses are to testify before Croatian courts.

10 First of all, I would like to respond to the question raised by

11 the Croatian representative. He wanted the Defence counsel to state their

12 views on this problem.

13 JUDGE ORIE: If you would not mind, I would like to have an answer

14 to my question. My question is simply you state that there is no safe

15 conduct for witnesses, and I point to a clear provision which provides for

16 a safe conduct in a treaty binding Croatia and Serbia and Montenegro, and

17 I'd like to know why you do not accept that the legal framework for a safe

18 conduct exists. If you say I've overlooked it, then that's also a clear

19 answer, then. We're at least one step further.

20 MR. BOROVIC: [Interpretation] Your Honours, of course I did not

21 overlook the existence of that convention, and I know that the parties are

22 required to adhere to it, but I deliberately quoted examples such as the

23 Lever case of which the OTP is very well-informed, and I raised a

24 hypothesis of a case in which witnesses before a Croatian court could come

25 to Croatia to testify without being afraid of revenge by the Croatian

1 military.

2 The report that I have in front of me deals with the broadcast of

3 the Croatian television which says verbatim, "Investigating judge declared

4 that Lever's death was a violent one."

5 Another thing that is important for this Chamber in a series of

6 reports that I will present to the Chamber is the report that says that he

7 was one of the key witnesses for the ICTY. He asked for protection in

8 Croatia, but he never received that protection.

9 On the other hand, I quoted an example --

10 JUDGE ORIE: I'm afraid you're mixing up witness protection and

11 safe conduct, which is not the same. I was asking about the legal

12 framework for safe conduct, and of course witness protection is another

13 matter.

14 MR. BOROVIC: [Interpretation] Your Honour, the legal framework of

15 course exists, and this European Convention signed by these two states is

16 certainly something to be implemented. However, the justice system of

17 Croatia has not been implementing it adequately so far.

18 JUDGE ORIE: My next question to you is the following: You said

19 that the accused in the Ovcara case that are at trial at this moment in

20 Belgrade would not consent to appear as witnesses in the -- if the case

21 would be referred to Croatia. Does that same convention that I just

22 quoted not provide for temporarily making available a witness who is

23 detained and to keep him in detention during that short period of time in

24 the state that would like to hear his testimony? And to that extent,

25 would it not be a violation of the treaty obligations by Serbia and

1 Montenegro if they would not send one of these detained accused if they

2 are needed as witnesses in Croatia?

3 MR. BOROVIC: [Interpretation] Your Honours, we spoke primarily

4 about the principle of a fair trial, and it was my position as Defence

5 counsel that all the accused in the Ovcara case could do what you just

6 explained quite rightly, but none of those accused would agree to testify.

7 They would refuse to testify, and the Croatian justice system does not

8 have any mechanisms to force such a witness to testify. So these two

9 cases would be deprived of such evidence.

10 The problem lies not in Serbia and Montenegro. Serbia and

11 Montenegro will honour its obligation to deliver these witnesses.

12 JUDGE ORIE: Just imagine you're Defence counsel in a Croatian

13 case, let's just for argument's sake assume against Mr. Mrksic, Radic, and

14 Mr. Sljivancanin. You want to call a witness who is an accused in the

15 Belgrade case. You address the court. The court asks for cooperation by

16 Serbia and Montenegro by transferring on a temporary basis one of the

17 accused in Belgrade to Croatia in order to testify. Why -- I mean, if

18 they would not consent to that, these accused, could they not be sent and

19 made available to the Croatian court by Serbia and Montenegro? Would that

20 not be included in the treaty provisions?

21 MR. BOROVIC: [Interpretation] Serbia and Montenegro would do what

22 the treaty requires them. But on the assumption that I appear as Defence

23 counsel of one of those accused, we heard from the mouth of the Croatian

24 representatives that I would not be allowed to ask one single direct

25 question in favour of my clients.

1 JUDGE ORIE: [Previous translation continues] ... other Defence

2 counsel. I hope you understood that I did not want to introduce that

3 problem when discussing this one.

4 I have one very short question before we have a break and it's the

5 following: Many references are made to the OSCE report, the recent OSCE

6 report, I should say. There are more. You referred to what you called a

7 report and which I understand to be a press release of two pages where the

8 OSCE reports are well documented. Is there any more substantive report or

9 is it just this press release that you wanted to refer to?

10 MR. BOROVIC: [Interpretation] I have a report dated 26th of April,

11 2005. It is literally a report on 50 pages, and I quoted from pages 20,

12 23, 27. Thank you.

13 JUDGE ORIE: What you provided to the Court is a press release

14 from the Internet dated the 11th of May. So if you really want us to look

15 at the report, because I do not see any 50-page report, then you should

16 submit it.

17 Before we have further questions --

18 MR. BOROVIC: [Interpretation] Mr. President, if I may. If you

19 allow me. We are not talking about a completely different report. This

20 is a report by an NGO called Human Rights Foundation on 52 pages.

21 JUDGE ORIE: If you don't give it to us, if you just quote from

22 reports and then when we cannot verify what is in that report, and that is

23 why I asked whether you would submit that report, then of course the

24 Chamber is not in a position to properly look at it. Yes? So if you want

25 us to --

1 MR. BOROVIC: [Interpretation] I understand, Your Honour. I will

2 submit it after the break.

3 JUDGE ORIE: Ms. Somers.

4 MS. SOMERS: Your Honours, there was an area that your questioning

5 did not go into, and just for the sake of brevity, it is addressed in our

6 submissions that applied to this afternoon's hearing in more detail. But

7 in fact, we disagree with our learned colleagues that there is not an

8 order to things. We believe that the international -- that the

9 established norms do put locus of the crimes -- the commission of the

10 crimes as first. There may be because of contemporary changes in policy

11 with universal jurisdiction coming into the picture, a trend toward

12 changing. But that does not negative -- negate the fact that there is a

13 schema in the law that is recognised.

14 JUDGE ORIE: Would you mind to copy the relevant parts of your

15 submissions of the -- submissions relating to the afternoon hearing and

16 provide it to Defence counsel during the break. Would that be a

17 possibility?

18 MS. SOMERS: I believe they should have received it. If they

19 hadn't they would have -- perhaps not. You're absolutely right,

20 Your Honour. We'll do that.

21 JUDGE ORIE: Yes. We'll have a break for 20 minutes, then --

22 [Trial Chamber confers]

23 JUDGE ORIE: After consultation, we'll start twenty minutes from

24 now on this clock.

25 --- Recess taken at 12.47 p.m.

1 --- On resuming at 1.10 p.m.

2 JUDGE ORIE: We proceed.

3 JUDGE KWON: Just a minor question to Mr. Vasic, a clarification.

4 Serbia and Montenegro in its submission said that all of the accused are

5 nationals of Serbia and Montenegro, and Mr. Djeric confirmed that in oral

6 hearing. However, the record as to the nationality of Mr. Mrksic, it is

7 not clear to me. My understanding is that he's born in Croatia, and he

8 was a member of RSK. So could you clarify the nationality.

9 MR. VASIC: [Interpretation] Certainly, Your Honour. Mr. Mrksic

10 was indeed born in Croatia but at a time when Croatia was part of the

11 Socialist Federal Republic of Yugoslavia. He does not have Croatian

12 citizenship. The only citizenship that he has is that of the Federal

13 Republic of Yugoslavia, that is currently Serbia and Montenegro.

14 JUDGE KWON: Thank you.

15 MR. VASIC: [Interpretation] Thank you.

16 JUDGE PARKER: A question I have relates to the law that would be

17 applied were the case to be referred to Croatia, so I shall turn to

18 Professor Horvatic.

19 Much of your submissions tended to refer back to submissions made

20 in the earlier case of Ademi and Norac. That, though, was an indictment

21 of -- for offences in 1993, after there had been enacted in Croatia a new

22 code, a Criminal Code, in 1993. The present offences are 1991. Does that

23 affect any of the submissions that were advanced in Ademi, Norac,

24 especially in the area of command responsibility?

25 MR. HORVATIC: Honourable Judge, as you not remember, I can

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13 English transcripts.

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1 understand. I remember what I said on the last hearing, that it is for me

2 very interesting situation that everybody's agree of something. Public

3 prosecutor, Defence, and amicus curiae and me. That was the case of the

4 law.

5 Now is the same situation, because the law in 1991, 1992, 1993,

6 1994 was the same in Croatia, in Serbia and Montenegro, and in Yugoslavia

7 as called -- I don't know the final -- the final date of the Yugoslavia

8 and starting with Serbia and Montenegro, but the same court was.

9 Referring to the general part and referring to the criminal offences which

10 is involved in this case, the same.

11 We accept in 1990, 1991, we accept the same code, Yugoslav

12 Criminal Code, with the same text only to change the Federal Republic of

13 Yugoslavia with the Republic of Croatia, and with self-government

14 government system was the democratic system of Croatia, nothing else. The

15 main or all text of the code was the same, in the Serbia and Montenegro,

16 in Yugoslavia and in Croatia, until 1st October, 1988 [sic]. Now we have

17 our own Criminal Code. But it's applied, in all cases it's applied. This

18 Criminal Code what was this time only if it is -- the new Criminal Code is

19 in favour of accused person it will be applied as we explained in Ademi,

20 Norac. As I see the situation the same code would be applied in Serbia

21 and Montenegro if the case would be referred to this Tribunal and its --

22 in Zagreb Tribunal, the same -- the same text of code, Criminal Code.

23 JUDGE PARKER: Could I ask you something further. I may have

24 quite misunderstood the position. I thought that there was enacted in

25 1993 a new Criminal Code for Croatia. Not so.

1 MR. HORVATIC: No. No, no, no. In 1993 was maybe some amendment

2 in special part, but in this part, general part, and in this part which

3 refers to the crimes against international community for humanitarian law.

4 That was the same, untouchable, until 1998.

5 JUDGE PARKER: And that's when you encountered a new law.

6 MR. HORVATIC: Yes we cancelled the -- the capital punishment

7 immediately after our constitution which I have been informed it was two

8 or three years later, but it not refers for this case because the capital

9 punishment shall not apply according to another rule. But it is the same

10 law. Maybe I'm wrong because of the same point of the representative of

11 Republic of Serbia and Montenegro, but I think that it is the same law.

12 I'm sure.

13 JUDGE PARKER: So we go back to the 1977 SFRY code as providing

14 the text. You adopted it as Croatian law.

15 MR. HORVATIC: Yes.

16 JUDGE PARKER: But it is the same text until 1998 when you

17 changed.

18 MR. HORVATIC: Let us repeat myself. In 1991, we accept the

19 Yugoslav Criminal Code as a criminal code of Croatia, general part and

20 special part, as it was before, 20 years before, from 1977. And we

21 applied this code till 1998. And in 1998, it's in force a new Criminal

22 Code which is in the same text for the general part and in this special

23 part as it was before, but with some new text which is in accordance with

24 the new treaties, with the new situation with human law, which what is

25 explained.

1 JUDGE PARKER: Yes.

2 MR. HORVATIC: That is the situation.

3 JUDGE PARKER: And it was the 1977 text that you adopted.

4 MR. HORVATIC: Yes.

5 JUDGE PARKER: So that you didn't incorporate any amendments made

6 by Serbia and Montenegro to that law in the 1990s.

7 MR. HORVATIC: No. We incorporated some, maybe 80 per cent of the

8 old text which is the same in old Yugoslav Criminal Code and in new

9 Criminal Code of Serbia and Montenegro. For example, legal defence or

10 something like that is the same text. If we compare this text, it's the

11 same. But not the same as it is, for example, Austrian criminal law and

12 our criminal law, but the similarity is very obvious.

13 JUDGE PARKER: Thank you very much.

14 MR. HORVATIC: You're welcome.

15 JUDGE ORIE: Mr. Djeric, I would have one or two questions for

16 you. At the risk of being criticised by the OTP that the law of

17 extradition does not apply in whatever way, I nevertheless would like to

18 ask you the following: The prohibition against re-extradition is part of

19 the rule of speciality. Is that a correct understanding?

20 The rule of speciality seems to be more or less well established

21 customary law. Do you agree with that? Yes.

22 Would you also agree, it's just a question, that where someone is

23 extradited with his consent by expeditious procedures or whatever but then

24 still being an extradition, that then the rule of speciality under various

25 systems and in some international treaties would not be applicable

1 anymore? That means that consent of the extraditee, that that would --

2 has as a consequence the loss of the protection of the rule of speciality.

3 MR. DJERIC: I have to confess, Your Honour, I'm not sure.

4 THE INTERPRETER: Microphone, please.

5 MR. DJERIC: I'm not sure. I think that additional research would

6 have to be done. However, I don't think that the rule of speciality is

7 the rule which grants rights to the extraditee, to the person who is

8 extradited. It's a rule which applies between the surrendering state and

9 the requesting state. That is my first reaction. And I would think then

10 that despite the fact that a person voluntarily surrendered to another

11 state, the rule of speciality could apply, although in the very essence of

12 extradition is not voluntary surrender. In the very essence of

13 extradition is an exercise of the authority of the surrendering state

14 transferring the person concerned to another state.

15 JUDGE ORIE: But isn't it then true that if someone consents to be

16 extradited that the coercion by the state is not the vital issue any more

17 but the will of the person concerned to stand trial or to serve a sentence

18 abroad that becomes the vital issue and that the coercion of the state

19 goes to the background?

20 MR. DJERIC: What I think, and I refer now to your example from

21 before of a person who went to Spain --

22 JUDGE ORIE: From Spain to Italy, yes.

23 MR. DJERIC: There is a difference. A person who went from France

24 to Spain and there was arrested and then surrendered to Italy, went there

25 without expectation first that he would be tried in Spain, and second he

1 went there without the expectation that he will be surrendered to a third

2 state, and in that sense there is no reason for -- to grant him a benefit

3 of this reasonable expectation.

4 Now, a person who voluntarily surrendered to this Tribunal,

5 surrendered in order to be tried here in The Hague and not -- he -- I

6 believe that none of the persons who surrendered to the Tribunal, or most

7 of them, never had an idea that they would be transferred to another

8 state, and this -- and at the same time they had the confidence in the

9 court. They showed this confidence by surrendering. And I don't think

10 that this confidence would exist if they knew that they would be then

11 transferred to a third state. And I think there is -- this is an

12 essential difference between re-extradition in the sense of voluntarily --

13 of a person voluntarily going to another state and then being

14 re-extradited to a third state and the case of person voluntarily

15 surrendering to the Tribunal. This is a gap between those two situations.

16 JUDGE ORIE: Yes. I do understand. Then we have entered a

17 totally different realm, and that is the realm not of a state putting

18 conditions but the realm of persons expecting something as a result of

19 their own behaviour, which is of course totally different from

20 extradition.

21 MR. DJERIC: We have -- we have these expectations from the -- on

22 the side of the accused. However, we have a number of considerations

23 from -- coming from international customary law. We are not saying that

24 the rule against the re-extradition is automatically applicable as such.

25 We are saying that we have a situation which is so similar to a

1 re-extradition that the rule of re-extradition which is widely accepted

2 among the states - it's part of international customary law - should apply

3 and should be a consideration at least for the Bench in the present case,

4 because it's part of international law and it's part of the law that is

5 applied by this Tribunal.

6 JUDGE ORIE: One question, totally different subject, a very short

7 question. Could you provide the Chamber with your provisions, your legal

8 provisions on the applicability of the criminal law in time and space? Do

9 you understand what I mean? The jurisdiction of principles applied. And

10 could you perhaps just in one or two words tell us, since Vukovar is not

11 the territory of present Serbia and Montenegro, what would be the possible

12 jurisdictional basis to try the case.

13 MR. DJERIC: I believe -- just a second. I'm just going to try

14 finding the provision. Not to retell it --

15 JUDGE ORIE: I take it that you all being Serbian origin that you

16 know your law and that you'll not be surprised if the Chamber would at

17 this stage ask for these legal provisions, and I hope that you,

18 Professor Horvatic, would not be.

19 MR. DJERIC: I would say there are two bases of jurisdiction. One

20 is provided in our criminal law is also provided in the criminal law

21 applicable in the case, 1993's version of the criminal law.

22 JUDGE ORIE: Yes.

23 MR. DJERIC: And it is Article 106, saying that Yugoslav criminal

24 law is applicable to a national of Yugoslavia, also in the case when he

25 commits a criminal offence abroad.

1 JUDGE ORIE: Yes. Principle of nationality. Yes.

2 MR. DJERIC: Yes.

3 JUDGE ORIE: And the other basis would be.

4 MR. DJERIC: I'm sorry.

5 JUDGE ORIE: The other one would be.

6 MR. DJERIC: The other is contained -- and we don't have a

7 practice on that. This is a new law on war crimes much and in its Article

8 2, and we mentioned this Article in our written submission. The law

9 says: "This law shall be applicable for the purpose of, among other

10 things, of criminal prosecution and trying for grave violations of

11 international humanitarian law committed on the territory of the former

12 Yugoslavia since 1 January 1991, which are set forth in the statute of the

13 Tribunal."

14 JUDGE ORIE: Yes. So you adopted more or less our jurisdictional

15 basis. If I were an accused could I defend myself by saying that this law

16 could not be retroactively applied and therefore it's very important for

17 those who commit --

18 MR. DJERIC: For the first situation the issue of retroactivity

19 does not arise. The criminal law would be applicable then. For this

20 situation the issue of retroactivity will arise and then we will have the

21 whole discussion on the applicability of international law which was

22 raised in the Prosecutor's submission.

23 JUDGE ORIE: Yes. That's clear to me.

24 JUDGE KWON: If you would clarify the meaning of "national of

25 Yugoslavia."

1 MR. DJERIC: National of Yugoslavia would be --

2 JUDGE KWON: You have jurisdiction over Croatian Croats who

3 committed their crime in Croatian. That is my question.

4 MR. DJERIC: Yes, I believe so. We could also -- we have a

5 provision on basic universal jurisdiction in our Criminal Code. If you

6 ask me to define Yugoslav national, this is a person having Yugoslav

7 nationality at the time the offence was committed, presumably. However,

8 there is a universal jurisdiction provision, so we could try -- with

9 certain conditions we could try such a person before our courts under the

10 criminal law of 1993.

11 JUDGE KWON: Thank you.

12 JUDGE ORIE: I have no further questions.

13 JUDGE KWON: I noticed Professor Horvatic has something. No. He

14 is withdrawing.

15 JUDGE ORIE: Then we have 15 minutes left. I would like to give

16 seven and a half minutes to Defence and seven and a half minutes to the

17 Prosecution. Perhaps the Prosecution first because they filed the motion.

18 Ms. Somers.

19 MS. SOMERS: Thank you, Your Honour. Just to inform the Bench, we

20 were able to distribute to the Defence counsel as ordered one part of the

21 submission which is the actual response and if we can be assisted by

22 the -- by our colleague, the usher, the other parts.

23 I wanted to bring to the Bench's attention Article 110 of the

24 Criminal Code of the SFRY, which is referred to in our submission which

25 was applicable at the time of the commission of the offences, criminal

1 codes of republics and autonomous provinces apply to anybody who on the

2 territory of the republic or autonomous province commits a criminal act --

3 JUDGE ORIE: Ms. Somers.

4 MS. SOMERS: Too fast?

5 JUDGE ORIE: Yes.

6 MS. SOMERS: How did I guess.

7 JUDGE ORIE: Yes, yes.

8 MS. SOMERS: Thank you.

9 JUDGE ORIE: It was a good guess. In general, we'd very much like

10 to --

11 MS. SOMERS: I'm sorry.

12 JUDGE ORIE: Texts of legal provisions are provided to the

13 interpreters' booth when quoted, but if you would slowly --

14 MS. SOMERS: I will just draw attention to provision 2. It is the

15 law of the republic or autonomous province in which the act has been

16 committed that shall be applied. If the interpreters need it, I'm happy

17 to provide it. My apologies. We didn't realise that it would be invoked

18 at this particular hearing.

19 The -- the Prosecution will not reiterate comments. We think that

20 we have -- in making our request directed to two states, we have put this

21 squarely in front of the Referral Bench for its determination. We think

22 that the arguments have been full and that the concerns as to which of the

23 two, if any, if the Chamber is minded to make the referral, which of the

24 two would be the most appropriate forum. We will restrict legal argument

25 to that which has been already before the Chamber in submissions.

1 I do note that there had been discussion earlier about the

2 applicability of principles ever customary law hovering over statutory law

3 and that the ECHR and the ICCPR would not look necessarily unfavourably on

4 perhaps some degree of retroactivity where that -- where those provisions

5 that are at issue are covered by customary law. Again, I believe the

6 citations -- well, they should have been provided, but the -- let me just

7 see if I can get it to you real quickly.

8 JUDGE ORIE: Perhaps while you're trying to find it, I noted,

9 Ms. Somers, that the Prosecution comes then with two solutions of what

10 should be done if there was not direct applicability of the -- and

11 self-execution of the treaty provisions. I also noticed, but I know

12 you've got a few minutes left.

13 MS. SOMERS: I'm going to cover --

14 JUDGE ORIE: I also noted that might not resolve the problem

15 because what then should be enacted in the view of the OTP might create a

16 similar problem of retroactivity -- retroactive applicability of the

17 provisions that the OTP thinks should be enacted.

18 MS. SOMERS: I just the 'Chambers' attention to our submission of

19 28 April paragraph 19, and which cites to Article 15, paragraph (ii) of

20 the ICCPR and of the footnote that is incorporated therein is citing to

21 Article 72 of the ECHR.

22 JUDGE ORIE: We noticed that.

23 MS. SOMERS: The Prosecution will not have any additional comment.

24 I think if the Chamber has any further question of us, we're happy to

25 respond. But I think we've covered our points.

1 JUDGE ORIE: Yes. Then I will grant to the Defence the two and a

2 half extra minutes that the Prosecution left you. I don't know who is

3 going to -- Mr. Vasic. It's you or are you splitting up the tasks?

4 MR. VASIC: [Interpretation] Thank you, Your Honour. I will

5 address you very briefly, and my colleagues will also use the opportunity

6 to address you.

7 First I wish to respond to what my learned friend said just a

8 while ago about the application of Article 110 of the Criminal Code of the

9 SFRY. It seems to me that this refers to crimes provided for by republican

10 law whereas we are now dealing with the SFRY Criminal Code. This is not

11 the same code.

12 I also wish to use the opportunity to respond to what

13 Professor Horvatic said in connection with the existence of an indictment

14 before the county court in Vukovar against the accused in this case. You

15 will find in the court records that on two occasions within six months

16 attempts were made to deliver the indictment of the county court of

17 Vukovar to the accused in the Detention Unit and there is no doubt that

18 criminal proceedings are being conducted against him there. It will be

19 easy for the Court to check this.

20 I also wish to say something about the issue of extradition. I

21 wish to point ought that in cases of voluntary surrender by the accused,

22 one must bear in mind that it took place only after the enactment of the

23 law on cooperation with The Hague Tribunal through the mediation of the

24 state and based on the law. For this reason, the Defence submits that

25 this voluntary surrender must be harmonised with all the rules governing

1 the transfer of the accused by the state based on international treaties.

2 Therefore, we abide by our claim that the rules governing extradition

3 should be applied in this case.

4 Thank you, Your Honours. Those are my arguments.

5 JUDGE ORIE: Mr. Borovic.

6 MR. BOROVIC: [Interpretation] Thank you, Your Honour. I only wish

7 to stress that the primary principle that we must respect is the principle

8 of a fair trial. All the arguments put forward by the Prosecutor's office

9 and the various sides are something we have heard and I will not repeat.

10 But to me it seems that all the arguments pertaining to a fair trial are

11 in favour of a trial in Belgrade. The OSCE report that we have mentioned

12 support the claim that a fair trial could not be held in Croatia with all

13 due respect to the courts and judges there for the reasons we have

14 mentioned.

15 I will conclude by saying that today a case before the county

16 court in Vukovar, which is being actively prosecuted, is the case against

17 the accused sitting here in this courtroom. In any case, when the Trial

18 Chamber reads the OSCE report of the 26th of April, 2005, I think the

19 Chamber will accept the arguments of the Defence that a fair trial can be

20 held only in Belgrade.

21 Thank you.

22 JUDGE ORIE: Thank you, Mr. Borovic.

23 Mr. Lukic.

24 MR. LUKIC: [Interpretation] Your Honours, this has been very

25 expeditious on the part of all my colleagues and learned friends. I will

1 try to be as expeditious as they have been.

2 I only wish to touch upon two issues. One was raised more than

3 once by Ms. Somers during this hearing, and it refers to the principle of

4 conducting the proceedings in the place where the crimes took place, and

5 this truly is a universal principle. However, I wish to refer to the

6 arguments put forward in paragraphs 8 to 21 of our initial submission.

7 Something that the Prosecutor said puts me in a rather special situation,

8 and that is the Prosecutor's standpoint that this is primarily because of

9 closeness to the victims, and this is true and has been also said by the

10 President of the Tribunal in connection international justice. This

11 aspect of relation of victims to the proceedings when viewed in the

12 context of international law is open to discussion. We can, for example,

13 point to examples of ethnic cleansing. The Ademi, Norac case, there has

14 been a motion to refer it to Croatia, but the victims are no longer in

15 Croatia. Where are they? There is another case where 40 victims arrived

16 as witnesses for the Prosecution in Samac municipality where 90 per cent

17 of the victims no longer live.

18 I draw attention to these examples in order to underline the fact

19 that when international times are being considered, all this has to be

20 taken into account and special considerations have to be taken on board.

21 There is no doubt that an attorney can sit, and I'm referring now

22 to the representation of the accused in Croatia, that an attorney from

23 another country can sit beside the lead counsel, but what is at stake here

24 is the relationship of trust and confidence between the accused and his

25 lead counsel. And as these are civilian, military, and security

1 structures, it will be very hard to establish a relationship of full

2 confidence.

3 Your Honours, our clients have pleaded not guilty. They have not

4 pleaded guilty to the crimes they are charged with. Our professional task

5 as Defence counsel is to focus all our professional activity on

6 demonstrating that they are not guilty. For this we need two things, due

7 process and facts and evidence that will allow us to challenge the

8 Prosecutor's arguments and demonstrate the innocence of our clients. The

9 facts and evidence are a matter for the Defence to come up with, but due

10 process and a fair trial has to be provided for by the Court. We are

11 nothing more and nothing less of you, Your Honours.

12 Thank you.

13 JUDGE ORIE: Thank you, Mr. Lukic.

14 This concludes the hearing of today. It's not the first 11 bis

15 hearing before this Chamber, but especially where the motion was filed

16 with an open choice to refer the case to Croatia or to Serbia and

17 Montenegro, the Chamber, of course, is confronted with an additional

18 issue, and that is where to send the case.

19 It could be no surprise if victims or relative -- relatives of

20 victims would prefer to have their cases tried before courts of their own

21 state, because they might fear that if the case would be heard in a state

22 where the accused are nationals of, that perhaps not sufficient weight

23 would be given to their interests and too much weight to the interests of

24 the accused. Whereas on the other hand, the accused might have fear that

25 if they are tried in the state of the victims that too much weight would

1 be given to the interests of the victims and that their rights would not

2 be sufficiently guaranteed. That is at least one of the issues, apart

3 from all the others we discussed, which this Referral Chamber is

4 confronted with.

5 I'd like to thank the parties for their submissions. That

6 certainly will assist the Chamber in making the determination the Chamber

7 would have to make. And I would also like very much to thank the

8 representatives of the governments of Serbia and Montenegro and of Croatia

9 for the assistance they have provided to the Chamber.

10 We stand adjourned.

11 --- Whereupon the Rule 11 bis Hearing

12 adjourned at 1.45 p.m.

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