Tribunal Criminal Tribunal for the Former Yugoslavia

Page 90

1 Tuesday, 20 September 2005

2 [Deferral Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.56 p.m.

6 JUDGE ORIE: [French translation on channel 4]

7 THE REGISTRAR: [French translation on channel 4]

8 JUDGE ORIE: Five. I do not know whether five is -- now we have

9 French on channel 5. Let's go back to channel 4. It seems as if we have

10 English there.

11 THE INTERPRETER: Can you hear the English booth on channel 4?

12 JUDGE ORIE: Yes. So we'll -- the cases having been called, I

13 think I first need to explain that we are simultaneously hearing the

14 parties on 11 bis request both in respect of Mr. Ljubicic and Mr. Rajic.

15 The parties agreed to such a simultaneous hearing and it's more practical

16 to do so.

17 May I have the appearances? First in The Hague, since we are also

18 in connection to Sarajevo in a videolink. Prosecution first.

19 MS. SOMERS: Thank you and good afternoon, Your Honours. For the

20 Prosecution, Susan L. Somers. Also present behind me, Kenneth Scott. To

21 my left Mr. Fergal Gaynor, to my right, Mr. Aleksandar Kontic, and case

22 manager, Ms. Donnica Henry-Frijlink.

23 JUDGE ORIE: Thank you, Ms. Somers.

24 May I have the appearances for the Accused?

25 MR. JONJIC: [Interpretation] Good afternoon, Your Honours. My

Page 91

1 name is Tomislav Jonjic. I'm an attorney at law from Zagreb and Defence

2 counsel for Mr. Ljubicic. Next to me is Mrs. Nika Pinter, attorney at law

3 in Zagreb, and my co-counsel.

4 MS. KOSTA: [Microphone not activated]

5 JUDGE ORIE: Could you switch on the microphone? We are still

6 listening to the translation of the previous --

7 MS. KOSTA: Thank you, Your Honours, my name is Doris Kosta. I'm

8 an attorney at law from Split and co-counsel representing Mr. Rajic.

9 JUDGE ORIE: I do understand that lead counsel was not available

10 to attend this hearing, lead counsel being Mr. Olujic.

11 MS. KOSTA: Yes, let us say he was not able to come although I

12 believe this Trial Chamber is aware of the situation in this case. My

13 client has initiated, back in May, a procedure to remove Mr. Olujic from

14 the position of his Defence counsel. So therefore this procedure has been

15 ongoing for four months now.

16 JUDGE ORIE: Yes. Mr. Rajic, may I just ask you whether you feel

17 sufficiently represented today by Ms. Kosta?

18 THE ACCUSED RAJIC: [Interpretation] Yes, Your Honours. I believe

19 that Mrs. Kosta can represent me and I am pleased that Mr. Olujic is not

20 here today because I believe that he has no role in these proceedings.

21 Thank you.

22 JUDGE ORIE: Yes. Then I'd like to turn to Sarajevo, where

23 representatives of the government of Bosnia-Herzegovina are following the

24 proceedings. Could I have the appearances from Sarajevo, please?

25 MS. POPADIC: Good afternoon, on behalf of the government of

Page 92

1 Bosnia-Herzegovina, we have here representatives of the Ministry of

2 Justice, the Office of the Prosecutor of Bosnia-Herzegovina, the

3 representatives of the Registrar of the Court, the first one and the

4 second one in Bosnia-Herzegovina. I'm the head of the delegation, Milana

5 Popadic, representing the Minister of Justice of Bosnia-Herzegovina. To

6 my left is Mr. Emir Neradin representing the Registry for section 1 and 2

7 of the Court of Bosnia-Herzegovina, Ms. Mechtild Lauth representing

8 Registry section 1 and 2 of the Court of Bosnia-Herzegovina, Mrs. Slavica

9 Terzic, representing the Prosecutor's Office of Bosnia-Herzegovina, Ms.

10 Stephanie Godart, the Office of the Prosecutor of Bosnia-Herzegovina, and

11 Mr. Nicholas Koumjian representing the Office of the Prosecutor of

12 Bosnia-Herzegovina.

13 JUDGE ORIE: Thank you, Ms. Popadic. I noticed that there is also

14 a representative of the Registry present in Sarajevo.

15 Now I do not hear anything whereas it looks as if he was speaking.

16 Then I may have overheard that.

17 The order the Chamber would like to follow is to first give an

18 opportunity to the Prosecution to add anything that should be added at

19 this moment to the written submissions already available to this Referral

20 Bench, then give a similar opportunity to the Defence, and finally to the

21 representatives of Bosnia and Herzegovina. And if the Chamber would have

22 any further questions, they will then put to you after this and then if

23 there are any final observations to be made, the parties will have an

24 opportunity to do so.

25 Ms. Somers, may I first invite the Prosecution to make any further

Page 93

1 submissions in addition to what already has been submitted in writing to

2 this Referral Bench, if there is any need to do so.

3 MS. SOMERS: Your Honour, there is from the perspective of the

4 Prosecutor no need to supplement the - I think - rather detailed

5 additional submissions that the Chamber requested as to the Accused

6 Ljubicic filed on the 16th of September, and as to the Accused Rajic.

7 They were due the 19th and I believe filed either just at that time, at

8 noon or shortly before, but they supplement, they are responsive, we

9 believe, to the questions that the Chamber wished a bit of fleshing out

10 about and if there is anything specific that perhaps Chamber's interest

11 may have been whetted about, we'd be happy and answer, but I think that we

12 have fully complied. The aspect of level and gravity has been a bit

13 further elaborated upon and they will help.

14 JUDGE ORIE: Thank you, Ms. Somers.

15 Mr. Jonjic, if I could give you the floor first to make any

16 additional submissions?

17 MR. JONJIC: [Interpretation] Thank you, Your Honours. The Defence

18 of Mr. Ljubicic one day after the Prosecutor submitted a motion to refer

19 the case to the national Court stated that it did not oppose the motion,

20 namely the referral of the case to the national Court and we submitted

21 that motion on the 22nd of July 2005. Several days later, on the 2nd of

22 August 2005, we submitted our arguments detailing why we believe that this

23 case should be referred to the Republic of Croatia rather than the

24 judicial organs of Bosnia-Herzegovina. Based on that, you can see that

25 the Defence agrees that the gravity of the crimes that our client is

Page 94

1 charged with and his rank are such that they fall within the scope of Rule

2 11 bis and therefore, there is no reason why this case should not be

3 referred to national Court.

4 On the other hand, the Defence is fully aware of the fact that it

5 does not have standing to propose that the case be referred to another

6 state. Rather, this standing is that that belongs either to the

7 Prosecution or to the Trial Chamber. We are now fully aware that we are

8 here discussing the referral of this case to Bosnia and Herzegovina, not

9 to the Republic of Croatia. However, we believe that it would be

10 unprofessional to say the least if we did not point out certain arguments

11 which are in favour of our client because we believe that his rights will

12 not be fully protected if the case were to be referred to Bosnia and

13 Herzegovina. So with your permission I would present several arguments

14 regarding this issue.

15 Yesterday, the Defence received the motion from Bosnia and

16 Herzegovina, from the government of Bosnia-Herzegovina, pursuant to the

17 order issued on the 5th of August. We were unable to submit a written

18 response to this because the statement came rather late. However, it is

19 our position that this statement is rather superficial, that in this

20 motion submitted by the government of Bosnia and Herzegovina, they failed

21 to present their position regarding the questions put by the Trial

22 Chamber. Rather, they submit their arguments concerning some different

23 issues. With all due respect, in view of the Defence, the government of

24 Bosnia and Herzegovina should not treat our client just like any other

25 case or any other client, but the government of Bosnia and Herzegovina

Page 95

1 should have presented very specific views pursuant to the Chamber's order

2 dated the 5th of August.

3 This position taken by the government of Bosnia and Herzegovina is

4 something that causes concern, and we believe that this is just another

5 evidence showing that the rights of our client will not be fully protected

6 in Bosnia-Herzegovina.

7 Once again we reiterate that we are not entitled to propose that

8 this case be referred to the Republic of Croatia, but we would like to

9 point out that the jurisdiction for this case -- these case Susan Somers a

10 universal one. Therefore, there are no obstacles to referring this case

11 to Croatia. In accordance with the text of Rule 11 bis which was in force

12 at the time when our client was transferred to the ICTY, the only viable

13 alternative to a trial here before ICTY was a trial in Croatia. Rule 11

14 bis establishes concurrent jurisdiction. It does not give primacy to the

15 Court of Bosnia-Herzegovina, where the crimes were committed. In the

16 Mrksic case it was the OTP itself which demonstrated that it does not give

17 a preference to the country where the crimes were committed. Before

18 arriving here to the Detention Unit, the Accused resided in Croatia.

19 Therefore, his situation was quite different from the situation of the

20 Accused in other cases where we already have a ruling pursuant to Rule 11

21 bis. It is true what the OTP pointed out, namely that our client became a

22 citizen of Croatia following the commission of the crimes or the events

23 that are described in the indictment. However, his request to become a

24 citizen of Croatia was submitted much earlier and, therefore, this

25 argument of the Prosecution is simply an untenable one.

Page 96

1 The Defence is aware that the Trial Chamber in a number of other

2 cases took the view that the extradition or transfer to a national

3 government is not considered a pure case of extradition but, rather,

4 enforcement of the UN charter, Article 27. There is a law that was passed

5 in Croatia, the constitutional law on cooperation with the ICTY which

6 should be treated as a legal source for resolving such cases rather than

7 the UN charter. This law, constitutional law on cooperation with the ICTY

8 in Article 9 prohibits extradition of the citizens of the Republic of

9 Croatia to other states, which means that if our client is extradited to

10 Bosnia and Herzegovina, this would represent a circumvention of this law

11 and would represent a violation of the constitution of Croatia. And it is

12 our view that this Court should not engage in such practice.

13 MS. SOMERS: I apologise for the interruption, Your Honour, but I

14 have to object. This is an entire diatribe that has not been responded to

15 as ordered by this Court in writing. The -- in our view it is entirely

16 inappropriate to hold court as it were now on issues that the Defence was

17 invited to brief or to at least put in response form. It effectively

18 requires or could require response by the Prosecution. We did not expect

19 anything of this nature to happen ore tenus today and would if need be --

20 well, we would like to ask for the opportunity to at least direct the

21 Referral Bench's attention to the points, if need be, in our submission

22 and, of course, the jurisprudence that has come through the Bench and

23 through the Appeals Chamber. But this is what we're -- I'm caught by

24 surprise by this.

25 JUDGE ORIE: Mr. Jonjic, most of what I hear I remember that I

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Page 98

1 have read it already, especially in the second submission you made after

2 the short first one. You were invited to add whatever should be added,

3 and I do not know whether this very last portion seems to be from -- what

4 I remember, the prohibition to extradite your own nationals was dealt with

5 in rather constitutional terms in your submissions where it now is related

6 to the law on cooperation. Perhaps I'm mixing it up but, of course, the

7 issue of the non-extradition of nationals has been raised extensively also

8 in your written submissions. As a matter of fact, everything I heard

9 until now is -- well, at least it could give you the pleasure of being

10 aware that we read your submissions very carefully.

11 Would you have any additional matters to raise?

12 MR. JONJIC: [Interpretation] Yes. With your permission,

13 Your Honours, you are absolutely right. The Defence did indeed elaborate

14 on this issue in our submission dated the 2nd of August. Therefore, I do

15 not understand why is the Prosecution all of a sudden now surprised? The

16 reason I mentioned the law -- constitutional law on cooperation with the

17 ICTY is that we cited this law in our submission in paragraph 9 and in a

18 footnote. However, I will be brief. I understood what you were trying to

19 say to us.

20 What we would like to reiterate is the following: There was a

21 procedure instituted against our client in Croatia. The investigation in

22 that case was concluded, over 40 witnesses were heard. However the

23 proceedings in Croatia were suspended because our client was transferred

24 to the Tribunal. If our client is now extradited to Bosnia and

25 Herzegovina, then our client will find himself in a very complex legal

Page 99

1 situation where the proceedings in Croatia were stayed in order for him to

2 be transferred to the ICTY and then ICTY transferred him to another state.

3 In our submission, dated the 2nd of August, we also mentioned the flaws

4 and the shortcomings that exist in our view if our client is indeed tried

5 in Bosnia-Herzegovina. We hope that Bosnia and Herzegovina will fully

6 comply with the Trial Chamber's order dated the 5th of August and present

7 its full view so that we would be able to respond to it. As I said in the

8 beginning, the response of the government of Bosnia-Herzegovina was a very

9 superficial one. They simply made reference to their previous

10 submissions.

11 Our client has been in detention for almost four years and if I'm

12 not mistaken this is the longest detention period in the history of this

13 Tribunal. In other cases, the Trial Chamber believed that the length of

14 the detention does not violate the rights of the Accused. There is a

15 provision in the laws of Bosnia and Herzegovina stating that if the

16 indictment is not confirmed within six months, then an accused has to be

17 released from detention and that a final judgement must be passed down

18 within one year.

19 The fact is that the state Prosecutor handling the case in

20 Croatia, the case that was suspended, is ready and willing to continue

21 with the trial. He will continue with this case if the case is referred

22 to Croatia, and unlike that situation, the Prosecutor in Bosnia and

23 Herzegovina will have to put in a lot of work to become acquainted with

24 this case and all the details. The situation in Croatia is such that the

25 Prosecutors there have been dealing with the cases from Lasva valley for

Page 100

1 nine or ten years now.

2 There is another problem that was raised in our submission of the

3 2nd of August and that is the issue of Defence counsel. According to the

4 current situation, this counsel can refer this case to the authorities of

5 Bosnia and Herzegovina, not to a particular court in that country. And

6 those authorities need not refer the case to the state Court. They can

7 refer the case to a county Court.

8 JUDGE ORIE: You're now at paragraph 13 of your written

9 submission. I mean, you're doing exactly the same as you did before. You

10 repeat what's already in writing. We might have some questions on that

11 but it's -- and I verified in -- perhaps there could be a confusion in

12 your -- let me just check that. Yes. In your written submission, you

13 mainly referred to the constitution of the republic as far as the

14 non-extradition of nationals is concerned in Article 9, and I now see that

15 you're giving more emphasis on the constitutional law on cooperation with

16 the ICTY; is that correct? Although you mentioned it in your written

17 submission as well.

18 MR. JONJIC: [Interpretation] Not quite, Your Honour. The

19 constitutional law does not contain a provision on the prohibition of

20 extradition. This is contained in Article 9 of the constitution. The

21 constitutional law only created an exception to that rule by permitting

22 extradition exclusively to the ICTY. By your leave, Your Honour, I will

23 conclude in a few minutes and I will avoid repetition.

24 JUDGE ORIE: Yes, please do so.

25 MR. JONJIC: [Interpretation] Another very important issue --

Page 101

1 JUDGE ORIE: May I nevertheless interrupt you for one second?

2 Reading the transcript, and I'm looking at page 7, line 4 and 5, and that

3 might have created my confusion. "This law, constitutional law on

4 cooperation with the ICTY, in Article 9 prohibits extradition of the

5 citizens of the Republic of Croatia to other states, which means that if

6 our client," and then you -- so there you're referring to Article 9 of

7 what you call the constitutional law and cooperation with the ICTY,

8 whereas in your written submission, I find a reference to Article 9 of the

9 constitution of the Republic of Croatia. So that's a bit in contradiction

10 with each other. May I take it that your last statement saying that it's

11 Article 9 of the constitution that prohibits the extradition of nationals

12 and that the -- I don't know whether that's a constitutional law but at

13 least a law on cooperation with the ICTY makes the exception? That's the

14 correct understanding? Then please proceed.

15 MR. JONJIC: [Interpretation] That's correct, Your Honour. The

16 general prohibition is contained in the constitution, whereas the

17 constitutional law which has the same legal force and is enacted through

18 the same procedure as the constitution has made an exception but only in

19 favour of this Tribunal.

20 And to avoid repetition, the last issue that the Defence wishes to

21 raise now is the situation regarding security in detention units and

22 prisons in Bosnia-Herzegovina. The Defence has several testimonies and

23 some information showing that the situation in prisons in

24 Bosnia-Herzegovina is a very unsafe. According to some information we

25 have not yet been able to substantiate, and verify, but if this

Page 102

1 information is correct, commission is being set up in which

2 representatives of the Detention Unit in The Hague should participate and

3 this commission has found that the situation is very problematic. However

4 that may be, it's a case -- it's true that the press in Bosnia-Herzegovina

5 has reported more than once on insecurity in prisons, on detainees who are

6 Croats or Serbs and this seems to be relevant, engaging in hunger strikes,

7 addressing the authorities, asking that their status be improved, and the

8 federal Minister of Justice, Mr. Slobodan Kovac, on the 15th of July,

9 issued a decision that some detainees be transferred to the Kula prison in

10 Split. However, the federal Ministry of Justice and the authorities of

11 the Zenica prison did not respect this decision which illustrates how far

12 his authority stretches and how laws are implemented. Three days ago, on

13 the 16th of September, the media in Bosnia and Herzegovina reported that

14 members of the Commission for Human Rights of the parliament of

15 Bosnia-Herzegovina said that Serbs and Croats in the Zenica prison are at

16 risk. As things stand at present, people convicted for crimes such as

17 those our client is accused of, serve their sentences precisely in that

18 prison. So should our client be convicted, he will be sent to serve his

19 sentence in Zenica and the situation there is highly alarming. That is

20 why the Defence proposes that the Chamber allow the authorities of

21 Bosnia-Herzegovina to be heard on this issue. The Defence reiterates yet

22 again that it does not have the authority to propose that the case be

23 transferred to Croatia but we invite the Chamber to do so proprio motu.

24 Thank you.

25 JUDGE ORIE: One question, Mr. Jonjic. You referred to

Page 103

1 publications but also to a commission that had found ... Are you

2 intending to submit any documentary evidence on that? I'm a bit hesitant

3 about newspapers. I wouldn't say that newspapers never give information

4 which is helpful but sometimes by choosing the right newspaper, you get

5 the support for the position you have adopted. So -- but especially the

6 commission. You said the "commission has found." And a report from that

7 commission?

8 MR. JONJIC: [Interpretation] That's correct, Your Honour. We only

9 have information that this commission has been established, that it

10 inspected these prisons and that they found many problems. However, we

11 are unable to document this claim at present, but if we do manage to get

12 evidence on time, we will submit it to the Chamber.

13 JUDGE ORIE: Thank you, Mr. Jonjic.

14 For the Defence of Mr. Rajic, Ms. Kosta?

15 MS. KOSTA: [Interpretation] Your Honour, the Defence of Mr. Rajic

16 fully abides by its written submission and its response to the Prosecution

17 motion of the 26th of July. With respect to the response of the

18 government of Bosnia-Herzegovina, which we received only yesterday, we

19 wish to point out that it represents a subjective attitude of the

20 authorities of Bosnia and Herzegovina and that it does not paint an

21 objective picture. Therefore, I oppose completely any transfer of the

22 case of my client, Ivica Rajic to the judiciary of Bosnia and Herzegovina.

23 I will be very happy to answer any questions Your Honours may have.

24 JUDGE ORIE: Thank you, Ms. Kosta.

25 I now turn to Sarajevo. Ms. Popadic, would you like to add

Page 104

1 anything to what you have already submitted to this Chamber? And I

2 emphasise that you were invited as, I think, you did, not to repeat

3 earlier submissions but to refer to them to the extent necessary.

4 Nevertheless, at this moment, it seems that Mr. Jonjic has raised issues

5 on recent developments or reports or findings of a commission on the

6 detention situation. If you are in a position to include that in your

7 submissions, you're invited to do so. Please proceed.

8 MS. POPADIC: [Interpretation] Thank you. Your Honour, the

9 position of the government of Bosnia and Herzegovina has been fully set

10 out in our written submission of the 15th of September 2005, and we have

11 nothing to add.

12 This was the response to the order issued by the Chamber of the

13 5th of September. There is no doubt that there have been problems in the

14 prison in Zenica, in the penal institution there, but probably due to lack

15 of information, the statements made by the Defence of the Accused are

16 incorrect. Therefore, I will attempt in my capacity as a representative

17 of the Ministry of Justice, to clarify the situation and the events that

18 have taken place.

19 The Court of Bosnia and Herzegovina and the Office of the

20 Prosecutor of Bosnia and Herzegovina, at state level, has a detention unit

21 which meets international standards and which is fully equipped, and fully

22 prepared to receive all accused who are to be tried in sections 1 and 2

23 before the Court of Bosnia-Herzegovina. It is true, however, that there

24 is no prison at state level, and the Ministry of Justice is competent to

25 construct a state prison. There has been much activity in this respect.

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Page 106

1 A plan has been drawn up. This would be both a detention unit and a

2 prison, with 306 cells, and this would meet all European standards. Funds

3 have been collected and work is underway, very expeditiously, to construct

4 this prison at the state level in Bosnia-Herzegovina.

5 All persons accused by the Court in Bosnia and Herzegovina in

6 recent times are now serving their sentences in the institutions at entity

7 level, which are penal institutions, so that persons residing in one

8 entity serve their prison sentence in the penal institutions of that same

9 entity.

10 The events we have just heard about from the Defence counsel of

11 the Accused have actually taken place, but the persons serving their

12 sentences were convicted at the entity level. They were tried before the

13 cantonal Court in Sarajevo. And these persons were sent to serve their

14 sentences in the entity to which the Court before which they were tried

15 belongs.

16 In this particular case, it was the cantonal Court in Sarajevo

17 that tried the case. The persons convicted were sent to serve their

18 sentence in Zenica, which is the same entity, the entity of the Federation

19 of Bosnia-Herzegovina, and, in line with this and pursuant to the entity

20 laws on the execution of prison sentences, persons tried in Republika

21 Srpska before the Courts of Republika Srpska serve their sentences in that

22 entity.

23 If there are any additional questions, we can clarify that what

24 the Defence has stated does not hold water, because persons who are

25 convicted by the Court of Bosnia and Herzegovina are sent to serve their

Page 107

1 sentences in the entity of their residence.

2 The Ministry of Justice has a plan, whereby it has been

3 established that the prison of Bosnia and Herzegovina should be built very

4 soon.

5 In view of the fact that in this particular case, or, rather, the

6 particular case raised by the Defence, the Minister of Justice issued a

7 decision pursuant to the law on the execution of criminal sanctions,

8 detention and other measures, of Bosnia-Herzegovina, pursuant to

9 provisions whereby the entities were duty-bound to harmonise their

10 legislation concerning the service of prison sentences, after Bosnia and

11 Herzegovina, or, rather, the parliament of Bosnia-Herzegovina, at the

12 beginning of this year, enacted a law on the execution of penal sanctions,

13 detention and other measures.

14 Let me point out that apart from the written submissions submitted

15 by the government to the Chamber, this delegation is at Your Honours'

16 disposal and we are willing to answer any questions Your Honours may have.

17 JUDGE ORIE: Thank you, Ms. Popadic. If I could just put a small

18 question in respect of your response about what happened in Zenica. I

19 understood the concern of the Defence mainly to be that inmates would

20 suffer from ethnical bias within the prison walls. May I ask you, first

21 of all, whether what happened in Zenica against Serbs and/or Croats,

22 that's one question. And the second question is are you aware of the

23 existence of any report by a commission who would have given any findings

24 on the matter?

25 MS. POPADIC: [Interpretation] Following the final judgement of the

Page 108

1 cantonal Court in Sarajevo, the four convicts were sent to serve their

2 prison terms at the level of that entity, which was the prison in Zenica,

3 the correctional penal institution in Zenica.

4 The events which took place in Zenica occurred between the persons

5 serving their prison terms during their free time and in the course of

6 their activities, leisure activities.

7 JUDGE ORIE: Ms. Popadic, you might not be able to see it but

8 Mr. Jonjic is on his feet. I do not know whether he has any matter to

9 raise or to intervene or was it the matter of receiving the sound? It was

10 the audio which bothered you, Mr. Jonjic?

11 MR. JONJIC: [Interpretation] No, Your Honours. I'm not receiving

12 interpretation but I can see what you're asking me. In order not to waste

13 time to hear her submissions, let me say the following: Mrs. Popadic is

14 claiming that this has to do with a persons convicted by the cantonal

15 Court in Sarajevo. One of the persons on hunger strike mentioned in the

16 committee report is Mr. Ivan Bakovic --

17 JUDGE ORIE: Mr. Jonjic, I put two very specific questions to

18 Ms. Popadic. The first was whether the -- well, victims, or at least

19 whether they were Serbs or Croats, and the second was whether she has any

20 knowledge of a report on -- delivered on this matter. She was about to

21 answer my question, although perhaps not very directly, but she is invited

22 now to tell me whether these were Serbs or Croats, and, second, whether

23 there is any report available. I would like to avoid a discussion without

24 any supporting material for the Chamber. At the same time, we --

25 Ms. Popadic, we are waiting for one second since the audio is still --

Page 109

1 it's now functioning well?

2 Yes. So I don't think at this moment there would be any reason to

3 interfere with the answer. And if the -- either the government or the

4 Defence would like to submit to the Chamber in the near future documents

5 and preferably not newspapers, although I would not under all

6 circumstances exclude them, but we all know that the press sometimes is in

7 favour of one point of view whereas other newspapers might be in favour of

8 another point of view.

9 May I return to you, Ms. Popadic, and ask you to directly answer

10 my questions whether these were Serbs or Croats, and second whether you're

11 aware of the existence of any report.

12 MS. POPADIC: [Interpretation] Among the four persons regarding

13 whom there was a request to transfer them from Zenica, the three of them

14 were of Serb ethnicity and one person was of Croatian ethnicity. All of

15 the events, including the visits of the commission, took place at the

16 level of the federal ministry, in view of the fact that most of the

17 persons, I think three persons, were sent to serve their prison terms

18 based on the federal entity law on serving prison terms. Therefore, the

19 body competent to decide in those cases was the federal Ministry of

20 Justice, not the entity Ministry of Justice. The action taken by the

21 state Ministry of Justice was to request from the ministries of justice in

22 entities to ensure that entity laws are in compliance with the law of

23 Bosnia-Herzegovina on enforcing criminal sanctions.

24 JUDGE ORIE: One of your previous sentences, it seemed that you

25 said that there was a commission, at least visits of a commission. Is

Page 110

1 there any report delivered by any commission?

2 MS. POPADIC: [Interpretation] I have repeated already several

3 times that this falls under the jurisdiction of the federal Ministry of

4 Justice because the -- rather, the body competent to act in this case were

5 the cantonal Prosecutor's office and the cantonal Court rather than the

6 Ministry of Bosnia-Herzegovina and the state Court of Bosnia and

7 Herzegovina.

8 JUDGE ORIE: I apologise for interrupting. My simple question was

9 whether any commission who investigated the matter has delivered any

10 report, whether competent report or incompetent report, whether --

11 whatever. I am just inquiring into the existence of a report.

12 MS. POPADIC: [Interpretation] Your Honours, I will kindly ask the

13 referral Chamber to give me a deadline so that I could request, put in a

14 request to receive this. The federal Ministry of Justice is not

15 duty-bound to provide such reports to the Ministry of Justice of Bosnia

16 and Herzegovina, and if, indeed, there is a report, then the report exists

17 within the federal Ministry of Justice rather than the Ministry of Justice

18 of Bosnia-Herzegovina that I'm representing here.

19 [Trial chamber confers]

20 JUDGE ORIE: Ms. Popadic, the Chamber would highly appreciate if

21 you would get in touch with the competent organs to see whether a report

22 exists, to ask for a copy of this report and to submit a copy of the

23 report to the referral Chamber.

24 [Trial chamber confers]

25 JUDGE ORIE: I would like now to see whether there are any

Page 111

1 questions by my colleagues to either Prosecution, Defence, or the

2 representatives of the government.

3 JUDGE PARKER: Thank you. I have a question for Ms. Popadic. Can

4 you please tell me when it is expected that the construction of the prison

5 will be completed, the prison you have spoken of?

6 MS. POPADIC: [Interpretation] The mid-term plan, which covers the

7 period until the end of this year, and the following year, plans for a

8 building of the prison of Bosnia and Herzegovina with 306 cells. This

9 facility would also have a detention facility. The plan, which is in

10 existence, indicates that there are expectations that the future prison

11 will satisfy all established standards, the standards established at the

12 European level, for facilities of this nature.

13 JUDGE PARKER: The particular point that I was interested in is

14 what is the expected completion date of the construction? Are you able

15 to help the Bench with that, Mrs. Popadic?

16 MS. POPADIC: [Interpretation] This plan envisages that the

17 completion of the building would enable the facility to become operational

18 on the 31st of December 2006.

19 JUDGE PARKER: Thank you.

20 JUDGE ORIE: I would have a -- since Judge Kwon has no questions

21 and Judge Parker has no further questions, I would have a few questions

22 for Defence counsel.

23 Mr. Jonjic, one of your concerns is that it's at the discretion of

24 the Court in Bosnia-Herzegovina whether or not counsel, not belonging to

25 the bar of Bosnia-Herzegovina, could act before that Court. It is my

Page 112

1 recollection that recently this system was changed and would allow counsel

2 that have acted on behalf of a defendant before this Tribunal to act

3 before the BH Court as well. Fortunately, we have the BiH representatives

4 present, but I first address you whether you are informed about this,

5 and ...

6 MR. JONJIC: [Interpretation] Your Honours, yes. You are

7 completely right. It is true that recent amendments of the law are now

8 allowing, in exceptional cases, the lawyers who do not practise in

9 Bosnia-Herzegovina to represent their clients, but only before the state

10 Court of Bosnia and Herzegovina, exclusively that Court. The lawyers

11 practising in other states don't even have a theoretical possibility of

12 representing clients before ordinary courts, including cantonal county

13 Courts which have jurisdiction over such cases, and to which theoretically

14 the authorities of Bosnia-Herzegovina could refer war crimes cases. So

15 the Tribunal is referring this case to the national authorities of

16 Bosnia-Herzegovina who in turn would decide to whom to assign this case.

17 So there is a theoretical possibility.

18 JUDGE ORIE: I have noticed that in your submissions, Mr. Jonjic,

19 you have quoted that part of the Stankovic decision that this Chamber

20 feels not competent or at least is not the -- that it's not up to us to

21 decide which court is competent in Bosnia and Herzegovina. At the same

22 time, that's a part you're not quoting, we have established that there is

23 legislation enacted which makes only the state Court the competent court

24 after a referral by the Tribunal. So on the one hand I admire that you

25 have correctly understood that we are not deciding the matter, but would

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Page 114

1 you have any specific reason to expect that Bosnia-Herzegovina would act

2 in violation of its own laws, which prescribe such cases to be referred to

3 the state Court?

4 MR. JONJIC: [Interpretation] Your Honours, it is fortunate that we

5 have representatives of Bosnia-Herzegovina present here today who could

6 clarify this. I am concerned that there is a fact that Mrs. Popadic

7 failed to comment, namely that the state Prosecutor, Mr. Kovac, issued

8 certain instructions to the federal authorities that they did not comply

9 with. In addition to that, Mrs. Popadic told us that the federal ministry

10 or rather the federal bodies are not duty-bound to comply with the orders

11 of the state bodies at the central level. Therefore I'm afraid that there

12 is a possibility for abuse in this system if that were not the case then

13 we would not be wasting any time on this issue.

14 JUDGE ORIE: Mr. Jonjic, isn't it true that a lot of attention has

15 been paid by this Referral Bench to the issue of monitoring? And would

16 you consider that if a decision to refer a case to Bosnia-Herzegovina,

17 which heavily relies upon the legislation enacted in view of the state

18 Court, that the Prosecutor would not report that and that it would all

19 happen, this what you yourself called a theoretical possibility, without

20 any response? Is that what you expect? And I'm also looking to you,

21 Ms. Somers, to see what the position of the Prosecution would be, a

22 Prosecution who is the authority that should report on the monitoring.

23 Mr. Jonjic?

24 MR. JONJIC: [Interpretation] No, Your Honours. The Defence is

25 fully aware of the fact that the Chamber has put in a lot of effort to

Page 115

1 determine the conditions under which the inmates serve their sentences,

2 and that the Chamber also gave appropriate instructions to the Prosecutor.

3 We also know that there was an appeal in the Stankovic case which was

4 partially granted, and that there is monitoring in place, monitoring of

5 the proceedings there. Therefore, it would be irrational to believe that

6 we believe the Prosecution to be negligent when it comes to this issue;

7 however, we have to do our duty professionally. We have to zealously

8 represent the interests of our client. Therefore we believe that we need

9 to point that there is this potential risk.

10 JUDGE ORIE: Yes, you'll not be blamed for doing your job,

11 Mr. Jonjic.

12 Is there anything would you like to add, Ms. Popadic, to what has

13 been said on the competence of the state Court and the possibility for

14 counsel who have represented their clients before this Tribunal to act

15 before the state Court?

16 MS. POPADIC: [Interpretation] Thank you. Naturally I will first

17 respond to the first portion of the question. I will quote the law. The

18 Court of Bosnia-Herzegovina is the only competent court in

19 Bosnia-Herzegovina for the cases referred pursuant to Rule 11 bis.

20 Article 2, paragraph 1, of the law on the cases referred by the ICTY

21 provides, I'm reading now, the provision, that the adapted indictment is

22 accepted by the state Court of Bosnia and Herzegovina if it is established

23 that the indictment of the ICTY has been appropriately adapted and if such

24 adapted indictments satisfies formal requirements of the law on criminal

25 procedure of Bosnia-Herzegovina.

Page 116

1 In accordance with the law on referral of cases by the ICTY, or

2 any other law, the case referred in accordance with Rule 11 bis may not be

3 transferred to any other court in Bosnia and Herzegovina.

4 JUDGE ORIE: Thank you for that answer.

5 Ms. Somers?

6 You're still answering the question. If you would like to

7 continue, Ms. Popadic, please do so.

8 MS. POPADIC: [Interpretation] With respect to the Defence of the

9 Accused in proceedings in Bosnia and Herzegovina, the question of whether

10 the same counsel from abroad may continue representing an Accused before

11 the Court of Bosnia and Herzegovina, I will point out that pursuant to

12 Article 12 and Article 3.4 of the additional rules, Defence counsel acting

13 before section 1 of the War Crimes Department and section 2, the Organised

14 Crime and Corruption Department, a judge of the Court of Bosnia and

15 Herzegovina may approve counsel and admit counsel before the Court of

16 Bosnia and Herzegovina, bearing in mind the knowledge of law, whether

17 other counsel would have sufficient time to prepare should the case be

18 referred under Rule 11 bis, and taking into account other relevant

19 circumstances in each particular case. Of course, the counsel -- a

20 counsel who is licensed by a competent organ or bar association of his

21 country. This shows that counsel, regardless of whether or not they are

22 nationals of Bosnia-Herzegovina, may represent clients before the Court of

23 Bosnia-Herzegovina, but in each particular case, this has to be approved

24 by a judge of the Court of Bosnia-Herzegovina. Thank you.

25 JUDGE ORIE: Ms. Somers, the issue of the case to be sent,

Page 117

1 although of a theoretical possibility to another court, is that -- would

2 you like to say anything about it? Because I introduced the monitoring

3 and the Appeals Chamber made it perfectly clear that the monitor something

4 mainly a matter for the Prosecution.

5 MS. SOMERS: If I may ask your indulgence to go back to a point, a

6 follow-up to what my learned colleague in Sarajevo has just said. There

7 is a particular provision which I think is most important for both counsel

8 and for the Referral Bench to be aware of and we have included it in our

9 earlier submissions on another matter but it is that in Article 3.4, 4(b),

10 and this is the list of basically who can appear on the list of

11 practitioners before the state Court, specifically says, "if the advocate

12 has already appeared before the ICTY in a case that has been transferred

13 to the Court under Rule 11 bis of the Rules of Procedure of the ICTY,

14 whether any other advocate would have adequate time for the preparation of

15 the Defence." In other words, the concerns that were raised earlier by

16 this Referral Bench have been responsively addressed by the

17 Bosnia-Herzegovina authorities, and I wanted to make sure that we drew

18 Your Honour's attention to this. It is part of the submission filed 12

19 August 2005 with respect to the accused Ljubicic.


21 MS. SOMERS: I hope --

22 JUDGE ORIE: I was referring to a specific provision that dealt

23 with the matter and that's what I had in mind, yes.

24 MS. SOMERS: With respect -- I believe that this Bench is aware

25 that the Prosecution has withdrawn its appeals as to the points concerning

Page 118

1 monitoring, as this Bench knows, the -- I bear you news that the

2 Prosecution has withdrawn its appeals.

3 JUDGE ORIE: Well, that's at least news for us, Ms. Somers.

4 MS. SOMERS: That -- but in addition to the issues concerning what

5 this Bench and the Appeals Chamber have deemed prosecutorial obligations,

6 there are numerous organisations that actually have been brought to the

7 attention of this Bench that do monitoring at stages beyond the

8 proceedings, that the responsibility is monitoring the proceedings. And

9 that is where the focus would be of course. Conditions beyond that, I

10 would assume that depending on what stage things are at would have to be

11 looked at but certainly this Bench is aware of the Prosecution's efforts

12 with other organisations in terms of monitoring and I would only turn your

13 attention to our withdrawals. They have been filed.

14 JUDGE ORIE: Yes, I do understand. The core issue was that if the

15 case would be sent to any other court than the state Court, would the

16 Prosecution find this a matter to be reported or even a matter which would

17 trigger a motion for revoking the referral? It is a tricky issue because

18 on one hand side, the decision of the Referral Bench sends the case to a

19 state. At the same time, to say the least, there is an expectation that

20 the issues of a fair trial should be judged on the basis of the

21 legislation in force in respect of the state Court rather than in respect

22 of any other court.

23 Could you give your views on this matter?

24 MS. SOMERS: The Prosecution has based its submissions on the

25 legislation that indicates that these matters will be before the state

Page 119

1 Court of BH. That is a state Court matter. And this -- the -- the

2 international presence has been referred to as one of the grounds that

3 lends particular importance or support to the compliance with fair trial

4 standards, that is one of the obligations of this Bench to address. And

5 the submissions do both oral and written, are undertaken with the

6 understanding that the obligation is that these matters will be heard

7 before the state Court of BH.

8 JUDGE ORIE: Still doesn't answer my question.

9 MS. SOMERS: There has been no matter raised to the Prosecution

10 that any court other than BH would be implicated. I think the only

11 suggestion was Mr. Stankovic's reference to the Trebinje Court which was

12 not addressed with any degree of --

13 JUDGE ORIE: But do I understand between the lines that it would

14 certainly be a matter that would be part of a report and that would need

15 thorough consideration of the situation that would exist if a case would

16 not be sent to the state Court?

17 MS. SOMERS: Excuse me a second.

18 [Prosecution counsel confer]

19 MS. SOMERS: If in fact the state Court were to, for any reason,

20 deviate from our understanding, both -- well the understanding to us and

21 to this Bench, then we would expect the state Court to indicate so

22 formally and put everyone on notice.

23 JUDGE ORIE: Yes. That's what you expect from the state Court.

24 It still doesn't answer my question but --

25 MS. SOMERS: If there is a specific -- I find myself constrained

Page 120

1 because there may be matters of agreement and policy that I would be

2 happier -- if the Chamber would like me to -- if bench would allow a

3 five-minute break I would be very happy to come back but I want to make

4 sure that I am clear on what it is you're asking so I can give you an

5 answer.

6 JUDGE ORIE: What I'm asking is, what would the Prosecution do,

7 seen from their position as monitors of the proceedings, if such a thing,

8 that is a transfer of the case from the state Court or any other court

9 or -- would happen?

10 MS. SOMERS: Since that is not the understanding that has been --

11 JUDGE ORIE: No, no.

12 MS. SOMERS: It is possible to ask for literally a five-minute

13 recess I would be happy --

14 JUDGE ORIE: Perhaps I first continue and see, but because we are

15 close to one hour and a half anyhow.

16 I would have first of all, Ms. Kosta, is it true that at least

17 some of the concerns about representation of Accused is dealt with by the

18 previous answers and the previous observations? Because I find them

19 especially on page 6 of your August 8th submission, which is called a

20 response to the request.

21 MS. KOSTA: [Microphone not activated]

22 JUDGE ORIE: Microphone, please. Microphone, please.

23 MS. KOSTA: I apologise. I believe that my colleague, Mr. Jonjic,

24 has raised certain issues and that Your Honours have, in accordance with

25 this, put certain questions to the representatives of Bosnia and

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Page 122

1 Herzegovina.

2 JUDGE ORIE: Yes, but I'm mainly asking about representation of

3 accused which appears on page 6 under number 1, Bosnia-Herzegovina does

4 not allow lawyers, and somewhere else it says that before the ICTY you can

5 choose counsels from all over the world, which is not true for Bosnia and

6 Herzegovina, 1 and 6 are covered by the discussions we just had, isn't

7 it?

8 MS. KOSTA: Yes. The whole discussion so far raised by the

9 Defence of the accused Ljubicic and the questions and answers that have

10 followed respond fully to the issues raised in our submission.

11 JUDGE ORIE: Yes. I would have one other question for you,

12 Ms. Kosta. A lot of words are spent on the issue whether the level of

13 responsibility should be understood as a level of actual involvement of

14 the crime or as the rank of the Accused. That's especially on page 2 and

15 3. You very much insist on the rank of the person involved to be

16 considered, and not his actual involvement in the crime.

17 On page 5 of that same submission --

18 MS. KOSTA: It's on page 3.

19 JUDGE ORIE: Well, I think it starts on page 2 in English, but it

20 certainly goes into page 3 where you come to the conclusion that it's

21 clearly evident that it's important for the UN Security Council and the

22 ICTY to know the rank. You are very much emphasising the rank. Now, at

23 the same time, I read on page 5, first line, under paragraph 3, "The

24 Defence emphasis that the status of Ivica Rajic in the wars of the 1990s

25 indeed was not high."

Page 123

1 I have been wondering why so many words were spent on the

2 distinction between actual involvement and rank where the outcome seems to

3 be exactly the same as proposed by the Prosecution. The Prosecution says

4 perhaps on a different basis that the level of responsibility is not that

5 high that it would prevent any referral. Now, you make -- you spend a lot

6 of words or Mr. Olujic I don't know who has written it, you spend a lot of

7 words on the wrong criteria which finally, if I understand you well,

8 doesn't make any difference as far as the outcome is concerned. Because

9 if you only look at the rank, it would be a relatively low rank as well,

10 not preventing a referral. Is that a correct understanding? Or is there

11 any explanation why it needed so much attention although without any

12 practical result?

13 MS. KOSTA: I believe that the -- it was being carried away with

14 the explanation. I agree with Your Honour's conclusion.

15 JUDGE ORIE: Yes, thank you for that answer.

16 Ms. Somers, I have one question for you and that's the following:

17 You did analyse the gravity of the crimes in general terms in the

18 submissions as to whether that should be an obstacle to a referral. You

19 may have noticed that the Referral Bench, in most of its decisions, not

20 only looks at the gravity of the crimes but also sees whether there is a

21 legal framework in place which would cover all the charges in the

22 indictment, if I refer you to Article 140, whether there are crimes

23 against humanity or not, we see that in one of the cases, crimes against

24 humanity are charged, in the others not. You didn't spend much words on

25 that. Is this because you would take it that these matters have been

Page 124

1 dealt with sufficiently by the referral Chamber and would that also

2 include a specific analysis of the crimes that appear in the indictment?

3 MS. SOMERS: Your Honour, thank you. There are two ways that this

4 issue is addressed. One was the Bench requested a submission on weight

5 and our indication was that it is very fact-driven and dependent on

6 circumstances. There can be one accused who could be responsible directly

7 or indirectly for the death of 7500 people, and it could be a very

8 low-level person contributing or there could be one, or maybe a hundred,

9 or someone high up who had a very remote role. So in that instance I'm

10 separating that particular question.

11 The Bench and the Appeals Chamber have indicated we are limited of

12 course to the facts that are set out in the indictment so there was not an

13 attempt based on Rulings of this Bench to elaborate tremendously on the

14 factual aspect of things.

15 JUDGE ORIE: Perhaps you may have misunderstood me. What the

16 Chamber has done meticulously in quite a number of cases is to say, count

17 1, this type of crime we find it there, we find it under the 1993 or -- so

18 we try to identify whether the legal framework that would allow a

19 conviction, and, if there would be a conviction, whether there would be

20 appropriate mechanism for sentencing, whether that's in place, and we have

21 dealt with that several times in quite some detail. Do we have to

22 understand your silence on this matter to be that everything has been said

23 about that or because every case is different?

24 MS. SOMERS: We have taken the Chamber's invitation to rely on

25 other decisions and in fact I think that this Chamber has -- this Bench

Page 125

1 has been very, very thorough in analysing both the nature of the

2 corresponding or closely corresponding legal framework for charging

3 purposes in BH with the types of charges here. There is -- that would go

4 as to both 7(3) and 7(1) types of responsibility. We do not see

5 substantial deviation that would have required further analysis point by

6 point because there are 7(1), 7(3) charges. The basic facts have been set

7 out and we think that as the Chamber said it will ultimately be in the

8 hands of the receiving jurisdiction which, in this instance, BH, to craft

9 it appropriately. We think this has been dealt with in decision after

10 decision. The fact that there may be -- in this instance, Bosnian Croat

11 accused as opposed to let's say any other nationality would not change

12 that equation. The times of crimes refer to the same types of crimes

13 against the civilians or similar, without great distinction, perhaps there

14 was -- I think there was a destruction charge against one accused that may

15 be different from some of the other cases. But I believe that all issues

16 have been dealt with very much, very thoroughly by this Bench.

17 JUDGE ORIE: Of course the question was about whether there was

18 anything new here that had not been covered yet and you mentioned

19 destruction charges as one element.

20 MS. SOMERS: That was one. That type of charge is -- again it can

21 be seen in the Bosnian criminal structure. It does exist, and the

22 jurisprudence of this institution as to destruction has been -- has

23 considered also what was in existence in the former Yugoslavia, which is

24 reflected in the current practice as well in BH.

25 JUDGE ORIE: Yes. Thank you for that answer.

Page 126

1 [Trial chamber confers].

2 JUDGE ORIE: The -- Ms. Somers, you asked for five minutes to

3 confer within the OTP. We'd like to have a short break, and then give an

4 opportunity to all parties and -- or I should say interested parties

5 present, that means Prosecution, Defence, and the representatives of

6 Bosnia-Herzegovina, to -- well, add whatever has to be added and then

7 you'll have an opportunity to answer the question on how under the

8 monitoring system you would respond to a case not to be sent to the state

9 Court but to any other jurisdiction within Bosnia-Herzegovina.

10 Mr. Registrar, what would be the shortest break, for technical

11 reasons, possible?

12 15 minutes for technical reasons? Would that be sufficient in

13 view change of tapes or we would expect that we no not need not more than

14 another 10 or 15 minutes. I don't know whether that would be covered by

15 the tape which is running at this time or whether a change of tape would

16 be needed.

17 I understand that 20 minutes are needed. We will adjourn until

18 quarter to five, and you should prepare for any further brief submissions,

19 not taking more than three to five minutes.

20 We will adjourn.

21 --- Recess taken at 4.23 p.m.

22 --- On resuming at 4.48 p.m.

23 JUDGE ORIE: We will resume. I see that the videolink with

24 Sarajevo is still functioning properly, at least in the expectation that

25 you hear what I say at this moment.

Page 127

1 Ms. Somers, we have now a final round of any additional

2 observations, but since the Chamber has put a specific question on your

3 desk, I'll give you an opportunity first to answer the question and to

4 make any further observations you'd like. But within a couple of minutes.

5 MS. SOMERS: Thank you, I'm grateful for the pause that the Bench

6 gave. I wanted to check during that time period the law that was

7 implicated here and it is Article 2 on the transfer of cases, Your Honour,

8 which specifically refers to the Court of BH which is defined as the state

9 Court of BH as appears to be set forth. I'll check with my colleague that

10 that is correct. And I would ask the Bench if perhaps some of what I'm

11 directing, as I must go through the Bench, perhaps if some of this could

12 be confirmed with our esteemed colleagues in BH, but because that is the

13 understanding that 11 bis cases, not cases that are perhaps the subject of

14 investigation that may be sent to other -- that may be sent to the

15 authorities of Bosnia-Herzegovina for distribution as they see fit, but 11

16 bis appears to be limited or directed to the state Court. If in fact that

17 is its legislation, then it appears that Your Honour's question would be

18 more hypothetical and it would appear to involve perhaps, going against

19 the legislation. Accordingly, if it be possible to redirect, if there

20 would be no problem in how the state court officials or how the BH

21 officials view that.

22 JUDGE ORIE: Does it make any sense to ask them whether they would

23 violate their own law? I don't think, as a matter of fact, that that

24 would be a question to put anyhow. It's -- at the basis of all this is

25 the observation by Mr. Jonjic that, theoretically, it would be possible

Page 128

1 that orders would not be followed. He did not specifically pay attention

2 to the, I would say, explicit legislation which would make the state Court

3 the competent court, and where he only relied on the introductory remark

4 by the Chamber in Stankovic saying that of course that we would not be the

5 competent organ to decide which would be the competent court, but at the

6 same time, noting that it was the legislation.

7 I think everyone agrees that this is not what is expected to

8 happen. You've still not answered my question.

9 MS. SOMERS: If I can try to just bring another couple of points

10 to Your Honour's attention, certainly, should it be learned that a court

11 other than the state Court, which is legislatively mandated to hear it, is

12 hearing it, this would be a matter that we would believe would be a

13 subject to reporting, of course.

14 JUDGE ORIE: That's an answer to my question.

15 MS. SOMERS: I think the point in an of itself, it struck us as so

16 hypothetical because it presupposed a violation of legislation which we

17 found somewhat difficult. But having said that we want the Referral Bench

18 to just take note that cases that are not 11 bis but that have originated

19 here are being addressed by the system in BH in which the -- this office

20 has expressed its faith by doing that so we think that one can also read

21 the pronouncements of this Bench as the system as a whole has a framework

22 which assures accused of a fair trial.

23 JUDGE ORIE: That might be beyond what the -- it's not for this

24 referral Bench to give an explanation to its own decisions in subsequent

25 hearing. So therefore I leave it entirely your words that our decisions

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Page 130

1 could be understood that way.

2 MS. SOMERS: Was there anything further on this point? I just

3 wanted to check that, thank you.

4 JUDGE ORIE: No. Is there anything else that you would like to

5 add? You don't have to.

6 MS. SOMERS: No, of course I just emphasise that the only -- that

7 the only jurisdiction at issue is of course Bosnia-Herzegovina. I know

8 there has been discussion raised but this is the only one that we have so

9 much as considered a referral to with respect to both Accused. I'll just

10 check quickly.

11 [Prosecution counsel confer]

12 MS. SOMERS: Thank you, Your Honours. At this point, nothing

13 further.

14 JUDGE ORIE: Thank you.

15 Mr. Jonjic, any further observations? If you would keep them on

16 the practical level and not go to too much the theoretical level, although

17 we do not blame you for having done it, but ...

18 MR. JONJIC: [Interpretation] Thank you, Your Honours. The Defence

19 of Mr. Ljubicic wishes to add just one sentence. We hope that the

20 submission by the government of Bosnia-Herzegovina, which had been

21 announced and which this Chamber expects will clarify some outstanding

22 issues, including the results of the commission.

23 Another issue that should be discussed is the prison, which is

24 currently being built and which should be completed next year, which could

25 house 306 inmates.

Page 131

1 The state Prosecutor, the main state Prosecutor of Bosnia and

2 Herzegovina, Mr. Jucevic [phoen] has announced that about 10.000 people

3 would be prosecuted. So this is something that creates -- that raises

4 certain questions and we would like the government of Bosnia-Herzegovina

5 to clarify this. Thank you.

6 JUDGE ORIE: Thank you, Mr. Mr. Jonjic.

7 Ms. Kosta, do you have any further observations?

8 MS. KOSTA: [Microphone not activated]

9 JUDGE ORIE: Could you please switch on your microphone?

10 MS. KOSTA: I have no further remarks. I just wish to state that

11 I support the proposal of my colleague, Mr. Jonjic, to have the government

12 of Bosnia and Herzegovina submit further submissions to this Chamber,

13 including any supporting material.

14 JUDGE ORIE: Yes. Just avoid whatever misunderstanding, I did

15 understand Ms. Popadic to say that she would inquire as to whether there

16 was a report. If there was a report, she would like to receive a copy and

17 then the Chamber would appreciate if a copy would be submitted to this

18 Chamber. So just to avoid whatever misunderstanding, the Chamber does

19 not -- is not yet in a position to ask for the report where it does not

20 even know whether it exists.

21 Ms. Popadic, would you like to add anything? And would you also

22 respond to the question what to do with 9.700 people accused or

23 prosecuted?

24 MS. POPADIC: [Interpretation] Thank you. I will not be long in my

25 remarks. We believe that the remarks of the Defence are unfounded. They

Page 132

1 have to understand that the state Court of Bosnia-Herzegovina is the

2 competent court for cases under Rule 11 bis, and it is not competent to

3 assign such cases to other courts for further proceedings, other courts

4 meaning the courts of the entities.

5 We have to make a distinction. The Court of Bosnia and

6 Herzegovina is the competent court for cases referred under Rule 11 bis.

7 Once this Court takes over the indictment, it will be the only court

8 processing such cases. Cases which have not been referred under Rule 11

9 bis, which are the cases that were investigated by the ICTY, the cases

10 where indictment has not yet been issued, when it comes to such cases,

11 they can be, in accordance with the law, be transferred for further

12 proceedings to courts in the entities. This is something that the state

13 court can do. It can transfer such cases to other courts. However, these

14 are not 11 bis cases.

15 JUDGE ORIE: This Referral Bench is only competent to hear

16 referral cases and nothing else. So that's perfectly understood and is

17 perfectly in line with what Ms. Somers said. Rules of the road cases are

18 not within our competence.

19 MS. POPADIC: [Interpretation] All such cases which fall under Rule

20 11 bis are the cases for which the sole competent court is the state Court

21 of Bosnia and Herzegovina.

22 As for detention and prison term sentences, in accordance with the

23 law of Bosnia-Herzegovina for enforcing criminal sanctions and other

24 measures, let me just add that in accordance with all international

25 standards, the issues have been resolved and once -- there is a plan to

Page 133

1 build a detention unit within that prison as well. However, once again we

2 have to distinguish -- make a distinction between the persons who will be

3 tried by the state Court of Bosnia and Herzegovina who will serve their

4 prison sentence in this prison which is right now being built. These

5 persons will be kept separate from other inmates, inmates who were

6 sentenced by other courts.

7 On behalf of the delegation, and on behalf of the government of

8 Bosnia and Herzegovina, I took it upon myself to request from the federal

9 ministry, the ministry which in accordance with the law on enforcement of

10 criminal sanctions of Bosnia-Herzegovina, acted in this case, and as far

11 as I'm aware, established the commission that visited the prison in

12 Zenica. The report of this commission, if it exists, should exist within

13 the federal Ministry of Justice. And on behalf of the Ministry of Justice

14 of Bosnia-Herzegovina and the government of Bosnia and Herzegovina, I will

15 request that this report be sent to us.

16 And I really cannot comment upon this any further without knowing

17 the contents of the report, without knowing what it covered and what

18 issues were discussed. That is something that we are not familiar with.

19 Furthermore, I would like to state that the government of Bosnia

20 and Herzegovina is convinced that Bosnia and Herzegovina is capable to

21 ensure a fair and expeditious trial to all Accused in accordance with

22 Article 6 of the European Convention on Human Rights. This view, and

23 these assurances given by the government of Bosnia and Herzegovina, were

24 reviewed by the referral Chamber in other cases, and this was also

25 confirmed by the Appeals Chamber in September of this year. The right of

Page 134

1 an accused in Bosnia and Herzegovina will not be jeopardised by -- will

2 not be jeopardised at all, either in the course of the proceedings against

3 him or in the course of serving their sentence.

4 On behalf of the Prosecution of Bosnia and Herzegovina, and on

5 behalf of the chief Prosecutor of Bosnia and Herzegovina, who has

6 expressed concern after it was announced that the OTP planned to send to

7 Bosnia and Herzegovina only electronic version of the relevant material

8 pursuant to Rule 11 bis, I am now informing the Chamber of this and would

9 like to kindly ask the Chamber to issue an order to the OTP requesting

10 them to provide us either with originals or certified copies of all

11 exhibits which support the charges against these accused and also to

12 submit them in an electronic form. In addition, we would like to request

13 that the Defence counsel in these cases also submit their documentation

14 and their material to the authorities of Bosnia and Herzegovina.

15 JUDGE ORIE: Ms. Somers, does the last remark by Ms. Popadic

16 trigger any need to respond?

17 MS. SOMERS: Excuse me just a second, Your Honour. I'm consulting

18 with Mr. Kontic on this. Thank you.

19 [Prosecution counsel confer]

20 [Trial chamber confers]

21 JUDGE ORIE: Yes, Ms. Somers?

22 MS. SOMERS: Thank you very much. I've consulted with my

23 colleague Mr. Kontic. I'm informed that the OTP indeed will be sending

24 only electronic.

25 JUDGE ORIE: Only electronic.

Page 135

1 MS. SOMERS: That is our understanding, that electronically it

2 would involve thousands and thousands of pages of duplicated effort.

3 JUDGE ORIE: But I think that Ms. Popadic is asking for the

4 documents supporting the indictment. Isn't it true that the authenticity

5 of documents very often could be challenged in court, and I have some

6 difficulties to understand how you would deal with these matters just

7 having available electronic copies.

8 MS. SOMERS: Excuse me one minute.

9 JUDGE ORIE: I'm not talking about disclosure in general.

10 MS. SOMERS: Okay, but maybe I misunderstood the question then.

11 JUDGE ORIE: I think it was, but let's just verify with

12 Ms. Popadic. I would -- and I could check that in the transcript. I

13 think Ms. Popadic you are mainly concerned about documents that -- let me

14 just have a look: "exhibits which support the charges against these

15 accused and also to submit them," so not only in hard copy but also in

16 electronic form. Do I understand you well that you're not insisting on

17 disclosure of all of the material available to the OTP, to provide that

18 all in hard copy?

19 MS. POPADIC: [Interpretation] Naturally in accordance with the

20 law on the referral of cases and admissibility of evidence, there is a

21 need to forward the entire material in possession of the OTP, both hard

22 copies and electronic version, and to transmit it to the Prosecutor's

23 office in Bosnia-Herzegovina.

24 JUDGE ORIE: I take it that I therefore have misunderstood you and

25 did you mean by supporting the charges all material available? I do not

Page 136

1 know whether it would make any sense to make a distinction between

2 material disclosed and material intended to be used as evidence at trial,

3 which, of course, would limit the number of documents that should be

4 immediately, in hard copy form, be sent to Bosnia and Herzegovina. But

5 there seems to be at least a problem.

6 JUDGE PARKER: Ms. Somers, I have difficulty comprehending how it

7 could be intended that a trial would be conducted in Bosnia-Herzegovina

8 without the originals at least of statements made by those who are to

9 call -- be called to give evidence as witnesses in the trial, and without

10 the originals of any exhibits. Is-- and certainly, that has not been

11 suggested to us until this moment. Is that what you intended? Or were

12 you dealing with some more remote material that might have some relevance

13 to the case, when you said that it was intended that there only be

14 electronic provision of material?

15 MS. SOMERS: Your Honours, what I have been informed of by my

16 colleagues who are handling the logistical side of this Chamber's orders,

17 of this Bench's orders, is that electronic was the means of communicating

18 the documents. Now, whether or not it's scanned -- I'm not clear exactly

19 of how the technical side of it is being implemented. If, rather than

20 asking the Chamber to issue any orders, I'm sorry, the Bench to issue any

21 orders today, would it be possible to perhaps order to us clarify it?

22 Because I don't want to give you information that I do not have at my

23 fingertips, and I don't want to go on the record as saying something from

24 another division that I'm not able to address fully. We do have the

25 record from BH, and we have your inquiry. Is it possible to be allowed to

Page 137












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 138

1 have the technical people indicate whatever is in order?

2 JUDGE ORIE: Ms. Somers, it's -- of course, I take it we will give

3 you sometime but it's not a technical issue.

4 MS. SOMERS: I understood your point.

5 JUDGE ORIE: It's not a technical issue. It's just to have the

6 original or a certified copy of a piece of paper in front of you so that

7 you can see whether it's signed by Mr. X or Mr. Y that you have if you

8 want to confront the witness with a statement he has earlier given that

9 you can say, Is it your statement? Yes or no? I hardly can imagine that

10 you give him a CD and say, Is on this CD your statement? Of course, I'm

11 now exaggerating, but very often, stamps on documents -- well, we usually

12 do not, on from the beginning, accept that all the documents would be

13 printed-out electronic versions. That's certainly not what this Chamber,

14 this bench has in mind. So it's not mainly a technical matter. It's also

15 a legal, procedural matter.

16 JUDGE KWON: Your submission should deal with the evidence on law

17 of Bosnia.

18 MS. SOMERS: Right, well I understood Judge Parker's question as

19 well on that. The point I was making is I don't know whether everything

20 is scanned to indicate all the detailed stamps and the signatures that

21 have been in some instances used, and because I don't know how it's been

22 inputted I would ask for the opportunity to have that presented to this

23 Chamber -- to the Bench but laid out exactly as to what OTP and the BH

24 authorities have discussed. And I'm afraid at this moment I'm not able to

25 do so but of course there is the legal side and the technical. I'm not

Page 139

1 disputing the legal side. I just don't know what has been discussed and I

2 don't want to represent something that I can't stand on.


4 MS. SOMERS: So if I could ask the Chamber to or the Bench to

5 specifically give us its question, which is both legal and technical, and

6 then we can report back to the Bench at a time to be assigned.

7 [Trial chamber confers]

8 JUDGE ORIE: Yes. The Chamber would very much like to receive a

9 written submission on the matter, Ms. Somers. I think it's -- the main

10 issue being what, apart from an electronic version, will be sent to Bosnia

11 and Herzegovina in hard copy? Would you please address it in such a way

12 that the government of Bosnia and Herzegovina, once having seen it, will

13 be able to comment on it? And of course another question is whether it's

14 not time, apart from informing this Referral Bench, also to see whether an

15 agreement could be reached so that these issues do not arise at the end of

16 the hearing of what is the fifth or the sixth referral to Bosnia and

17 Herzegovina. So therefore we would like to see your submissions. Of

18 course, they will be publicly filed so the government is invited to

19 respond to it. Of course, if the Defence would like to respond to that,

20 it will be given an opportunity to do so, although I already can indicate

21 that the time available for such responses will be limited. So a quick

22 response is allowed.

23 Then I have a further question to you, Ms. Popadic, and I'd like

24 to also hear the response of the Defence. You expect the Defence to

25 submit any documents to the, as I understood you, to the government and

Page 140

1 not to the Court that finally will be competent to hear the matter. I

2 would like to have an explanation on why a Defence should be under an

3 obligation to inform a government on any material they intend to use in

4 their defence at trial, rather than to submit it directly to that

5 competent court.

6 MS. POPADIC: [Interpretation] Either to the Prosecutor's office or

7 to the Court, not to the government but to the authorities, that is to the

8 OTP and the Court of Bosnia and Herzegovina.

9 JUDGE ORIE: Any response? I must admit, Ms. Popadic, that I have

10 not prepared by studying carefully any disclosure obligations under your

11 law of criminal procedure so I might not have the right questions for you

12 at this moment. But perhaps Mr. Jonjic, you would have either any

13 observations or questions in this respect.

14 MS. POPADIC: [Interpretation] If I may, Your Honour, if I may add

15 something.

16 Or, rather if the Prosecutor may by your leave, Your Honours,

17 clarify these requests of ours.

18 JUDGE ORIE: Mr. Jonjic, perhaps it's better to first listen to

19 the Prosecution in Sarajevo rather than to respond without knowing the

20 exact meaning of the observations. Yes, please proceed. In Sarajevo, I

21 mean, yes. I take it Mr. Koumjian is the one who will address us?

22 Yes. If a microphone would be given to Mr. Koumjian then we could

23 hear him, or do the interpreters hear what Mr. Koumjian says?

24 I do not receive translation.

25 MR. KOUMJIAN: [Microphone not activated]

Page 141

1 [Technical difficulty]

2 JUDGE ORIE: Mr. Koumjian, you are invited to restart because of

3 technical difficulties, two of the three Judges, that is the majority,

4 could not hear you. Please proceed.

5 MR. KOUMJIAN: [Microphone not activated] Can Your Honour hear me

6 now?

7 JUDGE ORIE: I now can hear you now. Please proceed.

8 MR. KOUMJIAN: Our concern is with the situation where Defence

9 counsel perhaps through their own choice, would choose not to follow the

10 case in Sarajevo and new counsel would have to be appointed. In the

11 previous orders of the Referral Bench, being an order involving a transfer

12 of material from the Defence which we believe would belong to the client,

13 that would include previous disclosures from the OTP and work of the

14 Defence investigators to new counsel if new counsel is assigned.

15 JUDGE ORIE: Yes. Isn't that a general obligation for counsel to

16 pass all the necessary information, documentation, work product, to the

17 one who is will succeed them? Is it your opinion that we should give a

18 specific order whereas it has been stressed again and again that counsel

19 who are in a position to defend also before the state courts so that there

20 might not ever be a situation in which they would have to transfer their

21 material?

22 But now we have several versions. We have transfer of material

23 from previous counsel to new counsel. We have transfer of material from

24 Defence counsel to the OTP or to the Prosecution. Another variety now is

25 transfer of material from counsel to the Court and I think we now left

Page 142

1 behind us any transfer of material by counsel to the state as such.

2 Still it's not entirely clear to me what you would expect. I

3 mean, I do understand that you don't want to end up in a situation where

4 new counsel has not available the material that was disclosed to previous

5 counsel and not -- have not available their work product and exhibits they

6 might have found elsewhere. I fully understand that. The question is,

7 but perhaps we should hear Mr. Jonjic to what in his view should happen.

8 Were there are any other concerns? Is there any disclosure issue

9 that would play a role in the law on procedure in Bosnia and Herzegovina.

10 You know disclosure is dealt with quite differently in the common law

11 tradition compared to the civil law tradition.

12 MR. KOUMJIAN: Your Honour, our concern was simply that new

13 counsel got material. If it is understood by Defence counsel from the

14 ICTY, perhaps through Registry, are met and we just wondered that --

15 realised we need to work out a mechanism to actually transfer them to the

16 new counsel and maintain the confidentiality of that information.

17 JUDGE ORIE: Yes. At least the issue is clear now.

18 Mr. Jonjic?

19 MR. JONJIC: [Interpretation] Thank you, Your Honour, for giving us

20 the opportunity to be heard on this.

21 Should it be the case, as Mrs. Popadic said originally, that

22 Defence counsel are expected to hand over documentation and material to

23 the authorities, to the -- or to the OTP or the Court, then this will be

24 completely unacceptable to the Defence counsel. The Defence counsel has a

25 completely different idea of what representing the -- their client

Page 143

1 entails. If this refers to handing the material over to the accused and

2 evidently then that would be of course completely acceptable, as the OTP

3 has -- in Sarajevo has expressed the view that the present counsel may not

4 be permitted to represent the accused before the Court in Bosnia and

5 Herzegovina, then it goes without saying that against Defence counsel are

6 duty-bound to hand over all the material to the accused or rather to his

7 new Defence counsel. There follows from the rules on appointment of

8 counsel before this Tribunal and the code of ethics of the bar association

9 of Croatia, and this is the same all over the world, more or less.

10 If I may add something else, Your Honour, as we are now discussing

11 electronic disclosure, although this may not be customary, we wish to

12 assist the OTP, we have no experience of record-keeping before the war

13 crimes court but we do have experience in cases before the Court in

14 Sarajevo that concerns organised crime, and, in that court, the record is

15 disclosed only on audio tapes. Of course, for a lawyer who has to prepare

16 motions, submissions, and so on, it is very difficult to follow the audio

17 recording, and there is no written transcript as such. As we have here

18 the representatives of the government of Bosnia and Herzegovina, we wish

19 to ask them to clarify whether the same will obtain before the war crimes

20 court.

21 JUDGE ORIE: Thank you.

22 [Trial chamber confers]

23 JUDGE ORIE: There are two issues. First, documents to be sent in

24 the context of the referral, whether they should be just electronic copies

25 or whether they should be accompanied by hard copies and to what extent

Page 144

1 they should be accompanied by hard copies. The Chamber would like to

2 receive submissions on the matter as said before by the Prosecution so

3 that both Defence and the government of Bosnia and Herzegovina could

4 respond to that within strict time limits, the time limit being five

5 working days on from filing these submissions. I take it, Ms. Somers,

6 that courtesy copies could be sent perhaps in an informal way so that both

7 the government and the Defence has time to prepare.

8 The Chamber would certainly encourage any further conversations

9 between the OTP and the Prosecution in Sarajevo to practically resolve

10 these matters because that's more important than submissions to this

11 Chamber. The matter has to be resolved.

12 As far as the transfer of, well, let's say, the file, documents,

13 work product, from counsel to subsequent counsel, the Chamber considers

14 this at this moment a matter which is entirely within the professional

15 obligation by counsel and to that extent follows Mr. Jonjic. If for

16 whatever reason the Prosecution in Sarajevo would not agree with that, and

17 we do understand that that was their main and only concern, then, of

18 course, you could make any submissions, but you're certainly not

19 encouraged to do that because the Chamber has no doubt that it's fully

20 within the ambit of the professional obligations by counsel.

21 This, then, concludes this 11 bis hearing. The Chamber will --

22 [Trial chamber confers]

23 JUDGE ORIE: This, then, concludes this 11 bis hearing. The

24 Chamber will give -- deliver their decisions in the case against

25 Mr. Ljubicic and against Mr. Rajic in due course.

Page 145

1 The Chamber would like to thank first of all the representatives

2 of the government of Bosnia and Herzegovina and of the state Court and of

3 the Prosecutor's office in Sarajevo for their contribution to this

4 hearing. The Chamber also thanks defence and Prosecution for informing

5 the Chamber on matters relevant for the decision to be taken. We stand

6 adjourned.

7 --- Whereupon the hearing adjourned at 5.32 p.m.