Order of a Judge to Ensure Compliance with a Subpoenae Duces Tecum

BEFORE A JUDGE OF THE TRIBUNAL

Before: Judge Gabrielle Kirk McDonald

Registrar: Mrs. Dorothee de Sampayo, Registrar

Decision of: 28 February 1997

THE PROSECUTOR

TIHOMIR BLASKIC

___________________________________________________________

ORDER OF A JUDGE TO ENSURE COMPLIANCE WITH A SUBPOENA DUCES TECUM ___________________________________________________________

To: Bosnia and Herzegovina

To: Mr. Ante Jelavic, the successor of the Custodian of the Records of the Central Archive of what was formerly the Ministry of Defence of the Croatian Community of Herceg Bosna

I, Gabrielle Kirk McDonald, Judge of the International Criminal Tribunal for the former Yugoslavia.

CONSIDERING, Articles 18(2), 19(2) and 29(2)(c) of the Statute and Rules 39(ii) and (iv) and 54 of the Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia,

CONSIDERING the subpoena duces tecum addressed to Bosnia and Herzegovina and to the Custodian of the Records of the Central Archive of what was formerly the Ministry of Defence of the Croatian Community of Herceg Bosna , which I issued on 15 January 1997 and of which the originals and the Bosnian translations were delivered personally to the Representative of Bosnia and Herzegovina, Judge Vidovic, on 22 January 1997,

CONSIDERING the report of Judge Vidovic in the hearing of 14 February 1997 that the aforementioned subpoena duces tecum and translations were forwarded to the relevant authorities of the Federation of Bosnia and Herzegovina and Bosnia and Herzegovina on 22 January 1997 and that proof of delivery of the aforementioned subpoena duces tecum and translations to these authorities were submitted by Judge Vidovic for the record,

CONSIDERING the report of the Prosecutor on the partial non compliance of Bosnia and Herzegovina and Mr. Ante Jelavic, the successor of the Custodian of the Records of the Central Archive of what was formerly the Ministry of Defence of the Croatian Community of Herceg Bosna with respect to the aforementioned subpoena duces tecum and translations at the public hearing on 14 February 1997,

CONSIDERING the Order to Comply with a Subpoena Duces Tecum addressed to Bosnia and Herzegovina and to Mr. Ante Jelavic, the successor of the Custodian of the Records of the Central Archive of what was formerly the Ministry of Defence of the Croatian Community of Herceg Bosna, which I issued on 14 February 1997 and of which the originals were received by the Representative of Bosnia and Herzegovina, Judge Vidovic, on 14 February 1997 and the Bosnian translation on 19 February 1997,

CONSIDERING the reports of Judge Vidovic in a letter of 17 February 1997 to the Prosecutor and in the public hearing of 19 February 1997 that copies of the aforementioned Order were forwarded to the relevant authorities of the Federation of Bosnia and Herzegovina and of Bosnia and Herzegovina,

CONSIDERING the letter of 19 February 1997 of the Prosecutor's representatives on the partial non-compliance of Bosnia and Herzegovina and of Mr. Ante Jelavic, the successor to the Custodian of the Records of the Central Archive of what was formerly the Ministry of Defence of the Croatian Community of Herceg Bosna with respect to the aforementioned Order,

CONSIDERING the report of the Prosecutor on the partial non-compliance of Bosnia and Herzegovina and of Mr. Ante Jelavic, the successor to the Custodian of the Records of the Central Archive of what was formerly the Ministry of Defence of the Croatian Community of Herceg Bosna with respect to the aforementioned Order at the public hearing on 19 February 1997,

CONSIDERING the Order of a Judge to Ensure Compliance with a Subpoena Duces Tecum issued to Bosnia and Herzegovina and to Mr. Ante Jelavic, the successor of the Custodian of the Records of the Central Archive of what was formerly the Ministry of Defence of the Croatian Community of Herceg Bosna , on 20 February 1997 and which originals were received by the Representative of Bosnia and Herzegovina, Judge Vidovic, on the same date,

CONSIDERING that the Registrar sent by fax a copy of the Order of 20 February 1997 to Mr. Ante Jelavic on the same date,

CONSIDERING the report of Judge Vidovic in the hearing of 24 February 1997 that copies of the Order of 20 February 1997 were furnished to the Ministry of Foriegn Affairs of Bosnia and Herzegovina on said date and that the Ministry of Foriegn Affairs of Bosnia and Herzegovina delivered copies of the Order to the Cabinet of Mr. Ante Jelavic on 20 February 1997,

CONSIDERING the letter of the Prime Minister of the Federation of Bosnia and Herzegovina dated 21 February 1997 addressed to Mr. Ante Jelavic asking him to comply with the Order of 20 February 1997 and asking him to appear before Judge Gabrielle Kirk McDonald at the hearing on 24 February 1997 or designate a knowledgable representative to appear in his stead,

CONSIDERING the report of the Prosecutor at the hearing on 24 February 1997 that no documents responsive to the subpoena duces tecum have been received by the Prosecutor since the hearing on 20 February 1997,

CONSIDERING that neither Mr. Ante Jelavic nor his designated representative appeared before me at the hearing of 24 February 1997 as I directed in my Order of 20 February 1997,

CONSIDERING the Order to Comply with a Subpoena Duces Tecum addressed to Bosnia and Herzegovina and to Mr. Ante Jelavic, the successor of the Custodian of the Records of the Central Archive of what was formerly the Ministry of Defence of the Croatian Community of Herceg Bosna, which I issued on 24 February 1997,

CONSIDERING that this Order directed Mr. Ante Jelavic to appear personally before me in a public hearing on 28 February at 10 AM to answer questions relevant to the production of subpoenaed documents, or if Mr. Jelavic could not personally appear on this date, that a representative appear in his stead who was familiar with the location and contents of the Central Archive of what was formerly the Ministry of Defence of the Croatian Community of Herceg Bosna and who was able to describe in detail what steps have been taken to comply with the subpoena duces tecum since it was received by the Ministry of Defence,

CONSIDERING that copies of the Order of 24 February 1997 were received by the Representative of Bosnia and Herzegovina, Judge Vidovic, on 24 February 1997 and transmitted to the competent authorities of the Federation of Bosnia and Herzegovina on 25 February 1997,

CONSIDERING that a copy of the Order was delivered to the Cabinet of Mr. Ante Jelavic on 25 February 1997,

CONSIDERING that Prime Minister Bicakcic of the Federation of Bosnia and Herzegovina requested that Mr. Jelavic comply with the Order of 24 February 1997,

CONSIDERING the report of the Prosecutor on 28 February 1997 that no documents responsive to the subpoena duces tecum have been produced to the Prosecutor since the hearing of 24 February 1997,

CONSIDERING that Mr. Ante Jelavic failed to appear personally before me on 28 February 1997 and failed to designate a representative who was familiar with the location and contents of the Central Archive of what was formerly the Ministry of Defence of the Croatian Community of Herceg Bosna and who was able to describe in detail what steps have been taken to comply with the subpoena duces tecum since it was received by Ministry of Defence,

NOTING that legal counsel for Mr. Ante Jelavic, Ms. Slokovic-Glumac of Zagreb, Croatia appeared at the hearing of 28 February 1997, but that she was unable to inform me of the location and contents of the Central Archive of what was formerly the Ministry of Defence of the Croatian Community of Herceg Bosna and of the steps taken to comply with the subpoena duces tecum,

NOTING that Mr. Ante Jelavic, through his legal counsel, informed me that the Custodian of the Central Archives of what was formerly the Ministry of Defence of the Croatian Community of Herceg Bosna had died and no successor Custodian had been appointed,

NOTING that Mr. Ante Jelavic, through his legal counsel, informed me that the Ministry of Defence of the Federation of Bosnia and Herzegovina is not the legal successor of the Central Archives of what was formerly the Ministry of Defence of the Croatian Community of Herceg Bosna,

NOTING that Prime Minister Edhem Bicakcic agrees with Mr. Ante Jelavic that the Archive of the Federation of Bosnia and Herzegovina has been designated the legal successor of the Central Archive of what was formerly the Ministry of Defence of the Croatian Community of Herceg Bosna,

NOTING that the Archive of the Federation of Bosnia and Herzegovina is not yet a functional legal entity,

CONSIDERING that the contents of the Central Archive of what was formerly the Ministry of Defence of the Croatian Community of Herceg Bosna have not been turned over to the Archive of the Federation of Bosnia and Herzegovina by the HZ HB Archive,

FIND that Mr. Ante Jelavic is in actual control of the documents called for in the subpoena duces tecum which are in the Central Archive of what was formerly the Ministry of Defence of the Croatian Community of Herceg Bosna,

FIND that Mr. Ante Jelavic failed to appear before me to answer questions relevant to the production of subpoenaed documents,

FIND that Mr. Ante Jelavic wilfully failed to designate a representative to appear in his stead who was familiar with the location and contents of the Central Archive of what was formerly the Ministry of Defence of the Croatian Community of Herceg Bosna and who was able to describe in detail what steps have been taken to comply with the subpoena duces tecum since it was received by the Ministry of Defence,

FIND that by failing to comply with the production of documents described in the subpoena duces tecum, by failing to appear before me to answer questions relevant to the production of the subpoenaed documents and by wilfully failing to designate a representative who could inform me of the location and contents of the Central Archive of what was formerly the Ministry of Defence of the Croatian Community of Herceg Bosna and describe in detail what steps have been taken to comply with the subpoena duces tecum since it was issued, Mr. Ante Jelavic has obstructed the Prosecutor's investigation of the case of The Prosecutor v Blaskic,

FIND that Bosnia and Herzegovina has co-operated with the Tribunal in taking steps which are necessary for the production of documents described in the subpoena duces tecum,

HEREBY DIRECT Mr. Ante Jelavic to inform me no later than Tuesday, 4 March 1997 at 5 P.M. of the exact location or locations of all documents contained in the Central Archive of what was formerly the Ministry of Defence of the Croatian Community of Herceg Bosna,

HEREBY DIRECT Mr. Ante Jelavic to ensure that no documents contained in the Central Archive of what was formerly the Ministry of Defence of the Croatian Community of Herceg Bosna, are damaged, destroyed or removed from said Archive,

HEREBY DIRECT that Mr. Ante Jelavic produce the documents described in the subpoena duces tecum to me no later than Wednesday, 5 March 1997 at 5 PM, or alternatively,

HEREBY DIRECT Mr. Ante Jelavic to provide the Prosecutor with immediate access to the documents contained in the Central Archive of what was formerly the Ministry of Defence of the Croatian Community of Herceg Bosna by making the necessary arrangements to allow the inspection and copying of the documents under subpoena by the Prosecutor no later than Thursday 6 March 1997 at 5 PM, and,

HEREBY ORDER that in the event that Mr. Ante Jelavic fails to inform me of the exact location or locations of all documents contained in the Central Archive of what was formerly the Ministry of Defence of the Croatian community of Herceg Bosna by Tuesday 4 March 1997 by 5 PM; fails to ensure the documents contained in the same Archive are not damaged, destroyed or removed; fails to produce the documents requested in the subpoena duces tecum to me by Wednesday 5 March 1997 by 5 PM or alternatively fails to provide the Prosecutor access to the documents contained in the Central archive as directed by this Order, he shall appear in person before me on Friday 7 March 1997 at 10.00 AM to show cause why he should not be held in contempt for failure to comply with this Order.

Judge Gabrielle Kirk McDonald

International Criminal Tribunal for the former Yugoslavia

Dated this 28th day of February 1997
At The Hague
The Netherlands

[Seal of the Tribunal]