1 Friday, 15 September 2005
2 [Rule 11 bis Hearing]
3 [Open session]
4 [The accused entered court]
5 [Ms. Popadic participated via videolink]
6 --- Upon commencing at 2.20 p.m.
7 JUDGE ORIE: Good afternoon. Madam Registrar, will you call the
9 THE REGISTRAR: Good afternoon, Your Honours, case number
10 IT-98-32/I-PT, the Prosecutor versus Milan Lukic and Sredoje Lukic.
11 JUDGE ORIE: Thank you. We are here for a Rule 11 bis.
12 I'd like to have the appearances. Prosecution first.
13 MS. SOMERS: Good afternoon, Your Honours, counsel. Susan Somers
14 for the Prosecution, accompanied to my right by Mr. Aleksandar Kontic, to
15 his right Ms. Carmela Javier, case manager, and behind me Mr. Greg
17 JUDGE ORIE: Thank you, Ms. Somers.
18 For the Defence. First the Defence of Sredoje Lukic.
19 MR. CEPIC: Good afternoon, Your Honours. I'm Djuro Cepic,
20 Defence counsel for Mr. Sredoje Lukic. On my left-hand side is Mr. Jens
21 Dieckmann, as a co-counsel on Defence team, and also appearing with us is
22 Mr. Erez Zaionce, legal assistant.
23 JUDGE ORIE: Thank you, Mr. Cepic.
24 For the Defence of Milan Lukic.
25 MR. YATVIN: Good afternoon, Your Honours, members of the
1 Prosecution, guests from the states of Serbia, Bosnia, and Argentina. My
2 name is Alan Yatvin and I represent the accused, Mr. Milan Lukic. Check.
3 JUDGE ORIE: May I have the appearances for Argentina. Could you
4 please introduce yourselves?
5 MR. GONI: I'm sorry, I was interrupted by my counsellor. Good
6 afternoon, Your Honour. I am the Ambassador of Argentina, Santos Goni,
7 and I am accompanied by a counsellor to my embassy, Silvia Raiola.
8 JUDGE ORIE: Thank you very much. I think we have representatives
9 of Serbia as well. Could they introduce themselves?
10 MR. OBRADOVIC: [Interpretation] Good afternoon, Your Honours,
11 ladies and gentlemen. On behalf of the Government of the Republic of
12 Serbia, my name is Sasa Obradovic. I am the first ambassador of the
13 embassy, and with me I have Dusan Knezevic who is the deputy prosecutor
14 for war crimes of the Republic of Serbia.
15 JUDGE ORIE: Thank you, Mr. Obradovic.
16 We have been in contact with the representatives of
17 Bosnia-Herzegovina. Could I have the appearances from
19 MS. POPADIC: Good afternoon, Your Honour. This is the delegation
20 of Bosnia-Herzegovina. To my left, Ms. Biljana Potparic, deputy registrar
21 of the office of the registrar of the divisions 1 and 2 of the state of
22 Bosnia-Herzegovina; Mr. Mirsad Strika of the prosecutor's office of the
23 Bosnia-Herzegovina; Mr. Emir Neradin, and Ms. Metjir Blaud [phoen] from
24 the office of the registrar for departments 1 and 2 of the state of
25 Bosnia-Herzegovina; and Mr. Toby Cadman, prosecutor's office of
1 Bosnia-Herzegovina. And, of course, myself, Miljana Popadic from the
2 Ministry of Justice of Bosnia-Herzegovina.
3 JUDGE ORIE: Thank you, Ms. Popadic. Then, Mr. Sredoje Lukic, the
4 parties have introduced themselves. Were you able to hear them in a
5 language you understand?
6 THE ACCUSED SREDOJE LUKIC: [Interpretation] Yes. Yes, I have.
7 JUDGE ORIE: Same question for you, Mr. Milan Lukic.
8 THE ACCUSED MILAN LUKIC: [Interpretation] Yes, I have understood
10 JUDGE ORIE: Yes. Thank you very much. Please be seated.
11 We have informed the parties about the order of this meeting. The
12 Chamber stresses again that we'd like to hear any addition to what's
13 already on paper. There's no need to repeat whatever you've written down
15 I'd like to give first an opportunity to the Prosecution to
16 address the Chamber. Fifteen minutes are available, and I'll be very
17 strict on time.
18 Ms. Somers.
19 MS. SOMERS: Thank you very much, Your Honour.
20 First of all, the Prosecution would like to vociferously express
21 its objection to Serbia's intervention at this time. It was not part of
22 the designation by the Prosecution or by the Trial Referral Bench proprio
23 motu, as is required by the Rule. We recognise the Chamber did request
24 the presence but we have not had an opportunity formally to object to the
25 actual interjection, given the Rule.
1 JUDGE ORIE: Ms. Somers, this is in line with earlier case law of
2 this Referral Bench. Please proceed.
3 MS. SOMERS: We stand firmly on our submissions. The
4 Prosecution, because it was not asked to comment on any aspect of the
5 issues concerning Argentina's presence, has reserved any comment, and if
6 the Chamber would like to hear from us on our view, we would offer it.
7 But because it was not an official written request, we have simply
9 Above and beyond, we deem that this case is fully appropriate for
10 referral as for both accused. The additional submissions that have come
11 in have not persuaded us to advance any further argument above and beyond
12 what was laid out in our response to the submissions, in your order of 30
13 June. And with the Chamber's permission, if we may be permitted to listen
14 to any further argument that might require comment and return or seek
15 audience if there is something additional after having heard, because I
16 don't know what else might be raised by our colleagues and by our learned
17 and esteemed guests.
18 JUDGE ORIE: Ms. Somers, to answer your questions and also to
19 inform the parties, whatever time is saved in, I would say, the first
20 round, - you had 50 minutes available, you've used 3 until now - that time
21 is, if not entirely but at least is to some extent available for you to
22 respond to others; and this is true for the other parties as well, the
23 shorter you are in the first round. But don't start saying, all of you,
24 that you have nothing to add, because then we're already in the second
25 round. But you'll have an opportunity to respond if any other issue is
1 raised and if you have not yet addressed that matter in your written
3 MS. SOMERS: Thank you, Your Honour.
4 JUDGE ORIE: Yes.
5 [Trial Chamber confers]
6 JUDGE ORIE: Then I'd like to give an opportunity to the
7 representatives of Argentina to address the specific issue raised. As you
8 may be aware of, the Referral Bench has formulated a provisional view on
9 what the meaning is of the decision of the Argentinian court, and that is
10 the specific reason, very specific reason why we invite you to come.
11 Please proceed.
12 MR. GONI: Thank you, Your Honour.
13 JUDGE ORIE: Could you please activate your microphone?
14 MR. GONI: May I sit?
15 JUDGE ORIE: Yes.
16 MR. GONI: I will read in Spanish the opinion of the Argentine
17 government regarding the point before the Bench today.
18 [No Interpretation]
19 JUDGE ORIE: Your Excellency, at this moment we do not receive the
20 translation. What channel should we choose to receive English translation
22 THE INTERPRETER: It's on channel 4.
23 JUDGE ORIE: May I invite you to start again and to read not too
24 quickly because otherwise the interpreters might have difficulties in
25 following your speed of speech.
1 MR. GONI: The full text has been handed to the Registrar in
2 advance and is therefore available to the Court.
3 [Interpretation] "In keeping with the request made by the Referral
4 Bench, an order dated 30th June this year, the opinion of the Argentinian
5 government is given as regards the relationship between the sentence
6 handed down on the 10th of January 2006 by the national federal court
7 number 8 of Argentina, whereby Mr. Lukic was surrendered to the ICTY, and
8 Rule 11 bis on referral of the indictment to another court, under the
9 Rules of Procedure and Evidence.
10 "On this point, let me point out clearly that the Argentinian court
11 decided, with the consent given by the defendant, to accede to the request
12 for transfer and surrender submitted by ICTY for the accused to be tried
13 at the seat of the Tribunal, it being clear that he could not be referred
14 to another place in order to be charged, prosecuted or harassed without
15 the prior authorisation of the Argentinian state.
16 "Likewise, the Argentinian court decided to accede and, given the
17 request by the Government of Serbia and Montenegro, and acceded therefore
18 to the -- having Mr. Milan Lukic extradited, it being clear, obviously,
19 that the full process be complied with as requested by the ICTY."
20 As a consequence of which, on the 21st of February, this year,
21 Milan Lukic was surrendered to ICTY for him to be tried by this Tribunal
22 and afterwards by the judicial authorities of Serbia. This is why a
23 verbal note of the Tribunal was submitted to the Argentinian embassy in
24 The Hague, whereby the Tribunal thanked the Argentinian authorities for
25 all the assistance given.
1 Thereafter, the Tribunal made it clear that all the conditions
2 were met in order to renew procedure in keeping with Rule 11 bis, under
3 which the Prosecutor asked for the case against Mr. Lukic to be referred
4 to the authorities of Bosnia-Herzegovina, for it to be tried by the
5 corresponding court in that state in keeping with Resolutions 1534/04 and
6 1503/03 of the United Nations Security Council.
7 The Referral Bench considered, as stated in order dated 30th June
8 2006, that, in keeping with the previous consideration carried out by
9 Argentina, this dissension -- Argentina's decision would have a Tribunal
10 for Milan Lukic, at the seat of the Tribunal for the crimes referred to in
11 the official indictment, or that the Tribunal may fully exert its powers
12 in keeping with the Statute of the Tribunal, Rule 11 bis, and resolutions
13 1534 and 1503 of the Security Council of the United Nations to refer Milan
14 Lukic and for him to be tried by a competent authority but not without the
15 prior authorisation given by the Argentinian state. And this is why the
16 ICTY invited the embassy of the Argentinian Republic to submit its opinion
17 on the relationship between the sentence of the Argentinian Tribunal and
18 the referral procedures of ICTY under Rule 11 bis, specifically ICTY --
19 JUDGE ORIE: May I ask you to slow down. It's a common experience
20 that, when reading, speed goes up and the interpreters ask you to slow
21 down. Please proceed. I have on my screen -- perhaps you could resume
22 there where you said "This is why we asked" ... Could you resume there,
24 MR. GONI: [Interpretation] Consequently, the Tribunal invited the
25 embassy of the Argentinian Republic to submit its opinion on the
1 relationship between the sentence handed down by the Argentinian court and
2 the referral procedures of the International Criminal Tribunal in keeping
3 with Rule 11 bis. Specifically, ICTY invited the Argentinian government
4 to attend the hearing to be held on the 15th of September and to show
5 whether it shares the provisional opinion mentioned in the previous
6 paragraph as regards the effects of the Argentinian decision.
7 If one reads carefully the order given by the Referral Bench on
8 the 30th of June, it is clear that when you analyse the Argentinian
9 sentence, in fact, the Tribunal sees two possibilities.
10 The first such possibility: The sentence handed down by the
11 Argentinian court makes it clear that Milan Lukic must be tried only by
12 the International Criminal Tribunal for former Yugoslavia, it being clear
13 that the case can not be referred to another Tribunal.
14 And the second possibility is that ICTY may invoke Rule 11 bis,
15 referring thereby the case to a competent national Tribunal in
16 Bosnia-Herzegovina, although previously authorisation must be sought from
17 the Argentinian state.
18 In principle, it should be pointed out that the Argentinian
19 decision enabled the transfer and surrender of Lukic to the ICTY for him
20 to be tried there for the crimes mentioned in the formal indictment, in
21 the official indictment. In the order of transfer and surrender given by
22 the Court, there was absolutely no mention of the motion submitted by the
23 Prosecution to refer the case to a competent national authority under Rule
24 11 bis. In other words, in the ICTY order, there was no warning given to
25 the Argentinian Republic as to the possible transfer of the case to a
1 tribunal of Bosnia-Herzegovina.
2 Such a possibility arises after Lukic was surrendered, when the
3 Tribunal informed that the Prosecution gave notification as to the
4 fulfilment of the conditions, that is to say, the presence of the accused
5 before the Tribunal, in order to settle the transfer motion that had been
6 presented, in order to reach a decision on this motion.
7 Likewise, we should keep in mind that whilst Lukic was detained in
8 Buenos Aries to be transferred to The Hague, the Government of
9 Bosnia-Herzegovina did not ask for extradition, nor did it show any
10 interest whatsoever in his detention for him to be extradited. Moreover,
11 according to the informal information that we have received through the
12 Interpol department of the federal police of Argentina, the authorities of
13 Bosnia-Herzegovina had not issued an order of international capture
14 against Mr. Lukic. On the contrary, such an interest had indeed been made
15 clear by the Government of Serbia. The Serbian embassy did ask for the
16 extradition of Mr. Lukic, which afterwards was acceded to, even though
17 surrender to this country was conditioned to the ICTY process being
18 totally complied with first, by virtue of which -- this is a new
20 By virtue of the aforesaid, it can be stated without any doubt
21 that the intention and interest of the Argentinian authorities will be
22 fulfilled by the Security Council, giving the widest possible cooperation
23 to the ICTY for the fulfilment of its lofty goals. And recognising the
24 supremacy of the jurisdiction of this Tribunal faced with the request
25 presented by Serbia. This is the reason why Lukic was surrendered to the
1 International Criminal Tribunal for the former Yugoslavia, and his
2 extradition was made conditional on the decision taken by ICTY.
3 Consequently, and as regards the interpretation of the Argentinian
4 sentence, without prejudice to the fact that our authorities had received
5 no previous warning as regards the transfer motion that had been presented
6 so as to transfer the case to the Bosnia-Herzegovina case -- motion that
7 had been presented by the Prosecution, in no way can this sentence be
8 interpreted as undermining the exercise of the powers of transfer of this
9 Tribunal. All the more so, as such powers, the possibility therefore of
10 transferring a case to a competent national authority is indeed
11 contemplated within the Rules of Procedure and Evidence, and since the
12 authorities of the Republic of Argentina have clearly shown full
13 cooperation from the very beginning of this case.
14 It is thus to be noted, furthermore, that the procedure -- that
15 the procedure for re-extraditing is provided for in domestic legislation
16 in Argentina. Law 24.767, law 24767, lays down in Article 18 that a
17 person extradited from the Republic of Argentina cannot be - cannot be -
18 re-extradited to another state without the prior authorisation granted by
19 Argentina, unless the person extradited should -- unless the person
20 extradited should freely and expressly forego such possibility. The
21 procedure to obtain such an authorisation is laid down in Article 54 of
22 the law I have just mentioned.
23 In consideration wherof, and bearing in mind the rules applicable
24 both within ICTY and within Argentinian legislation, as well as the
25 sentence handed down by Argentinian justice and the renewed willingness to
1 cooperate shown by this Republic with the International Criminal Tribunal
2 for the former Yugoslavia, the Government of the Argentinian Republic
3 would like to see the case of Lukic tried by the Tribunal at its seat, in
4 keeping with the Argentinian decision. And without prejudice to this,
5 should there be an order to transfer the trial to a national competent
6 court, in keeping with Rule 11 bis, the necessary authorisation should be
7 sought from the Argentinian state, in keeping with the procedure that has
8 been laid down to that effect in Argentinian legislation, in the light of
9 the last part of the 10th, considering of the order of the 30th of June
10 ordered by the Referral Bench; that is to say, the Tribunal may exert its
11 powers to transfer Milan Lukic, for him to be tried by a competent
12 national tribunal, but such transfer should not take place without prior
13 authorisation from the Argentinian state.
14 Thank you very much, indeed, sir.
15 JUDGE ORIE: Thank you.
16 MR. GONI: [Interpretation] To the translator, the last paragraph
17 is connected to the previous one. In fact, there should be a comma.
18 JUDGE ORIE: Thank you.
19 I'd like now to give an opportunity to the representatives of
20 Bosnia-Herzegovina to address the Court on any matter which is not yet
21 part of their written submissions.
22 Ms. Popadic, may I invite you to address the Court?
23 MS. POPADIC: [Interpretation] [Via videolink] Thank you,
24 Your Honours. I wish to point out that the authorities of
25 Bosnia-Herzegovina abide by all the arguments they have provided and all
1 the written responses regarding this particular case, as well as all the
2 oral and written submissions of the relevant institutions of
3 Bosnia-Herzegovina provided in other cases which may be of assistance to
4 the Chamber in issuing the proper decision, bearing in mind the positive
5 experiences in connection with the cases referred up to now to the
6 authorities of Bosnia-Herzegovina, such as the Stankovic, Jankovic, and
7 Meakic at our cases, and the new cases which are expected to be referred
8 soon, as well as the cases initiated by the prosecutor's office of
9 Bosnia-Herzegovina which are being conducted without impediment, we
10 believe that the judicial system of Bosnia-Herzegovina is fully ready to
11 take over this case.
12 I also wish to point out that the authorities of
13 Bosnia-Herzegovina, over the previous several months, have undertaken the
14 necessary steps to ensure the necessary funds in order to provide for the
15 unhindered operation of the court of Bosnia-Herzegovina in the forthcoming
17 Therefore, I wish to stress that Bosnia-Herzegovina is fully
18 prepared to take the case of Milan and Sredoje Lukic for further
19 proceedings. And we are willing to answer any questions put by the
20 Chamber or other interested parties.
21 I therefore undertake to submit a written response of any question
22 that may be put to us by the Chamber. Thank you.
23 JUDGE ORIE: Thank you very much, Ms. Popadic.
24 Next submission on the agenda is by the representative of Serbia.
25 Mr. Obradovic, may I invite you to address the Court.
1 MR. OBRADOVIC: [Interpretation] Your Honours, please allow me to
2 thank you, first of all, for inviting us to attend this hearing, for
3 enabling us to present the views of our government in relation to the
4 referral of the case against Milan Lukic and Sredoje Lukic to domestic
6 In that respect, we ask that the written submission submitted on
7 behalf of the Government of Serbia, on the 4th of September, by Mr. Rasim
8 Lajic, the president of the National Council for Cooperation with the ICTY
9 be treated by you as an initiative, proprio motu, on behalf of Serbia for
10 referring this case to Serbia in accordance with Rule 11 bis (B).
11 Given your order on scheduling this hearing, I will not be
12 repeating any assurances of goodwill of our country and government to take
13 over this case and thus contribute to the administration of justice and
14 rule of law in the territory of the former Yugoslavia. This is something
15 that the highest representatives of our government spoke already about to
16 you in other cases. Instead, I will give you some reasons that would
17 justify the referral of this case to the Serbian judiciary.
18 By doing so, I wish to emphasise that Mr. Knezevic, the deputy
19 prosecutor, and I will be speaking today about the alleged crimes and
20 guilt of the accused only within the framework of this very special
21 procedure and based on the facts contained in the indictment, not wishing
22 to bring into question the presumption of innocence of the two accused,
23 which represents one of the fundamental legal principles of the criminal
24 procedure in Serbia.
25 We already spoke to you in our written submission about the fact
1 that there were two trials against Milan Lukic held before the war crimes
2 chamber of the district court in Belgrade. He was charged by the
3 indictment of the ICTY OTP in one case and he was also convicted in
4 Belgrade in a case where the victims were Muslims from Serbia and
5 Montenegro, who were kidnapped from a bus and from a train.
6 This is why we believe that the principle of good administration
7 of justice makes it mandatory for us to ensure that all of the cases for
8 which Milan Lukic is charged be tried simultaneously before one court.
9 This is simultaneously in the interests of the accused but also in the
10 interest of victims and witnesses. This is the interest of judicial
11 economy. We unfortunately have to state that this is an interest not
12 recognised by the Prosecution of this Tribunal in their submissions.
13 The same principle, known as good administration of justice, makes
14 it mandatory that the co-accused Sredoje Lukic also be tried
15 simultaneously by this same court. By conducting a single trial before
16 the war crimes chamber of the district court in Belgrade, there would
17 undoubtedly be a step towards contributing to the further good development
18 of cooperation between the judiciary of Serbia and Bosnia-Herzegovina.
19 And so far this contribution has been assessed as very successful by Mrs.
20 Del Ponte. She said so when addressing the permanent council of the OSCE
21 recently in Vienna.
22 It seems that the war crimes court in Bosnia-Herzegovina was
23 currently encountering serious financial difficulties --
24 JUDGE ORIE: I invite you to slow down. It's common experience
25 that reading always goes quicker than formulating your words not from
2 MR. OBRADOVIC: I will try. I will try, Your Honour.
3 [Interpretation] Especially towards the final comments in the
4 submission of Bosnia and Herzegovina, we find some indication that the
5 judiciary of Bosnia-Herzegovina is not able to ensure efficient
6 proceedings in this case. We believe that the referral of this case to
7 Serbia would, in no way, violate the decision of the Argentine court in
8 relation to the accused Milan Lukic.
9 Furthermore, I wish to inform you about the interest of the
10 Government of Serbia for holding this trial in our country. It is certain
11 that the position and international reputation of the war crimes
12 prosecutor as well as the war crimes chamber of the Republic of Serbia
13 would be strengthened by conducting proper proceedings in such cases,
14 which is clearly in the interests of our country. On the other hand, the
15 citizens of Serbia would be best informed and would best face the terrible
16 crimes committed during the conflict in Bosnia-Herzegovina if the trial
17 were to be held in their presence, in their country. Any judgement
18 against Serbs for crimes committed against members of other ethnic groups
19 and religions would be best accepted if it were pronounced by a local
20 domestic court. On the other hand, there is no concern that the court,
21 who in absentia had already convicted Milan Lukic to a 20-year sentence,
22 would all of a sudden decide to spare him in this case.
23 The results received so far by the war crimes prosecutor and the
24 war crimes chamber in Belgrade have been uniformly viewed as very
25 successful. There is a European Union document that states that the
1 Ovcara case held in Belgrade should be used as a model for all other
2 countries in the region as to how to conduct war crimes trials.
3 The cooperation between the Belgrade prosecutor and the Tribunal
4 is excellent. There is no reason for this Chamber, Your Honours, to
5 believe that it is not justified to show faith in the Serbian judiciary by
6 referring this case to Serbia, which hasn't been the case so far.
7 The OTP seems to give priority to the criteria of the place where
8 the crimes were committed, and it is undoubtedly in the interest of the
9 victims and their families. But, however, this criteria was limited to
10 the state level. These crimes were committed neither in Sarajevo, nor in
11 Belgrade, but rather in a border region of Visegrad. Then why should the
12 trial be held in Sarajevo and not in Belgrade?
13 The Prosecution of this Tribunal did something quite the opposite
14 in the case of crimes committed in the vicinity of Zvornik, in
15 Bosnia-Herzegovina. The case was referred to Serbia in the stage of
16 investigation, and this trial is now in progress successfully before the
17 war crimes chamber of the district court in Belgrade.
18 In relation to all other matters, we stand by the arguments
19 contained in our written submissions, although I do have to point out that
20 paragraph 7 found its way into this written submission by means of an
21 obvious bureaucratic mistake. Therefore, I urge you to ignore this
22 paragraph, and I apologise for this.
23 My distinguished colleague, Mr. Knezevic, will say a few words
24 about the possibility to have this case tried before a court in Serbia.
25 Since we got involved in this procedure at quite a late stage, we had no
1 opportunity to answer the questions that were addressed by the Government
2 of Bosnia-Herzegovina. Therefore, I ask you to yield the floor to
3 Mr. Knezevic.
4 JUDGE ORIE: Yes.
5 Mr. Knezevic, before I give you an opportunity to add something to
6 what has been said already by Mr. Obradovic, as I said before, 15 minutes
7 was the time limit. I'm a bit concerned that what you might want to bring
8 to our attention might not fit well within the minutes that remain, and to
9 inform you that would be five minutes, only. Could you do it in five
11 MR. KNEZEVIC: [Interpretation] Your Honours, learned friends,
12 ladies and gentlemen. I know that my time is limited to five minutes. I
13 will do my best to respond to the issues raised here within that time.
14 The 11 bis Rule of the Rules of Procedure and Evidence, in 11 bis
15 (A), under (iii), provides for the possibility of referring the case to a
16 country having jurisdiction and being willing and adequately prepared to
17 accept such a case. The law on the organisation and competence of state
18 organs against perpetrators of war crimes of the Republic of Serbia of
19 2003, which was amended in 2004, establishes the competence of the state
20 organs of Serbia to try all cases of war crimes committed on the territory
21 of the former SFRY --
22 JUDGE ORIE: Mr. Knezevic, may I just interrupt you? Isn't it
23 true that in the submissions, that it's already set out that Serbia can
24 exercise jurisdiction and even allows the prosecution of crimes committed
25 by citizens of Serbia, wherever committed. So the jurisdiction aspect
1 seems to be covered by the written submissions. Please proceed.
2 MR. KNEZEVIC: [Interpretation] I understand what you have said,
3 Your Honours. I won't repeat myself. But this law provides for the
4 possibility of trying all cases of war crimes, regardless of the
5 nationality of the perpetrator and the victim.
6 I only wish to add to what our Ambassador has said, is that the
7 willingness of our state to try this case is evident from the fact that we
8 have already initiated proceedings and that there is a sentence against
9 Milan Lukic. He has been sentenced to 20 years in prison for war crimes.
10 We ask the State of Argentina to extradite Milan Lukic to us, or to refer
11 him to us for trial.
12 And I wish to add again - it's very difficult to raise all the
13 important issues in five minutes - but the issue of territorial
14 jurisdiction mentioned in point 2, we are talking about a small area of
15 land, about 7 kilometres wide, between Bosnia-Herzegovina and Serbia.
16 I have to point out that there is a law on the protection of
17 participants in criminal proceedings of January 2006, the 1st of January,
18 2006, and I think it's important to add that everything charged against
19 Sredoje Lukic in the indictment can be tried without any obstacles in the
20 State of Serbia. And I also wish to add that a unified proceeding could
21 be instituted in our country and carried through for all the crimes he is
22 charged with.
23 We also have an agreement on cooperation with Bosnia and
24 Herzegovina, signed by the war crimes prosecutor in Belgrade and the
25 Sarajevo -- his counter-part in Sarajevo. The case of Dvornik was
1 referred to our country, and all the witnesses from Bosnia-Herzegovina
2 travelled to Belgrade without any hinderance and testified with no
3 obstacle, and all this shows that the agreement is functioning well.
4 If I can answer any questions of yours, I will be very happy to do
5 so. Thank you.
6 JUDGE ORIE: Thank you very much, Mr. Knezevic.
7 On the agenda next is submissions, oral submissions, by the
8 Defence, and counsel are invited to divide the time in good cooperation.
9 Were you able to do so?
10 Mr. Yatvin.
11 MR. YATVIN: Your Honour, we reached a Solomonic decision and
12 split it in half.
13 JUDGE ORIE: Did you also decide who is going first?
14 MR. YATVIN: Yes, Your Honour, I drew the short straw.
15 JUDGE ORIE: Yes. Mr. Yatvin, then, you have got 20 out of these
16 40 minutes. Please proceed.
17 MR. YATVIN: Thank you, Your Honour. And it is likewise my
18 intention to ask the Bench to reserve part of that time, because I'm
19 assuming that the Prosecution will have argument on the new material
20 that's been here today, and I'd like to be able to respond to that.
21 JUDGE ORIE: Yes. That was already our ruling. Yes, please
23 MR. YATVIN: Just when it seemed there was nothing new in the
24 universe of 11 bis, here we are. I -- in light of the submissions by the
25 Republic of Argentina and their Ambassador today, I think I should
1 probably start with that issue.
2 I ask the Court to consider the fact of how we got here, how
3 Mr. Lukic comes to be in this room. He was taken into custody in
4 Argentina, and the Federal Court of Argentina considered the request of
5 the Tribunal to transfer him, and the Republic of Argentina is, of course,
6 a member of the United Nations, and the Statute of the Tribunal, which is
7 the hand of the United Nations, compels all member nations to cooperate
8 with the transfer request to the Tribunal. And that's how he comes to be
10 But the next step that the Prosecutor asks this Bench to take is
11 not from the Statute of the Tribunal, and it's not necessarily from the
12 Security Council either, because in order to make this next step, this
13 Bench must say that the sovereign nation of Argentina does not have a
14 right to control its extradition process. And I submit that this Court
15 would be serving as a mere conduit for the nation of Bosnia-Herzegovina
16 which did not see fit to make a request of Argentina to transfer.
17 Now, I know that there have been other cases where this Court has
18 ruled that the so-called u-turn or re-transfer is not barred by the nation
19 surrendering the accused to the Tribunal, but in all those cases, the
20 argument was made by operation of law, because the surrendering nation has
21 this statute on its books, therefore you should not transfer.
22 What makes this situation unique is that the Federal Court of
23 Argentina considered the question, considered an application from Bosnia,
24 considered the transfer to this Court, and made a specific ruling that,
25 complying with our obligation, we will surrender Mr. Lukic to the Tribunal
1 and we contemplate a trial before that Tribunal; but we are not giving up
2 our rights to control transferring to somewhere else.
3 Now, of course, the Tribunal has a Rule of Procedure, 11 bis,
4 which authorises that transfer, but the problem this Bench must wrestle
5 with is whether the judge-made rule of 11 bis, unlike the Statute of the
6 Tribunal, trumps the rights and the imperatives of the sovereign nation of
7 Argentina, and I would submit it does not.
8 I will move on from the issue of Argentina. As the Court has
9 pointed out, we have briefed this rather thoroughly in at least two sets
10 of submissions, and I don't want to go back chapter and verse. But I feel
11 the need to comment on something that Ms. Somers opened with this
13 She stated: We stand firmly on our submissions. That's really
14 the point I tried to make in my submissions, that Prosecutor does not
15 stand firmly on their submissions. What submissions did she stand up
16 firmly on today? Her 11 bis Motion, where they characterised Mr. Lukic as
17 the most individually responsible for killings of anyone in the conflict
18 and the most responsible for conduct throughout the territory at that time
19 of Bosnia and Herzegovina? No. They've withdrawn that. So that
20 admission, they do not stand on.
21 Do they stand on what they said before a member of this Bench
22 sitting at the Trial Chamber -- in the Trial Chamber in the Popovic case
23 in their opening argument? No, they don't stand on that. They want this
24 Court to artificially narrow itself to solely the indictment for deciding
25 role and -- I mean offence -- gravity of offence and role in the
1 commission of that offence.
2 I understand the genesis of the Rule. Obviously this Court is the
3 genesis of that Rule. You've sat on all those arguments. You've made all
4 those decisions that compromise -- comprise what we consider is the law
5 here today. But I submit that the application of that Rule which this
6 Court made in good faith at the beginning is no longer logical in this
7 case; that stare decisis, the rule of precedent is important but it is not
8 irrevocable. In this case you have the situation where the Prosecutor
9 herself has placed information before this Tribunal and that information
10 should not be disregarded in deciding the role of Mr. -- the gravity of
11 the offences and the role of Mr. Lukic in the conflict. And, again, he's
12 presumed innocent. I'm only discussing the allegations. There's
13 obviously no admission of any liability.
14 But it's very important that you look to the language of the
15 President of the Security Counsel which is referenced in the Security
16 Council resolutions which are referenced in Rule 11 bis, which is not
17 limiting to the specific conduct charge, but it talks about the role of
18 the persons in the area under the jurisdiction of the Tribunal, in the
19 conflict. As I've argued, and I won't go through it again in great
20 detail, that even if you're considering only the crimes charged in this
21 indictment, which was in fact tailored during the time of the Rule 11 bis
22 proceeding itself, you still have to look at Mr. Lukic's alleged role in
23 the conflict, in the broader conflict, not only in the crime charged.
24 Under those circumstances, he, the crimes, and the role in those
25 crimes are not appropriate for referral.
1 I refer the Court to the arguments made by the Government of
2 Serbia that there are reasons of judicial economy and of unity in
3 proceedings that the case should be referred to Serbia, which is within
4 this Court's powers.
5 And I'm going to reserve the rest of my time, if I may, and I'm
6 hopeful that the Court will assist me to assist it by asking some
7 questions at the appropriate time, because I'm sure there are some, and
8 I'd like to be able to respond to them.
9 JUDGE ORIE: Thank you, Mr. Yatvin.
10 Mr. Cepic.
11 MR. CEPIC: Thank you, Your Honour. My learned friend, Mr. Jens
12 Dieckmann will raise our altitude and -- on behalf of our Defence team.
13 Thank you.
14 JUDGE ORIE: Yes. Mr. Dieckmann, you are invited to make your
16 MR. DIECKMANN: Your Honours, my name is Jens Dieckmann, I'm
17 attorney at law from Germany, and I represent the accused, Mr. Lukic, as
18 co-counsel in this procedure.
19 In a statement for the Defence, I would like to focus on the
20 question of their trial and the applicable law, not only repeating and
21 referring to the submissions we've have presented, but going in detail to
22 some case law we prepared, some case law and practice. And we have looked
23 how this legal frame work is working in Bosnia-Herzegovina.
24 We are well aware of the frame and the formal decisions of the
25 Referral Bench, for example, the decision on the referral in the case from
1 8 July 2005, as the Referral Bench described its jurisdiction regarding
2 the questions of applicable law as follows.
3 "The Referral Bench stresses that it is not the competent
4 authority to decide in any binding way which law is to be applied in this
5 case if it is referred to Bosnia. It is a matter which would be in the
6 competence of the state court of Bosnia if referral is ordered. The Bench
7 must be satisfied, however, that if the case against either or both
8 accused were to be referred, there would exist in Bosnia an adequate legal
10 The Defence respectfully submits that this Referral Bench must
11 base its decision today on the actual viable facts and circumstances as
12 they currently exist. To be adequately prepared is not only a question of
13 the legal frame work, but the fair trial principle and every question
14 related to this has to do with court practice.
15 The Referral Bench has expressed in several decisions that trusts
16 that the state court of Bosnia will exercise its power with competent
17 under the rule of law in the system of public international law and in a
18 way compatible with the principles of fair trial. This is --
19 JUDGE ORIE: Mr. Dieckmann, if you would allow me to intervene for
20 one second. The quote you started with, clearly in the case law of this
21 Referral Bench, relates to the application of substantive law and not --
22 is not about procedural law, not about fairness. It seems to me that
23 you're starting with a consideration on substantive law and then give it a
24 follow-up in terms of procedural law, whereas, as far as I'm concerned,
25 but my learned colleagues will certainly intervene when I'm wrong in
1 understanding our own decisions, that the procedural law is dealt with in
2 our parts of our decisions.
3 Please proceed, and keep this in mind.
4 MR. DIECKMANN: Thank you, Your Honour.
5 The Defence refers to three decisions of the war crime chamber of
6 the state court of Bosnia in order to show that the war crime chamber is
7 up to now not able to find the applicable law under the rule of law in a
8 fair trial procedure.
9 We have to state a relevant lack of competence in the application
10 of the basic rules of public international law, causing dramatic
11 consequences for the accused.
12 The first decision we want to refer to is a decision, 1st July,
13 2005, of the war crime chamber of the state court of Bosnia, sentencing
14 Mr. Abulahim Maktuf [phoen] to imprisonment. The appeal has been
15 dismissed on the 4th of the April, 2006. This is not a referral case.
16 But he was found guilty as an accessory in the taking of the three Croat
17 civilians as hostages by the Mujahedin unit in Travnik in 1993.
18 The legal position of the Defence in this case has been that
19 Article 142 of the Criminal Code of the former Yugoslavia should be
20 applied, given that, after the abolition of capital punishment, the
21 sanction referred to in Article 142 of the Criminal Code of former
22 Yugoslavia is a more lenient sanction compared to the criminal sanction
23 stipulated in Article 173(1) of the Criminal Code of Bosnia. And that it
24 is a legal principle which includes mandatory application of the Criminal
1 The war crime chamber found that such argument is not found, and
2 that in the concrete case, the provision referred to in Article 173(1) of
3 the Bosnian Criminal Code has to be applied. The arguments of the war
4 crime chamber has been the following:
5 First, to start with Article 3 of the Bosnian Criminal Code. It
6 stipulates the principle of legality, that is said the verdict can only be
7 founded on the principle which existed at the time when the incriminated
8 act or failure to act happened. This is a principle ruling nullum crimen
9 sine lege.
10 In Article 4 of the Bosnian Criminal Code, it stipulates that the
11 law which was in effect at the time when the criminal offence was
12 perpetrated should apply to the perpetrator of the criminal offence and,
13 Article 4(2), if the law has been amended on one or more occasions, the
14 law that is the more lenient law to be perpetrator shall be applied. This
15 is the lex mitior principle in the Bosnian Criminal Code.
16 In Article 4(a) of the Bosnian Criminal Code, amended in the year
17 of 2004, it regulates that Article 3 and 4 should not prejudice the trial
18 and punishment of any person for any act or omission which, at the time
19 when it was committed, was criminal offence according to the general
20 principle of international law.
21 The war crime chamber holds the view that this Article 4(a)
22 adopted completely the provision of Article 7(2) on the European
23 Convention on Human Rights, this providing for exceptional departure from
24 application of the principle referred to in Article 4 in the criminal code
25 of Bosnia, as well as for mandatory application of a more lenient law in
1 the proceedings representing criminal offences --
2 JUDGE ORIE: Please slow down.
3 MR. DIECKMANN: -- because it's exactly the offence which includes
4 violation of international law.
5 Therefore, this is the conclusion of the war crime chamber:
6 Article 4(a) of the Criminal Code is applied to all criminal offences in
7 war crime cases.
8 The second decision of the war crime chamber we are referring to
9 is the case of Mr. Nedzo Samardzic. He was sentenced to 12 years'
10 imprisonment under Article 172 by the judgement of 7 April 2006.
11 First of all, the war crime chamber repeats exactly the same
12 aforementioned arguments of the Maktuf case complemented by the following
14 JUDGE ORIE: You've resumed but the speed is still the same.
15 MR. DIECKMANN: I'm sorry.
16 The war crime chamber states in addition, I may quote:
17 "In relation to this, the Court points out that the crimes laid
18 down in the indictment at the time relevant to the indictment constitutes
19 crime under international customary law. International customary law is
20 part of the general principles of international law as stipulated in
21 Article 4(a) of the Bosnian Criminal Code."
22 And then the war crime chamber gives a short list of some examples
23 why they have the opinion that this is customary international law. They
24 just give a list of the report of Secretary General of the United Nations,
25 international law commissions draft, and his quotation from international
1 court, ICTR, in Arusha. No comment, no explanation, no discussion.
2 And at least the war crime chamber has the opinion that the
3 jurisprudence of the European Court of Human Rights stresses the
4 applicability of the provision of Article 7(2) in the judgement of 4th May
5 2000 in the case Naletilic against Croatia in their point.
6 These two above-mentioned decisions of the war crime chamber
7 contain view to the point of the Defence, several substantial legal errors
8 which consequently lead to unlawful and an absolute exclusion of the lex
9 mitior principle in war crime cases at the war crime chamber in Bosnia.
10 The first point: Article 4(a), the Bosnian Criminal Code, is in
11 fact not identical with Article 7(2) of the European Convention on Human
12 Rights. The war crime chamber ignores the evident difference between
13 general principles of international law - this is the reading in Article
14 4A of the Bosnian Criminal Code - and general principles of law recognised
15 by civilised nations. This is a reading of Article 7(2) on the European
16 Convention on Human Rights.
17 The words from Article 7(2) have been taken from Article 38(1)(c)
18 from the Statute of the International Court of Justice. This is
19 undisputed in opinio juris and this is undisputed in court decisions.
20 The second point is more dramatic. The second point is that the
21 understanding of Article 7(2) of the European Convention on Human Rights
22 is wrong. This rule is a subsidiary rule. This can only be applied if
23 there is a loophole or gap to take this. This comes therefrom, of course,
24 Article 7(2) transfers the Article 38 reading of the International Court
25 of Justice statute.
1 As we can read in the commentary for the ICJ statute of appellant,
2 I may quote: "Yet they, the principles, are subsidiary in the sense that
3 the Court will usually only resort to them for filling a gap in the treaty
4 or customary rule available to settle a particular dispute, and what is
5 even more apparent will decline to invoke them when such other rule
7 In consequence, only in the time the criminal acts have taken
8 place, these acts did not constitute crimes under national laws, then
9 Article 7(2) is applicable. Here the alleged crimes of the accused has
10 been evidently covered by Article 142 of the Criminal Code of the former
11 Yugoslavia at the time the criminal acts allegedly should have been
13 Therefore, there is no legal gap, no loophole justifying the
14 application of Article 7(2) of the European Convention on Human Rights,
15 and therefore there is no justification for a complete exclusion of
16 Article 4(2) of the Bosnian Criminal Code, it means of the lex mitior
18 Therefore, in consequence of Article 2, paragraph 2, of the
19 constitution of Bosnia which states that the European Convention on Human
20 Rights always overrules contradictory national law. Article 4(A) of the
21 Bosnian Criminal Code cannot allow the exclusion of Article 4(2). Article
22 7(2) of the European Convention on Human Rights forbids the exclusion
23 of the lex mitior principle if there is, as here, no case of subsidiarity
25 The third decision we refer to is a judgement from 26 May 2006 in
1 the Panovic case who was sentenced to long-term imprisonment for 20 years.
2 This decision was only six weeks after the last decision of Mr. Omadovic.
3 In this judgement, the war crime chamber, again, repeated the same
4 argument from Article 3, Article 4 for (A), and Article 7(2) for the
5 European Convention on Human Rights. But then without any explanation,
6 any justification, any discussion of their former position, the court
7 states now, six weeks later: "Article 4(A) of the Bosnian Criminal Code
8 speaks of general principles of international law. As neither
9 international law nor the European Convention on Human Rights are familiar
10 with the identical term, this term actually represents a combination of
11 principles of international law and general principles of law recognised
12 by civilised nations."
13 This understanding is due to the position of the Defence, again,
14 wrong. But principles of general -- general principles of international
15 law are definitely not the combination of something. They are part of
16 customary international law. We don't know if the war crime chamber tries
17 to tell us that the legislature of Bosnia is creating new sources of
18 public international law in their national criminal law. We do not
19 understand this reading.
20 In the following of this decision, the war crime chamber, in June
21 2006, repeats again the wrong definition of Article 7(2) of the European
22 Convention on Human Rights. They, again, misinterpret the subsidiary
23 nature of this norm.
24 Our position that Article 7(2) is only a subsidiary norm is
25 supported in fact by the reading and by the decisions of the European
1 Convention on Human Rights in Strasbourg, and we want to quote the single
2 and the most important decision. This is the decision of the 22nd March
3 2001. It was the decision against Krens, Kursla [phoen], and Strelitz,
4 the former leaders of the east German -- eastern German republic, and in
5 this decision, the European court in Strasbourg has said that the crimes
6 has been correctly decided by the national criminal courts under the
7 national Criminal Code under force at the time of the commitment. We do
8 not understand how the Bosnian government and the war crime chamber repeat
9 frequent times that the case of Naletilic against Croatia should be a
10 reference for the opposite.
11 JUDGE ORIE: Mr. Dieckmann, you would not mind if I draw your
12 attention to the fact that you are now speaking for 15 minutes. Could you
13 please try to sum up.
14 MR. DIECKMANN: Thank you, Your Honour.
15 So at least, Your Honour, I think -- we think that here the
16 argumentation of the war crime chamber based on a wrong understanding of
17 the basic rules of public international law, a wrong understanding of the
18 human rights convention on human rights which leads to a permanent
19 consequent exclusion of the principle of lex mitior. This court has
20 expressed trust that this war crime chamber is able to find applicable law
21 under the rule of law in a fair trial. The court decisions we have
22 presented here think -- could have illustrated that there is a great
23 irritation and a lack of competence, and we are not sure that this is
24 acceptable here for the accused we are defending.
25 Thank you, Your Honour.
1 JUDGE ORIE: Thank you, Mr. Dieckmann.
2 MR. CEPIC: One short correction, in the transcript, page 30, line
3 16, my learned friend said lex mitior and I see something different is in
4 the transcript.
5 JUDGE ORIE: Yes. Sometimes the transcript will be corrected
6 overnight and -- well, of course, since we're speaking some Latin now,
7 it's not always easy and that the transcribers do an excellent job.
8 MR. CEPIC: Thank you, Your Honour.
9 JUDGE ORIE: Thank you. Before I give the opportunity to use the
10 remainder of the time for the parties, I would like to take the
11 opportunity and give the opportunity to the Judges, to the Bench, to put
12 additional questions to the parties and the representatives of states
13 present today.
14 Yes. Judge Kwon?
15 JUDGE KWON: My question was triggered by Mr. Yatvin. My question
16 is to Ms. Somers, to the Prosecution.
17 It is obvious that there are substantial differences between the
18 amended indictment of July -- 12th of July, 2001, and the currently
19 operative indictment, the second amended indictment of November 2005. The
20 previous indictment, at paragraph 28, charges both the accused, along with
21 Mitar Vasiljevic, with all the forms of responsibility under Article 7(2).
22 It also alleges that the three accused acted in concert with one another
23 in the realisation of the charged crimes which the Prosecution argued in
24 the Vasiljevic case was meant to include participation in a joint criminal
1 The Trial Chamber convicted Mr. Vasiljevic on the basis of joint
2 criminal enterprise in its November 2002 judgement, holding that his
3 participation in this joint criminal enterprise with Milan Lukic and
4 Sredoje Lukic. However, in the current indictment, by contrast, all the
5 forms of responsibility have been removed, except physical perpetration
6 and aiding and abetting. The crime base allegations have also been cut
7 down to allege a more confined geographic area. This is, indeed, a very
8 curious and rare type of amendment I know. Instead of adding charges
9 against the accused, the Prosecution took them away.
10 What concerns me about this is that the motion to amend the
11 previous indictment was submitted on 17th November, 2005, subsequent to
12 the referral request which took place on 1st of February last year, and
13 after the Stankovic decision in May.
14 So my question to you is this: Was the purpose behind this
15 amendment of the indictment to downgrade the responsibility and crime base
16 alleged against these two accused to make the case more suitable for
17 referral under Rule 11 bis?
18 MS. SOMERS: Your Honour, it was indeed not at all the purpose.
19 The purpose was in response to a Rule 72 motion by an accused in the case
20 by Sredoje Lukic to give greater detail and specificity to existing
21 allegations which with we think, having looked at the original indictment,
22 was very much in order; to clarify the temporal and territorial extent of
23 the indictment; to give greater specificity to the modes of liability
24 alleged; and to replace allegations of violence to life and person with
25 allegations of cruel treatment. It was to actually implement better
1 pleading practices. Whether there may be also -- I'm sure both Chambers,
2 both the Referral Bench and any Trial Chamber, would also look to a
3 well-pled indictment as a fundamental tool to know where to go with a case
4 in terms of assessments of trial time, et cetera, et cetera. But it was
5 certainly not any type of page-by-page conformity.
6 However, if it were, which it was not, but if it were, it would
7 not bar consideration by this Chamber because the appropriate underlying
8 reasons were based on a Rule 72 motion. In fact, looking at the evidence,
9 irrespective of where the case is tried, it should be tried so that it is
10 not a long case, concisely, with adequate notice to the accused as to what
11 the charges are, and to remove things that, in the interests of evidence
12 in time, would not be necessary to go forward on.
13 So, no, Your Honours, there was not the concern or the overlap, as
14 one says. But had there been, we submit it would only have been good
15 practice in pleading. We reminded constantly -- we are reminded by the
16 Chambers we must engage in.
17 JUDGE KWON: Thank you.
18 JUDGE ORIE: I have a few questions. First of all, a question for
19 the representatives of Bosnia and Herzegovina. It has been argued by one
20 of the defendants that the recent OSCE reports in Jankovic and Stankovic
21 would make it appropriate for the -- for Bosnia-Herzegovina to respond to
22 the criticism. As they said: "It's incumbent upon the Referral Bench to
23 seek supplemental current submissions from the state of Bosnia-Herzegovina
24 on the concerns raised in the OSCE reports in Jankovic and Stankovic."
25 I'm not asking to you to respond right away, but would you
1 consider, after having read the concerns by the defendant -- by counsel
2 for Milan Lukic to respond to those concerns and submit, on short notice,
3 your response to the Chamber?
4 MS. POPADIC: [Interpretation] Thank you, Your Honour. I will do
5 my best to provide a response to your question. Should my question be
6 incomplete -- should my answer be incomplete, I would like to ask the
7 Chamber to set a deadline in the near future for us to provide a written
9 Looking at the law on referral of cases, and comparing it or
10 analysing it in light of the concerns contained in the OSCE report, I
11 would like to say that Articles 2(1) and 1(2) on the law on referral make
12 it clear that the basic principle applied here is the application of the
13 Law on Criminal Procedure in Bosnia-Herzegovina in all cases, except when
14 the law on referral stipulates that the law on the criminal procedure of
15 Bosnia-Herzegovina are not going to be applied.
16 However, different approaches were used in the two cases that were
17 initially referred, Jankovic and Stankovic, in the light of the complexity
18 of the referral procedure itself. The referral of the cases is a new
19 phenomena on the application of the Law on Criminal Procedure in
20 Bosnia-Herzegovina, and it was to be expected that the situations which
21 had appeared earlier were not fully foreseeable and not the application of
22 the law itself. Some lack of clarity in interpretation of the law when
23 applied to a specific situation has now been resolved in the Meakic case,
24 where the Court took a different decision when taking into account the
25 requirements for detention as they existed prior to the referral and
1 comparing them to the current provisions of the Law on Criminal Procedure
2 in Bosnia-Herzegovina. The law on referral, Article 2.4, stipulates that
3 the detention is to be ruled upon in accordance with the procedures --
4 provisions of the Law on Criminal Procedure of Bosnia-Herzegovina.
5 Thus, it is clear that there is sufficient legal guarantees in
6 existence now. As for certain shortcomings that existed in the initial
7 few cases, that is not to be seen as something that will continuously be
8 present in our practice.
9 There are certain amendments in the law on referral, Article 8 and
10 some other articles, which provide for an urgent procedure in transferring
11 documents and files. Thus, the criticism contained in the OSCE report was
12 taken into account by the Government of Bosnia-Herzegovina which, as a
13 result of that, now anticipates certain amendments to the law.
14 There was a decision of the Appeals Chamber of the ICTY in the
15 case against Mitar Rasovic and Todovic. The decision was dated the 4th of
16 September, 2006. On page 39 of that decision, the Appeals Chamber stated
17 that, despite certain errors committed by the Chambers in previous cases
18 when it came to applying relevant provisions, the Referral Chamber did not
19 overstep its discretion when it found that there is sufficient legal --
20 that there is sufficient legal framework in existence in
21 Bosnia-Herzegovina to guarantee that all of the rights of the accused will
22 be upheld.
23 In addition to that, I would like to quote from another decision
24 of the ICTY Appeals Chamber, of the 4th September 2006, once again, the
25 case against Rasovic and Todovic.
1 There, in the decision, under paragraph 124, the Chamber stated
3 "The Referral Chamber did not err when it granted the referral
4 motion by finding that all of the requirements for a fair trial were
6 If the Chamber is not satisfied with the response provided right
7 now, I would kindly like to ask you to allow us to submit further written
8 submissions on this issue. Thank you.
9 JUDGE ORIE: Thank you very much, Ms. Popadic.
10 I have a question for you, Ambassador Obradovic. You referred to
11 the sentence imposed 20 years in absentia. Is that an enforceable
12 sentence, or should the accused -- should the convicted and sentenced
13 person be retried if he arrives in the Republic of Serbia? In some
14 systems, a trial in absentia should be replaced by a -- a judgement in
15 absentia should be replaced by a judgement as a result of a trial in the
16 presence of the accused. Systems are different. I'd like to know:
17 What's the situation in Serbia?
18 But I do see that you are perhaps looking to Mr. Knezevic, if he
19 could briefly answer that question.
20 MR. KNEZEVIC: [Interpretation] I will provide a brief answer to
21 that question, Your Honour.
22 When a person was convicted in absentia, as soon as the conditions
23 exist for him to be tried in his presence, there will be a retrial and
24 that person will be tried in his presence. But all of the evidence
25 adduced so far in the previous proceedings would be taken into account, as
1 is stipulated in the law on the competence of state organs in war crimes
2 trials. And this is in accordance with Article 18 of the Law on Criminal
3 Procedure of the Republic of Serbia, and also the Rules of Procedure and
4 Evidence of the ICTY would be taken into account.
5 JUDGE ORIE: Thank you, Mr. Knezevic.
6 Mr. Dieckmann, I have two short questions to you. You have very
7 much -- well, first of all, you introduced what you said as a fair trial
8 issue, whereas I now understand that you find that it's a violation of
9 human rights, not necessarily of a fair trial issue. If you refer to the
10 European Convention on Human Rights, I would find fair trial guarantees in
11 Article 6, whereas the nulla poena principle is found in Article 7 is not
12 directly linked to fair trial issues.
13 First of all, is that a fair understanding?
14 MR. DIECKMANN: Your Honour, I think the point we wanted to make
15 is we have to take a look for the concrete situation of the accused in a
16 trial situation and the system governing it. And so you have understood
17 me right, yes.
18 JUDGE ORIE: So it might be that they had a fair trial but a wrong
19 decision was taken because the decision was inconsistent with the European
20 Convention on Human Rights Article 7 and the lex mitior principle.
21 May I then ask you, since you so much emphasised the lex mitior
22 principle, as you know, the Referral Bench has left it open what law to
23 apply. Would it mean that the charges - of course if proven - brought
24 against Sredoje Lukic would be covered by other legislation, the
25 legislation, perhaps, which was in force at the time? Would that be the
2 MR. DIECKMANN: Yes, Your Honour. Due to our point of view, the
3 alleged crimes against Mr. Sredoje Lukic is covered under Article 142 of
4 the former Criminal Code of Yugoslavia.
5 JUDGE ORIE: Yes. Now, would that bring a lighter or a heavier
6 maximum penalty?
7 MR. DIECKMANN: Due to our point of view, it is a substantial
8 difference if you have a Criminal Code to be applied with a maximum
9 penalty of 20 years or if you have a Criminal Code which opens the door
10 for criminal punishment over 20 years or up to lifetime imprisonment.
11 JUDGE ORIE: Yes.
12 MR. DIECKMANN: So if you evaluate the level of penalty, of
13 course, it will be the more lenient penalty if have you a maximum of 20
14 years, yes.
15 JUDGE ORIE: Is it true that at the time capital punishment - of
16 course it could not be applied - was the maximum penalties for 142?
17 MR. DIECKMANN: Yes. Yes, this is our point. Yes.
18 JUDGE ORIE: Then another question: What -- you gave a few
19 examples. Was any of these sentences imposed above the maximum that would
20 be applicable under the law you think should have been applied?
21 MR. DIECKMANN: This is a difficult question, Your Honour, because
22 of course these decisions we have quoted have been made in a different law
23 system, with a different maximum of penalty. And so I think it's
24 difficult to compare.
25 But I think if we impose Article 142, it must be a smaller penalty
1 than is --
2 JUDGE ORIE: Yes. As a matter of fact, the question is quite
3 simple to answer. The answer is no. But you want to draw our attention
4 to the fact that in the context of maximum penalties, that the actual
5 penalty imposed should have fit within that other context.
6 MR. DIECKMANN: Yes.
7 JUDGE ORIE: That's well understood.
8 MR. DIECKMANN: Yes.
9 JUDGE ORIE: Thank you very much.
10 Then I have one question for the Ambassador of Argentina.
11 Argument very much relied upon rules of extradition, the Argentinian law
12 on extradition. Do you consider referral to Bosnia and Herzegovina, for
13 example, or to Serbia, extradition, or would you consider it not exactly
14 extradition? Because just -- I'm sure you are aware of that, that if a
15 case is referred, the Tribunal does not require any previous warrant of
16 arrest, which is usual for extraditions, and the Tribunal keeps an eye, to
17 say, on the proceedings and could take proceedings back if there's reason
18 to do so.
19 So to that extent, referrals are considered by this Referral Bench
20 not to be the same as extradition, and the Referral Bench has considered
21 in that context as well that where states are free to engage in
22 extradition relations and are free to formulate, to legislate their
23 conditions, that -- the duty to cooperate with the Tribunal is, well, to
24 say it briefly, is an unconditional one.
25 To what extent have you considered these specific aspects when you
1 formulated today the position of the Government of Argentina?
2 MR. GONI: I understand your question clearly, Your Honour. I am
3 nonetheless constrained by my instructions and have not taken part in
4 drawing them up. As Ambassador in Holland, I have received instructions
5 directly from Buenos Aires. I would, though, be more than happy to take
6 your question from the record, if you allow, and put it to the authorities
7 in Argentina, if you feel that's necessary.
8 JUDGE ORIE: Yes, you are invited to do so.
9 Judge Kwon has a question.
10 JUDGE KWON: I have just one matter to ask about the position of
11 the representative of Bosnia, whether it can be answered by Ms. Popadic or
12 Mr. Strika. You must have noted from the submission of Ms. Somers that
13 the amendment -- the indictment against these two accused has been cut
14 down in terms of forms of responsibility, as well as crime base. My
15 question is whether you see a possibility that the -- those charges cut
16 down by the Prosecutor would be added again to the indictment when
18 MS. POPADIC: [Interpretation] Thank you. I will tell you what the
19 positive legislation is in Bosnia-Herzegovina. Of course the answer to
20 your question follows: According to the Law on Criminal Procedure of
21 Bosnia-Herzegovina, there are legal preconditions enabling the amendment
22 of an indictment, adding on the new counts if new information about the
23 facts becomes available. This can also be done after the proceedings
24 become final. New proceedings can be instituted for actions or facts not
25 covered by the previous trial. The positive legislation places no limit
1 on this possibility. The application of law applies to proceedings
2 conducted both before domestic judicial organs as well as other
3 proceedings, including those referred by the Tribunal.
4 The authorities of Bosnia and Herzegovina consider that in this
5 particular case, the Bench will issue a decision based on the indictment
6 which is being considered here, not based on assumptions that the judicial
7 organs will acquire new facts or new evidence which would enable the
8 indictment to be amended with new counts.
9 Thank you.
10 JUDGE ORIE: Yes.
11 JUDGE KWON: Thank you.
12 JUDGE ORIE: The Bench has no further questions. I've kept a
13 record of who has still some time remaining. Perhaps, Ms. Somers, you
14 first. How much time do you think you would need? I take part of your
15 answer to add to the answers to Judge Kwon as you add to your argument.
16 If you would like to add something, we'll give you a couple of minutes.
17 MS. SOMERS: I kept that one to Judge Kwon very, very brief.
18 JUDGE ORIE: Two questions: One at the beginning and one at the
20 MS. SOMERS: I would like to avail myself of comment and
22 First of all, further to the Benches affirmation above its rulings
23 that 11 bis proceedings do not constitute extradition, affirmed by the
24 Appeals Chamber, we would like to firmly place our position that no
25 condition, no condition, can be put on any action of this Chamber by a
1 member country, responding under Article 29, through its Chapter 7
2 obligations, as to how business is done with respect to referral or not.
3 The issue is the country's obligation to this Tribunal as an organ of the
4 United Nations Security Council.
5 I was concerned that perhaps the record did not reflect that there
6 was correspondence to the Government of Argentina about the existence of
7 11 bis proceedings. I would like to just -- so that perhaps the Registry
8 file can be checked, put out to Your Honours, correspondence dated 1st --
9 2nd December, 2005, addressed to the embassy of Argentina in The Hague,
10 responding to issues whether the Tribunal has resolved their request for
11 referral in the case raised by the Prosecutor, Carla Del Ponte.
12 The Referral Bench -- the Referral Bench has not resumed on the
13 request. "On 1 December 2005, the Prosecutor filed a motion before the
14 Referral Bench to suspend consideration of the request until Milan Lukic
15 is delivered to The Hague. The Office of the Prosecutor would highly
16 appreciate the embassy of Argentina transmitting this information to the
17 appropriate authorities."
18 Secondly, there is correspondence from 16 December 2005 to the
19 embassy of Argentina in The Hague.
20 "On 15 December, the Referral Bench of the International Tribunal
21 decided to suspend consideration of the request of the Prosecutor to refer
22 the indictment against Milan Lukic to Bosnia-Herzegovina pursuant to Rule
23 11 bis of the Rules of Procedure and Evidence until Milan Lukic has been
24 transferred to the seat of the Tribunal in The Hague.
25 "The decision of 14 December 2005 and the decision of 15 December
1 2005 are attached hereto."
2 Further, the Republic of Argentina has, and I read from its
3 translation of course only, acknowledged, again indicating that
4 extradition is not a consideration, but has acknowledged nonetheless the
5 very strong and definitive wording of Rules of Procedure and Evidence 58
6 which should there have been an issue, which there was not, of
7 extradition, the obligations laid down in Article 29 of the Statute shall
8 prevail over any legal impediment to the surrender or transfer of the
9 accused or of a witness to the Tribunal which may exist under the national
10 law or extradition treaties of the state concerned.
11 The reference to Rule 58 is contained in correspondence which is
12 part of the Registry file, as I understand, dated 10 January 2006.
13 Certainly copies can be provided easily to the Bench should it not be
14 readily available -- should they not be readily available to the --
15 through Registry.
16 Further, there is the acknowledgement that -- I'll take just a
17 moment, because I think the quote is significant:
18 "Therefore, let us remember that Rule 58 of the Rules of Procedure
19 and Evidence of the International Tribunal stipulates that the obligations
20 laid down in Article 29 of the Statute prevails over."
21 Quote from the letter. Any attempt with respect to opposed
22 conditions or limitations on the powers that are vested in this Tribunal
23 would simply be of no force. In fact, any country, whether it be
24 Argentina or Brazil or whatever, stands in the same shoes with respect to
25 Article 29 as any republic of the former Yugoslavia in terms of
1 obligations to cooperate with, surrender -- or transfer, rather, use the
2 term "transfer," of an indictee to The Hague.
3 Even provisions for -- for notifying the Security Council in the
4 absence of cooperation, as is required, exist in our Rules.
5 So I just want to make it very clear that the Prosecution's
6 position rests firmly in the decisional law of this Tribunal which is
7 reasoned and based on a full exploration of the reasoning behind the
8 process of referral.
9 Moving on to comments by Serbia, this Chamber, affirmed by the
10 Appeals Chamber -- this Bench, excuse me, affirmed by the Appeals Chamber,
11 has employed the test of greater nexus as opposed to any strict
12 hierarchial selection for the venue in which a case may be tried on
13 transfer. The points of nexus in this case are the victims, who
14 principally reside in Bosnia-Herzegovina, the crimes were committed in
15 Bosnia-Herzegovina, and the well-documented ability and readiness of the
16 Bosnia courts to handle such cases.
17 Serbia, by virtue only of a possible link through citizenship,
18 does not stand up in this particular interest -- in this particular
19 instance to the test that has been principally employed by this Referral
21 There is nothing -- perhaps in contradiction to my learned counsel
22 opposite to Mr. Yatvin has suggested, unique about this case with respect
23 to referral.
24 JUDGE ORIE: Isn't it unique that a case still has to be retried
25 and therefore the situation of the exercise of jurisdiction might be a new
1 element which we have not seen before?
2 MS. SOMERS: In terms of referral, Your Honour. Are we not
3 talking about referral? I beg your pardon. Perhaps I didn't make the
5 JUDGE ORIE: Yes.
6 MS. SOMERS: Just generally -- again, Serbia would not have been a
7 country of designation by the Office of the Prosecutor, and as I observed
8 at the beginning of these proceedings, it was not a country of designation
9 proprio motu by this Bench. Indeed, the equities for trial in
10 Bosnia-Herzegovina are strong.
11 In terms of the uniqueness of the indictment, I need not really
12 remind the Bench, which well knows that the Omarska camp, which was
13 described as a joint criminal enterprise in and of itself, reflecting some
14 of the worst horrors on the continent of Europe since the Second World
15 War, nonetheless had its commander referred to Bosnia-Herzegovina for
16 trial in a national court, and that in fact all the circumstances strongly
17 support referral both on gravity and level of both of the accused. And
18 they should be tried together in a national court.
19 JUDGE ORIE: Ms. Somers, adding up the time at the beginning and
20 the time you took now ...
21 MS. SOMERS: I cannot -- I will not be able to respond to my
22 learned counsel opposite, Mr. Dieckmann's comments, in the interest of
23 time, but I think the Chamber has asked many of the questions necessary.
24 JUDGE ORIE: You're finished?
25 MS. SOMERS: Yes, I am.
1 JUDGE ORIE: Mr. Yatvin, you still have some time in reserve.
2 MR. YATVIN: Yes, Your Honour. I think that the Court really
3 captured it, Your Honour, when you said "not exactly extradition". That's
4 the problem; that we have the transfer to the Tribunal, which is not an
5 extradition because the United Nations has decided that its member
6 nations, in order to allow this Tribunal to do its job, must transfer
7 people to the Tribunal, and that is not exactly an -- that is not an
8 extradition, that is something different. It is somehow a horse of a
9 different colour.
10 But the re-transfer by the Tribunal to another nation, I submit
11 that if it walks like a duck, if it quacks like a duck, if it has feathers
12 like a duck, it's probably a duck. That's what we have here. We have
13 what is essentially an extradition from the Tribunal to the nation of
14 Bosnia-Herzegovina. And I think that no verbal prestidigitation will get
15 us away with that. That's what we're dealing with.
16 That's why I submit that the Prosecutor's reference to Rule 58 is
17 ill-taken, because Rule 58 clearly talks about conditions of transfer to
18 the Tribunal. To the Tribunal. It doesn't say anything about transfer
19 away from the Tribunal. And the government -- the sovereign nation of
20 Argentina had very good reasons to ensure that the mechanism would not be
21 used as a pass-through, as a ruse, to avoid having the opportunity to
22 ensure that its laws are abided with, that the Government of
23 Bosnia-Herzegovina should come to Argentina to petition it.
24 If they want Mr. Lukic there, and they didn't even ask, they're
25 relying on this Referral Bench to do its dirty work, and I think that's
1 inappropriate. And I think --
2 MS. SOMERS: Excuse me, Your Honour, I have to object to the
3 characteristic and ask that either it be stricken from the record or
4 counsel cease from that type of characterisation. The Prosecutor's
5 actions -- there is no basis, it is offensive, and not part of this
7 MR. YATVIN: Actually, it was describing -- I said the government
8 of Bosnia, not the Prosecutor. But I will withdraw the term, Your Honour.
9 It does not carry the pejorative in my lexicon that I think the Prosecutor
10 assumes, but I apologise, and I mean no disrespect to the nation of
11 Bosnia-Herzegovina. But perhaps it would be more appropriate to say
12 "carry water" for that nation.
13 [Trial Chamber confers]
14 JUDGE ORIE: In view of the last words of Mr. Yatvin, it will stay
15 in the record and the Chamber has taken notice of what you said,
16 Mr. Yatvin, what you first said and what you then said.
17 MR. YATVIN: Thank you, Your Honour.
18 JUDGE ORIE: Please proceed.
19 MR. YATVIN: I'm not going to say any more on that topic. I think
20 the Bench is quite clear on our position.
21 I do -- I did omit one thing when I was talking about Ms. Somers'
22 assertion that she would stand firm live -- the Prosecution would stand
23 firmly on their submissions. I forgot one other submission.
24 The Prosecutor's request at paragraph 10, the original request to
25 transfer, quotes from the President of the Security Council's statement
1 which, as this Bench knows, is something that the Security Council
2 resolutions and 11 bis have incorporated. And one of the categories of
3 persons that it talks about not to be transferred, it mentions
4 paramilitary leaders. And I have argued that in my submission, but the
5 additional point I wanted to make about the paramilitary leaders is we
6 must assume it's -- it's a fundamental tenant of statutory construction,
7 that we must assume that the words mean something, that they had an
9 And as I understand it, there have been no other pure paramilitary
10 leaders since these remarks were made before the Tribunal. Mr. Lukic is
11 it. There are people who were police, who may have had some connection
12 with paramilitary, and there are politicians who may have incited
13 paramilitary, but from my canvassing of the indictments before this
14 Tribunal - and obviously there are a lot and they are lengthy - but there
15 are no other paramilitary leaders.
16 So if you say that because Mr. Lukic is only a paramilitary
17 leader, confined to a certain geographic venue and a certain temporal
18 venue, even relying on the indictment, which I certainly don't think you
19 should, he's not appropriate for transfer because he fits exactly into
20 that definition, and you can't say, Well, there are other paramilitary
21 leaders who are more appropriate for the Tribunal because there are no
22 others that I can see that have been charged.
23 JUDGE KWON: Somebody who died.
24 MR. YATVIN: Yes, Your Honour, somebody who died in 1998, before
25 the Security Council President made his remarks and before the Security
1 Council resolutions in 2002/2004.
2 JUDGE ORIE: Yes. Anything else, Mr. Yatvin?
3 MR. YATVIN: No, unless the Bench had any other questions for me.
4 JUDGE ORIE: No, I don't have any other questions for you, nor do
5 any of my colleagues.
6 We are close where we have to finish if it were only for the
7 technical reasons of a tape.
8 Is there any very urgent matter - and perhaps I'll first address
9 the representative of Bosnia-Herzegovina - that should be added? And
10 before you -- if you would like to respond to what Mr. Yatvin said,
11 perhaps I as the Presiding Judge of this Chamber can tell you that the
12 structure of 11 bis is that either the Prosecution or this Bench proprio
13 motu initiates the referral proceedings, and that this Chamber has never,
14 ever experienced that Bosnia-Herzegovina, in whatever way, has implicitly
15 or explicitly expressed in any way that they would rely on this Referral
16 Bench to serve their interests. I want to be quite clear on that.
17 Is there any further need, Ms. Popadic, to add something to the
18 many things that have been said already?
19 MS. POPADIC: [Interpretation] Thank you, Your Honours. Indeed, I
20 have nothing further to add, other than to say that, in view of everything
21 that has been said here, that neither in this case or in any other case is
22 there a single argument that would indicate that not all the standards had
23 been met by Bosnia-Herzegovina to have this particular case tried before
24 the state court of Bosnia-Herzegovina.
25 Thank you.
1 JUDGE ORIE: Thank you, Ms. Popadic.
2 Is -- would either the Ambassador of Argentina or you,
3 Mr. Obradovic, would like to add something? Just to say that you don't
4 have anything to add takes time from the last two or three minutes of our
5 tape. So if there's nothing to be added, that's understood. If there is
6 anything urgent to be added, apart perhaps you asked an opportunity to
7 make further submissions; if possible within a week, that would be highly
8 appreciated by this Chamber.
9 Anything further?
10 MR. GONI: Yes, Your Honour. Just to request, I'm sure this will
11 take place in any case, but a very careful translation of a very clear and
12 precise statement on the part of my government may be -- and if it may be
13 distributed to all the parties.
14 JUDGE ORIE: The written translation is prepared and will be filed
15 in the case file of this case.
16 Yes, Mr. Obradovic.
17 MR. OBRADOVIC: [Interpretation] Your Honour, finally I would like
18 to emphasise that the Republic of Serbia is fully prepared to give a
19 written submission on any matters concerning the referral of this case to
20 our state, should the Referral Bench find it necessary. Thank you for
21 your attention.
22 JUDGE ORIE: If we need it, we'll ask for it.
23 Ms. Somers.
24 MS. SOMERS: Thank you, Your Honour. Just a point in response to
25 Mr. Yatvin's comment that level or description as being in the generic
1 terminology of Security Council resolutions has not been the dominant
2 factor. In fact, this Chamber, this Bench, has referred generals, by
3 level, seemingly out of the range but by virtue of referring to the
4 indictment and understanding the context in which the allegations are
5 made, the hierarchial issues, generals have been referred to national
6 courts. Leaders such as Jankovic have been referred. The fact of
7 commanding others has not been a determinative factor; there are a number
8 of factors.
9 Secondly, in terms of the Security Council resolutions which
10 discuss what can be done by this Tribunal generally, we are charged with
11 implementing the measures for completion, among them, of course, is the
12 referral to national jurisdictions and the President of this Tribunal
13 specifically required to implement measures, which includes all the
14 rule-making process. So the fact that an accused may be out in the field
15 somewhere in the world and is brought before this Tribunal, which must
16 happen by virtue of Article 29, poses no limitation on what happens once
17 they get here.
18 JUDGE ORIE: Thank you, Ms. Somers.
19 Any further submissions to be made by you, Mr. Cepic?
20 MR. CEPIC: No, Your Honour. Your Honour, if you will allow me
21 just to say a small correction. There are two cases against Milan Lukic
22 before the Serbian justice system.
23 JUDGE ORIE: Yes.
24 MR. CEPIC: The first one is a Cvjevarin [phoen]. He is sentenced
25 for 20 years' prison. And the case number two is the case Strpci [phoen],
1 which is case number 1 before the Special Court for War Crimes, and they
2 started investigation about that incident. My learned friend, Mr.
3 Knezevic, can tell more -- much more details, but I know -- I understand
4 the time limit.
5 JUDGE ORIE: Yes. There is another case pending.
6 MR. CEPIC: Just to support my learned friend, Mr. Yatvin. Thank
8 JUDGE ORIE: Mr. Yatvin, we've got one minute left on the tape.
9 MR. YATVIN: Your Honour, I just wanted to say that I hope that my
10 excess hyperbole did not offend the Bench. The point I was making is that
11 the state of Bosnia did not go to Argentina as Serbia did, perhaps relying
12 on this procedure. And I meant no assumption of what the response --
13 JUDGE ORIE: Mr. Yatvin, any other words pending on it would again
14 draw the attention which was at least an unfortunate phrasing of your
16 MR. YATVIN: Thank you, Your Honour.
17 JUDGE ORIE: Then, Mr. Lukic and Mr. Lukic, it was a very
18 technical hearing. I hope you have understood everything. It's of a
19 legal, technical nature.
20 The Chamber will adjourn, and when there's any additional
21 information needed, we'll ask for it. We stand adjourned sine die.
22 --- Whereupon the Rule 11 bis hearing adjourned
23 sine die at 4.22 p.m.