Case No. IT-96-23/2-AR11bis.2
- The Appeals Chamber of the International Criminal
Tribunal for the Prosecution of Persons Responsible
for Serious Violations of International Humanitarian
Law Committed in the Territory of the Former Yugoslavia
since 1991 (“Tribunal”) is seized
of an appeal by Gojko Jankovic (“Appellant”) against
the “Decision on Referral of
Case under Rule 11bis With Confidential Annex”,
rendered by the Referral Bench on 22 July 2005 (“Impugned
Decision”).
Procedural History and Background
- The Appellant was initially jointly charged
with seven other accused in an indictment that was
confirmed on 26 June 1996.1
An amended indictment was confirmed against the Appellant
and four of the other accused on 7 October 1999 (“Indictment”).2
The Appellant was transferred from Banja Luka, Bosnia
and Herzegovina, to the United Nations Detention Unit
on 14 March 2005.
- The Indictment alleges that, between July 1992
and October 1992, the Appellant
participated in a persecutorial campaign against the
non-Serb, primarily Bosnian Muslim civilian population
of the town of Foca and its surroundings. The Appellant
is charged on the basis of individual criminal responsibility
under Article 7(1)
of the Statute of the Tribunal (“Statute”) with seven
counts of crimes against humanity (three counts of
torture under Article 5(f) and four counts of rape
under Article
5(g)) and seven counts of violations of the laws or
customs of war (three counts of torture and four counts
of rape under Article 3).3
In addition, the Appellant is charged on the basis
of superior criminal responsibility under Article 7(3)
of the Statute with two counts of crimes against humanity
(torture under Article 5(f) and rape under Article 5(g))
and two counts of violations of the laws or customs
of war (torture and rape under Article 3).4
- According to the Indictment, the Appellant
was, in 1992, a sub-commander of the military police
and one of the main paramilitary leaders in Foca.
It is alleged that the Appellant was in charge of
a group of soldiers who, on 3 July 1992, arrested
a group of women and transported them to a location
identified as Buk Bijela, where they were interrogated
and raped. The Indictment alleges that the Appellant
personally participated in the interrogations and
the rapes.5
Between 3 July 1992 and 13 August 1992, when this group
of women was detained in the Foca High School and
the Partizan Sports Hall, the Indictment alleges that
the Appellant, and soldiers subordinate to him, sexually
assaulted the women in these detention facilities.
The Appellant is furthermore accused of having raped
four young girls and women, together with two other
participants, in an apartment near the Foca Fish Restaurant
on 30 October 1992. It is also alleged that the Appellant
knew or had reason to know that soldiers subordinate
to him sexually assaulted women and girls during or
immediately following interrogations.6
- The Prosecution filed a motion for referral
on 29 November 2004,7
while the Appellant was still at large, and on 1 December 2004,
the President of the Tribunal transferred the motion
to the Referral Bench to consider whether the case
should be referred to the authorities of a State pursuant
to Rule 11bis
of the Rules of Procedure and Evidence (“Rules”).8
That Rule, amended to reflect Security Council resolution
1534 (2004),9
provides in its relevant parts:10
(A) After an indictment has been confirmed and prior
to the commencement of trial, irrespective of whether
or not the accused is in the custody of the Tribunal,
the President may appoint a bench of three Permanent
Judges selected from the Trial Chambers (hereinafter
referred to as the “Referral Bench”), which solely
and exclusively shall determine whether the case
should be referred to the authorities of a State
:
(i) in whose territory the crime was committed; or
(ii) in which the accused was arrested; or
(iii) having jurisdiction and being willing and adequately
prepared to accept such a case,
so that those authorities should forthwith refer the
case to the appropriate court for trial within that
State.
(B) The Referral Bench may order such referral proprio
motu or at the request
of the Prosecutor, after having given to the Prosecutor
and, where applicable, the accused, the opportunity
to be heard and after being satisfied that the accused
will receive a fair trial and that the death penalty
will not be imposed or carried out.
(C) In determining whether to refer the case in accordance
with paragraph (A), the Referral Bench shall, in
accordance with Security Council resolution 1534
(2004), consider the gravity of the crimes charged
and the level of responsibility of the accused.
- On 15 April 2005, the Referral Bench issued a
decision ordering the parties and inviting the Government
of Bosnia and Herzegovina to submit responses to
specific questions.11 The Prosecution filed
a response on 5 May 2005,12 the Defence
on 6 May 2005,13 and the Government
of Bosnia and Herzegovina on 11 May 2005.14
A motion hearing was held on 12 May 2005 with the parties
present, along with representatives of the Governments
of Bosnia and Herzegovina and Serbia and Montenegro.15
The hearing was held jointly with the case of Prosecutor
v. Mitar Rasevic and
Savo Todovic,16 with counsel for
Savo Todovic also representing the Appellant. Further
submissions were filed prior to and after the motion
hearing.17
- The Referral Bench examined the gravity of
the crimes with which the Appellant is charged,
and the level of his responsibility as charged in
the Indictment. Furthermore, the Referral Bench
was satisfied that based “on the information presently
available
” the Appellant would receive a fair trial and that
the death penalty would not be imposed or carried
out.18 The
Referral Bench held that the referral was appropriate
and concluded that referral of the case to the authorities
of Bosnia and Herzegovina should be ordered.
- On 5 August 2005, the Prosecution filed a notice
of appeal against the Impugned Decision, setting
forth one ground of appeal.19
As this ground of appeal had been raised in other proceedings,
the Prosecution requested that several referral cases, inter
alia, Prosecutor v. Gojko Jankovic, be assigned “to a single judicial bench of the Appeals
Chamber, and that this issue be heard and resolved
in a consolidated manner”.20
On the same day, the Prosecution filed its Appellant’s
brief.21
The Defence filed its Respondent’s brief on 15 August 2005,
indicating that it did not oppose the Prosecution’s
Appellant’s brief “(a(s one of the Defence grounds
of appeal22 is
in part identical to the Prosecution’s single ground
of appeal”.23
On 19 September 2005, the Prosecution withdrew its
appeals in several cases,
inter alia in Prosecutor v. Gojko Jankovic “in
light of the recent decision by the Appeals Chamber
in Prosecutor v. Radovan Stankovic”.24
- The Defence Notice of Appeal was filed on 8 August 2005,
setting forth six grounds of appeal against the
Impugned Decision and requesting inter alia
that the case be tried before the Tribunal. Alternatively,
if the Appeals Chamber determined that the case should
be referred to the authorities of a State, the Defence
seeks that the case be referred
not to Bosnia and Herzegovina but to the authorities
of some other State which fulfils conditions under
Rule 11bis of the Rules, preferably to Serbia
and Montenegro.25
On 23 August 2005, the Defence filed its Appellant’s
brief26
to which the Prosecution responded on 2 September 2005.27
On 6 September 2005, the Defence filed its brief in
reply.28
- As the Prosecution has withdrawn its appeal,
the Appeals Chamber in turn only considers the appeal
raised by the Appellant.
First Ground of Appeal
- The Appellant argues that the Referral Bench
erroneously concluded that the level of responsibility
of the Accused and the gravity of the crimes charged
against him are not ipso facto incompatible
with referral of the case.29
Appellant’s Submissions
- According to the Appellant, the Referral Bench
referred only to a part of the period covered in
the Indictment (July to October 1992), although the
Indictment encompasses a longer period (April 1992
to February 1993).30
- In relation to his level of responsibility,
the Appellant states that he allegedly was a sub-commander
of the military police and one of the main paramilitary
leaders in Foca, and that the Referral Bench erred
in relying on the fact that the Appellant is not
suggested to have had any political role.31
He adds that the Indictment charges him also as a superior
under Article 7(3) of
the Statute,32 which implies that
he allegedly had a certain level of authority. Further,
the Appellant contends that the Referral Bench erroneously
held that “the fact that the Accused may have been
in command of others on a local level is … not a sufficient
basis to characterize him as a ‘leader’ for the purposes
of Rule 11bis”.33
He refers, inter alia, to the finding of the
Referral Bench in Dragomir
Milosevic that the term “most senior leaders” used
by the Security Council is not restricted to the “architects” of
an “overall policy” forming the basis of alleged
crimes.34
- As far as the gravity of the crimes charged
is concerned, the Appellant refers to the finding
of the Trial Chamber in Kunarac et al. that
the “accused committed, by any measure, particularly serious offences against
the most vulnerable of persons in any conflict,
namely, women and girls”.35
The Appellant further argues that the Referral Bench
erred in failing to take into account the fact that
the Prosecution acknowledged the high level of gravity
of the charges against him and to address the Prosecution’s
position that this case might be prosecuted either
in an international forum or before a competent national
court.36
- Additionally, the Appellant refers to the “Prosecution’s
Request to Hold the Decision on the Defence’s Preliminary
Motion on the Form of the Amended Indictment in
Abeyance” in which the Prosecution stated that “it
is highly probable that the Prosecution would seek
leave to amend the indictment” if the case was tried
at the Tribunal.37 The Appellant argues that
“the only appropriate course” for the Referral Bench
would have been to postpone the assessment of the
gravity of the crimes charged and the alleged level
of responsibility until after the filing of the new
amended indictment.38
- The Appellant further submits that the gravity
of the crimes charged and the alleged level of his
responsibility distinguish his case from the cases
of accused like Radovan Stankovic,39 Vladimir
Kovacevic, and Dusko Kneževic who have also been put
forward for referral.40
Similarly, the Appellant argues that the cases of Sefer
Halilovic and Milomir Stakic were rather limited in
geographic and temporal scope, and that the charges
brought against the former are less grave than those
against him.41
- Finally, the Appellant submits that the Referral
Bench erroneously considered
“only the ‘incidents of torture and rape involving
sixteen females’”, to the exclusion
of allegations concerning “thousands” of unlawfully
confined Muslims and Croats and arrests during which “many
civilians were killed, beaten or subjected to sexual
assault”, thus rendering “the case incompatible with
referral under Rule 11bis
”.42
Prosecution’s Submissions
- The Prosecution responds, inter alia, that
any amendment to the Indictment would not have any
impact on the referral with regard to the gravity
of the crimes charged and the alleged level of responsibility
of the Appellant, as such amendment would be in
form and not in substance.43
In relation to the temporal scope of the crimes charged,
the Prosecution argues that, while the Indictment
covers the period from April 1992 until February 1993, the crimes specific to Jankovic took place between
July and October 1992.44
The Prosecution also argues that the Referral Bench
did not err in concluding that the geographic scope
of the alleged crimes was limited. Further, the Prosecution
states that the indictment in the case against Dragomir
Milosevic and the Indictment
in the present case are “significantly” different.45
Discussion
- The Referral Bench did not err when it relied
on the fact that the Appellant is not suggested
to have had any political role. Nothing in the wording
of Rule
11bis (C) of the Rules indicates that the “level
of responsibility” is restricted
to military responsibility to the exclusion of political
responsibility. This is in particular supported by
Security Council resolution 1534 (2004),46
stating that the Tribunal should “concentrate on the
most senior leaders suspected of being most responsible
for crimes within the jurisdiction of the (…( Tribunal
”. Nothing in this wording suggests that the resolution
only refers to military leaders. Furthermore, as to
the Appellant’s submission that the Indictment charges
him also as a superior under Article 7(3) of the Statute,
the Appeals Chamber notes that the Referral Bench
itself referred to the Appellant as “one of the main
paramilitary
leaders in Foca, and a sub-commander of
the military police there”.47
This demonstrates that the Referral Bench was conscious
of the Appellant’s alleged
role as a superior. It found, however, that his alleged “command
of others on a local level” did not suffice to qualify
him “as a ‘leader’ for the purposes of Rule
11bis (…(”.48
- In relation to the Appellant’s comparison of his
case with the case against Dragomir Milosevic in
which the Referral Bench denied the Prosecution’s
request for referral, the Appeals Chamber notes
that the Referral Bench held in the latter case
that among the accused whose cases should not be
referred under Rule 11bis
of the Rules are those
who, by virtue of their position and function in the
relevant hierarchy, both
de jure and de facto, are alleged to have
exercised such a degree of authority that it is appropriate
to describe them as among the “most senior”, rather
than “intermediate”.49
The Appeals Chamber accepts this approach. The Appeals
Chamber also notes the Prosecution’s
argument of the significant difference between the
Indictment in this case and that in the case against
Dragomir Milosevic with regard to the level of responsibility
of the respective accused.50 The Appeals
Chamber finds that the Appellant has not demonstrated
an error in the Referral Bench’s
finding in this case that the Appellant cannot be characterised “as
a ‘leader’ for
the purposes of Rule 11bis”51
and the Referral Bench was correct in giving little
weight to the Article 7(3) charge
when deciding that the case should be referred to national
authorities.
- Furthermore, when discussing the prerequisites
of Rule 11bis of the
Rules, the Referral Bench did not erroneously fail
to consider the gravity of the crimes charged. While
the Defence correctly submits that the period covered
in the Indictment ranges from April 1992 to February
1993, the Referral Bench did not err in limiting
its considerations to the period in which the crimes
as charged allegedly took place, i.e. between
July 1992 and October 1992. As the Appellant is
charged with acts of torture and rape only during
that time period, the Referral Bench could not consider
any other criminal act which was allegedly committed
outside this period when determining whether the
case should be referred to national authorities.
- With reference to these alleged offences, the
Referral Bench “readily accepted
that these charges allege serious offences”.52
However, having taken into consideration both the geographical
and temporal scope of the alleged crimes, as well
as the number of victims affected, “(i(n the context
of the offences dealt with by this Tribunal”, the
Referral Bench did not err in concluding that the
gravity of the crimes charged is not “ipso facto incompatible
with referral of the case”.53
- In relation to the Appellant’s argument that the
Referral Bench failed to address the Prosecution’s
position that this case might be prosecuted either
in an international forum or before a competent
national court, the Appeals Chamber recalls the Prosecution’s
statement
that, as matters stand, neither the gravity of the
crimes alleged nor the level of responsibility of
the accused demand that this case be brought to trial
before the International Tribunal. In all the circumstances
therefore the Prosecutor regards the present case
as suitable for referral under Rule 11bis.54
Therefore, the Appellant has not demonstrated that
the Referral Bench erred in failing to consider
any alleged indeterminateness of the Prosecution
as to the forum which could prosecute this case.
- As to the Appellant’s argument that the Referral
Bench should have postponed the assessment of the
gravity of the crimes charged and the alleged level
of responsibility until the Prosecution would have
filed a new amended indictment, the Appeals Chamber
recalls that Rule 11bis of the Rules explicitly
refers to crimes charged, and not to crimes an
accused might later be charged with. Furthermore,
the Prosecution stated that
it is highly probable that the Prosecution would seek
leave to amend the indictment (…( should the case
against the Accused be tried at the Tribunal.55
Thus, the Prosecution made clear that it only intended
to amend the Indictment if the case would not be
referred pursuant to Rule 11bis of the Rules.
Consequently, the Referral Bench did not err in
assessing the gravity of the crimes and the level
of the Appellant’s responsibility as charged by the
Prosecution at the time the Referral Bench was seized
of the Prosecution’s Referral Motion.
- The Appeals Chamber also takes into account
that the Prosecution only intended to seek leave
for amendments as to form, not substance:
(t(he charges and the scope of the indictment would
remain the same (and( any amendment would not have
any impact on the referral with regard to the gravity
of crimes and level of responsibility of the Accused.56
With a view to this explicit submission, the Appeals
Chamber takes it for granted that the Prosecution
would not seek to influence the proceedings in such
a way that by increasing the charges alleged, this
Tribunal would have decided the referral request
differently.
- The Appellant’s references to the cases of Radovan
Stankovic, Vladimir Kovacevic, and Dusko Kneževic,
who have also been put forward for referral,57
and to the cases of Dragoljub Kunarac et al.,
Sefer Halilovic and Milomir Stakic are of limited
use – if at all – in the context of this case. While
the Appeals Chamber has dismissed the appeal of Radovan
Stankovic against the Referral Bench’s
decision to refer his case to the authorities of Bosnia
and Herzegovina,58
the Appeals Chamber cannot pronounce in the present
case on issues related to the cases of Vladimir Kovacevic
and Dusko Kneževic of which it is not seized. As to
the cases of Sefer Halilovic and Milomir Stakic, the
question of whether or not the Referral Bench should
have referred these cases to the authorities of a State
is irrelevant to the Appellant’s case. Nothing in
Rule 11bis of the Rules
indicates that the Referral Bench is obliged to consider
the gravity of the crimes charged and the level of
responsibility of accused in other cases in order
to make its referral decision. Although the Referral
Bench may be guided by a comparison with an indictment
in another case, it does not commit an error of law
if it bases its decision on referral merely on the
individual circumstances of the case before it.
- For the reasons set out above, the Appellant’s
first ground of appeal is rejected.
Second Ground of Appeal
- The Appellant argues that the Referral Bench
erred in relying on the “significantly
greater nexus” Bosnia and Herzegovina has with the
trial of the Appellant than Serbia and Montenegro,
which in the opinion of the Appellant is not in accordance
with Rule 11bis(A) of the Rules.59
Appellant’s Submissions
- The Appellant submits that Rule 11bis(A)
of the Rules should not be interpreted as ranking
the possible states to which a case may be referred
in descending order and argues that the Referral
Bench erroneously failed to address this matter.60 He states that the only test
to be applied is a combination of the requirements
set out in Rule 11bis(A)
and (B) of the Rules.61 The Appellant
reasons that Serbia and Montenegro also meets the first
part of the Rule 11bis
(A)(iii) requirement and that it had declared its
willingness and preparedness to accept the Appellant’s
case for trial.62
According to the Appellant, the Referral Bench erred
in failing to treat Bosnia and Herzegovina and Serbia
and Montenegro equally and to fully examine whether
the latter was indeed prepared to take over the case.63
- The Appellant further submits that the President
of the Bosnia and Herzegovina State Court (“BiH
State Court”) made “unsubstantiated assertions” in Mejakic
et al. that Bosnia and Herzegovina has a “fully
competent system” to try cases
referred by the Tribunal.64 On the
other hand, the Appellant argues that Serbia and Montenegro
has a coherent judicial system, as already confirmed
by the Prosecutor.65
Finally, the Appellant submits that the nexus of Bosnia
and Herzegovina is in fact
“‘too great’ (and( much more likely to be an obstacle
to a fair trial”.66
Prosecution’s Submissions
- The Prosecution submits that the Referral Bench
correctly concluded that Bosnia and Herzegovina
had a greater nexus and was therefore the appropriate
State for referral, as under international law it
is appropriate to resolve a conflict of competing
claims for jurisdiction on the basis of the more
effective nexus between the crime in question and
the forum State.67
The Prosecution argues that (i) pursuant to the territoriality
principle, crimes, when possible, should be tried
in the State where they were committed; (ii) the Appellant
is and always was a national of Bosnia and Herzegovina;
and (iii) many victims of the alleged crimes were
and still are in Bosnia and Herzegovina.68
Discussion
- At the outset, it must be noted that the Referral
Bench correctly stated that under Rule 11bis of
the Rules, neither the Appellant nor Serbia and Montenegro
had the locus standi to file a formal request
to refer the case to Serbia and Montenegro. The
Referral Bench was also correct in, nevertheless,
considering Serbia and Montenegro because, pursuant
to Rule 11bis (B) of the Rules, the
Referral Bench may order referral proprio motu. Thus,
the Referral Bench was not bound to only consider
Bosnia and Herzegovina as a referral State as requested
by the Prosecution.
- The Appeals Chamber holds that, where there
are concurrent jurisdictions under Rule 11bis(A)(i)-(iii)
of the Rules, discretion is vested in the Referral
Bench to choose without establishing any hierarchy
among these three options and without requiring
the Referral Bench to be bound by any party’s submission
that one of the alternative jurisdictions is allegedly
the most appropriate. A decision of the Referral
Bench on the question as to which State a case should
be referred (vertical level, i.e. between
the International Tribunal and individual States
) must be based on the facts and circumstances of
each individual case in light of each of the prerequisites
set out in Rule 11bis(A) of the Rules.
- In this context, the Appeals Chamber notes
that attempts among States to establish a hierarchy
of criteria for determining the most appropriate
jurisdiction for a criminal case, where there are
concurrent jurisdictions on a horizontal level (
i.e. among States), have failed thus far. Instead,
States have agreed on various criteria and opted to
give weight to certain criteria over others depending
on the circumstances of a particular case.
- For example, the Appeals Chamber notes Article
31 of the European Convention on the Transfer of
Proceedings in Criminal Matters of 15 May 197269
which – in conjunction with its Article 8 – provides
that in a situation of concurrent jurisdictions, the
States concerned shall evaluate certain enumerated
circumstances in order to decide which State alone
shall continue to conduct the proceedings.70
Instead of establishing a hierarchical order among
these circumstances however, the Council of Europe’s
European Committee on Crime Problems stated that
(t(he objective is to devise a practical way to determine, on
the face of the concrete circumstances of the case,
using objective criteria, how better to ensure that
justice is done (…(.71
- Many of the same criteria in the European Convention
on the Transfer of Proceedings in Criminal Matters
are mentioned in the guidelines adopted by Eurojust
in 2003.72
In these guidelines, Eurojust offers criteria which
should be considered when making a decision as to
which concurrent State jurisdiction should prosecute.73
In relation to the question of a hierarchy among the
criteria, Eurojust stated that
“(t(he priority and weight which should be given to
each factor will be different in each case.”74
- When determining Bosnia and Herzegovina as
the State to which the case should be referred,
the Referral Bench considered that
(a) the crimes charged were allegedly committed in
Bosnia and Herzegovina;
(b) these crimes were allegedly committed against persons
living in Bosnia and Herzegovina ;
(c) the Appellant was at the time of the alleged crimes
and still is a citizen of Bosnia and Herzegovina.75
Accordingly, the Referral Bench did not err in finding
that “those considerations
weigh heavily in favour of referral being to Bosnia
and Herzegovina”.76
The Referral Bench correctly relied on a “significantly
greater nexus” of the case
to Bosnia and Herzegovina rather than Serbia and Montenegro.
Even if Serbia and Montenegro fulfilled the prerequisite
found in the first part of Rule 11bis
(A)(iii)77 of
the Rules, as explicitly submitted by the Appellant,78 the
Referral Bench would not have erred in not referring
the case to the authorities of Serbia and Montenegro
because – as stated above – there is no hierarchical
order between Rule 11bis(A)(i), (ii) and (iii)
of the Rules.
- In relation to the Appellant’s argument that the
President of the BiH State Court made “unsubstantiated
assertions” in Mejakic et al. as to the fact
that the courts in Bosnia and Herzegovina are able
to try cases referred by the Tribunal, the Appeals
Chamber has carefully considered these assertions.
The Appeals Chamber notes that the President of
the BiH State Court made elaborate submissions on
the legal, staffing, financial and technical situation
of the judicial system in Bosnia and Herzegovina,
and in particular the BiH State Court.79
The Appellant did not demonstrate that these submissions
were merely “unsubstantiated
assertions”. By the same token, he did not demonstrate
that the Referral Bench should have relied instead
on the submissions of Serbia and Montenegro at the Mejakic
et al. Rule 11bis Hearing and referred
the case to its authorities.
- Based on these considerations, the Appeals
Chamber finds that the Referral Bench did not err
in giving priority and weight to the circumstances
considered in favour of a referral of the case to
Bosnia and Herzegovina and in holding that
“the arguments in favour of referral proprio motu to
Serbia and Montenegro are comparatively of little
weight”.80
- Consequently, the Appellant’s second ground of
appeal is rejected.
Third and Sixth Grounds of Appeal
- The Appellant submits that the Referral Bench
erroneously declared that it was satisfied that
the proceedings in Bosnia and Herzegovina fulfil
the requirements of a fair trial, and that it failed
to fulfil the duty of properly and fully informing
itself on a number of fair trial elements.81
The parties have treated the Appellant’s third and
sixth grounds of appeal together because the two grounds
are closely associated. The Appeals Chamber will likewise
address both grounds together.
Appellant’s Submissions
- The Appellant argues that the legal structure
in Bosnia and Herzegovina in itself is insufficient
to guarantee a fair trial and that further inquiry
into the implementation of the necessary standards
was required.82
In particular, the Appellant submits that the Referral
Bench failed to properly inform itself
(i) as to whether the right of the Appellant to have
adequate time and facilities for the preparation
of his defence would be adequately guaranteed before
the BiH Courts;83
(ii) whether the right of the Appellant to be present
and to examine or have examined witnesses against
him and to obtain the attendance and examination
of witnesses on his behalf under the same conditions
as witnesses against him would be adequately guaranteed
before the BiH Courts;84
(iii) on the issue of witness availability;85
(iv) whether the Appellant would have access to all
materials from the Tribunal which would be necessary
for his defence;86
(v) whether the Appellant would be tried without undue
delay;87
and
(vi) about the existence of potential prejudice towards
the Appellant if his case is referred to the authorities
of Bosnia and Herzegovina.88
The Appellant also submits that the Referral Bench
erroneously
(vii) declared itself “satisfied on the information
presently available that the Accused will receive
a fair trial”;89
and
(viii) relied on Rule 11bis(D)(iv) and (F) of
the Rules to satisfy itself that the right to a fair
trial was guaranteed.90
Prosecution’s Submissions
- The Prosecution responds, inter alia, arguing
that
(i) the Appellant fails to substantiate what further
considerations the Referral Bench could have carried
out, and that the Tribunal has no obligation to resolve
any disparity in remuneration of counsel in national
and international jurisdictions ;91
(ii) the legislation in Bosnia and Herzegovina contains
safeguards with respect to the right of an accused
to attend the trial and examine witnesses;92
(iii) the Appeals Chamber held in the Stankovic Rule 11bis Appeals
Decision that the ratification by Bosnia and Herzegovina
and neighbouring countries of the European Convention
on Mutual Assistance in Criminal Matters “will facilitate
cooperation with nearby Croatia and Serbia and Montenegro”;93
(iv) Rule 11bis(D)(iii) of the Rules in no way
limits the disclosure of material deemed appropriate
by the Prosecutor, and that the Appellant can make
a request pursuant to Rule 75 of the Rules;94
(v) the Appellant has not demonstrated that any delay
that might arise from the disclosure and translation
of documents could be characterized as undue;95
(vi) speculation as to potential prejudice is not an
element of a fair trial;96
(vii) the Appeals Chamber held in the Stankovic Rule 11bis Appeals
Decision that “should”, in the context of that decision
is effectively synonymous with “will”;97 and that
(viii) there is no need for a special provision authorizing
the Defence to send monitors, as the Defence – unlike
the Prosecution – will be a party to the national
proceedings, and the Defence will be able to apply
for a remedy through the national system of Bosnia
and Herzegovina.98
Discussion
Adequate Time and Facilities to Prepare Defence
- The Referral Bench took particular care to
examine the BiH Criminal Procedure Code and noted
that it provides “the right to a defence attorney
of one’s own choosing
and require(s( that an accused be given sufficient
time to prepare a defence”.99
The Referral Bench also correctly emphasized that “a
suspect has the right to request appointment of defence
counsel if unable to bear the costs due to financial
circumstances
”.100 Having
satisfied itself that the State would provide defence
counsel to accused who cannot afford their own representation, and having learned that there is financial support
for that representation, the Referral Bench was not
obligated in its opinion to itemize the provisions
of the Bosnia and Herzegovina budget. Thus, the Appellant
has failed to demonstrate that the Referral Bench
erred in its conclusion that the Appellant would be
provided with adequate time and facilities in Bosnia
and Herzegovina to prepare his defence.
Right of Appellant to be Present and to Examine
Witnesses
- The Referral Bench mentioned a number of provisions
of the Bosnia and Herzegovina Law on Protection
of Witnesses under Threat and Vulnerable Witnesses
(“Vulnerable
Witness Protection Law”)101 and commented
on some of them in more detail.102
The Appeals Chamber notes that the Referral Bench did
not comment on Articles 10
and 12 of the Vulnerable Witness Protection Law. Article 10
deals with the possibility of removing an accused
where there is a justified fear that the presence of
the accused will affect the ability of the witness
to testify fully and correctly. Article
12 states that in exceptional circumstances, if revealing
some or all of the personal details of a witness or
other details would contribute to identifying a witness,
and would seriously endanger a witness under threat,
the preliminary proceedings judge may, upon the motion
of the Prosecutor, decide that some or all of the personal
details of a witness may continue to be kept confidential
after the indictment is issued.
- Both provisions encompass safeguards intended
to protect the right of an accused to a fair trial,
such as the presence of his defence attorney pursuant
to Article
10(3) and the right to be heard pursuant to Article 12(2)
and (5). Furthermore, it must be noted that Articles 10
and 12, inter alia, aim at balancing the
rights of an accused to a fair trial on the one hand
and the protection of witnesses on the other.
- As to the Appellant’s submission that there is
no guarantee that the provisions of the Vulnerable
Witness Protection Law will be adequately applied
in practice, the Appeals Chamber finds that the
Appellant did not substantiate his concerns further
than referring to “the nature of the charges against
the Appellant and the structure of potential witnesses
against him”.103
- Consequently, the Appellant has not demonstrated
that the Referral Bench’s
consideration of the Vulnerable Witness Protection
Law was erroneous.
Witness Availability
- In the Stankovic Rule 11bis Appeal
Decision, the Appeals Chamber agreed with the Referral
Bench’s findings that (a) the authorities in Bosnia
and Herzegovina have taken substantial steps to
promote the obtaining of witnesses and evidence
and that (b) Stankovic had not shown that the judicial
process in Bosnia and Herzegovina would be unfair
in this respect.104
By the same token, the Appeals Chamber finds in the
present case that the Appellant has not shown any
error in the Referral Bench’s reasoning in relation
to this issue. In particular, the Appellant failed
to demonstrate that the Referral Bench erroneously
failed to discuss the statement of Mr. Refik Hodžic,
BiH State Court Officer for contacts with the public
and former Head of the Tribunal’s Outreach Programme
in Bosnia and Herzegovina, who said, inter alia, “that
it is impossible to absolutely protect the identity
of a witness”; he also stated that this had been shown
by the Tribunal, “which spent millions of dollars
on (a witness protection mechanism(”.105
His statement shows that he was merely referring to
an issue which is self-evident : no judicial system,
be it national or international, can guarantee absolute
witness protection. Thus, the Referral Bench did not
commit an error of law or fact when it omitted to
discuss this statement in the Impugned Decision.
Access to Material from Other Cases of the Tribunal
- The Appellant errs in asserting that the Referral
Bench did not adequately consider the Appellant’s
ability to access relevant material. With respect
to material directly related to the Appellant’s
case, the Referral Bench, consistent with Rule
11bis(D)(iii), expressly ordered “the Prosecution
to hand over to the Prosecutor of Bosnia and Herzegovina
(…( the material supporting the Indictment against
the Accused”.106 The Referral Bench also
ordered the Prosecution to hand over “all other
appropriate evidentiary material
” consistent with Rule 11bis(D)(iii) of the
Rules.107
Because the BiH Criminal Procedure Code gives defence
counsel the right to inspect all files and evidence
against the accused after an indictment has been issued,
the Appellant will have access to these materials.108
- Moreover, with respect to material from related
cases, defence counsel in a BiH proceeding, like
the BiH Prosecutor, may request that the Prosecutor
of the Tribunal apply to vary protective measures
under Rule 75 of the Rules.109
Thus, the parties to the proceeding in the national
jurisdiction – both the Prosecutor
and the Appellant – are on equal footing in terms of
their ability to gain access to confidential material
from other Tribunal cases.
Trial Without Undue Delay
- The Referral Bench did not err in its consideration
of whether the Appellant’s
right to trial without undue delay is infringed by
a decision of referral. If the Defence decided that
it would be necessary to review voluminous material
from the
Kunarac et al. case, the concern that this might
be a time-consuming undertaking would also arise if
the case were tried before the Tribunal. Also, the
Appellant’s
submission that a situation might arise where present
counsel could not continue to represent him and where
another counsel who did not speak English were assigned
to him, is speculative.
Potential Prejudice Towards the Appellant
- The Referral Bench did not err in failing to
consider statements made by certain individuals
which allegedly demonstrated “an atmosphere of lynch
(sic( (…(
in the public”.110 The Appellant
has not demonstrated that such statements would cause
prejudice towards his right to a fair trial, as the
judges at the BiH State Court are professional – and
partly international – judges.
“The Accused will receive a fair trial”
- Further, the Referral Bench concluded “that the
Accused will receive a fair trial”,111 the language employed
in Rule 11bis(B) of the Rules. Thus, the Referral
Bench did not err in making this finding.
Reliance on Rule 11bis(D)(iv) and (F) to
Satisfy Itself that the Right to Fair Trial is Guaranteed
- The Appeals Chamber held in Stankovic that
the Referral Bench correctly satisfied itself that
Stankovic would receive a fair trial in part on the
basis of the Rule 11bis(D)(iv) monitoring
and the Rule 11bis(F) revocation
mechanism. The Appeals Chamber was also satisfied that
this was a reasonable variable for the Referral
Bench to have included in the Rule 11bis(B)
equation.112
- It was also reasonable for the Referral Bench
in this case to have ordered the Prosecution to
file an initial report to the Referral Bench on the
progress made by the Prosecutor of Bosnia and Herzegovina
in the prosecution of the Appellant six weeks after
the transfer of the evidentiary material and, thereafter,
every three months.113 The Appeals Chamber
acknowledges that Rule 11bis(D)(iv) and (F)
of the Rules confer a substantial amount of discretion
on the Prosecutor to send monitors on her behalf and
to determine how best to go about that monitoring.
However, that discretion cannot derogate from the
Referral Bench’s inherent authority under this Rule.
Just because the Prosecutor may send observers to
monitor the proceedings in the national courts on her
behalf does not mean that the Referral Bench lacks
the authority to instruct the Prosecutor that she must send
observers on the Tribunal’s behalf. The former
does not preclude the latter. Thus, the Referral Bench
did not err in its finding that “Rules 11bis(D)(iv)
and 11bis(F) serve as precautions against
a failure to diligently prosecute a referred case or
conduct a fair trial.”114
- Consequently, the Appellant’s third ground is
rejected.
- In his sixth ground of appeal, the Appellant
argues that the Referral Bench erred in assuming
that “monitoring of the trial of this case, if referred,
would be undertaken by the Organisation for Security
and Cooperation in Europe (OSCE) or a similar organisation
by arrangement with the Prosecutor”115
and in determining that it had authority under Rule 11bis to
order the Prosecution to continue its efforts to ensure
the monitoring of and reporting on the proceedings
before the BiH State Court and to report to the Referral
Bench on the progress made by the Bosnia and Herzegovina
Prosecutor and on the progress of the proceedings.116
The Appellant does not, however, explicitly challenge
the Referral Bench’s order
that if arrangements with an international organisation
for monitoring and reporting should prove ineffective,
the Prosecution should seek further direction from
the Referral Bench.117
- As stated above – and in light of the Stankovic Rule 11bis Appeal
Decision – the Appeals Chamber finds that it was
reasonable for the Referral Bench to order the
Prosecution to report back on the progress of the
case, because that order reasonably aided the Referral
Bench in discharging its duties under Rule
11bis of the Rules.118
- In relation to the Referral Bench’s order to the
Prosecutor to continue its efforts in co-operation
with an international organisation to ensure monitoring
and reporting of the proceedings, the Appeals Chamber
recalls its disposition in the Stankovic Rule 11bis Appeal
Decision:
The appeal of the Prosecution is allowed in part, insofar
as it objects to the Referral Bench’s order instructing
the Prosecutor to continue her efforts to conclude
an agreement with an international organisation
for monitoring purposes and to seek further direction
from the Referral Bench if an agreement is not concluded.119
The Appeals Chamber notes that while the Referral Bench
ordered the Prosecution in Stankovic “to
continue its efforts to conclude an agreement
with
an international organisation”,120
the Referral Bench ordered the Prosecution in the present
case “to continue its
efforts in cooperation with”121
an international organisation. While the wording and
the substance of both orders differ, their rationale
is similar: in both cases, the Referral Bench instructed
the Prosecution to collaborate with an international
organisation, either by an agreement or some other
form of co-operation. This, however, is not within
the authority of the Referral Bench, as “Chambers
are not in the business of giving counsel to the Prosecutor
about decisions that are customarily within her domain.”122
- Also, in light of the Stankovic Rule 11bis Appeal
Decision, the Appeals Chamber finds proprio motu that
the Referral Bench erred in ordering the Prosecution
to seek further direction from the Referral Bench
if arrangements for monitoring and reporting should
prove ineffective.123
- Thus, the sixth ground of appeal is allowed
in part, and the remainder of this ground of appeal
is rejected.
Fourth Ground of Appeal
- The Appellant argues that the Referral Bench
erred in failing to properly examine whether the
courts of Bosnia and Herzegovina are adequately prepared
to accept the case as required by Rule 11bis (A)(iii)
of the Rules.124
Appellant’s Submissions
- The Appellant submits, inter alia, that
the Referral Bench considered neither the applicability
of the principles governing individual responsibility
nor the applicability of general principles of criminal
law in that domestic law.125 The Appellant also submits
that the unproven capability of a national court
to apply complex rules of international law to complex
facts falls below the “adequately prepared” standard.126
He further argues that a March 2005 Report of the OSCE
shows that the national courts in Bosnia and Herzegovina
are not adequately prepared.127
Prosecution’s Submissions
- The Prosecution responds, inter alia, that
the Referral Bench undertook a comprehensive analysis
of all relevant provisions of law applicable in Bosnia
and Herzegovina.128 It also argues
that lengthy and involved procedures in a national
jurisdiction may be a reasonable consequence of
thorough review and proper consideration, which
are supportive of a determination that there exists
an adequately prepared system.129
Discussion
- The Referral Bench engaged in a thorough assessment
of Bosnia and Herzegovina’s
willingness and capacity to accept the Appellant’s
case. Contrary to the Appellant’s
arguments, the Referral Bench devoted eight full pages
of the Impugned Decision to a consideration of the
substantive law that would be applicable in Bosnia
and Herzegovina. It examined the criminal codes of
the Socialist Federal Republic of Yugoslavia (“SFRY”)
and the Criminal Code of Bosnia and Herzegovina (“BiH CC”)
as well as international law.130 It
concluded that the SFRY Criminal Code would apply to
most of the alleged criminal acts, but that the BiH
State Court might determine that either the BiH Criminal
Code or international law applied to other acts.131
Regardless of which of the three legal codes applies,
however, the Referral Bench was satisfied that “there
are appropriate provisions to address most, if not
all, of the criminal acts of the Accused alleged in
the present Indictment and there is an adequate penalty
structure”.132
- In light of the Stankovic Rule 11bis Appeal
Decision, the Appeals Chamber concludes that the
Referral Bench correctly determined that the authorities
of Bosnia and Herzegovina are willing and adequately
prepared to accept the transfer of this case.
- The fourth ground of appeal is accordingly
rejected.
Fifth Ground of Appeal
- The Appellant argues that the Referral Bench
erred in failing to properly examine general conditions
of and the risks involved concerning the Appellant’s
pre-trial, trial and potential post-trial detention
in a Bosnia and Herzegovina prison, particularly
in light of the personal circumstances of the Appellant.133
Appellant’s Submissions
- The Appellant submits that while Rule 11bis of
the Rules does not deal with the issue of detention
or a safeguard against inhuman treatment, it is self
-evident that no accused can be transferred to a situation
in which he would face such treatment.134 The Appellant
argues that neither the Government of Bosnia and Herzegovina
nor the Referral Bench discussed post-conviction
detention,135
and that there is at present no high security detention
facility in Bosnia and Herzegovina.136 He further submits various newspaper
reports that deal with attacks on Serb prisoners in
BiH prisons.137
Prosecution’s Submissions
- The Prosecution responds that evidence before
the Referral Bench shows “that
the high security detention unit of the (BiH( State
Court is a permanent facility
”.138 The
Prosecution argues that there are “security prisons
(…( in Republika Srpska” where the Appellant could
be imprisoned, and “that a new maximum security prison
will be finished in the near future”.139 The Prosecution also
notes that Bosnia and Herzegovina is a party to the
International Covenant on Civil and Political Rights,
the European Convention on Human Rights, and the European
Convention for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment.140 Furthermore, the Prosecution
states that the newspaper articles constitute new
evidence which cannot be considered on appeal.141
Discussion
- At the outset, the Appeals Chamber recalls
its finding in the Stankovic
Rule 11bis Appeal Decision that
[t]he condition of detention units in a national jurisdiction,
whether pre- or post -conviction, is a matter that
touches upon the fairness of that jurisdiction’s
criminal justice system. And that is an inquiry
squarely within the Referral Bench’s mandate.142
- In relation to the newspaper articles on alleged
attacks on Serb prisoners in BiH prisons, the Appeals
Chamber notes that the Appellant has filed these
documents on appeal without authorization of the
Appeals Chamber. The Appeals Chamber cannot consider
this new evidence on appeal because it is not part
of the record of the case and has not been admitted
under Rule 115 of the Rules.
- Apart from these submissions, the Appellant
has offered nothing to suggest that the Referral
Bench erred in considering the fairness of the conditions
of confinement in Bosnia and Herzegovina, be it
pre- or post-conviction. Specifically, the Referral
Bench accepted that “the Government of Bosnia and
Herzegovina had previously noted that the Law of
Bosnia and Herzegovina on Execution of Criminal
Sanctions, Detention, and other Measures (‘Law
on Detention’)143
regulates the operation of the detention facility in
accordance with State, European, and international
standards, including providing detainees with the means
of having confidential communications with counsel.”144
This shows that the Referral Bench made reference to
domestic laws as well as European and international
standards governing prison conditions in Bosnia and
Herzegovina, standards that protect prisoners both
before and after conviction.
- The Referral Bench also considered that Article 3
of the Law on Detention provides that detainees “shall
retain all rights other than those necessarily restricted
for the purpose for which they were ordered and
in accordance with this Law and international agreements”.145 Furthermore, the Referral Bench stated that Article 68(1) of the
Law on Detention “specifically
permits detainees and prisoners to communicate confidentially
with a lawyer of their choice”.146
- Consequently, the Appellant has not demonstrated
that the Referral Bench erred in failing to properly
examine general conditions of the Appellant’s pre-trial,
trial and potential post-trial detention in Bosnia
and Herzegovina. The fifth ground of appeal is rejected.
Disposition
- The Appellant’s sixth ground of appeal is ALLOWED
IN PART, insofar as
it objects to the Referral Bench’s order instructing
the Prosecutor
a. to continue her efforts in co-operation with the
OSCE or another international organisation to ensure
the monitoring and reporting on the proceedings of
this case before the State Court of Bosnia and Herzegovina,
and
b. to seek further direction from the Referral Bench
if arrangements for monitoring and reporting should
prove ineffective.
- The remainder of the Appellant’s appeal is DISMISSED.