Tribunal Criminal Tribunal for the Former Yugoslavia

Page 404

 1                          Friday, 13 October 2006

 2                          [Rule 11 bis Hearing]

 3                          [Open session]

 4                          [The accused entered court]

 5                          --- Upon commencing at 4.04 p.m.

 6            JUDGE ORIE:  Good afternoon.  Madam Registrar, would you please

 7    call the case.

 8            THE REGISTRAR:  Good afternoon, Your Honours.  This is case number

 9    IT-96-23/2-PT, the Prosecutor versus Dragan Zelenovic.

10            JUDGE ORIE:  Thank you, Madam Registrar.

11            We're here today for a hearing under Rule 11 bis.  May we have the

12    appearances.  Prosecution first.

13            MS. SOMERS:  Good afternoon, Your Honours; counsel.  For the

14    Prosecution, Susan Somers; to my left, Mr. Aleksandar Kontic, legal

15    officer; to my right, extreme right, Ms. Verica Balikic, case manager;

16    assisted by Mr. Greg Bodulovic.

17            Thank you.

18            JUDGE ORIE:  Thank you.

19            And for the Defence.

20            MR. JOVANOVIC: [Interpretation] Good afternoon, Your Honours.  I'm

21    attorney-at-law Zoran Jovanovic from Belgrade appearing on behalf of

22    Mr. Dragan Zelenovic.

23            Thank you.

24            JUDGE ORIE:  Thank you.  And then we have a videolink with

25    Sarajevo.  Perhaps I should have first have checked whether the -- I do

Page 405

 1    not receive interpretation at this moment, but -- yes.

 2            Could you please introduce yourselves from Sarajevo.  That's --

 3    you're representatives of the -- of Bosnia and Herzegovina.  Please

 4    proceed.

 5            MS. BASIC: [Interpretation] Yes.  Your Honours, on behalf of the

 6    government of Bosnia and Herzegovina and the delegation of Bosnia and

 7    Herzegovina, we would like to thank the Referral Chamber for allowing us

 8    to participate via videolink.

 9            I would now like to introduce to you the members of the

10    delegation.  Mr. Emir Neradin, registry office for section 1 and 2 of the

11    court of Bosnia and Herzegovina; Ms. Mechtild Lauth, office of the

12    registrar for department 1 and 2 of the court of Bosnia-Herzegovina;

13    Mr. Philip Alcock from the Prosecutor's office of Bosnia and Herzegovina;

14    Ms. Stephanie Godart of the Prosecutor's office of Bosnia and Herzegovina;

15    and I as head of the delegation, Fatima Basic come from the Ministry of

16    Justice of Bosnia and Herzegovina.

17            JUDGE ORIE:  Thank you, Ms. Basic, for introducing yourself.

18            Mr. Zelenovic, I had not yet asked you whether you could hear us

19    in a language you understand.  Yes, you can?

20            THE ACCUSED: [Interpretation] Yes.  Yes.

21            JUDGE ORIE:  Mr. Zelenovic, it maybe clear that additional

22    opportunity will be given to the parties now and to the government of

23    Bosnia and Herzegovina to add whatever they would like to add to their

24    written submissions.  You may remain seated.

25            I had in mind to give a short opportunity to the Prosecution to

Page 406

 1    make any further submissions, or to reserve their time, as you have done

 2    before, I take it, I remember, Ms. Somers, to say, well, nothing to be

 3    added at this moment, but I'd like to have some time at a later stage.  I

 4    think that altogether some 20 minutes would do.

 5            Would you like to add anything at this moment, Ms. Somers, or

 6    would you rather reserve your time?

 7            MS. SOMERS:  May I reserve, please?

 8            JUDGE ORIE:  Yes.

 9            MS. SOMERS:  Thank you.

10            JUDGE ORIE:  So 20 minutes still available to Ms. Somers.

11            Mr. Jovanovic, is there anything you'd like to add to the

12    submissions you've given already and annexes attached to it, or if you

13    would like to summarise at this moment?  You have also -- altogether you

14    have 20 minutes available to -- and if there is any need, if there is a

15    lot of new stuff, then of course you could apply for more time.

16            Anything you'd like to add or to summarise?

17            MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.

18            Very briefly, given that all of the arguments of the Defence were

19    included in our motion on the 22nd of September, now I would just like to

20    briefly point out some additional issues which were contained in our

21    motion, but I would like to give you additional clarification.  Not even

22    in relation to all of the points, just some of the points.  I can do it at

23    any time that the Chamber deems convenient.

24            JUDGE ORIE:  If you want to give any additional clarification,

25    you're invited to do that right now.

Page 407

 1            MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.

 2            Your Honours, as I have stated, the arguments of the Defence are

 3    contained in our written motion.  In a way, the Defence found itself in a

 4    situation where we not only challenged the arguments listed by the

 5    Prosecution in this referral case, but we also had to challenge some other

 6    decisions issued here at ICTY in the case against Stankovic and Jankovic,

 7    which is a bit of an awkward situation.

 8            I would now like to point out some of the issues that I consider

 9    relevant.  I am fully aware of the position taken previously by the

10    Referral Chamber about the fact that there exists in Bosnia and

11    Herzegovina a court that can accept the cases referred by the ICTY and

12    that there are no impediments for cases being tried there.  What I think

13    needs to be further clarified, and perhaps additional clarification can be

14    given by the representatives of Bosnia and Herzegovina, is the application

15    of the law.

16            In Stankovic and Jankovic cases, the Referral Chamber already took

17    the position considering the law that is to be applied, whether it is

18    going to be the law of the SFRY, which was in force at the time when the

19    crimes were committed, or whether it is going to be the law on criminal

20    law of Bosnia-Herzegovina, which was adopted in 2003, the Criminal Code of

21    Bosnia-Herzegovina.  And in Annex I of Defence submission, I attached the

22    indictment issued by the prosecutor of the Brcko district dated the

23    13th of July, 2005, which is to say at the time when the state court of

24    Bosnia and Herzegovina and the war crimes chamber in Sarajevo had already

25    been established and when the new Criminal Code of Bosnia and Herzegovina

Page 408

 1    had already been adopted, the code with amendments, particularly those

 2    pertaining to Article 4(A) of the Criminal Code.

 3            I would like to draw the attention of the Chamber to the fact that

 4    this was the case referred by the Prosecution of this Tribunal to the

 5    Brcko district.  The OTP here did not issue an indictment.  However, they

 6    completed the entire investigation and referred the case to Bosnia and

 7    Herzegovina.  The decision of the Prosecution was quite clear.  They

 8    qualified the crimes in that indictment in the light of the law that was

 9    in force at the time when the crimes were committed, which was the

10    Criminal Code of the SFRY.

11            I additionally emphasise that --

12            JUDGE ORIE:  Yes, Ms. Somers.

13            MS. SOMERS:  I'm sorry.  I beg your pardon for interrupting at

14    this time.  But in order -- at this moment so that there is no

15    misunderstanding, it was not a referral by the Office of the Prosecutor.

16    At best, it was a Rules of the Road case.  It is not a referred case.  So

17    the language I think needs to be clarified considerably.

18            JUDGE ORIE:  Yes.  Mr. Jovanovic, Ms. Somers draws our attention

19    to the fact that it was not a referred case but that it was a case

20    which -- I understand the Rules of the Road with the full consent of the

21    OTP was dealt with by a court in Brcko and not by this Tribunal.  They

22    gave the green light to have the case prosecuted over there.

23            Unless you would disagree, you're invited to proceed.

24            MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.

25            Naturally this was a case where the indictment had not yet been

Page 409

 1    issued by this Tribunal.  However, the evidence accompanied by the letter

 2    of the Prosecutor was sent to Bosnia, to the Brcko district.  This was not

 3    a case where -- this was not a case of a referral under 11 bis.  I fully

 4    agree with that.

 5            This case pertain to the events in the Luka camp in Brcko.  Goran

 6    Jelisic was convicted by this Tribunal for the same events, and in this

 7    case the same events were included.  So as I said, as long as the law of

 8    Bosnia and Herzegovina was in force, the Prosecution of Bosnia and

 9    Herzegovina qualified these acts, among other things, in Count 4 -- or,

10    rather, in Count 6 of the indictment as rape and other acts based on

11    Article 4.

12            Article 4 speaks of the principle of legality and the principle of

13    lex mitior, that is to say that, namely, the law more beneficial to the

14    accused needs to be applied.  The different approach taken by the

15    Prosecution in Bosnia and Herzegovina, even though it concerns in this

16    case the Brcko district, can lead to legal uncertainty; namely, the

17    accused finds himself in a situation where the Referral Chamber submits to

18    the Prosecution and to the Chamber in Bosnia and Herzegovina -- rather,

19    when they allow them to choose which law is going to be applied should the

20    case be referred.  So the accused does not know in advance which law is

21    going to be applied.

22            I think that it is necessary to establish very clear criteria --

23            JUDGE ORIE:  Mr. Jovanovic, this seems to be a big

24    misunderstanding.  The only thing this Referral Bench has done in the past

25    is to make sure that whatever law will be applied in accordance with the

Page 410

 1    local legislation, the legislation in Bosnia-Herzegovina, not knowing

 2    exactly what case law would develop, that there is nothing in either the

 3    old law or in the new law which would result in a situation where the

 4    applicable law would not enable to try these cases, without saying

 5    anything on which law had to be applied, because it's not within the

 6    competence of this Referral Bench to decide for the courts in Bosnia and

 7    Herzegovina, how they should interpret their legal system, especially in

 8    view of the applicability of law in terms of time.

 9            So there's a consistent case law of this Referral Bench which

10    makes abundantly clear, I would say, that this Referral Bench is not

11    saying apply this law or apply that law.  We're just having an overview

12    and see that no results could be expected which would be, our law does not

13    provide for the instruments which would allow to punish those who are

14    found guilty of the crimes covered by the indictment as it lies before

15    this Tribunal at this moment.  That's the only thing we're doing.

16            So it seems that your argument was based upon a wrong

17    understanding of the task of this Referral Bench.

18            Please proceed and keep this in mind.

19            MR. JOVANOVIC: [Interpretation] Yes.  Thank you, Your Honour.

20            At the outset of my presentation, I said that given the previous

21    rulings of this Chamber has established that there is a firm legal

22    framework in Bosnia-Herzegovina, regardless of which law is going to be

23    applied, be it the one which was in force at the time when the crime was

24    committed or the one that was adopted later, and this is all pursuant

25    Article 4(A).

Page 411

 1            The important distinction that I would like to draw your attention

 2    to is the sentence which is provided in the law.  At the time, when these

 3    crimes were committed, the law which was in force when the crimes were

 4    committed stipulated that the maximum sentence was 20 years, whereas the

 5    new law specifies that the minimum sentence is 10 years and maximum

 6    sentence is 20 to 40 years.

 7            I just wanted to reiterate that regardless of the role of the

 8    Chamber that you have just explained yourself, at the time when the

 9    Chamber rules on whether this case is going to be referred to Sarajevo or

10    not, the accused finds himself in a situation where he doesn't know which

11    law is going to be applied.  I think that Bosnia and Herzegovina needs to

12    establish clear criteria as to exactly which law is going to be applied

13    under those circumstances.  Naturally, both laws facilitate unhindered

14    proceedings, and naturally there is a possibility that the charges would

15    be dropped and proceedings suspended.

16            Now, as to Bosnia and Herzegovina, I think that they need to

17    clarify the following:  Once the case is referred and once --

18            JUDGE ORIE:  Mr. Jovanovic, are you telling -- at this moment are

19    you saying that Bosnia and Herzegovina should clarify for this Referral

20    Bench, or are you saying Bosnia and Herzegovina should clarify in its

21    future case law, well, whatever you'd like to address?  Is it relevant at

22    this moment for our decision, or is it just for future development in the

23    case law of Bosnia and Herzegovina?

24            MR. JOVANOVIC: [Interpretation] I think that in general their

25    position needs to be clarified.  As for the jurisprudence of the Referral

Page 412

 1    Bench, it is quite clear.

 2            JUDGE ORIE:  Before we continue, we have some difficulties with

 3    the videolink at least.

 4                          [Trial Chamber and registrar confer]

 5            JUDGE ORIE:  It seems to us that the videolink with Bosnia and

 6    Herzegovina has been re-established.  Did you miss important parts?  Are

 7    you long already deprived from what was said in The Hague?

 8            Could I ask you, Ms. Basic, to inform me?

 9            MS. BASIC: [Interpretation] Your Honours, we didn't miss anything.

10    We heard everything that was said, and we can even reply to the question

11    raised by the Defence.

12            In accordance --

13            JUDGE ORIE:  I would first, as a matter of fact, give an

14    opportunity to Mr. Jovanovic to finish had his argument and then there

15    will be an opportunity to -- to make your observations in relation to

16    that.

17            Mr. Jovanovic, I consulted with my colleagues.  The future

18    development of case law in Bosnia-Herzegovina is not something that would

19    be very important, very relevant.  We are looking forward to -- to see

20    what happens there, but it's not relevant for our decision at this moment.

21            So you are invited to proceed and to leave this.

22            One question, you said maximum sentence was 20 years under the old

23    law.  Isn't it true that death penalty was the maximum sentence?

24            MR. JOVANOVIC: [Interpretation] Yes.

25            JUDGE ORIE:  Then you're referring to the term of imprisonment

Page 413

 1    that could be imposed.  Then that's well understood.

 2            Please proceed.

 3            MR. JOVANOVIC: [Interpretation] Yes, Your Honour, I was referring

 4    to the term of imprisonment, because the 20-year imprisonment was in fact

 5    a substitute for the death penalty.  However, pursuant to further

 6    developments, it became impossible to implement the death penalty any

 7    longer.

 8            I have nothing else to add, Your Honours.  I would just like to

 9    draw your attention to the fact that it is possible to qualify the act in

10    two different -- significantly different ways given the sentence envisaged

11    for that act, and that it would be beneficial if clear criteria were to be

12    established so that the accused know exactly, even though it's not going

13    to be contained in the decision as you stated, the decision only specifies

14    that it's possible to conduct the proceedings in Bosnia-Herzegovina.

15    However, I think that Bosnia and Herzegovina needs to establish very clear

16    criteria so that the accused knows which law is going to be applied.

17            JUDGE ORIE:  Mr. Jovanovic, now I think for the third time you try

18    to revisit a matter on which I first said that it was based on a

19    misunderstanding, then I said it was irrelevant, and now you try it for

20    the third time, which is -- well, let's say not very intelligent to do.

21            Please proceed.

22            MR. JOVANOVIC: [Interpretation] No, Your Honours.  I just

23    announced that this was it as far as my arguments were concerned in

24    relation to this issue.

25            As for all other directions given to the Defence as to stating our

Page 414

 1    position, it is fully explained in our motion dated the 22nd of September,

 2    and I have nothing further to add to it.

 3            Thank you.

 4            JUDGE ORIE:  We've read that carefully.

 5            Ms. Basic in Sarajevo, I would like to give you an opportunity to

 6    add anything you think of relevance to the submissions, the extensive

 7    submissions, including case law, full text case law for us.

 8            May I ask you also to keep in mind what I just said to

 9    Mr. Jovanovic about the relevance of some of his submissions and that

10    further development of case law in Bosnia and Herzegovina is not within

11    the competence of this Chamber to further elaborate on.

12            Please proceed.

13            MS. BASIC: [Interpretation] Your Honours, we believe that given

14    the gravity of the crime and the level of criminal responsibility, this

15    case meets the criteria under Rule 11 bis for referral to the BH

16    Prosecutor, especially if we bear in mind the fact that the Stankovic and

17    Jankovic cases were referred and are being successfully tried, all the

18    more reason to back the motion to have this trial, too, referred to

19    Bosnia-Herzegovina.

20            As for the application of law, perhaps my colleague Mr. Neradin

21    can provide an answer to that.

22            JUDGE ORIE:  Yes, Mr. Neradin, you're invited to deal with the

23    matter.  Please keep in mind that of course this Referral Bench has

24    already received a lot of information and has in its decisions I think

25    also already explained what our role in this is.

Page 415

 1            Please proceed.

 2            MR. NERADIN: [Interpretation] Thank you.

 3            Given the fact that this is not what this hearing is really about,

 4    all I can say is that the BH court has already established a body of case

 5    law in a number of trials that have been completed so far.  The Abduladhim

 6    case, the Appeals Chamber of the BH court has passed a judgement in that

 7    one.  There are three other cases where we have sentences; in the

 8    Samardzic, Simsic, and Paunovic cases.  The court applied the Bosnia and

 9    Herzegovina Criminal Code in these proceedings.  These judgements have

10    already been forward and fully explained.

11            Thank you.

12            JUDGE ORIE:  Yes.  Thank you very much, because we have received

13    the full text of the judgements you're referring to now.  I must admit I

14    have not read them in full yet but will do so before a decision will be

15    taken, that we are acquainted with these developments in the case law of

16    Bosnia-Herzegovina.

17            Is there anything else, Ms. Basic, you would like, or Mr. Neradin,

18    you'd like to add at this moment?

19            MS. BASIC: [Interpretation] At this point in time, I have nothing

20    to add.  Thank you very much.

21            JUDGE ORIE:  Yes.  Then I am moving to you, Ms. Somers.  You

22    reserved your time.  We're now in the second round, more or less.  Would

23    you like to make observations either in addition to what you have put on

24    paper already or in response to what the Defence or the government of

25    Bosnia and Herzegovina has submitted?

Page 416

 1            MS. SOMERS:  Thank you, Your Honour.  Just a couple of points and

 2    very briefly.

 3            JUDGE ORIE:  Yes.

 4            MS. SOMERS:  With respect to what has been raised by my learned

 5    friend opposite, Mr. Jovanovic, the case, just to set the record straight,

 6    that was referred to in Brcko was not an OTP investigation.  It was at all

 7    times a Bosnian investigation.  Strictly rules of road and received a

 8    green light in August of 2000 for continued processing in

 9    Bosnia-Herzegovina.  So that there is no misunderstanding that it was not

10    subject to indictment here as was alleged on page 5, line 16, I believe,

11    in the record.

12            In terms of the level and gravity, which are the principal issues,

13    we stand, of course, on our submissions that this case falls squarely

14    within the contemplated level of the accused, lower to intermediate, and

15    the gravity of offence falls squarely as has been effectively confirmed by

16    this Bench and the Appeals Chamber in the sister case of Jankovic.  The

17    fact that those cases are well under way provides a body of law that

18    should be allowed, as I understand it, to be applied to this case should

19    it be referred and allow for a speedy trial in Bosnia-Herzegovina in the

20    state court; that the designation of Bosnia-Herzegovina is correct as we

21    indicated in our submissions.  There really should be no issue on that.

22    And that the direct perpetration, 7(1) charges, are the gravamen.  There

23    is no 7(3) in this case as both we emphasise and BH.

24            If there is anything we can help the Bench with, please let us

25    know, but I think that we just want to stand on our submissions and

Page 417

 1    correct the record that was made today, as done.

 2            JUDGE ORIE:  Yes.

 3            Mr. Jovanovic, is -- do you feel any need at this moment to

 4    respond to what Ms. Somers just said?

 5            MR. JOVANOVIC: [Interpretation] No, Your Honour.  I believe the

 6    matter has been clarified in relation to Annex I.

 7            As for the other matter, this is something that has already been

 8    raised by the Prosecution and the Defence has already replied to that.

 9            JUDGE ORIE:  Yes.  Thank you.

10                          [Trial Chamber confers]

11            JUDGE ORIE:  I have one question for you, Mr. Jovanovic.

12            You're explaining in your submission that you're concerned about

13    witnesses living in Serbia which under the European Convention on Mutual

14    Assistance in Criminal Matters could not be forced to appear before a

15    court in Sarajevo and might not be inclined to go to Sarajevo.  It is not

16    entirely clear to me what your -- what your concern is.  Are you afraid to

17    lose them as witnesses at all, or are you concerned about the way in which

18    they'll bring their information, bring their knowledge of the events

19    before the court in Sarajevo?

20            MR. JOVANOVIC: [Interpretation] Your Honour, it's certainly not

21    the latter.  I'm not concerned about that, what the witnesses might

22    possibly say before the court.  It's only about the accessibility of

23    witnesses or their desire to respond to a Defence summons to appear in a

24    trial held before a Sarajevo court.  There is the ECMACM that exists

25    pursuant to an agreement or a treaty signed between Bosnia and Herzegovina

Page 418

 1    and Serbia.  This sort of assistance would be provided only in cases where

 2    witnesses living in Serbia was in a position to testify via videolink at

 3    the Sarajevo trial.  It is pursuant to that agreement that the Belgrade

 4    court would then make sure that all the conditions, technical conditions,

 5    were in place for something like that to be done.

 6            However, based on a brief preliminary investigation, there are a

 7    number of witnesses potentially essential for our case who reside in

 8    Belgrade.  Any binding summons by a BH court, and this has been explained

 9    on a number of occasions because in keeping with the BH Criminal Code it

10    is the duty of a witness to respond to a summons, which is the same as

11    applies in Serbia, and a failure to respond to a summons is liable for

12    penalty.  However, a summons cannot be served on citizens of the Republic

13    of Serbia or those residing there.

14            JUDGE ORIE:  Yes.  That's all clear from your written submissions

15    already, but let me then be more concrete.

16            If they, even after you've explained to them, because you write in

17    your submission they are afraid of being prosecuted, I think the treaty as

18    such, do we agree on that, protects whatever witness who is called to

19    appear on the basis of this convention is -- has a, how do you say, has a

20    safe conduct if he appears?  Do we agree on that?

21            MR. JOVANOVIC: [Interpretation] Your Honours, I apologise.  I may

22    have misunderstood, but it is precisely safe conduct that was discussed

23    when the ruling was made in the Stankovic and Jankovic cases, and doubt

24    was cast on the possibility of their having such a measure implemented.

25            Let's say there is a person who is charged with specific crimes in

Page 419

 1    Bosnia-Herzegovina.  If this person resides in Serbia, at the moment this

 2    person reaches Bosnian soil this person will be arrested.  So safe conduct

 3    does not apply in this case.  At least that's my position.

 4            JUDGE ORIE:  Yes, that's your position.  Although the -- if he is

 5    summoned under the convention you just mentioned, he has a safe conduct

 6    under that convention.  Isn't the convention not quite clear on that?

 7    Isn't it true that the European Convention says that someone who is

 8    summoned on the basis of this convention and appears before a foreign

 9    court could not be arrested, prosecuted, whatever?  I mean -- and if you

10    say that's not in the convention -- I haven't got that text here at this

11    moment, but ...

12            MR. JOVANOVIC: [Interpretation] Your Honour, I think the position

13    of Bosnia and Herzegovina is that any such person would be arrested, any

14    persons being investigated or under detention measures.  The moment they

15    step on Bosnian soil they will be arrested.

16            JUDGE ORIE:  We'll ask Bosnia and Herzegovina.  But let's just

17    assume that that is then not a way to get these people in before the court

18    in Sarajevo.  Isn't it true that under that same convention you could ask

19    a witness to be heard or to be examined in Serbia in the presence of the

20    parties who come from Bosnia and Herzegovina and even could attend the

21    examination of a witness in accordance with that treaty, what they call an

22    examination under letters rogatory?

23            MR. JOVANOVIC: [Interpretation] Yes, Your Honour.  We're now

24    talking about those witnesses willing to respond to the prompting by the

25    Defence, and then it's down to them to organise a videolink.

Page 420

 1            JUDGE ORIE:  Mr. Jovanovic, isn't it true that if through letters

 2    rogatory a witness would be examined on the territory of Serbia not as

 3    part of the trial but perhaps in pre-trial proceedings, that where you

 4    couldn't force a witness to come from Serbia to Sarajevo, that you could,

 5    however, force a witness to appear before in his local court and be

 6    examined there so that at least the transcripts or the report of that

 7    testimony or -- perhaps I shouldn't call it testimony, but that statement

 8    can then be used abroad in Sarajevo?  And isn't it true that under those

 9    circumstances it depends on Serbian law that the situation were exactly

10    the same if someone if -- if someone was summoned before a Serbian court

11    and is therefore under an obligation to appear?

12            MR. JOVANOVIC: [Interpretation] Your Honour, you're entirely

13    right.  My interpretation is much the same as in Bosnia-Herzegovina there

14    is the obligation of a witness to attend a Serbian court for proceedings

15    being held before a Serbian court.  The Law on Criminal Procedure applies

16    to proceedings before Serbian courts.  Therefore, if there's a summons by

17    a BH court and the person receiving the summons lives, resides in Serbia,

18    there is no obligation whatsoever to appear and to respond to the summons,

19    unlike a situation with a tribunal which has the power to issue a binding

20    summons.

21            So a Bosnian court has no power to issue any form of binding

22    summons to anyone, resident or citizen of the Republic of Serbia.

23            JUDGE ORIE:  It seems, Mr. Jovanovic, we still do not yet

24    understand each other.  Let me try to be clearer.

25            If -- and we are still talking about the European Convention on

Page 421

 1    Mutual Assistance in Criminal Matters.  If a court in Bosnia and

 2    Herzegovina would like to receive the information available to a witness

 3    who lives in Serbia and who is unwilling to come to Bosnia and

 4    Herzegovina, couldn't they then ask the Serbian authorities to examine

 5    that witness in Serbia before a Serbian judge, add to that request that

 6    the parties in the Bosnia and Herzegovina case could attend that

 7    examination of the witness?  Would the witness under those circumstances

 8    not be under an obligation to appear before the Serbian court where he

 9    gives testimony which will then be relayed on paper to the court in Bosnia

10    and Herzegovina?  That's the situation I'm talking about.

11            Is that a possibility, in your view; and would he be under an

12    obligation then to appear before his Serbian court?

13            MR. JOVANOVIC: [Interpretation] Your Honour, my interpretation of

14    the agreement is that this means assistance.  A court in Serbia can and

15    indeed must, within the terms of this agreement, make sure that a witness

16    is heard, but I don't think this is binding for any citizen of Serbia to

17    appear and testify before a Sarajevo court.  So although this may be done

18    before a court in Belgrade, this is still a trial that is held before a

19    court in Bosnia and Herzegovina.  In that sense, there is nothing binding

20    and no obligation.

21            Perhaps we could imagine a similar situation.  Say the OTP are

22    summoning a person in Serbia for --

23            JUDGE ORIE:  Mr. Jovanovic, have you any case law to rely upon,

24    any practice which would support your position?

25            MR. JOVANOVIC: [Interpretation] Your Honour, this is not an

Page 422

 1    example from the case law.  I am in touch with the justice ministry of the

 2    Republic of Serbia, their legal assistance department, and they told me

 3    about this position that I'm informing you about now.  There have been

 4    videolinks between the Belgrade court and the Sarajevo court, and this

 5    seems to work very well, but that still doesn't mean that a witness can be

 6    subpoenaed to appear at a Sarajevo court in any way.

 7            My grievance was therefore related to the impossibility to ensure

 8    the presence of a witness before the court in Sarajevo.  I was just

 9    telling you that this Tribunal has the power to order a witness to appear,

10    irrespective of the witness's place of residence or nationality.  This

11    Tribunal has the power to subpoena a witness and to issue binding orders

12    to the witness's country, whereas the BH court does not have the same

13    powers, and I don't think an agreement has been signed that might further

14    this process and cooperation in legal matters.

15            JUDGE ORIE:  Yes.  Thank you for these answers, Mr. Jovanovic.

16            JUDGE ORIE:  Then I'd like to give an opportunity to you,

17    Ms. Basic, to respond to what was said by Mr. Jovanovic.  He suggested

18    that if through the channels of the European Convention on Mutual

19    Assistance in criminal cases, if someone would be summoned living in

20    Serbia that that witness would not enjoy a safe conduct as provided for in

21    that convention.

22            Could you please respond to that, because it was not totally clear

23    to me on what basis Mr. Jovanovic took that position.

24            MS. BASIC: [Interpretation] Thank you, Your Honours.  I would like

25    to pass the floor to Mr. Neradin for this issue.

Page 423

 1            Thank you very much, Your Honours.

 2            JUDGE ORIE:  Yes, Mr. Neradin, you may understand that I was

 3    specifically referring to -- I think it's Article 12 of that -- of that

 4    convention.

 5            Yes, please.

 6            MR. NERADIN:  [Interpretation] As you've already stated,

 7    Bosnia-Herzegovina is a signatory to the ECMACM.  It is pursuant to

 8    Article 12 of that convention there is guarantee of immunity to all

 9    witnesses summoned before this court that are nationals of a different

10    country.  Bosnia and Herzegovina has ratified a contract with Serbia and

11    Montenegro in legal assistance in criminal and civil matters.  On the 2nd

12    of June, 2005, Article 14 guaranteed the same sort of immunity to those

13    subject to criminal prosecution.  These witnesses are free to leave within

14    15 days after their presence is no longer legally required.

15            As for forcing a witness or subpoenaing a witness from Serbia,

16    generally speaking, if there is a witness who refuses to appear, there is

17    the possibility of using the instrument of legal assistance and legal

18    cooperation, be it by videolink, as counsel has mentioned, or by taking a

19    deposition from a witness pursuant to all these international agreements

20    that are after all binding for Bosnia and Herzegovina.

21            Thank you.

22            JUDGE ORIE:  Thank you for your clarification, Mr. Neradin.

23            I have at this moment no further question.  I'm looking to my

24    colleagues.  They have no further questions.

25            Then I would give a brief opportunity to the parties, if there is

Page 424

 1    need to add anything which has been said, you have an opportunity to do

 2    that now.

 3            Ms. Somers.

 4            MS. SOMERS:  Your Honour, I can see nothing further that would

 5    need to be added.

 6            JUDGE ORIE:  Thank you.

 7            Mr. Jovanovic.

 8            MR. JOVANOVIC: [Interpretation] Your Honours, I have nothing to

 9    add.

10            JUDGE ORIE:  Yes.  Ms. Basic, is there anything you'd like to add


11    from Sarajevo?

12            MS. BASIC: [Interpretation] No, Your Honour, there is nothing we

13    would like to add.

14            JUDGE ORIE:  Thank you.

15            Finally, Mr. Zelenovic, you have been here listening to argument

16    which is of a rather high technical nature, legally technical nature.  I

17    can imagine that there is nothing you would like to add to that, but if

18    there's anything at this moment you'd like to say, and you are aware

19    we -- I mean, we are dealing with these legal technical matters because

20    it is of course for you not a legal technical matter, but it's what will

21    happen to you, but if you'd like to add anything, you may do so.

22            THE INTERPRETER:  The microphone was not on.

23            JUDGE ORIE:  Could you switch on your microphone if you say

24    something.  Mr. Zelenovic, the interpreters couldn't hear you.

25            THE ACCUSED: [Interpretation] I have nothing to add.

Page 425

 1            JUDGE ORIE:  Thank you very much, Mr. Zelenovic.  Please be

 2    seated.

 3            The Chamber will consider everything that has been submitted and

 4    will give its decision in due course, or if it feels that it's not able

 5    yet, to return to the parties.

 6            We stand adjourned.

 7                          --- Whereupon the Rule 11 bis Hearing adjourned

 8                          at 4.53 p.m.