Tribunal Criminal Tribunal for the Former Yugoslavia

Page 203

1 Friday, 4 March 2005

2 [Motion Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 4.47 p.m.

6 JUDGE ORIE: Mr. Registrar, would you please call the case.

7 THE REGISTRAR: Good afternoon, Your Honours. Case Number

8 IT-96-23/2-PT, the Prosecutor versus Radovan Stankovic.

9 JUDGE ORIE: Thank you, Mr. Registrar.

10 May I have the appearances, Prosecution first.

11 MS. SOMERS: Good afternoon, Your Honours. Susan L. Somers,

12 senior trial attorney. Also present on behalf of the Prosecution, to my

13 right Ann Sutherland; and further to my right Mr. Manoj Sachdeva; and

14 Mr. Sebastian van Hooydonk on my left, thank you, case manager.

15 JUDGE ORIE: Thank you, Ms. Somers.

16 For the Defence.

17 MR. RADOVIC: [Interpretation] Good afternoon, Your Honour. I am

18 Milenko Radovic of Foca, appearing for the accused Radovan Stankovic.

19 JUDGE ORIE: Thank you, Mr. Radovic.

20 And then first of all welcome to you, Madam President Kreso.

21 We've seen you today before, but just for the record would you please

22 introduce yourself.

23 THE INTERPRETER: Microphone, please.

24 JUDGE ORIE: Could you --

25 MS. KRESO: [Interpretation] I am Ms. Kreso, the president of the

Page 204

1 court of Bosnia and Herzegovina. In the delegation representing the

2 authorities of Bosnia and Herzegovina are also my colleague, Vaso

3 Marinkovic, deputy chief prosecutor of Bosnia and Herzegovina;

4 Ms. Mechtild Lauth, from the registrar's office in charge of legal issues;

5 and Mr. Nick Koumjian from the Office of the Prosecutor of Bosnia and

6 Herzegovina. Thank you.

7 JUDGE ORIE: Thank you.

8 Mr. Stankovic, I would like to ask you whether you could hear what

9 was said in a language you understand.

10 THE ACCUSED: [Interpretation] Yes, I hear you very well, Mr. Orie,

11 but before the discussion begins --

12 JUDGE ORIE: Mr. Stankovic -- Mr. Stankovic. Mr. Stankovic.

13 Mr. Stankovic. If you want -- if you want at a later moment to address

14 the Court, this Chamber will consider whether it will give an opportunity

15 to you. But I'd first like to make clear what this hearing is about.

16 We have a hearing today on a request from the Prosecution to have

17 the case against Mr. Stankovic referred to the -- to Bosnia and

18 Herzegovina to be tried in that jurisdiction. We have received

19 submissions by the Prosecution, submissions by the party -- by the

20 Defence, and we have also received submissions by the government of the

21 representatives of Bosnia and Herzegovina. May I first ask you,

22 Mr. Radovic, because that is of some concern to the Chamber, did you

23 receive the latest submissions by the BH government?

24 MR. RADOVIC: [Interpretation] Your Honour, I did not receive this

25 brief and I am not acquainted with its contents.

Page 205

1 JUDGE ORIE: Yes, then this at least will cause this Chamber to

2 allow you to make further written submissions in response to what has been

3 submitted by the government.

4 Mr. Radovic, I would have another question for you. You may be

5 aware if it were only on the basis of the initial scheduling order that

6 this Chamber has heard a similar case yesterday and today. There was also

7 a request for a referral of a case of four accused to Bosnia and

8 Herzegovina. Could you tell the Court to what extent you have followed

9 the discussions that have taken place.

10 MR. RADOVIC: [Interpretation] Your Honours, I did follow the

11 discussions.

12 JUDGE ORIE: Both yesterday and today, do I understand?

13 MR. RADOVIC: [Interpretation] Yes, on both days.

14 JUDGE ORIE: I'm asking you specifically because it might be

15 easier for you to identify the critical issues in these cases, having

16 taken knowledge of the discussions that have taken place.

17 I would first like to give an opportunity to the Prosecution to

18 make submissions -- submissions which of course, since this is the first

19 public hearing on the case, could contain a short summary of what has

20 happened until now. But apart from that, the Chamber would like to hear

21 whether there is anything to add on the basis of the further submissions

22 made by the Defence and by the Government of Bosnia and Herzegovina.

23 Ms. Somers, please proceed.

24 MS. SOMERS: Thank you, Your Honour. One corrigenda that I would

25 like to bring to the Court's attention on the Prosecution's submission of

Page 206

1 21 February, which are the further submissions, is as to its footnote 14,

2 we were unable at the time to give an Official Gazette citation, and it

3 should read "Official Gazette of BiH 61/04."

4 JUDGE ORIE: Yes, that's the number of many of the new

5 legislations.

6 MS. SOMERS: Yes, I just wanted to be sure that was clear.

7 Pursuant to the application to this Chamber by the Prosecution for

8 referral under rule 11 bis, Prosecution has -- and I think it may be

9 helpful to the Chamber to give a very succinct summary of the -- more

10 importantly, of the nature of the charges and the level and what we should

11 answer today specifically.

12 The charges before this Chamber, before this Tribunal, are indeed

13 very serious charges. They involve rape, among others; forcible slavery;

14 offences to the dignity of individuals. Although they certainly could be

15 tried in an international forum, it does not demand -- the nature of the

16 charge or its gravity does not demand that this particular indictment be

17 charged or these charges be heard before this international Tribunal.

18 Accordingly, in combination with the fact that the level of the accused is

19 low level in the scheme of various statuses affixed to perpetrators or

20 alleged perpetrators, it is deemed by the Prosecution that this case,

21 which took place on the territory of Bosnia-Herzegovina during time of

22 conflict and whose victims were from the territory of Bosnia-Herzegovina,

23 is most appropriate for referral to the state court of Bosnia and

24 Herzegovina, which is in a position, both from the standpoint of structure

25 and due process, safeguards, to hear this matter adequately.

Page 207

1 The concerns that this Chamber has had some testimony on -- I'm

2 sorry, not testimony but has inquired of various parties about matters

3 such as protective measures, interstate mutual assistance, and the

4 applicability of law, we would, as we did in the earlier proceeding which

5 we have just finished, ask the Chamber perhaps to ask the representatives

6 -- the esteemed representatives from the BH court to address -- I think

7 they can more accurately hone in on the questions. However, we believe

8 that based on what we heard in the previous proceeding, that the Chamber

9 should be satisfied that indeed the state court of Bosnia and Herzegovina,

10 which has the war crimes special setup, can indeed and is indeed the forum

11 to which, if referral is granted, should have it.

12 There should be no issues of -- concerning the inability or not to

13 effect this referral as it is the position of the Office of the Prosecutor

14 that these referrals and the power to refer is conferred upon this

15 institution, this Tribunal, by virtue of chapter 7 authority, that

16 Security Council has mandated that certain levels of cases and types of

17 cases and levels of perpetrators are appropriate to be referred out. And

18 it is in furtherance of that mandate that this Chamber can take its

19 decision with full authority.

20 [Prosecution counsel confer]

21 MS. SOMERS: Excuse me while I confer for just a moment.


23 MS. SOMERS: Thank you.

24 [Prosecution counsel confer]

25 MS. SOMERS: As indicated a moment ago, I think the best persons

Page 208

1 to comment on the state of the law then and now, of course, are our

2 esteemed colleagues, but it is our position that the law then and the law

3 now would cover the offences that are alleged by the indictment before

4 this Tribunal. Thank you, Your Honours.

5 JUDGE ORIE: Thank you, Ms. Somers.

6 Mr. Radovic, I would like to give you the opportunity to make

7 further oral submissions. Of course we have received your written

8 submissions. The last were filed on the 1st of March. We've read that

9 carefully and perhaps you could take advantage perhaps of some of the

10 discussions and debates you have heard over the last day. Of course this

11 is a separate case, but it may be a source of inspiration for you,

12 although the issue of command responsibility, at least, plays that role.

13 Please proceed.

14 MR. RADOVIC: [Interpretation] Thank you, Your Honour. I would

15 first like to ask you, in light of the fact that I do not intend to make

16 any closing arguments, to make it possible for me to present the -- all

17 the views of the Defence on the matter of the referral of Stankovic case

18 to possible trial before a competent court in Bosnia and Herzegovina.

19 JUDGE ORIE: Yes, of course. You may make all arguments, but of

20 course there's no need to repeat what you have written already. And

21 perhaps I don't know whether that would assist you but the Chamber -- or

22 at least I have received a letter which was, I take it, sent by

23 Mr. Stankovic. Although my Cyrillic reading is not perfect, I could

24 identify that it was not only delivered to me but also addressed to me.

25 It's also addressed, although not delivered, to Judge Kwon and Judge

Page 209

1 Parker. It has not been translated. We have not read it. We find, since

2 it was addressed to these three Judges, we thought it would have to do

3 with the 11 bis application. As a matter of fact, my Cyrillic is just

4 good enough to identify that it is about 11 bis because it's mentioned in

5 the title. What I'd like to do, as a matter of fact, and if you would

6 need five minutes' time to do that, that's okay, but I would rather have

7 the letter returned because this is a matter which should be dealt with

8 through counsel. And since we have identified that it is 11 bis, I'd like

9 to give it to the usher to return it to Mr. Stankovic. And if

10 Mr. Stankovic would need three or five minutes time now with you so that

11 you know at least what Mr. Stankovic has in his mind, unless you have

12 received a copy of that letter. I'm not returning it to you because it is

13 Mr. Stankovic who has written the letter and I rather not give it to you

14 unless Mr. Stankovic would agree.

15 Mr. Stankovic, would you agree to that I give it to Mr. Radovic or

16 would you rather have it returned to you?

17 THE INTERPRETER: Microphone is not on.

18 THE ACCUSED: [Interpretation] I sent this to you. It is not a

19 letter. This is in fact my motion. And, Mr. Orie, I'm here in the status

20 of an accused and this means that I am the lead of my Defence and the not

21 the other way around. So it means that I am not here as a figurehead or

22 as a statue to be observed. I want to take an active part in my Defence,

23 in the Defence of my --

24 JUDGE ORIE: Mr. Stankovic, Mr. Stankovic. No one disallows you

25 to take an active role in your Defence. Nevertheless, you are represented

Page 210

1 by counsel. Under those circumstances, the normal way of proceeding is

2 that you discuss with counsel, especially in view of 11 bis which raises

3 complex legal issues. So if you would like -- would you like me to return

4 the letter to you or to counsel? I just need the answer to you or to

5 counsel.

6 THE ACCUSED: [Interpretation] I sent this submission to you and

7 please --

8 JUDGE ORIE: Mr. Stankovic. Mr. Stankovic, I asked you whether I

9 should -- Mr. Stankovic, I asked you -- Mr. Stankovic. Mr. Stankovic, you

10 have to keep silent now.

11 [Trial Chamber confers]

12 JUDGE ORIE: Mr. Stankovic, as I said before, upon an application

13 the Chamber might consider to give you an opportunity to briefly address

14 the Chamber. We'll consider that. It depends on how the proceedings go.

15 But -- Mr. Stankovic. Mr. Stankovic, if you listen for one second. If

16 you -- Mr. Stankovic, if you continue to behave like this, the Chamber,

17 unfortunately, will have to decide that it has to remove you from this

18 courtroom.

19 Mr. Stankovic, we first will hear what counsel says to us. I did

20 put a question to you. The question was quite simple, whether I should

21 return this letter to you or to counsel.

22 Mr. Stankovic. Mr. Stankovic, this -- Mr. Stankovic.

23 Mr. Stankovic. Mr. Stankovic, it makes no sense to address us in this

24 way, would it alone be for the reason that I've put your microphone off

25 and that it's not translated so it will not even reach us. If you intend

Page 211

1 to at least a moment that we will hear what is important for you, then I

2 think it's better not to continue this way. We'll first listen to

3 counsel. Since I have not received any instruction of whether to return

4 the letter to you or to counsel, I'll keep it for a while. And I'm still

5 -- Mr. Stankovic -- Mr. Stankovic -- Mr. Stankovic -- Mr. Stankovic, this

6 is my last warning. This is my last warning. If you continue like this,

7 you'll be removed from this courtroom.

8 Mr. Radovic, you'll have to do it without the letter. Please

9 proceed.

10 MR. RADOVIC: [Interpretation] Thank you, Your Honour. The Defence

11 sees this hearing as an opportunity for the parties to present their

12 arguments regarding whether the case of Mr. Stankovic meets all the

13 criteria set out in Rule 11 bis and to participate to the Chamber making a

14 proper decision in the matter. Several basic questions will be addressed

15 here.

16 Is it possible to refer this case to the courts in Bosnia and

17 Herzegovina? If it is indeed possible, which court does it have to be

18 referred to and whether the ICTY has any influence in this matter. If it

19 is indeed referred to the courts in Bosnia and Herzegovina, which law will

20 be applicable? And if the ICTY again on this issue has any role to play

21 in making that determination. Mr. Stankovic's Defence will present its

22 views and will make reference to the positions expressed by the

23 Prosecution as the Defence see those positions.

24 The Prosecutor claims on the basis of the arguments presented in

25 their motion and on the basis of the arguments that we heard in the court

Page 212

1 of the hearing -- in the course of the hearing, that Mr. Stankovic's case

2 meets all the conditions for the referral to the state court of Bosnia and

3 Herzegovina. These reasons all boil down to the criteria of the gravity

4 of the case, the degree of responsibility of Mr. Stankovic, and other

5 relevant issues. The Defence will say a few words about all those issues.

6 The gravity of the crime. The arguments presented by the

7 Prosecution with regard to the gravity of the crimes are contradictory for

8 the most part. First of all, the Prosecution claims that Mr. Stankovic is

9 charged with serious criminal offences which have already been adjudicated

10 by the Tribunal in the Kunarac and others case and where severe sentences

11 were handed down. In the Prosecution motion of the 21st of January [sic],

12 2005, that is in paragraph 2. But the Prosecution goes on to claim that

13 those crimes, when considered in their scope, are not such that they merit

14 the trial before the ICTY.

15 I would like to remind the Trial Chamber that the accused Vukovic

16 in the same case was tried together with Kunarac for criminal offences of

17 much lesser scope than the crimes that Mr. Stankovic has been charged with

18 in the indictment. Secondly, the Prosecution claims that these crimes are

19 indeed quite serious, the crimes that Mr. Stankovic is charged with, but

20 that one must be guided by reasons contained in the most recent strategy

21 and statement of reasons as presented in the resolution of the UN Security

22 Council which stipulate that only perpetrators of high rank in the state,

23 military, or political chain of command should be tried before the ICTY.

24 The question is then: Why were those people indicted, I mean the people

25 like Mr. Stankovic, who are at the lowest level in this chain of command

Page 213

1 and whose alleged crimes are not serious enough when it comes to their

2 scope, and why has Mr. Stankovic then been held in detention for more than

3 two years and seven months and that his trial is still pending? Yet, the

4 ICTY should not try him.

5 In all this the Defence holds that the Prosecution's positions

6 were based on judgements in the Kunarac and others case, but the

7 Prosecution must note that if they want to use this as a reference, this

8 judgement as a reference, and Stankovic has nothing to do with that, then

9 the arguments that they put forward are not proper because the conclusion

10 should be that Mr. Stankovic should be tried before ICTY, especially in

11 light of the judgement passed in the Kunarac and others case.

12 Now, as for the level of responsibility of Mr. Stankovic, it seems

13 that the Prosecution accepts that Mr. Stankovic's position in light of the

14 -- of his position in the state, political, and military chain of command

15 is at the lowest level of this chain of command because he was merely a

16 soldier in the infantry, as stated in paragraph 8 of the Prosecution

17 motion of the 21st of February, 2005. So he's even below the medium rank

18 of the chain of command, and he's charged with being in charge of a

19 brothel together with three other soldiers, so his level of responsibility

20 is even lower. The position that the person held should be taken into

21 count when determining the level of responsibility of that person, but the

22 Defence must note here that the Prosecution again is using arguments that

23 have not been confirmed or corroborated, which means that we cannot now

24 talk about the establishment of a brothel because this has not been

25 established as a fact in Kunarac and others case which is used as a basis

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Page 215

1 for the conclusions reached by the Prosecution.

2 It is quite clear that Mr. Stankovic was an ordinary soldier in

3 the military police, and it is also quite clear that he was at the lowest

4 level in the state, military and political chain of command, as the

5 Prosecution notes, but he never reached the medium rank; he was at the

6 lowest rank in view of the fact that he didn't have anything to do with

7 Karremans house. This level of responsibility gives him reason to claim

8 that if he is to be charged for rape and other criminal offences, these

9 crimes must be qualified as ordinary crimes and not as war crimes or

10 crimes against humanity.

11 Mr. Stankovic cannot be considered to have participated in a

12 widespread attack against civilians on the basis of such allegations

13 because he, as the lowest ranking person, can have no knowledge of that.

14 He cannot be aware of the fact that he may have participated in such an

15 attack, even had he committed the acts he was charged with, which he did

16 not. But at any rate this condition has not been met and it has to be met

17 for the war crimes qualifications to operate.

18 Other relevant issues. The Prosecution deems that when the

19 special department of the state court of Bosnia and Herzegovina was set

20 up, that this makes it possible for Mr. Stankovic to be tried before this

21 court as a national court in keeping with the views expressed by the UN

22 Security Council to unburden the ICTY so that it does not have to try

23 cases which are of lower importance. The Defence would like to ask a

24 question as a matter of principle: What would the national court be in

25 Mr. Stankovic's case? Which court should it be?

Page 216

1 According to the provisions of the Dayton agreements and the

2 constitution of Bosnia and Herzegovina, in the former Bosnia and

3 Herzegovina two entities were established, the Federation of Bosnia and

4 Herzegovina and Republika Srpska. Both entities, according to their own

5 constitutions and laws, have their own courts which is part of the

6 partition of government. The fact that there is the assembly of the

7 Republika Srpska, which is the highest -- the highest legislative body and

8 the prime -- and the government, which is the highest executive body, and

9 the Supreme Court, which is the highest judiciary body in Republika

10 Srpska, it is quite clear that Republika Srpska has all the attributes of

11 statehood and in accordance with the laws on courts of Republika Srpska it

12 has jurisdiction to try all its citizens for all crimes, including war

13 crimes, crimes against humanity and against international law, and other

14 crimes from chapter 17 of the Criminal Code of Bosnia and Herzegovina.

15 So since Mr. Radovan Stankovic is resident of Miljevina in the

16 municipality of Foca, which is under the jurisdiction of the Trebinje

17 district court, it is quite clear that in accordance with Article 9(1) of

18 the Statute of the Tribunal, the district court of Trebinje has

19 jurisdiction to try Mr. Stankovic's case. In accordance with the laws on

20 the courts and offices of the prosecutor in Republika Srpska and the

21 federation, district courts, cantonal courts, and prosecutors' offices at

22 those two levels have subject matter jurisdiction to try war crimes and

23 crimes against humanity.

24 In accordance with Article 26 of the Criminal Code of the

25 Federation of Bosnia and Herzegovina, Official Gazette of the Federation

Page 217

1 of Bosnia and Herzegovina 35/3 of the 28th of July, 2003, and Article 25

2 of the law on criminal procedure of Republika Srpska, which is applicable

3 in Republika Srpska, in force there, the court that has territorial and

4 subject matter jurisdiction is the court where the crime was committed,

5 forum delictum comissi.

6 In accordance with the Article 26.1 of the Criminal Code -- 24.1

7 of the Criminal Code of the Federation of Bosnia and Herzegovina --

8 THE INTERPRETER: Could the counsel please be asked to slow down

9 when quoting from the laws.

10 JUDGE ORIE: Mr. Radovic, the interpreters, when you quote from

11 the law, have difficulties in following your speed. So would you please

12 slow down a bit.

13 MR. RADOVIC: [Interpretation] Very well, Your Honour.

14 I will repeat part of what I said. Pursuant to Article 24,

15 paragraph 1, of the Criminal Code of the Federation of Bosnia and

16 Herzegovina, Official Gazette of the Federation of Bosnia and Herzegovina

17 number 36/03 of the 29th of July, 2003, and Article 10, paragraph 1, of

18 the Criminal Code of Republika Srpska, Official Gazette of Republika

19 Srpska number 49/03 of the 25th of June, 1993: "A crime has been

20 committed where the perpetrator was working or was duty-bound to work or

21 in the place where the consequence took place."

22 According to a decision by the cantonal court in Sarajevo, and

23 that's decision KPP204-04 and KV417/04 when determining which court is

24 competent, the provisions of Article 26, paragraph 1, of the law on

25 criminal procedure of the Federation of Bosnia and Herzegovina is to be

Page 218

1 applied. Pursuant to this provision, the court that has territorial

2 jurisdiction is the court on whose territory the crime was committed or

3 attempted. And Article 28 of the same law states that if the crime was

4 committed outside the territory of the Federation of Bosnia and

5 Herzegovina, then the competent court will be the court on the territory

6 of which the accused has his residence."

7 As Mr. Stankovic has been accused of having committed crimes on

8 the territory of the municipality of Foca, where he has his residence and

9 where he was deprived of his liberty, it is clear that it is the district

10 court in Trebinje that has territorial jurisdiction and also subject

11 matter jurisdiction under the law on courts and prosecutors of the

12 Federation of Bosnia and Herzegovina and Republika Srpska.

13 One should bear in mind that Rule 11 bis (A) provides for the

14 responsibility that a case be referred to the authorities of the state,

15 and I stress authorities of the state, on whose territory the crime was

16 committed or where the perpetrator -- the accused was arrested and which

17 is able and willing to try him. And this differs from Article 9,

18 paragraph 1, of the statute because in Rule 11 bis the case is referred to

19 the authorities of a state which may then transfer the case to a competent

20 court, whereas Article 9, paragraph 1, of the statute expressly provides

21 that there is concurrent jurisdiction of the Tribunal and the national

22 court. Therefore, the statute provides quite clearly that the case should

23 be referred to a national court rather than to the authorities of a state.

24 In Mr. Stankovic's case, this would be the district court in Trebinje,

25 which has subject matter and territorial jurisdiction in his case.

Page 219

1 An analogous interpretation of the provisions of Rule 11 bis (A),

2 that the case is to be referred to the authorities of a state, then the

3 case would have to be referred to the authorities of Republika Srpska,

4 which would then hand the case to the district court in Trebinje and not

5 to the state court of Bosnia and Herzegovina, as the Prosecutor claims.

6 The Defence asserts that the special department of the war -- of the state

7 court is a court where there is a national and also a foreign judge as

8 well as a national -- as well as a foreign prosecutor. And this cannot be

9 a national court because a national court consists of judges and

10 prosecutors of only one state. The state court of Bosnia and Herzegovina

11 and its special department is therefore a kind of international court

12 which does not have the competence to try crimes committed on the

13 territory of the former Yugoslavia because the Security Council founded

14 the ICTY and, pursuant to Article 1 of the Statute of the Tribunal, it is

15 the only international tribunal or court competent to try persons

16 responsible for serious violations of international humanitarian law

17 committed on the territory of the former Yugoslavia from 1991. So there

18 can be no other international court competent to try these crimes.

19 JUDGE ORIE: Mr. Radovic, I noticed that you are repetitive in the

20 sense that you are not summarising what was in your written submissions

21 but at least in some aspects you just repeated almost in full. The

22 Chamber has carefully read what you've written, and the Chamber, apart

23 from of course -- it's free for you to summarise whatever was in your

24 written submissions, but the Chamber would like to of course hear any

25 additional submissions. Please proceed.

Page 220

1 MR. RADOVIC: [Interpretation] Your Honour, before I started

2 speaking, I asked you to give me extra time because I will not be asking

3 for any time for my final submissions. I only had one day in which to

4 respond to Your Honours' questions, so I am now expanding on all the facts

5 that I put forward in my submission of the 1st of March.

6 JUDGE ORIE: Please proceed, but I heard a few matters that appear

7 already in your earlier submissions as well.

8 MR. RADOVIC: [Interpretation] The state court of Bosnia and

9 Herzegovina is an international court because of its international

10 composition and this cannot be founded by the law of a state but only by

11 an international conference or an international treaty, not even by a

12 decision of the Security Council, which is the way in which the ICTY was

13 founded. Rather, the proper procedure is the one by which the ICC was

14 established. The state court of Bosnia and Herzegovina and its special

15 department was not properly established and therefore cannot operate. It

16 is odd that Bosnia and Herzegovina as a state has embarked on the passing

17 of such a law, although it's quite clear that a state cannot establish an

18 international court by its legislation. Therefore, the state court and

19 its special department can have no competence and Mr. Radovan Stankovic

20 cannot agree to be tried before such a court.

21 Perhaps a solution might be to establish a special department of

22 this court to try accused for war crimes that happened in Bosnia and

23 Herzegovina from 1992 to 1996. Bearing in mind the practice hitherto of

24 courts in Bosnia and Herzegovina which, as has already been said, has

25 accepted the standpoint that subject matter jurisdiction for crimes

Page 221

1 enumerated in Article 17 -- in chapter 17 for crimes committed on the

2 territory -- or attempted on the territory or where the accused has his

3 residence, the cantonal court in Sarajevo would then refer this to the

4 district court in Trebinje rather than to the state court. It is

5 therefore quite clear that Mr. Stankovic's case, if it is referred to a

6 national court, must be referred to the district court in Trebinje.

7 According to my latest information from the public media, on the

8 9th of March the judges are to take their oath as judges of the state

9 court and the Detention Unit is to be handed over to the Ministry of

10 Bosnia and Herzegovina by Mr. Paddy Ashdown, the representative of the

11 international community for administration. This further supports the

12 assertion of the Defence that this is an international court and that the

13 international community is participating in its establishment and that the

14 court was established by a law of Bosnia and Herzegovina pursuant to a

15 decision reached at a diplomatic conference, whereby an international

16 court was established. It is therefore quite clear that such a court

17 cannot start dealing expeditiously with this case within a period of six

18 months, and this would mean that Mr. Stankovic has been deprived of his

19 right to have a trial without undue delay, as guaranteed by Article 6 of

20 the European Convention on Human Rights and Article 21, paragraph 4(C) of

21 the Tribunal's Statute.

22 Mr. Stankovic has been in this position for some time now as he

23 was detained more than two and a half years ago. He was detained on the

24 10th of July, 2002, and more than a year and a half ago his Defence said

25 that it was ready for trial and submitted its pre-trial submission -- its

Page 222

1 brief in June 2004, thus fulfilling the conditions for the start of trial;

2 however, no trial was scheduled. Because of everything I have said,

3 Mr. Radovan Stankovic feels that the conditions have not been fulfilled

4 for the referral of his case to the state court of Bosnia and Herzegovina.

5 Should this Chamber decide to do this, this decision must include the

6 following instructions: That the case be referred to the court with

7 subject matter and territorial jurisdiction, which is the district court

8 of Trebinje, and that the laws to be applied are the laws of Republika

9 Srpska. The national legislation must be applied.

10 Even if the state court of Bosnia and Herzegovina could be

11 considered a national court, it applies the laws of the country whose

12 court is trying the criminal case. This would mean that should

13 Mr. Stankovic appear before the court of Bosnia and Herzegovina, it would

14 have to apply the Criminal Code and the law on criminal procedure of

15 Republika Srpska or the -- these laws of Bosnia and Herzegovina or the

16 Federation, and these are practically identical in their solutions.

17 The application of the legislation of the country, the court of

18 which is trying a case, implies primarily bringing the indictment against

19 Mr. Radovan Stankovic before this Tribunal into harmony with the elements

20 that an indictment must contain pursuant to the law on criminal procedure,

21 whether of Republika Srpska or of the Federation of Bosnia and Herzegovina

22 or the law on criminal procedure of Bosnia and Herzegovina. The procedure

23 of harmonising the ICTY indictment with an indictment such as can be

24 raised pursuant to the law on criminal procedure of either Bosnia and

25 Herzegovina or the Federation or Republika Srpska would take time,

Page 223

1 especially if there were a right to object. And this would again be

2 detrimental to the exercise of Mr. Stankovic's right to have no undue

3 delay.

4 The accused Mr. Stankovic would in that case have to have the

5 right to choose whether he will object, bearing in mind the provisions on

6 the possible length of detention after the confirming of an indictment.

7 In any case, as the indictment was handed to Mr. Stankovic on the 10th of

8 July, 2002, when he was brought to the UN Detention Unit, this is the

9 latest date that can be taken as to the date on which the indictment was

10 confirmed. Should Mr. Stankovic's case be referred to a national court,

11 Mr. Stankovic would immediately have to be released because his detention

12 cannot last longer than one year after the indictment is confirmed, and

13 Mr. Stankovic has already been in detention for two years, seven months,

14 and 21 days.

15 Whether we apply the provisions of paragraph 2 of Article 194 of

16 the law on criminal procedure of Republika Srpska or the provisions of

17 paragraph 2, Article 137 of the law on criminal procedure of Bosnia and

18 Herzegovina, or paragraph 2, Article 151 of the law on criminal procedure

19 of the Federation of Bosnia and Herzegovina, all three laws on criminal

20 procedure which were in force on the territory of Bosnia and Herzegovina,

21 provide for the release of an accused on the expiry of one year from the

22 date that the indictment was confirmed. And this would mean that the date

23 on which Mr. Stankovic was transferred to any part of Bosnia and

24 Herzegovina, his detention would have to be terminated. And the Tribunal

25 could not influence such a decision, nor can the Tribunal put any

Page 224

1 limitations on the application of these laws.

2 When it comes to the application of the Criminal Code, all three

3 Criminal Codes in force contain provisions that provide that the

4 provisions that were in force at the time of the commission of the act

5 should be -- should apply, which means that in Mr. Radovan Stankovic's

6 case, only provisions of Article 142 of the Criminal Code of the SFRY,

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

8 apply. This was adopted by the state of Republic of Bosnia and

9 Herzegovina after it was internationally recognised by a decree law on the

10 adoption of the SFRY Criminal Code, Official Gazette of the Republic of

11 Bosnia and Herzegovina number 2, 11th of April, 1992. All three Criminal

12 Codes in force provide that the provisions that are more lenient for the

13 perpetrator must apply if any amendments to the Criminal Code were

14 effected in the period between the commission of the act and the actual

15 trial, which means that the provisions from the Criminal Code where the

16 death penalty was abolished should apply. The most severe penalty for

17 crimes described in Article 142 of the Criminal Code of the SFRY is 15 to

18 20 years in prison.

19 If Mr. Stankovic's case were to be referred to the state court of

20 Bosnia and Herzegovina, then certain witness protection measures might

21 apply which once again should be adapted to the provisions of the national

22 laws which do provide for such measures. In that case, the Defence would

23 ask that the Defence witnesses be guaranteed that they would not be

24 arrested or in other ways intimidated or interfered with en route to

25 Bosnia and Herzegovina and there and that they be protected, both they and

Page 225

1 their family members, and that they could testify with protection of their

2 identity.

3 If the case were to be referred to the district court in Trebinje,

4 the Defence would consider witness protection measures, but at any rate it

5 would be made in accordance with the laws applicable before the national

6 courts and the provisions of the Tribunal, the Rules of Procedure and

7 Evidence, Rule 11 bis (D)(i) would not apply because the ICTY can -- its

8 primacy can operate only when the cases are deferred to it from national

9 courts. According to the rules of the ICTY, a state cannot be ordered to

10 change its rules of evidence, because the Tribunal does not have powers to

11 do so.

12 Another issue is providing instruments to ensure the -- that

13 witnesses appear before the court. Because according to the Defence,

14 passing such law is not enough to protect the identity of witnesses.

15 JUDGE ORIE: Mr. Radovic, before you continue, first of all I'd

16 like you to slowly come to conclusions, and then it's not for this Chamber

17 to decide to which court a case will be sent. The Tribunal can send the

18 case to a jurisdiction but not to a specific court within that

19 jurisdiction. This does not mean that the Chamber is not interested in

20 knowing where the case finally will go because it has to make a lot of

21 determinations which might be related to the type of court this Chamber

22 could expect the case to be referred to, but what you're telling us now is

23 how to deal with the case once it is referred is not within the competence

24 of the Chamber. Could you please -- because I again noticed that at least

25 some of your submissions are not even a summary of what you have submitted

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Page 227

1 before but sometimes even full repetition. Could you please slowly come

2 to your conclusions.

3 MR. RADOVIC: [Interpretation] All right, Your Honours, I will cut

4 my opening remarks short.

5 There is another question of how witnesses could be protected

6 because just a declaratory passing of this law is not enough. Let me give

7 you a few practical examples. Since a Defence counsel of persons accused

8 of war crimes, I did take part in proceedings before the cantonal court

9 and the district court in Trebinje. The existing protection mechanisms to

10 protect the identity of witnesses are not existent before those courts. I

11 don't know whether there is a special unit at the state court of Bosnia

12 and Herzegovina which would implement witness protection measures as

13 provided for in the law.

14 JUDGE ORIE: Mr. Radovic, perhaps it's good that I draw your

15 attention to the fact that further information has been submitted by

16 Bosnia and Herzegovina on, amongst other matters, witness protection also

17 before the state court. Perhaps you could respond to that in writing once

18 you've read those submissions. The Tribunal apologises that the

19 distribution of the submissions have not been dealt with in a way which we

20 could call efficient. Please proceed.

21 MR. RADOVIC: [Interpretation] I agree with your decision, Your

22 Honour. Let me just stress, as I conclude: The Defence wishes to note

23 that referring Mr. Radovan Stankovic's case to the state court in Bosnia

24 and Herzegovina or any court in the Federation of Bosnia and Herzegovina

25 is in contravention of the convention against torture and other cruel and

Page 228

1 inhumane acts and punishment from 1947, because in accordance with Article

2 1 of the convention against torture, cruel, inhumane and degrading

3 treatment or punishment, many violations of the said convention were noted

4 in Bosnia and Herzegovina. According to the state department report on

5 human rights in 2003, it transpires that there are many problems in the

6 prisons of Bosnia and Herzegovina and that human rights are being

7 violated, and according to the Human Rights Watch report from the year

8 2004, in a statement made by the director of their international

9 programme, intimidation of witnesses, bias shown to the accused on the

10 basis of their ethnic background on the part of judges and other judicial

11 personnel, this only goes to show that the conditions for the referral of

12 his case to the state court in Bosnia and Herzegovina have not been met

13 because he would face treatment which would be in contravention of this

14 convention.

15 JUDGE ORIE: Thank you, Mr. Radovic.

16 I would now give an opportunity to the representatives of the

17 Government of Bosnia and Herzegovina to address the Chamber. I take it

18 that we specifically focus on this case in the case that we've heard

19 yesterday and today. I think, Madam President Kreso, you addressed global

20 matters also. Of course I would not mind you to repeat them, but of

21 course this Chamber is aware -- I did understand that counsel is aware of

22 what you said as well. So I'll leave it to you to address the Court.

23 MS. KRESO: [Interpretation] Your Honours, I appreciate that your

24 time is valuable and in view of the fact that Mr. Radovic heard what we

25 said on both days in another case, this makes our job today easier. So I

Page 229

1 will not repeat the arguments I put forward yesterday. By your leave, I

2 will abbreviate what I say so that my colleague, Mr. Vaso Marinkovic, may

3 also address Your Honours in support of the case put forward by the

4 delegation of Bosnia and Herzegovina.

5 You and my colleague Mr. Radovic have heard that the judiciary of

6 Bosnia and Herzegovina has prepared all the conditions to enable it to

7 deal in a proper way with all those cases that this Chamber may decide to

8 refer to Bosnia and Herzegovina. You have heard our arguments to show

9 that we have created all the procedural material and technical conditions

10 to deal with such trials successfully. And by "successfully" I mean that

11 all the accused, not just Stankovic, should be given a fair trial and due

12 process and that our legislation and our judicial system provide all the

13 rights that the accused have before this esteemed Tribunal.

14 I will not repeat again what laws we have passed, what conditions

15 we have created, and how we have made sure that we shall be competent to

16 try each case fairly and expeditiously and efficiently. With all due

17 respect for my learned friend Mr. Radovic I must say that I have heard not

18 a single legal argument which would challenge the Prosecution motion to

19 have this case transferred to a national court.

20 Let me just briefly put upon the remarks made by my learned friend

21 Mr. Radovic. He considers that courts of an entity are national courts;

22 however, it is well-known that Bosnia and Herzegovina is an

23 internationally recognised state which comprises two entities and one

24 district. These, however, do not have the attributes of statehood. Only

25 the court of Bosnia and Herzegovina may be considered a national court.

Page 230

1 It is national for several reasons; among others, that its competence

2 covers the entire territory of Bosnia and Herzegovina, all entities. The

3 Defence is correct when it states that the accused Radovic -- the accused

4 Stankovic, excuse me, allegedly committed the crime on the territory of

5 Republika Srpska, Foca, and that he's permanently resident in Miljevina.

6 This fulfils one of the requirements, however the subject matter

7 jurisdiction must also be kept in mind. According to the penal code now

8 in force in Bosnia and Herzegovina, the only court with subject matter

9 jurisdiction for these crimes is the court of Bosnia and Herzegovina.

10 Chapter 17 of the Criminal Code of Bosnia and Herzegovina contains

11 crimes against humanity and values protected by international law, and

12 this includes the crime that the accused has been charged with. In my

13 view, an accused cannot choose the court he considers to be competent, nor

14 can he alter the subject matter jurisdiction of a court. This is the only

15 argument, at least as far as I was able to understand, that the Defence

16 has put forward as an argument against the Prosecution's motion.

17 The claim made by the Defence that the court of Bosnia and

18 Herzegovina is an international court is in my view quite wrong and

19 erroneous. It is truly the court of Bosnia and Herzegovina. The fact

20 that it contains an international component, international judges and

21 prosecutors, merely strengthens the court and goes to support claims that

22 judges and prosecutors may have national feelings and therefore be -- not

23 be impartial. You have heard, however, that the judges in the court of

24 Bosnia and Herzegovina come from all entities and all ethnic groups and

25 are selected by an independent body. My learned friend Mr. Radovic has

Page 231

1 had opportunities to appear before this court as Defence counsel and to

2 see it in operation.

3 I also wish to draw your attention to the fact that the accused

4 cannot decide when the deadline begins to run after his -- after the

5 confirmation of his indictment. The rules on the transfer of cases and on

6 the use of evidence obtained from the ICTY before courts in Bosnia and

7 Herzegovina - this is a law - and Article 2, paragraph 1, expressly

8 provides that an indictment referred by the ICTY to the prosecution of

9 Bosnia and Herzegovina where, pursuant to 11 bis of the Rules of Procedure

10 and Evidence of the ICTY, the indictment has been confirmed, after the

11 prosecutor adapts in a formal manner this indictment to the legislation of

12 Bosnia and Herzegovina, this indictment will then be sent for confirmation

13 to the court. The accused cannot change the provisions of this law.

14 Therefore, the time limit for the confirmation of the indictment is

15 prescribed by law. On the day when the court of Bosnia and Herzegovina,

16 and not any other court, confirms the indictment, that is when the

17 deadlines for detention will begin to run.

18 I also wish to draw your attention to the following provision, or

19 rather paragraph of the same Article 2 of the same law, according to which

20 detention for the accused must be determined in compliance with the

21 provisions of the law on criminal procedure of Bosnia and Herzegovina and

22 the time spent in detention at the ICTY is not counted as the time spent

23 in detention in Bosnia and Herzegovina but is credited against his

24 sentence handed down by the criminal -- by the court of Bosnia and

25 Herzegovina.

Page 232

1 I will not repeat again how well-prepared the court is to handle

2 such cases. We support the Prosecution motion because it fulfils all the

3 requirements for transferral. I now wish to give the floor, by your

4 leave, Your Honours, to my colleague, Mr. Vaso Marinkovic.

5 JUDGE ORIE: Yes, Mr. Marinkovic, would you inform us what

6 specific matters you would like to address so that we can better follow

7 you.

8 MR. MARINKOVIC: [Interpretation] Your Honours, after the

9 presentation of my colleague, Madam Kreso, I will be very brief. One of

10 the issues which have remained unclear after our previous presentation at

11 the previous hearing, I wanted to intervene but there was not enough time,

12 I would like to go back to what Mr. Radovic said about the fact that the

13 special department of the -- the war crimes department of the prosecutors

14 office of Bosnia and Herzegovina is unprepared. We have eight domestic

15 prosecutors in this prosecutor's office and five more are undergoing

16 training. In the past six months or a year, there are continuous training

17 programmes, both for the prosecutors of Bosnia and Herzegovina and of the

18 judges. One of the training programmes began yesterday and will last for

19 eight days, and let me just note that five state prosecutors of Bosnia and

20 Herzegovina who were appointed to work in the war crimes department spent

21 five working days in The Hague right here where they were trained,

22 underwent training, by the staff of the OTP. This is what I wanted to say

23 vis-a-vis this claim that the prosecutors in Bosnia are unprepared. If

24 you take into account what Madam Kreso, the president of the court said,

25 that the prosecutors and the judges were appointed by the high judicial

Page 233

1 council and that they are selected only from the highest quality of

2 personnel, I would not agree with the claim that the prosecutors are not

3 prepared to deal with such cases.

4 This is in fact all I had to say. Thank you very much, Your

5 Honours.

6 JUDGE ORIE: Thank you, Mr. Marinkovic. Perhaps you would have

7 convinced the Defence better if you would have said that you would have

8 had the training not from the OTP but from the Association of Defence

9 Counsel before this Court. But I respect your observations in respect of

10 training of the prosecutors of the senior court.

11 MR. MARINKOVIC: [Interpretation] Your Honours, if I may. It was

12 in fact an error on my part. In fact, it is the OTP, the Office of the

13 Prosecutor, this is where we underwent training.

14 JUDGE ORIE: Yes. There I said that Defence might have been more

15 convinced if you would have had the training from the Association of the

16 Defence Counsel rather than from the prosecutor, the Office of the

17 Prosecution.

18 Let's continue. This is not a vital observation in this hearing.

19 Yes, Mr. Radovic, what I'd like to do at this moment is to give an

20 opportunity --

21 MR. RADOVIC: [Interpretation] Your Honours, I will be very brief.

22 I think is that my learned colleague Marinkovic misunderstood me. I did

23 not say that the prosecutors, the state prosecutors, of Bosnia and

24 Herzegovina were unprepared. I merely, on the basis of the materials

25 published by certain organisations, I quoted from those materials and

Page 234

1 those quotes referred to other courts not the court of Bosnia and

2 Herzegovina.

3 JUDGE ORIE: So that is then clarified. Thank you very much,

4 Mr. Radovic.

5 I'd first like to see whether there are any questions from the

6 Bench.

7 I see, Mr. Stankovic, that you're asking whether you can address

8 the Court as well. Let me just -- wait for one second.

9 [Trial Chamber confers]

10 JUDGE ORIE: Mr. Stankovic, as I indicated before, if you would

11 like to address the Court, you can do so. We'll give you five minutes for

12 that. I may be quite clear: I said before that since you are represented

13 by counsel that it's usually through counsel that you address the Court,

14 but I take it, Mr. Radovic, that you have no major objections to

15 Mr. Stankovic addressing the court. If you would like to further instruct

16 him or further give guidance to him at this moment, you'll have an

17 opportunity to do so.

18 Mr. Stankovic, therefore you'll get five minutes, and I add to

19 that that if you -- well, let's say mind your language. We're willing to

20 listen to you and we'd rather listen to you in language which we're

21 acceptable of. So please, you have five minutes and that's in addition to

22 the time given to counsel.

23 THE ACCUSED: [Interpretation] I will only speak with arguments,

24 proper arguments. Thank you, Mr. Orie. I would just like you -- like you

25 not to interrupt me in the middle of my sentence.

Page 235

1 It is quite clear to me, gentlemen, that you have already made a

2 decision to refer this case and this courtroom -- this hearing is just a

3 formality. And I and my Defence submitted in writing our request to have

4 an individual hearing or ex parte hearing on this issue. We want to

5 exercise our right and to raise many issues pertaining to the referral of

6 my case before the courts of the Bosnia and Herzegovina Jamahiriya to have

7 the rules of the game determined, and not for you to just get rid of me,

8 to refer me to the Bosnia and Herzegovina Jamahiriya and then to determine

9 the rules of the game as it fits particular parties at any given moment.

10 Let us see what the law -- what is the law applied by the courts in the

11 Jamahiriya of Bosnia and Herzegovina. What laws? Who is judging? Who is

12 prosecuting? Is it just a branch office of the ICTY in Bosnia and

13 Herzegovina or is the case really to be referred to the court of Bosnia

14 and Herzegovina to be tried according to the Criminal Code of Bosnia and

15 Herzegovina, or rather, to the -- or according to the Criminal Code of

16 Republika Srpska? Or would the judgement be delivered by Mr. Paddy

17 Ashdown in some kind of a feudal decree summarily, as he has already done

18 in Republika Srpska? Will I be tried by foreign judges or by Ustasha

19 Mujahedin judges? If I will be tried by Ustasha Mujahedin judges, how can

20 you even think that I would be given a fair trial?

21 JUDGE ORIE: Mr. Stankovic, I have given you an opportunity to

22 address the Court --

23 THE ACCUSED: [Interpretation] Please do not interrupt me because I

24 am about to get to the key issue, the argument in the case. Please allow

25 me.

Page 236

1 JUDGE ORIE: Mr. Stankovic, I said one thing to you, that is:

2 Mind your language. Therefore, if you want to refer -- if you want to

3 refer -- your microphone is off, Mr. Stankovic. If you want to refer --

4 Mr. Stankovic, no one hears you. If you -- I just want to give you the

5 following guidance: If you want to refer -- Mr. Stankovic, now you stop

6 speaking or you're removed. Mr. Stankovic, last warning. The only thing

7 I wanted to say to you, that if you wanted to refer to other groups or

8 ethnicities -- Mr. Stankovic, you'll be removed out of the courtroom.

9 Gentlemen, would you please remove Mr. Stankovic from the

10 courtroom.

11 He'll have an opportunity to hear what's said.

12 Could I ask the ...

13 [Private session]

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 237

1 (redacted)

2 (redacted)

3 [Open session]

4 JUDGE ORIE: -- if he would like to know what has been said, then

5 an application could be made for an audio tape of the remainder of this

6 hearing.

7 Well, it's now time for further questions by the Bench.

8 [Trial Chamber confers]

9 JUDGE KWON: Just one question. Madam Kreso, I'd like to be clear

10 whether I understand you correctly when you said that chapter 17 of the

11 Criminal Code of Bosnia and Herzegovina will apply to this case. I

12 understand that based on your assertion is that what is alleged in the

13 indictment constituted a crime already then by the -- by then-existing

14 law, but current law of yours is more lenient so that's the base of the

15 application of the current law. Am I correct in understanding so?

16 THE INTERPRETER: Microphone, please.

17 MS. KRESO: [Interpretation] Your Honour, when I quoted chapter 17,

18 which lists crimes against humanity and values protected by the

19 international law, I did so to support my claim that the court of Bosnia

20 and Herzegovina is the only court that has jurisdiction to try such cases.

21 I did not go into the length that this law was actually in force. My

22 learned colleague Ms. Lauth actually spoke about that. What I wanted to

23 stress is that the court where the crime was committed is not the only

24 court that has territorial jurisdiction, but one has to take into account

25 the subject matter jurisdiction. No court in Bosnia and Herzegovina,

Page 238












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Page 239

1 Republika Srpska, Federation of Bosnia and Herzegovina, and district of

2 Brcko has jurisdiction to try such cases. The only court that has been

3 given subject matter jurisdiction to try those cases is the court of

4 Bosnia and Herzegovina.

5 JUDGE KWON: Thank you, Madam. I understand that but I'm

6 interested in the substantive law, what law should be applied. You are

7 saying that Criminal Code of Bosnia and Herzegovina enacted in 2003 should

8 be applied. In earlier submission you said that there's no need for the

9 international law to be applied in this case, but according to Criminal

10 Code of Socialist Federative Republic of Yugoslavia existed at the time

11 and then -- so what is alleged in the indictment is punishable already but

12 the current law is more lenient, so that's the base, you can apply the

13 current law, as I understand it. But my question is: Why not Criminal

14 Code of Republika Srpska? That's the crux of my question. Could you

15 address the matter, please.

16 MS. KRESO: [Interpretation] Criminal Code of Republika Srpska,

17 which has also been enacted in the past year, does not provide for the

18 Prosecution of those criminal offences. It simply does not contain such

19 provisions because the Prosecution of such cases has been entrusted to the

20 court of Bosnia and Herzegovina. It is the only court that has

21 jurisdiction.

22 JUDGE KWON: So current Criminal Code of Republika Srpska does not

23 contain those provisions. Am I correct?

24 MS. KRESO: [Interpretation] Yes, it does not contain.

25 JUDGE KWON: Mr. Radovic.

Page 240

1 MR. RADOVIC: [Interpretation] If you allow me to add something to

2 what Madam President of the court of BH said. I will ask just one

3 question: What do the cantonal or district courts prosecute in terms of

4 war crimes? It is quite true that war -- that the crimes described in

5 chapter 17 of the Criminal Code of Bosnia and Herzegovina do not exist in

6 the Criminal Codes of the two entities, but cantonal and district courts

7 do have jurisdiction to prosecute war crimes.

8 JUDGE KWON: Yes, Mr. Marinkovic.

9 MR. MARINKOVIC: [Interpretation] Your Honour, it is quite true

10 what my colleague Mr. Radovic said. It is quite true that before district

11 and cantonal courts proceedings are underway for war crimes. The court of

12 Bosnia and Herzegovina and the prosecutor's office of Bosnia and

13 Herzegovina at this point simply does not have the capacity to try all the

14 cases that are pending under the rules of the road before various courts

15 and that were sent to the ICTY for review. It is true that there are

16 grounds for suspicion that war crimes have been committed against over

17 10.000 cases, but the criteria that applied was the sensitivity of each

18 case.

19 There are three -- two categories: Highly sensitive and sensitive

20 cases. Every war crime case must come to the state prosecutor's office of

21 Bosnia and Herzegovina where it is reviewed. If it is determined that a

22 case is of a sensitive nature, it is returned to the cantonal or district

23 court. If a case is determined to be very highly sensitive, then the

24 prosecutor's office of the state of Bosnia and Herzegovina keeps it and

25 will prosecute it, but this case on the Rule 11 bis is not one of those

Page 241

1 cases. According to the law on transfer of cases, this case is directly

2 transferred to the state of Bosnia and Herzegovina, the court and the

3 prosecutor's office, and cannot be transferred to any other case [as

4 interpreted] but only can be tried before the court of Bosnia and

5 Herzegovina.

6 Let me just very briefly say something. If Your Honours decide to

7 refer this case with an indictment that was already confirmed to the

8 prosecutor's office of the state of Bosnia and Herzegovina, according to

9 the law on criminal procedure, the prosecutor's office must adapt the

10 indictment, but this takes a very short time. I think that this will not

11 take a long time; my learned colleague knows that full well. All you need

12 to do is list the name of the court, the personal details of the accused,

13 the factual description of the act, the legal qualification of the act,

14 the evidence, and supporting material, and the case proceeds to trial

15 automatically.

16 Let me, if I may, briefly say something about the topic that was

17 discussed yesterday. The current law in Bosnia and Herzegovina is one of

18 the strictest laws when it comes to detention. The longest period in

19 detention that a person can spend in detention is six months from the date

20 of the confirmation of the indictment. If within six months an indictment

21 is not issued, a suspect must be released. Once an indictment has been

22 issued, the trial judgement must be delivered within one year. If that is

23 not the case, the accused must be released. The appellate judgement must

24 be delivered within six months from the trial judgement, if not ... and so

25 on.

Page 242

1 That is all I had to say at this point. Thank you very much.

2 JUDGE ORIE: I would have the following question to you, and I'm

3 addressing both Mr. Radovic and the representatives of the -- of Bosnia

4 and Herzegovina. I do understand that it was the federal Criminal Code

5 and then in 1992 the states or entities that had declared themselves or

6 behaved as independent adopted then the old text and made it -- well,

7 their own national or domestic code. Since Mr. Radovic is referring to

8 the Republika Srpska Criminal Code of 1992, I think you said it was

9 adopted in April, mid-April 1992. Am I correct, Mr. Radovic?

10 MR. RADOVIC: [Interpretation] Your Honour, the constitution of

11 Republika Srpska of 1992 adopts all the laws of the former SFRY, including

12 the Criminal Code of the SFRY. And this was in force until the enactment

13 of a new law in 2003.

14 JUDGE ORIE: My question is the following: Since you both, I

15 would say, took over this same code although it's the -- there's still a

16 bit of a time problem because the indictment goes from April to I think

17 December and this happened in April, as far as I understand, I think you

18 said the 11th of April, would that mean that on from that moment although

19 under a different name the same laws would apply? When were the first

20 amendments relevant for these types of cases? Were they amended in the --

21 well, within the period of the indictment - that means still in 1992 - or

22 were the first amendments only later? Whoever knows the answer -- whoever

23 knows the answer.

24 Yes, Ms. Lauth.

25 MS. LAUTH: There were later amendments, actually, later codes

Page 243

1 adopted in both the Federation of Bosnia and Herzegovina as well as in the

2 RS. My understanding is that there was a separate Criminal Code adopted

3 in the Federation in 1998 and --

4 JUDGE ORIE: Yes, let me just be quite clear. I just want to know

5 whether it makes any difference at all whether in 1992 in the indictment

6 period whether the Republika Srpska code would be applied and, apart from

7 that, what kind of problems that might cause the courts, but the

8 substantive law would be exactly the same under the Republika Srpska code

9 and under the Criminal Code of Bosnia and Herzegovina?

10 MS. LAUTH: Yes.


12 Mr. Radovic, you would agree with that?

13 MR. RADOVIC: [Interpretation] Yes, I agree. These are the same

14 provisions, the Republika Srpska and the Federation of Bosnia and

15 Herzegovina, both adopted the former Criminal Code of the former SFRY.

16 The Defence asserts that in the case of Mr. Stankovic only Article 142 of

17 the former Criminal Code of the SFRY can apply.


19 May I then ask the representatives of the government: Would you

20 consider that -- I know that you take the position that the 2003 Criminal

21 Code of Bosnia and Herzegovina would be applicable law, including the

22 latest amendments as attached. Would you agree that if the old code would

23 apply - we now know it makes no difference Republika Srpska or BiH - that

24 the behaviour would fall within the scope of Article 142?

25 MS. LAUTH: Just a second, please.

Page 244


2 MR. KOUMJIAN: Your Honour, we're a little reluctant to make that

3 without having beforehand made all the comparisons between the code and

4 the current indictment that the OTP has prepared. But we do think that

5 war crimes sections from the code of the former Yugoslavia would be

6 applicable if the 1992 code from the former Yugoslavia were applied. I'm

7 not going to -- I'm not prepared to say that other sections would not also

8 be applicable.


10 MR. KOUMJIAN: And specifically, again, the sections in the

11 current code for crimes against humanity we view as codifying customary

12 international law.

13 JUDGE ORIE: Yes, then we are back to the old problem whether

14 direct applicability of customary international criminal law -- because

15 142 is about war crimes and not about crimes against humanity. Yes.

16 Then I would have another question. From the agreement you've

17 sent, as it says the Presidency of Bosnia and Herzegovina, that includes a

18 representative of what is now the entity of Republika Srpska?

19 MS. LAUTH: Yes, that's correct. The agreement was signed on 1st

20 of December, 2003, between the High Representative and the Presidency of

21 Bosnia and Herzegovina, which is a three-party Presidency representing all

22 entities in the --

23 MR. KOUMJIAN: We'll just confer a second.

24 MS. LAUTH: All ethnic groups are represented in the Presidency.

25 JUDGE ORIE: Yes, I -- could I then ask who appoints or selects

Page 245

1 the Serbian representative in the Presidency?

2 MS. LAUTH: According to Article 5 of the constitution of Bosnia

3 and Herzegovina, it is the parliament of the Republika Srpska, it would be

4 the parliament in the entity that would select or appoint -- nominate the

5 member of the Presidency.


7 MS. LAUTH: If I may refer to the specific provision in the

8 constitution of Bosnia and Herzegovina maybe --

9 JUDGE ORIE: Well, I take it -- I was just wondering, Mr. Radovic,

10 because that's the reason I put the question. You highly criticised of

11 what -- whether you could create a court or an international court, and I

12 now understand that this is, could I say, kind of a joint enterprise of

13 the entities constituting Bosnia and Herzegovina including Republika

14 Srpska. So when you say we must take distance from that court is

15 something foreign or strange to you, at the same time you're referring to

16 what would be the competent court, applicable law, Republika Srpska law,

17 at the same time I do understand that this court is a result of at least

18 an enterprise of which Republika Srpska participates.

19 MR. RADOVIC: [Interpretation] Your Honour, I will be brief. The

20 problem is in who can be a judge in any court in Bosnia and Herzegovina.

21 It can only be a citizen of that country. That is regulated by the

22 constitution, and that's where the problem lies.

23 JUDGE ORIE: Yes, although I think you criticised that for other

24 reasons as well, but you say it's mainly that the court is constituted not

25 only of Bosnia and Herzegovina citizens but also that foreign judges take

Page 246

1 part in the activities of that court, that makes you reject the option of

2 such a court. Yes.

3 These were my questions at this moment.

4 I'd like to give an opportunity to both parties to make final

5 submissions, but you indicated a few times, Mr. Radovic, that you would

6 not use that right. I don't know whether much should be added to what has

7 been said already. I'll first give the Prosecution, who filed the motion,

8 filed the request, an opportunity to make any final submissions they'd

9 like to make. And if there's any need to respond briefly to that, you

10 still have the opportunity.

11 Ms. Somers.

12 MS. SOMERS: Thank you, Your Honour. I will not take very much

13 time. I think we stand on our written submissions and anything

14 supplemental that I indicated earlier on. I will say that because we just

15 received recently the response of counsel opposite, we reject the notion

16 that Trebinje is what is contemplated. It's the state and I think that

17 the correct interpretation of which court is contemplated is -- has been

18 well argued before this Chamber today. There is nothing additional in

19 terms of the laws that we would say we believe the language of one --

20 effectively the language of "war crimes against civilians" encompasses it

21 -- there are other provisions that should encompass it as well but I would

22 suggest everything has been contained in the initial submission and I

23 think the questions I had asked the Chamber respectfully to inquire of the

24 representatives of the BH have been addressed.

25 JUDGE ORIE: Yes. Thank you, Ms. Somers.

Page 247

1 Mr. Radovic, before I give you an opportunity to make, if any,

2 further submissions, I'd like to inform you that if you would like to make

3 further written submissions on the basis of the position that has been

4 recently filed by the Government of Bosnia and Herzegovina, then you'll

5 have 14 days to do so.

6 Would you like to make any further submissions?

7 MR. RADOVIC: [Interpretation] Your Honour, I have nothing to add.

8 The Defence abides by what it stated in its two preliminary submissions of

9 the 22nd of December, 2004, and our submission of the 1st of March, 2005,

10 and what I said at this hearing. Thank you.

11 JUDGE ORIE: Thank you very much.

12 Finally, Madam President Kreso, would you like to make any further

13 submissions, then you have an opportunity to do so at this moment.

14 MS. KRESO: [Interpretation] Your Honour, I have no new arguments

15 to put forward but I wish to thank this Chamber for its sensitivity in

16 allowing the representatives of the authorities of Bosnia and Herzegovina

17 to prevent their arguments. I feel that this was useful in more ways than

18 one for both sides and for us, and I might say we are perhaps a little

19 emotional because this is an opportunity not only for the court of Bosnia

20 and Herzegovina and the prosecutor's office of Bosnia and Herzegovina as

21 well as its entire judiciary to demonstrate the extent to which they have

22 caught up with contemporary European legislation, we are a country

23 undergoing transition and the judicial system is one of the mainstays of

24 every country. If you give us a chance by referring this and other cases

25 which you decide as suitable for transferral and in any case you will

Page 248

1 still have the right to monitor the proceedings and perhaps revoke your

2 decision and have the cases transferred back, you will give us an

3 opportunity to demonstrate not only to the domestic public but also to the

4 international community how much we have achieved in putting our country

5 back on its feet. Thank you for your confidence.

6 JUDGE ORIE: Thank you. Thank you, Madam Kreso.

7 This Chamber fully understands and follows with great attention

8 all the developments in the states of the former Yugoslavia. And I would

9 say it's quite understandable that if you have made such efforts to adapt

10 your legal system to the difficult task of trying international crimes, I

11 can imagine that if there are still cases to be tried, that after having

12 made such efforts and I think the true is same for other states in the

13 former Yugoslavia, but if one wants to show that these efforts and

14 preparations have not been for nothing; the Chamber understands that.

15 This ends this hearing, although not completely in the case

16 against Mr. Stankovic. Although, Madam Kreso, we'd like -- the Chamber

17 would like to thank you for having provided the Chamber with the

18 information we asked for, but there is still a Status Conference in this

19 case. We'll have a break of five minutes.

20 Mr. Radovic, if there would be a possibility for you to meet with

21 your client, you can tell him that he's welcome at the Status Conference

22 to follow and that I'll apply the same rule and that is: He's allowed to

23 speak. If he uses offensive language, if he is refraining -- if he's

24 insulting whoever it is, then as far as his presence is concerned, the

25 Status Conference will be rather short. If he, however, would like to

Page 249

1 address me in a reasonable way, I'll give him an opportunity to do so. So

2 I'll instruct the security to make him ready for an appearance, but

3 perhaps you pass already this message to him.

4 We'll adjourn for five minutes.

5 --- Whereupon the hearing adjourned at 6.42 p.m.