1 Thursday, 12 May 2005

2 [Motion Hearing]

3 [Open session]

4 --- Upon commencing at 2.25 p.m.

5 JUDGE ORIE: Good afternoon to everyone.

6 Mr. Registrar, would you please call the cases, I would say.

7 THE REGISTRAR: Yes. Thank you, Mr. President. This hearing is

8 conducted under Rule 11 bis in the cases the Prosecutor versus Mitar

9 Rasevic and Savo Todovic, case IT-97-25/1-PT, and in the case of

10 Prosecutor versus Gojko Jankovic, IT-96-23/2. Thank you, Mr. President.

11 Thank you, Mr. President.

12 JUDGE ORIE: Thank you. Before I ask the parties to present

13 themselves, would I like to explain that we are hearing simultaneously two

14 cases, at least 11 bis requests on two cases. That's done for judicial

15 economy, and I take it that transcripts of this hearing will finally be

16 available for both -- for both cases. If there would be any moment that

17 any of the parties would like to split up at a certain moment because of

18 the specific features of one case which should be -- not be dealt with in

19 the other case, then they are invited to address the Chamber so we can

20 decide on such a request.

21 I also note that the Defence of both cases have agreed with this

22 procedure prior to engaging in it.

23 Then I'd like to have the appearances. Prosecution first, please.

24 MS. SOMERS: Thank you and good afternoon, Your Honours, counsel.

25 Susan L. Somers for the Prosecution. To my right Mr. Manoj Sachdeva,

1 Ms. Christina Moeller, and Mr. Aleksandar Kontic, and Mr. Sebastiaan van

2 Hooydonk.

3 One question of the Bench before I proceed. Will the Prosecution

4 have an opportunity to object to the presence of -- for the record of the

5 representatives from Serbia and Montenegro.

6 JUDGE ORIE: Yes. As it was said in the -- yes. As was said in

7 the last Scheduling Order that this issue would be addressed in the

8 beginning of the hearing, so at this moment the representatives of Serbia

9 and Montenegro are present. We'll hear who they are soon. They're

10 present, as it stands now, just for this preliminary matter first, and the

11 Chamber will then decide how to proceed.

12 The Prosecution has presents it had self for the Defence.

13 MR. LAZAREVIC: Good afternoon, Your Honours. My name is

14 Aleksandar Lazarevic I'm here as counsel for Mr. Savo Todovic as well as

15 for Mr. Gojko Jankovic, both of the accused.

16 At this point, I believe there is also one question that I would

17 like to ask for clarification from the Trial Chamber. Having in mind what

18 Your Honour just said regarding transcripts, I have certain particular

19 instructions regarding some issues that are related particularly to

20 personal issues of Mr. Todovic, so what I would like to know right now is

21 whether it would be possible, I don't want to have a severance of a trial

22 or whatever, but what I would like to know is whether it would be possible

23 that some parts of the transcript would be related only to Mr. Todovic

24 case and not to be mentioned in Mr. Jankovic case.

25 JUDGE ORIE: Yes. We'll consider that --

1 MR. LAZAREVIC: I'll indicate what part of the transcript these

2 are.

3 JUDGE ORIE: Yes. It might be that we do that at a separate time.

4 Mr. Lazarevic, thank you.

5 And then for Mr. Jankovic.

6 MR. DOMAZET: [Interpretation] Good afternoon, Mr. President, good

7 afternoon, Your Honours. My name is Vladimir Domazet from Nis, Serbia and

8 Montenegro, and I represent the accused Mr. Mitar Rasevic.

9 JUDGE ORIE: Then we would have Mr. Rasevic -- thank you.

10 Thank you, Mr. Domazet or should I say [Interpretation] Thank you

11 Mr. Domazet. Maitre Domazet, if I can call you that.

12 [In English] Then we have a videolink, and I would like to explain

13 why we have a videolink this moment and why the representatives of

14 Bosnia-Herzegovina are not present in this courtroom.

15 The Chamber, and the same is true for the representatives of

16 Bosnia and Herzegovina, were surprised a couple of days ago by a few

17 procedural developments. First, the application to the Chamber that the

18 Chamber was requested to invite representatives of Serbia and Montenegro,

19 whereas the 11 bis request does not mention Serbia and Montenegro as one

20 of the -- of -- as the state to which these cases should be referred.

21 Second, by an application by Serbia and Montenegro itself in which

22 they asked to be invited and to attend this hearing and explain why Serbia

23 and Montenegro considers it the best solution that if this case would be

24 referred that it would be to Serbia and Montenegro and not to Bosnia and

25 Herzegovina as requested by the Prosecution, and third a -- could I say a

1 fierce opposition by the office of the Prosecution in relation to this

2 attendance of this hearing by Serbia and Montenegro. That's the reason

3 you'd ask why this is a reason to have a videolink. The representatives

4 of Bosnia and Herzegovina were not prepared for this situation and might

5 not have attended. Since they had already submitted in earlier cases

6 several matters to this Chamber, they decided not to be present but were

7 surprised by these developments and asked to be present now.

8 So let me first ask the appearance of the representatives of

9 Bosnia and Herzegovina through videolink.

10 MR. HALILAGIC: [Interpretation] Your Honour, my name is Jusuf

11 Halilagic. I'm secretary of the Ministry of Justice of Bosnia and

12 Herzegovina, and I'm here in the capacity of representative of Bosnia and

13 Herzegovina at this hearing. Together with me are my colleagues, Ms.

14 Julia Baly, prosecutor of the Prosecutor's Office of Bosnia-Herzegovina;

15 Mr. Behaija Krnjic, prosecutor also in the Prosecutor's Office of

16 Bosnia-Herzegovina; Ms. Biljana Potparic, deputy registrar of the Registry

17 for section 1 for war crimes and section 2 for organised crime of the

18 court of Bosnia-Herzegovina; and Ms. Mechtild Lauth, legal counsel for the

19 Registry for section 1 and section 2 of the Court of Bosnia-Herzegovina.

20 JUDGE ORIE: Thank you very much, Mr. Halilagic.

21 Then I'd finally but for limited purposes would like to know the

22 appearances for Serbia and Montenegro, since the first issue on the agenda

23 today is whether or not Serbia and Montenegro has any standing, has any

24 position in these proceedings. So to that limited purpose, I would like

25 to know the appearances for Serbia and Montenegro.

1 MR. DJERIC: Thank you, Your Honour. My name is Vladimir Djeric.

2 I'm counsel for Serbia and Montenegro. On my left side are Mr. Svetoslav

3 Rabrenovic, legal advisor ion the national committee for cooperation with

4 the Tribunal, and Mr. Slavoljub Caric, counsel of the Serbian and

5 Montenegrin embassy in The Hague. And please let me apologise on behalf

6 of Minister Ljajic who for some urgent business is not able to be present

7 today -- this afternoon, as he was in the morning. Thank you.

8 JUDGE ORIE: Thank you very much, Mr. Djeric.

9 The first matter we'd like to address is the attendance of Serbia

10 and Montenegro in these proceedings.

11 Ms. Somers, in earlier occasions no objections were filed where

12 similar things happened. So to that extent, it was a surprise for the

13 Chamber as well.

14 But let me first ask Mr. Djeric. Are you aware of the opposition

15 of the Office of the Prosecution?

16 MR. DJERIC: Yes, we are aware but obviously we received the

17 opposition, I believe, last night so we didn't have time to consider it

18 fully. But we are able to respond.

19 JUDGE ORIE: Yes. Yes, well, that's partly due of course also to

20 the late submission of your application.

21 I would like to -- we are here to hear the 11 bis motion and not

22 to spend the whole afternoon on this procedural issue. I'd like to give

23 you five minutes to briefly respond to -- to the opposition by the

24 Prosecution.

25 MR. DJERIC: Thank you, Your Honour. Your Honour, I believe that

1 here we are in the same position as in the Mejakic case. There as well we

2 were not indicated -- indicated as a state to which a case should be

3 referred by the Prosecution. Still we applied to have present in the

4 proceedings on the basis of the principle that one of the accused there

5 was our national. This is the same principle that we base our application

6 on in the present case.

7 We submit that two of the accused are our national. One is

8 Mr. Todovic, and another is Mr. Jankovic. And I will further get later

9 into the issue of the evidence for that, because that was also raised in

10 the Prosecution's submission.

11 Let me start with -- with the observation that there are several

12 ways in which a state could appear in 11 bis proceedings in our view.

13 First is if the state is being considered for a referral either because

14 the Prosecution proposed that the case should be referred to that state or

15 because the trial -- the Bench considers that this could be a possibility,

16 and obviously the state should be heard in such a case.

17 Now, another basis is that Rule 11 bis provides as we have

18 repeated many times three bases for the referral or the establishing of

19 the jurisdiction, territory or the place where the crime was committed and

20 the state on whose territory the crime was committed, the state in which

21 the accused was addressed, and secondly -- or, rather, thirdly, I'm sorry,

22 it is the state that is willing and able to prosecute and has jurisdiction

23 to prosecute, and this is obviously universality principle.

24 Now, we think that considering Rule 11 bis under which a Chamber

25 is in the position proprio motu to propose a state for referral in which

1 the Chamber is in a position to consider any state it thinks fit for the

2 referral in the proceedings, we think that on the basis of the fact that

3 we are able and willing to prosecute and that we have the jurisdiction to

4 do so that we could assist the Trial Chamber in making the decision that

5 at the end of the day is just for the Chamber to which state the case

6 should be referred.

7 And these are the bases for our participation, our standing in the

8 present proceedings that stem out of Rule 11 bis. There is another or

9 third general basis, and perhaps this is the strongest one, and this is

10 the fact that as the state of nationality of two of the accused in the

11 present proceedings, we have an interest to have a -- we have such a

12 strong interest to have a standing in the present proceedings and to ask

13 that the case be referred to Serbia and Montenegro.

14 Obviously this is a principle of parens patriae. This is the

15 principle that the state of the nationality has the right to assert its

16 interest in its own citizens, and this is a principle which has been a

17 principle which has been a long standing principle of international

18 customary law, perhaps one of the oldest, and under this principle we

19 submit that we have standing under Rule 11 bis.

20 Again, on the basis of this principle, we are in the position to

21 assist the Chamber in making its decision, and at the same time we are in

22 a position to protect our interests in our citizens.

23 Now, I will conclude with one observation, and that is that from

24 our practice with International Tribunal, especially considering Rule 54,

25 different Chambers have been willing to allow or permit our state or other

1 states to be present in the proceedings in which their interests might be

2 affected.

3 One of the examples would be several occasions in which the Trial

4 Chamber in Milosevic case allowed Federal Republic of Yugoslavia then, and

5 now Serbia and Montenegro, to be present. For instance, in a case where a

6 witness was about to give his testimony, and we had an interest in this

7 testimony, and at that time, if I remember correctly, Mr. Nice of the

8 Prosecution was opposing this, and still the Chamber allowed us to be

9 present to give our views, because the Chamber thought that, first, we

10 have a legitimate interest and, second, that our submissions, our oral

11 submissions, would assist the Chamber in making their decision. And I

12 think this is -- the case is same here. I think that we have a very

13 strong interest. I said it's based on international customary law. And

14 secondly, I think that we are able to assist the Chamber in the present

15 case.

16 JUDGE ORIE: Yes:

17 MR. DJERIC: Thank you, Your Honour.

18 JUDGE ORIE: So it's mainly a perans patriae.

19 MR. DJERIC: As the one but the course the main, of course, of

20 the --

21 JUDGE ORIE: Yes. Let's then look at to what extent you are a

22 parent. Is there any disagreement as to the nationality? Because I would

23 like first to focus on the one case which is Todovic, Rasevic. Is there

24 any disagreement as to Mr. Rasevic not being a national of Serbia and

25 Montenegro?

1 Maitre Mr. Domazet.

2 THE INTERPRETER: Microphone for Mr. Domazet.

3 MR. DOMAZET: [Interpretation] Your Honour, I shall proceed in the

4 Serbian language because I have been asked by the translation and

5 interpretation service to proceed this way because they have a problem

6 with interpretation from French into English, and also I think it would be

7 fair to the others, and of course this will be no problem with Serbia and

8 Montenegro.

9 As for Mitar Rasevic, at this moment he does not have citizenship

10 of Serbia and Montenegro. When I say at this point in time, I'm actually

11 saying that the procedure of obtaining that citizenship is under way and

12 is drawing to a close, as a matter of fact. Most probably one of these

13 days Mr. Rasevic is going to obtain the said citizenship, but at this

14 point in time he does not have it.

15 Thank you.

16 JUDGE ORIE: Thank you, Mr. Domazet.

17 JUDGE KWON: Sorry to interrupt. Since we are dealing with the

18 nationality issue, the record is not clear in this case as well.

19 Mr. Jankovic and Mr. Todovic are said to be nationals of Serbia --

20 [Trial Chamber confers]

21 JUDGE ORIE: Judge Kwon is of a quicker intelligence than I am. I

22 do it slowly.

23 We dealt with Mr. Rasevic. Now about Mr. -- the Prosecution does

24 agree -- I understand from the submission, that Mr. Rasevic is, at least

25 at this moment, not a national of Serbia and Montenegro.

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1 MS. SOMERS: To the best of our knowledge he is not.

2 JUDGE ORIE: Then the next question is the nationality of

3 Mr. Todovic.

4 Perhaps, Mr. Lazarevic, I give you first the --

5 MR. LAZAREVIC: Yes, Your Honour. I can confirm that Mr. Todovic

6 has citizenship of Serbia and Montenegro.

7 JUDGE ORIE: Could you tell us how he obtained that?

8 MR. LAZAREVIC: Yes. Well, that was a good question, because I

9 believe that I was personally involved in these procedures of arranging

10 citizenship with the authorities for Mr. Todovic.

11 JUDGE ORIE: When at the obtain it?

12 MR. LAZAREVIC: Your Honour, I cannot give you the exact date, but

13 I believe that the members of our delegation have the exact -- the actual

14 paper with the date, and they can assist me. It was maybe two weeks ago,

15 maybe two and a half weeks ago.

16 JUDGE ORIE: May I understand, then, that Mr. Todovic did not have

17 Serbian and Montenegrin nationality at the time the 11 bis application was

18 filed?

19 MR. LAZAREVIC: Your Honour is absolutely right. That's true.

20 JUDGE ORIE: Before I give an opportunity to -- to the

21 representative --

22 JUDGE KWON: I wonder, Mr. Todovic is also a national of Bosnia

23 and Herzegovina, a dual national?

24 MR. LAZAREVIC: Yes, he does have dual nationality at this moment.

25 JUDGE KWON: Thank you.

1 JUDGE ORIE: Yes. Ms. Somers, it appears from your submission

2 that you at least lived in the assumption that Mr. Todovic was not a

3 citizen of Serbia and Montenegro.

4 MS. SOMERS: With the Bench's permission, may I ask that Sanction

5 be employed right now. We will provide to the Bench the communication as

6 of April 2005 from the government of Serbia and Montenegro, Mr. Rasim

7 Ljajic having sent it, the answer with regard to our inquiry as to the

8 national -- nationality.

9 JUDGE KWON: That appears on Sanction, fourth button.

10 JUDGE ORIE: And unfortunately, this appears at the -- where the

11 yellow sticker is at least for us. Yes.

12 MS. SOMERS: If the Chamber is having difficulties, I have hard

13 copies which I'm happy to provide to --

14 JUDGE ORIE: Most important is that the representatives of Serbia

15 and Montenegro could have a look at it. Is there a practical way of

16 giving them access to a monitor which shows -- perhaps you would give the

17 hard copy to --

18 MS. SOMERS: Delighted. There are three copies. I'm going to

19 give them away so I won't be able to make reference to them, but there is

20 one for Mr. Todovic dated 4 April 2005 indicating not a citizen, one for

21 Mr. Jankovic dated April 4, 2005, indicating not a citizen, and the third

22 one is for Mr. Rasevic, indicating not a citizen, also dated 4 April.

23 JUDGE ORIE: That would be consistent with obtaining nationality

24 two and a half weeks ago, isn't it?

25 MS. SOMERS: Sometime in that time period.

1 JUDGE ORIE: Yes.

2 MS. SOMERS: Yes, it appears so. Your Honours, we will also try

3 to put the Serbian language version up with the stamps that are relevant.

4 JUDGE ORIE: Would you like to make any further submissions in

5 this respect?

6 MS. SOMERS: We would submit that the issue of nationality is an

7 issue that effectively is one that is raised. It is engineered to try to

8 assert some basis for an attempted claim to having an interest. If I

9 restrict my comment just to the issue of nationality, I will stop there.

10 However, we certainly have -- would I like to have just the opportunity to

11 address Your Honour's concern initially raised about the Prosecution's

12 response that I believe Your Honour deemed it a surprise.

13 Looking at the Mejakic proceeding, in fact they were invited by

14 the Chamber ultimately to do so. So in effect the Chamber did exercise

15 its request powers to make the invitation on --

16 JUDGE ORIE: On the request of Serbia and Montenegro.

17 MS. SOMERS: However, it was a -- it was a request that figured

18 into the pleadings and it is substantially different. The timing of

19 course here catches everyone by surprise. It was done at the close of

20 submissions by the accused Rasevic and Todovic. It was done in what is

21 called euphemistically a Defence notice and we were able to file our

22 motion in opposition thereto. In the case of the accused Jankovic it was

23 done tacked on to the response ordered by the Chamber to a number of

24 questions, and so the Prosecution filed an application to reply given that

25 we had already submitted our response to the Chamber's questions. We have

1 also moved to strike all submissions by Serbia and Montenegro. Thank you.

2 JUDGE ORIE: When was the application for nationality filed?

3 Could anyone give an answer to that?

4 Mr. Lazarevic, since you said that you were involved --

5 MR. LAZAREVIC: I believe I can assist the Trial Chamber regarding

6 this issue. Your Honours are well aware that there is certain procedure

7 that needs to be applied --

8 JUDGE ORIE: Just -- my question was when the application was

9 filed.

10 MR. LAZAREVIC: Yes. I can -- I cannot give you the exact date.

11 What I can tell you is that it was here in the Detention Unit to the

12 consular section of the embassy.

13 JUDGE ORIE: So the -- when Mr. Todovic arrived in the Detention

14 Unit, he was not a citizen of Serbia and Montenegro.

15 MR. LAZAREVIC: That's correct, Your Honour.

16 JUDGE ORIE: Is it true that, at the initial appearance, counsel

17 for Mr. Todovic, which was not you, Mr. Lazarevic, indicated that Mr.

18 Todovic was a national of Republika Srpska, on the 19th of January of this

19 year?

20 MR. LAZAREVIC: Your Honour, I really cannot recollect what my

21 colleague Mr. Zecevic, who appeared for the first time, said, but I cannot

22 exclude this possibility. I mean, I'll have to look at the transcript of

23 Mr. Todovic's initial appearance.

24 JUDGE KWON: I wonder if the videolink is working. I don't see

25 the representatives. Oh, yes, it is. Now it's working.

1 JUDGE ORIE: Yes. I do understand, Mr. Djeric, you would like to

2 add something. Please proceed.

3 MR. DJERIC: Thank you very much, you were. Let me clarify just a

4 couple of factual issues.

5 I believe that the response of the National Council for

6 Cooperation that was committed by the Prosecution, is -- it's uncontested.

7 They said that Mr. Todovic was not a citizen of Serbia and Montenegro.

8 However, obviously this was a mistake, because we -- here, I have it in

9 front of me, and we are going to file it later, we have a decision on

10 the -- on the acceptance or admitting to the citizenship or nationality of

11 Serbia and Serbia and Montenegro.

12 Now, you were quite right, Your Honour, to inquire whether

13 Mr. Todovic actually applied for citizenship. I'm not in a position to

14 provide this information.

15 JUDGE ORIE: The information has been provided by counsel. Not

16 the exact date, but after he arrived in the Detention Unit.

17 MR. DJERIC: In reply to that, I would like to make two points.

18 The first point is we think the principle of nationality applies as

19 regards the current nationality of the accused. We think that our

20 interests appear here is coming from that, that he -- that the accused is

21 now our national.

22 Second, I would really like to protest against the submission by

23 the Prosecution that this was engineered. You have seen in other cases as

24 well that we have everywhere applied to have present in the 11 bis

25 proceedings wherever our national is -- is party to -- or accused in the

1 proceedings.

2 JUDGE ORIE: I did understand Ms. Somers's submission as creating

3 the nationality was engineered, not that there was any engineering in you

4 now representing someone who has the Serbian and Montenegrin nationality.

5 MR. DJERIC: Then I'm sorry and I apologise if I didn't understand

6 correctly.

7 So this is Mr. Todovic. We are able to supply, of course, the

8 exact date of his application if the Chamber would need that, but

9 positively I can confirm and I have a document that he is our national.

10 Thank you very much.

11 JUDGE ORIE: Would you give us the date of that document. Perhaps

12 if you could provide us with a copy.

13 MR. DJERIC: Yes, I will. Sure, I have just one copy. The date

14 is the 20th of April, 2005. However, I think that what is important is

15 the date of the application.

16 Would I just like to make a small point on Yugoslav law on

17 nationality. There are several grounds of course to acquire nationality,

18 and one, perhaps one of the most frequent grounds for people from other

19 republics of the former Yugoslavia to acquire Yugoslav or at that time

20 Yugoslav nationality, at this time Serbian and Montenegrin nationality,

21 was that they had residence in Serbia. At some point which was

22 established before 27 April 1992, because at that time -- at that time, at

23 that date, Federal Republic of Yugoslavia was created. So whoever from

24 the other republics was -- had domicile, permanent residence on the

25 territory of Serbia and Montenegro would have automatically been entitled

1 for Yugoslav nationality.

2 Second --

3 JUDGE ORIE: May I just ask you, is it then true that Mr. Todovic

4 had permanent residence since that time at the territory of what is now

5 Serbia and Montenegro?

6 MR. DJERIC: I cannot -- I cannot confirm that. I'm just trying

7 to outline the principle.

8 JUDGE ORIE: Yes.

9 MR. DJERIC: Another principle, and this is also very frequently

10 the basis for acquiring nationality, is that a number of people had were

11 residing, permanently residing in Bosnia and Croatia and other republics

12 of the former Yugoslavia would, according to various laws on nationality

13 in the Socialist Republic of Yugoslavia would have nationality of another

14 republic, another federal entity, but they would be residing in Croatia or

15 in Bosnia. So there is quite reasonable expectation that a number of

16 people coming from Republika Srpska or from Bosnia would actually have

17 Serbian nationality, Serbian republican so-called nationality even before

18 the conflict started, and these people would automatically continue to be

19 Serbian nationals until -- until the present time.

20 JUDGE ORIE: I take it --

21 MR. DJERIC: It depends on their parents, based on their

22 nationality but it's a complicated -- it's a sequence of national -- of

23 laws of nationality that provides for this.

24 JUDGE ORIE: Do we know exactly on what basis Mr. Todovic now

25 acquired --

1 MR. DJERIC: That is something that I'm unfortunately not

2 able to -- to determine now because I don't have the law on nationality in

3 front of me. I did not expect that we are going to go this deep into it,

4 but that is also we can also file, can file a submission about.

5 [Trial Chamber confers]

6 JUDGE ORIE: Now we arrive at the other case, which is the case of

7 Mr. Jankovic. Could you tell us what his nationality is. Mr. Domazet.

8 MR. DOMAZET: I'm sorry, but it's Mr. Lazarevic's.

9 JUDGE ORIE: I'm sorry. Yes, yes, Mr. Lazarevic.

10 MR. LAZAREVIC: Yes, Your Honour. Yes. I can understand it.

11 I believe that Mr. Djeric will elaborate a bit more on this, but

12 he's obviously expert in these kind of issues, legal issues regarding

13 nationality, citizenship and everything.

14 JUDGE ORIE: I expect that counsel could answer the question

15 whether his client is of Serbian and Montenegrin nationality. So of

16 course if we need further clarification, that's fine.

17 MR. LAZAREVIC: From the way -- yes, of course, you were. From

18 the way we see it, he was a citizen of Serbia and Montenegro since 1990,

19 having in mind that he was resident of Montenegro with a permanent address

20 in the town of Igalo in Montenegro since 1990, that he has Serbian ID -- I

21 apologise, Montenegrin ID which means the ID of Serbia and Montenegro, and

22 that according to that he never changed this, and the way we see it he's

23 also a citizen of Serbia and Montenegro, Montenegro in particular.

24 JUDGE ORIE: Yes. And you say he's that since -- and he was

25 living in Montenegro all that time?

1 MR. LAZAREVIC: In 1990 he lived in Montenegro. I cannot say for

2 the whole period, but in 1990 he lived in Montenegro, and he was issued an

3 ID which I received a copy of it but I must say that I was not aware that

4 this issue is going to be that important. I received it last night after

5 midnight, and I do have it right here. And I presented it to the

6 representatives of our state.

7 JUDGE ORIE: Mr. Djeric -- first I give a further opportunity to

8 any submissions, Ms. Somers, apart from the perhaps reference to the

9 letter of early April.

10 MS. SOMERS: The fact that an ID was issued where someone was

11 residing is not as I understand it tantamount to citizenship. We find it

12 terribly confusing that someone in a position such as Mr. Ljajic would not

13 be privy to that information to the point that he would notify the

14 Tribunal that the individual was not a citizen of Serbia and Montenegro.

15 JUDGE ORIE: Mr. Djeric.

16 MR. DJERIC: Thank you, Your Honour. With respect to

17 Mr. Jankovic, I can just say that we don't have exact information upon his

18 nationality, but he was, and as the counsel says he was, if he -- if he

19 had a permanent domicile in Montenegro on 27 April 1992, and an ID is a

20 proof and constitutes a presumption of domicile under our law, then

21 Mr. Jankovic would be our citizen.

22 JUDGE ORIE: Yes. Nevertheless, you presented yourself as parens

23 patriae.

24 MR. DJERIC: Yes.

25 JUDGE ORIE: Nevertheless you say you're not sure whether you're

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1 the father.

2 MR. DJERIC: I'm just drawing the conclusion because it

3 necessarily follows from this fact.

4 As for what Mr. -- for what National Council said, I would draw

5 your attention to the fact that the document submitted by the Prosecution

6 I believe is dated 4th April this year, and this decision on citizenship

7 is 20th April. So there is no contradiction in these two documents.

8 JUDGE ORIE: We established that already as far as Mr. Todovic is

9 concerned. But we're talking now about Mr. Jankovic. So you have no

10 further details, you say --

11 MR. DJERIC: I'm sorry.

12 JUDGE ORIE: I do understand you say, "I have no further details,"

13 but if the information given by Mr. Lazarevic would be correct, that

14 should lead to the conclusion.

15 MR. DJERIC: That's correct. That could lead to the conclusion

16 that Mr. Jankovic is our national.

17 JUDGE ORIE: So that to some extent answer -- could I ask you,

18 let's just -- we know for sure at least that at this moment Mr. Rasevic is

19 not a national of Serbia and Montenegro. On what jurisdictional basis

20 would you try a case if it would be referred to Serbia and Montenegro as

21 it stands now?

22 MR. DJERIC: Yes. We have universal jurisdiction under our

23 Criminal Code.

24 JUDGE ORIE: And that was established when?

25 MR. DJERIC: That was established all the way. That was

1 established in 1977 Socialist Federative Republic of Yugoslavia Criminal

2 Code and continued until the present day. The provision in question was

3 not changed. And I will try to provide you with the exact provision.

4 JUDGE ORIE: Could you please perhaps slowly read that provision.

5 MR. DJERIC: This is Article 108 of the Criminal Code of the

6 Socialist Federative Republic of Yugoslavia, paragraph 5 it says

7 that: "With the consent of the federal public prosecutor," now it's a

8 republican prosecutor of Serbia, "there could be in Yugoslavia prosecution

9 in cases determined in Article 107, paragraph 2," I will come back to

10 that, "if -- regardless of the law of the country in which the crime was

11 committed if the crime that is going to be prosecuted at the time when it

12 was committed could be regarded as the crime under the general principles

13 recognised by international community."

14 This is universal -- so everything that is recognised under

15 internationality law as a crime can be tried with the concept of the

16 public prosecutor and with reference to Article 107, paragraph 2 of the

17 law, which says that -- which actually determines that -- that any

18 foreigner who is present in the territory of -- of Yugoslavia can be tried

19 for certain offences. But we can of course -- I know it's easier. We

20 will provide the translation. But we had this also in the -- in the

21 Vukovar case this morning, and I think that there is no dispute among our

22 lawyers in Serbia that we have universal jurisdiction for international

23 crimes.

24 JUDGE ORIE: Yes, but I do understand, under the condition that

25 the person is present -- present on the territory of Serbia and Montenegro

1 as it is now, yes. Which raises the following question: Mr. Todovic was

2 not on Serbian and Montenegro territory when he was transferred to the

3 Tribunal, because he was transferred from Republika Srpska. So if he

4 would not have Serbian and Montenegrin nationality and if at the time of

5 his transfer he was in Republika Srpska, you would then have no

6 jurisdiction; is that correct?

7 MR. DJERIC: Yes. If he was -- if a person has not our national

8 was not present our territory, obviously we would not have jurisdiction.

9 At the moment the person sets his or her foot on our territory, we would

10 have jurisdiction. And of course if the case is referred --

11 JUDGE ORIE: Yes, you would say --

12 MR. DJERIC: -- we would have jurisdiction.

13 JUDGE ORIE: The Tribunal create you a jurisdiction by sending Mr.

14 Todovic to Serbia and Montenegro. Is that it?

15 MR. DJERIC: Well, Mr. Todovic is our national so we would not

16 have this --

17 JUDGE ORIE: Yes.

18 MR. DJERIC: -- Mr. Jankovic -- Mr. Rasevic, I'm sorry, that would

19 be the case for Mr. Rasevic. But with regard to Mr. Rasevic, we don't

20 actually push for our standing because it's much weaker than for

21 persons -- for the accused who are our nationals.

22 JUDGE ORIE: Yes. When Mr. Jankovic arrived at the Tribunal, he

23 gave as his permanent address an address in Republika Srpska, not in

24 Serbia and Montenegro. So I do apologise for making the mistake in

25 respect of Mr. Todovic. But if Mr. Jankovic would not be a Serbian and

1 Montenegrin national, then if he was present at -- on the territory of

2 Republika Srpska, you would have no jurisdiction. He also was transferred

3 from Bosnia and Herzegovina, the entity of Republika Srpska, not from

4 Serbia and Montenegro.

5 MR. DJERIC: Yes, you're right. If he were not a national we

6 would not have jurisdiction unless there was a subjective element that he

7 was present at our territory.

8 JUDGE ORIE: Yes.

9 [Trial Chamber confers]

10 JUDGE ORIE: The Chamber will take a couple of minutes to

11 consider the issue at stake. Since -- yes. We'll withdraw for a couple

12 of minutes.

13 --- Recess taken at 3.14 p.m.

14 --- On resuming at 3.22 p.m.

15 JUDGE ORIE: The Chamber has considered the matter. The Chamber

16 is considering that it has been shown the Mr. Todovic is at present a

17 national of Serbia and Montenegro. We will proceed in respect of

18 Mr. Todovic in a similar way as we've done in relation to the case of

19 Mr. Mejakic. When it later will come to attaching weight to that

20 nationality, then the -- it will be done in view of the history of how

21 Mr. Todovic obtained that nationality.

22 As far as Mr. Rasevic is concerned, he is not -- well, he's shown

23 not to be a national of Serbia and Montenegro.

24 As far as Mr. Jankovic is concerned, it's not shown that he is a

25 national of Serbia and Montenegro, but, Mr. Lazarevic, if you would like

1 to provide any further evidence on that matter, you may do so within the

2 next seven days.

3 This practically means that mainly on the basis of our finding in

4 respect of Mr. Todovic that the representatives of Serbia and Montenegro

5 may attend this hearing.

6 We'll now move to the main subject of this hearing, which is the

7 11 bis application.

8 Ms. Somers, if you'd like to make any further submissions, you may

9 do so now.

10 MS. SOMERS: Thank you, Your Honour.

11 Because I do not know what may be raised in the course of the

12 hearing, I would also indicate that whatever I say now, if I may have

13 permission if need be to supplement it after other questions, as this

14 morning.

15 JUDGE ORIE: Yes it's very practical to do it this way.

16 MS. SOMERS: Particularly in light of hearing we have to have

17 certain repeating issues, the concept of is this extradition or is it not,

18 I would perhaps pre-empt the subject as it was done this morning repeat

19 the arguments that were made that in fact the entire 11 bis proceeding is

20 an execution of the mandate of the Security Council and that the right of

21 the Tribunal in exercise of that authority given it to send a case that is

22 properly before it to be heard in an appropriate jurisdiction as is

23 provided for in 11 bis (A) is an absolute right, an unconditionable right,

24 and has nothing to do with the concept of extradition. Again, it is a

25 totally different animal. And to remind, although I'm sure the Chamber is

1 very mindful, that in sharp contradiction to any concept of extradition,

2 the Chamber keeps a very long but tangible leash on these cases by virtue

3 of the provision in 11 bis, I leave it is (F), that is not something that

4 is noted or would be part of any type of "extradition" proceeding. There

5 is the ability to revoke under very specific circumstances.

6 The role of the accused is, I submit, diminished in these

7 proceedings. This is a forum issue, and basically if the Chamber turns

8 its attention for a moment to the provisions of 11 bis (B), the decisional

9 powers in the first instance to make requests lie with either the Chamber

10 proprio motu, on its own motion, or the Prosecutor. The only mention of

11 the accused for purposes of any input as to anything is an opportunity to

12 be heard where applicable, where applicable.

13 Secondly, if the Chamber turns its --

14 JUDGE PARKER: Doesn't that contemplate an accused who is not yet

15 in custody and therefore not before the Chamber?

16 MS. SOMERS: That's correct, Your Honour. Being in custody is not

17 a requirement of --

18 JUDGE PARKER: You're not submitting, are you, that an accused has

19 no interest in where he or she might be tried.

20 MS. SOMERS: I believe the Chamber the Bench this morning used the

21 term "expectations." There are expectations that the power to move the

22 case around belongs to the Tribunal. I think that it is certainly in the

23 interests where the Chamber believes or the Bench believes it appropriate

24 to make an inquiry there may be certain factors but the power belongs to

25 the Bench.

1 And in -- even in terms, Your Honour, of revoking the language

2 puts the request to the Prosecutor or the referral -- that the parties

3 involved again are the Bench and the Prosecutor. And I -- I --

4 JUDGE PARKER: I'm sorry, Ms. Somers, I just can't sit here and

5 listen to that without responding. The party originating a motion is the

6 Prosecutor or the Chamber may do it of its own motion. A proceeding

7 having been originated, there is then I would have thought a very clear

8 interest in an accused person as to the outcome of that motion, whether it

9 be in accordance with the motion or a rejection of the motion or a

10 decision on some other direction of referral. All of those things are

11 alive, the motion having been moved or the Chamber having decided to take

12 under consideration the possibility of referral.

13 MS. SOMERS: An accused, Your Honour, who is before the Bench,

14 certainly if it is deemed appropriate to or applicable, and that could be

15 a circumstance where it is applicable. If there is something that the

16 Chamber or the Bench needs to know, there may be very extenuating

17 circumstances, but in principle it's a decision that is really made on the

18 principle that the case is -- is possibly one that meets the criteria.

19 Objections by the accused may not -- they may not be persuasive enough to

20 change the course of a decision. But having heard it --

21 JUDGE PARKER: Nor the views of the Prosecutor.

22 MS. SOMERS: Correct. We accept that.

23 JUDGE PARKER: You seem to put -- what I'm concerned is the way

24 you put it: It is as though only the Prosecutor and the Chamber that

25 ought to be considering.

1 MS. SOMERS: I think the principal moving parties are the

2 Prosecution and the Bench, because we have an obligation to make sure that

3 the case stays alive, and I think that the role of the accused is a

4 minimal role in this proceeding.

5 JUDGE PARKER: Well, I think I've said enough to indicate I have,

6 shall we say, reservations, and I don't want you to waste more time on it

7 because you're under a short time pressure.

8 MS. SOMERS: I'd be happy, Your Honour. We have given written

9 submissions on this, so I don't want to take up your time.

10 The basis for our invoking 11 bis (A)(i) is founded on the

11 territoriality principle as the first and I think the dominant one is in

12 our view having heard what we've just heard, the only one that should be

13 applicable. The crimes were committed and these are of course crimes that

14 are deemed to be very serious crimes in -- on the territory of

15 Bosnia-Herzegovina. We think that the record has been established quite

16 well. Both cases -- both sets of accused have -- co-accused, whose cases

17 have already gone through the appellate process. There is an extremely

18 full record established by this Tribunal which should greatly assist the

19 state court, and we're talking about a reference to the very able state

20 court in Bosnia-Herzegovina to handle these proceedings. It should

21 facilitate state the expeditiousness. It should also make it much more

22 helpful with perhaps adjudicated facts. It is -- these are relatively

23 small cases in the scheme of the cases of the Tribunal, and we think that

24 all factors indicate that if the Chamber does grant referral or order

25 referral, that of course the appropriate forum would be for all the

1 reasons cited today and, in the submissions, Bosnia-Herzegovina's state

2 court.

3 If I may just reserve any further comment, I appreciate it.

4 JUDGE ORIE: Yes. Thank you, Ms. Somers.

5 I'd like to give an opportunity to Defence counsel to address the

6 matter. May I ask you two questions before giving you that opportunity.

7 You received the material in the Mejakic case so that you are

8 aware of the exchange of views on those matters. Are you aware of what

9 happened during this morning's hearing? Did you follow it? I see you're

10 both nodding yes, which is now on the transcript.

11 Could the parties agree that whatever has been said this morning

12 in relation to the case against Mrksic and others that that would be part

13 of the knowledge of the Referral Chamber in deciding the parties are aware

14 of what has been said and can respond or react to that at this very

15 moment, if they wish to do so. Therefore, there would be need to repeat

16 everything. If the Defence would like to put its position, it could

17 perhaps in this respect just briefly refer to, we take the same position

18 as and then mention the subject matter relevant so that we know what your

19 position is by consulting what others said. And if you would like to add

20 anything or if you would like to make any reservation, please do so.

21 Mr. Lazarevic, could I first give you the opportunity, and could I

22 ask you to make clear when you speak for Mr. Todovic and Jankovic both and

23 when you spoke only for one of them.

24 MR. LAZAREVIC: Yes. Yes, absolutely, Your Honour. What I --

25 what my idea was is to first give arguments for Mr. Todovic, then after

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1 that Mr. Domazet could give reasons for Mr. Rasevic, and then at the end I

2 would give some additional arguments regarding Mr. Jankovic in order not

3 to mix up things and just avoid any misunderstanding.

4 JUDGE ORIE: Please proceed. Shall we first deal with Todovic,

5 Rasevic, and then we'll hear --

6 MR. LAZAREVIC: Yes. I can stipulate that we are aware of

7 everything that this morning happened in this Trial Chamber. We were

8 listening and following the proceedings in Vukovar group very carefully.

9 Also, we received transcripts and the following documents in Mejakic case,

10 and we are all aware of the content of all these documents.

11 What we were informed is that we are allotted some 15 minutes per

12 each of the accused to give our arguments, and we were asked not to repeat

13 anything, and we will do our best to do so.

14 For the benefit of the clients, I will now start speaking in

15 Serbian, because they would understand that.

16 [Interpretation] The Defence of Mr. Todovic within the time

17 allocated to it will look at certain submissions made on the 28th of

18 April. We wish to avoid any kind of repetition. First of all, the

19 Defence will deal with the possibility of maintaining an international

20 standard of a fair trial in relation to Mr. Todovic if the case were to be

21 referred to the jurisdiction of Bosnia-Herzegovina for trial.

22 The standards in the European Convention on Human Rights, the

23 International Covenant on Civil and Political Rights, as well as the

24 Statute of this Tribunal were dealt with in detail in our submissions, but

25 the Defence wishes to give some additional views in relation to the right

1 of the accused to presence and questioning of witnesses he might call for

2 his defence if the case were to be transferred to the jurisdiction of

3 Bosnia-Herzegovina.

4 The Defence of Mr. Todovic is not going to repeat all the legal

5 provisions of the Law on Criminal Procedure and all other relevant laws of

6 Bosnia-Herzegovina. It will present its very own experience that it

7 encountered when preparing the defence and the reactions of potential

8 witnesses to the possibility of having the Todovic case transferred to the

9 jurisdiction of Bosnia-Herzegovina.

10 The witnesses contacted by the Defence of Mr. Todovic expressed

11 their readiness to come and testify before this Tribunal in The Hague

12 about the circumstances they are aware of relating to the case, bearing in

13 mind the fact that the Defence could familiarise them with all the rights

14 that they can have as well as with the possibility of safe conduct for

15 persons that may need this in the view of the Defence, and persons who may

16 request that for their own protection. From my own experience I can say

17 on the basis of my experience in the Bosanski Samac case, I very often

18 requested that, and to my great satisfaction this was made possible, and

19 in this way certain witnesses appeared who would not have appeared before

20 any other court, but they did come to this Tribunal. All witnesses except

21 for one who learned of this possibility that instead of testifying before

22 The Hague Tribunal, they could give evidence before the state court of

23 Bosnia-Herzegovina in Sarajevo withdrew their consent and expressed their

24 fear that they may suffer certain consequences if they were to give such

25 evidence.

1 In order to be very specific, I will point out that practically in

2 the case of Mr. Todovic these are three categories of witnesses. However,

3 regardless of which one of these three categories of witnesses we look at,

4 their reaction was identical when the possibility of having the trial held

5 in Sarajevo was indicated to them.

6 The first category of witnesses are witnesses of Serb ethnicity

7 who live in the territory of Republika Srpska and who, during the war in

8 Bosnia-Herzegovina, were part of the military and police structures of the

9 Army of Republika Srpska and other relevant organs. The main reason that

10 these witnesses stated as the reason for their reluctance to appear before

11 the court in Sarajevo was their fear that they themselves might be

12 arrested and tried. They did not want to risk coming and giving evidence

13 before that court. As Defence counsel, I could not guarantee their safety

14 in any way from that point of view.

15 Republika Srpska is part of Bosnia-Herzegovina, as it said in its

16 submissions in this case, and all the rights that the Prosecutor could

17 resort to within Bosnia-Herzegovina are such that I cannot affect them in

18 any way. However, the fact remains that such witnesses constitute a

19 significant body of evidence that the Defence would wish to proffer.

20 The second category of witnesses would be ethnic Bosniaks who live

21 in the territory of Bosnia-Herzegovina. Their main reason for not

22 appearing before the state court of Bosnia and Herzegovina in Sarajevo was

23 that people from their own community where they lived would stigmatise

24 them as persons who were testifying against alleged war criminals and that

25 they would be branded as traitors. Therefore, they were fearful for the

1 safety of their own families if they were to testify for the defence of

2 Mr. Todovic.

3 It is a fact that before this Tribunal I have the experience of

4 bringing such witnesses in, in other cases. They had no problem

5 whatsoever testifying here before this Tribunal, because they felt safe

6 because of the authority of the Tribunal, and also the protective measures

7 that this Tribunal gave them were reassuring.

8 The third category of witnesses that I had contact with and who

9 changed their views with regard to testifying are witnesses who are

10 citizens of Serbia and Montenegro and who, bearing in mine the fact that

11 there is no institution of safe conduct in Bosnia-Herzegovina, they

12 believe they would risk arrest and indictment if they were come and

13 testify before the state court of Bosnia and Herzegovina.

14 Bearing in mind what appeared in the Mejakic case, that is to say

15 some 10.000 indictments of Bosnia-Herzegovina, perhaps these fears of

16 theirs may be justified. For the most part, these are people who were in

17 the army, who were in police organs and other organs, and who have good

18 reason to fear for their safety and to be afraid of being arrested.

19 At this point in time, I would just like to draw the attention of

20 the Referral Chamber to the report on the state of the judiciary in

21 Bosnia-Herzegovina dated the 12th of March, 2005. That is a report of the

22 organisation for Security And Cooperation In Europe. Mr. Todovic's

23 Defence mentions this report several times in its brief and I believe it

24 was also mentioned in the Mejakic case. I believe that this report gives

25 me the right to say that I believe there are reasonable grounds for fear

1 that it will virtually be impossible to have a proper defence for

2 Mr. Todovic on account of the fact that witnesses simply will not appear.

3 Mr. Todovic has a position of his own here, of course, and from

4 that point of view he gave me instructions. He does not wish to bring

5 anyone into that kind of situation, to be arrested or to be indicted

6 because such a person would want to testify on behalf of his defence.

7 Therefore, if the case is referred to the jurisdiction of

8 Bosnia-Herzegovina, he will not be presenting any kind of defence.

9 On the other hand, as I already stated briefly, none of these

10 problems would appear if the case were to remain before this Tribunal, and

11 we would have no problem with bringing any witness to testify on behalf of

12 the defence of Mr. Todovic.

13 JUDGE ORIE: Mr. Lazarevic, may I draw your attention to the fact

14 that you are close to your 15 minutes.

15 MR. LAZAREVIC: I do apologise. [In English] I apologise,

16 Your Honour. It seems that I --

17 JUDGE ORIE: Mr. Lazarevic, many of the issues, many of the issues

18 where you use -- where you explain matters which are in the substance the

19 same that has been said this morning. So please proceed, but not for more

20 than two minutes.

21 MR. LAZAREVIC: [Interpretation] Your Honours, the second question

22 that the Todovic Defence wishes to elaborate on is related to certain

23 personal circumstances of his. I would kindly ask now, if possible, to

24 move into private session so that I could present these personal details

25 of his. I promise that this will be very brief.

1 JUDGE ORIE: I do understand that there's no objection against the

2 other accused being present and the representatives of the governments

3 being present? Mr. Lazarevic? Yes. Okay. Then we move into private

4 session.

5 [Private session]

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14 [Open session]

15 MR. LAZAREVIC: [Interpretation] And finally, in closing, let me

16 say that Mr. Todovic surrendered voluntarily. He put himself into the

17 hands of this Tribunal, of the Court, with the expectations that he would

18 be tried before this Tribunal pursuant to the Rules and Regulations and

19 having full confidence in the equitability and justice shown by the

20 International Tribunal and a lack of bias on the part of the Tribunal.

21 I do not wish to say that he would not have surrendered, perhaps,

22 had he had a clear idea that the Prosecutor would ask that his case be

23 referred, but I'd like to ask the Trial Chamber or Referral Bench to bear

24 in mind the circumstances in making a decision and that Mr. Todovic, when

25 he made his decision, had in view the practice of this Tribunal, the Rules

1 of Procedure of this Tribunal, and the fairness of this Tribunal as well.

2 Thank you.

3 JUDGE ORIE: Thank you, Mr. Lazarevic.

4 We will have a break. After the break, Mr. Domazet, you will have

5 an opportunity to submit further argument. After we're done with that,

6 Mr. Lazarevic again on behalf of his other client, then the

7 representatives of Bosnia and Herzegovina will have an opportunity to make

8 further submissions.

9 We will adjourn until five -- twenty-five minutes past four.

10 --- Recess taken at 3.57 p.m.

11 --- On resuming at 4.28 p.m.

12 JUDGE ORIE: Before we continue, I'd like to address the

13 representatives of Bosnia-Herzegovina. I noticed that there was some

14 disruption during a very short moment of the videolink. If there are

15 major problems, I hope that there would be a possibility to address the

16 Chamber so that we would be aware of it.

17 Then we'll now continue. Mr. Domazet, it's up to you. You notice

18 that I'm rather strict on time, but we have to be unfortunately. Please

19 proceed.

20 MR. DOMAZET: Thank you, Your Honour.

21 [Interpretation] Your Honours, I'll try and adhere to the time

22 limit and take up as little time as possible.

23 First of all, thanks to the fact that these proceedings have --

24 these matters have already been addressed and I had the opportunity of

25 looking at the transcripts of Mejakic and others, and I followed this

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1 morning's proceedings, I do not want to wish -- I do not wish to repeat

2 anything that my colleagues already said, particularly not what was stated

3 in the Rasevic Defence motion. But I should like to take advantage of

4 this occasion to highlight a few points. First of all, some personal

5 matters with respect to the accused Rasevic and those which have to do

6 with certain dilemmas which the Defence has with respect to the

7 Prosecution motion.

8 Now, what refers to Rasevic personally is this: Since August

9 2003, he has been in the Scheveningen Detention Unit. He surrendered to

10 the authorities in Serbia, and he was in detention there, and then

11 transferred to the Detention Unit here.

12 From October of that same year, I have been lead counsel on his

13 Defence team, that is to say for more than a year and a half, and I'm

14 saying that because that is one of the problems. Mr. Rasevic and I fear

15 that we're going to encounter a problem along those lines if this case is

16 referred to Bosnia and Herzegovina because our defence is nearing

17 completion, and we were ready to go ahead, and we stressed at the

18 conferences that were held, the Status Conferences, we said we stood

19 trial-ready. However, unfortunately the trial did not come about,

20 although in the meantime we had the co-accused Todovic here. So all the

21 conditions were met, and I think that this Tribunal could have scheduled a

22 trial date and that that would have been the fairest thing to do with

23 respect to the accused Rasevic and with respect to the Defence team that

24 has prepared itself for the trial and the Defence case.

25 And as we were able to see from the submissions sent in from

1 Bosnia-Herzegovina, the comments made by the individual Defence counsel

2 that if the case is referred to Bosnia-Herzegovina that there would be

3 certain changes, that it would have to be restructured or a new indictment

4 written and a new pre-trial stage conducted. However, what Mr. Rasevic is

5 personally concerned about is this: It is the question of time. He does

6 not have anything against being tried in Bosnia-Herzegovina, if he cannot

7 be tried here in The Hague, if he were to have a fair trial assured him

8 there and if the trial were to be started within a reasonable amount of

9 time and if it was completed within a reasonable amount of time. He's

10 already been here for two years, and if he has to spend another two years

11 before the trial goes ahead or is completed, then that would create a

12 problem. It would be unfair towards him and unfair to the general

13 proceedings.

14 What he is particularly concerned about is his desire to have his

15 Defence team that has been working for two years, he would like to have

16 his Defence team continue working for him regardless of where the case is

17 actually tried, and that would certainly be possible if the trial were to

18 be referred to Belgrade. But that is not certain if the case were to go

19 to Bosnia-Herzegovina and Sarajevo. I have seen assurances from

20 Bosnia-Herzegovina that there is indeed the possibility, as opposed to

21 Croatia where that possibility was excluded, the possibility of having

22 lawyers specifically here from Serbia and Montenegro acting as Defence

23 counsel in the trial. However, as far as I was able to see, there are no

24 guarantees about that. It is a possibility that is open but no guarantees

25 have actually been given. And what will happen if/when the case comes to

1 trial Bosnia-Herzegovina does not allow for that possibility and does not

2 allow Rasevic to have the Defence team that has invested such a great deal

3 of time and effort in preparing his Defence case and also use the

4 resources of this Tribunal?

5 If the trial were to be held in Belgrade, that would not be a

6 problem quite certainly. The reason that we mention Belgrade as a

7 possible venue is precisely because of the fact that Serbia and Montenegro

8 have done a great deal in recent years to establish a court of law. We

9 have a separate prosecutor and Trial Chamber, and as far as I know, except

10 for the Ovcara case, which is ongoing, is conducting another case that was

11 referred to it and where the crimes were committed precisely on the

12 territory of Bosnia-Herzegovina. I am, therefore, quite certain that that

13 Trial Chamber for war crimes in Belgrade would be able to take on the case

14 straight away. I am not sure that the situation is the same in Sarajevo

15 or, rather, if this trial were to be referred to Sarajevo, would it start

16 straight away. That is not clear. All cases pursuant to Rule 11 bis

17 which are referred to Bosnia-Herzegovina, would they be tried at all in

18 Sarajevo or would they go before the cantonal courts throughout

19 Bosnia-Herzegovina?

20 And I am also concerned, and I will to repeat something that was

21 already said today, the piece of information about 10.000 indictments are

22 expected in Bosnia-Herzegovina, and even if the number were fewer, this is

23 a highly worrying figure for the effectiveness and efficiency of the

24 courts and the proceedings held before them.

25 So those, then, are the reasons for which the accused himself,

1 Mr. Rasevic, was concerned, and that is why he wished his case to -- his

2 trial to go ahead here in The Hague or to be referred to Serbia and

3 Montenegro together with Todovic, who meets the criteria of citizenship

4 which Mitar Rasevic at this point in time does not. However, he

5 personally surrendered in Serbia and therefore meets the 11 bis criteria.

6 The Defence is fully conscious of the fact that there are a number

7 of other problems as well, problems with witnesses, for example. I don't

8 want to repeat what has already been said, but just like what my colleague

9 Mr. Lazarevic said a moment ago, those problems occur in this case too.

10 We do fear that many witnesses, both ethnic Serbs and Bosniaks who have

11 pledged to appear in court will refuse to do so and avoid coming in to

12 testify if the case goes ahead in Bosnia-Herzegovina. And that is

13 something that is of great concern to us, because it can affect justice

14 and fairness and the overall procedure as indeed the ruling that Rasevic

15 expects, that is for the trial to go ahead as soon as possible.

16 Let me also say a few words about the man himself. It is somebody

17 who has spent his entire working life --

18 JUDGE ORIE: Despite the fact that you repeatedly told us that

19 you're not going to repeat what has been said, and despite the fact that

20 almost everything you said until now is already in the written

21 submissions, we'd really -- this Chamber would like to hear additional

22 argument, not mainly a repetition of what was said. Please proceed.

23 MR. DOMAZET: [Interpretation] Thank you. I have no other separate

24 arguments to put forward. I have told you of the arguments that were

25 rightly used by my colleagues. I just wanted to say a few words about the

1 man himself, and I was saying that he had spent his whole working life in

2 an institution such as is a prison, the KP Dom. The war didn't bring him

3 there. The war found him there. He was there when the war broke out. He

4 stayed there throughout the war. He was mobilised, and also he worked

5 there after the war. So he did not leave or escape anywhere or anything

6 like that. He didn't flee.

7 As commander of the guard shift, if that is command responsibility

8 of any kind, if he perpetrated any acts, then it will be up to the court

9 that's going to try him to say. But for all the reasons that we have put

10 forward a moment ago which I had to repeat, I do agree that they have all

11 been stated or most of them have already been stated before, but I have no

12 others to put forward. That is what I wanted to say myself, and that

13 is -- those are the concerns of Mr. Rasevic's Defence team, and that is

14 why his main proposal was that this case should not be referred to

15 Bosnia-Herzegovina but that it should be tried in The Hague. If that were

16 not possible, then it should be referred to Serbia and Montenegro.

17 Thank you.

18 JUDGE ORIE: Thank you very much, Mr. Domazet.

19 Mr. Lazarevic.

20 MR. LAZAREVIC: Thank you, Your Honours. I will really try my

21 best to run only for 15 minutes.

22 [Interpretation] Your Honours, in presenting additional arguments

23 with respect to the request made by the Prosecution to have Mr. Jankovic's

24 case referred to the jurisdiction of Bosnia-Herzegovina, I should first of

25 all like to say that we stand by our statements in our motion of the 6th

1 of May. However, there is one matter that I would like to stress on focus

2 on.

3 The Defence never received a response from Bosnia-Herzegovina with

4 respect to the matter in hand and the Jankovic case. What I would like to

5 clarify here and now is whether the motion was filed or not, whether the

6 brief was filed or not. If I could continue, but perhaps this will affect

7 further proceedings.

8 I will continue, but if the registrar and the Prosecutor could let

9 me know in due course later on of that matter.

10 JUDGE ORIE: It's not entirely clear to me what you're referring

11 to.

12 MR. LAZAREVIC: Yes, Your Honour. Well, these are two separate

13 cases. I mean, what I received walls the answer of the government of

14 Bosnia-Herzegovina in Todovic case. The one that I have not received was

15 the answer in Jankovic case.

16 JUDGE ORIE: I'm informed it was filed late, Mr. Lazarevic, and it

17 was filed something like yesterday. The Chamber has not seen it either.

18 Perhaps this would be a moment just to put a question to the

19 representatives of Bosnia-Herzegovina whether there's any reason for this

20 late filing, what caused this matter, and if the -- whether the Jankovic

21 response would, from its content, be different from the Todovic response.

22 MR. HALILAGIC: [Interpretation] Your Honour, there were problems.

23 There were problems in correspondence. There is no essential difference

24 between the two briefs in the Mejakic one yesterday.

25 JUDGE ORIE: So I take it as far as the content, then, is

1 concerned, that having read the Mejakic material and having read the

2 Todovic response that that would provide an adequate basis for a response.

3 Thank you very much.

4 Please proceed.

5 MR. LAZAREVIC: Thank you, Your Honour. I'm only asking that

6 after I examined this response that I could be allotted some time. I

7 don't ask you for anything else after that. Well, I don't want to make

8 any delays in these proceedings whatsoever, just give me some time just

9 briefly to answer whether it -- should there be anything different from

10 Jankovic response.

11 JUDGE ORIE: Yes, I do understand that you make a reservation in

12 that respect.

13 MR. LAZAREVIC: Thank you.

14 [Interpretation] The numerous documents and voluminous

15 documentation that Bosnia-Herzegovina sent in and which contains a series

16 of provisions within the scope of criminal law, legal proceedings,

17 referral of cases, protection of witnesses, and other aspects represent

18 legal frameworks for the application of law. However, in themselves, they

19 do not represent guarantees of any kind, guarantees that the accused will

20 be given a fair trial.

21 It is the position of the Defence that regardless of how far a

22 legal system is developed or not and how far a state is democratic or not,

23 that there is no absolute ideal of a fair trial within a given system and

24 that it must be assessed and evaluated according to each individual case

25 before the courts.

1 What the Defence would like to express as an anxiety, yes, I can

2 say anxiety, is the complete lack of practice, practical experience on the

3 part of the state court of Bosnia-Herzegovina in Sarajevo. At this point

4 in time, there is not a single judgement which could be the subject of an

5 appraisal and assessment either by the Defence or by our colleagues from

6 the Prosecution for that matter, or this Tribunal, on the basis of which

7 we would be able to draw some conclusions as to whether the trial was a

8 fair one and a just one, whether it was conducted according to the proper

9 standards and whether the rights of the accused prevailed, were met. So

10 that is our basic concern with respect to that court.

11 Without a doubt, Bosnia-Herzegovina has made every effort in its

12 legislation over the past two years, which was dealt with extensively.

13 But for us to be able to conclude anything about the system and to say

14 whether this accused or any other accused would enjoy a fair trial under

15 that system, we're lacking practice, practice upon which to rely as a

16 grounds. Therefore, I think that -- and although United Nations

17 Resolutions exist that are binding upon the Prosecution in this Tribunal,

18 I fear that it is too early to decide to refer cases to Sarajevo, to the

19 courts or the state court of Bosnia-Herzegovina, until the court has had

20 some practice and dealt with cases.

21 The only way in which we can discuss the methods of which

22 legislative system and the legislative system of Bosnia-Herzegovina

23 functions is on the basis of reports by the OSCE, for example, to which we

24 referred in our briefs and submissions. And I have to give you my

25 assessment, without wishing to repeat myself, and it is that the

1 legislative system of Bosnia-Herzegovina did not get a good mark from the

2 OSCE. The judicial system didn't get a good mark. On the contrary, that

3 many irregularities were noted in the functioning of the system, and that

4 is all we know about the functioning of the judiciary system in

5 Bosnia-Herzegovina. And I should especially like to stress the position

6 of the OSCE with a view to Bosnia-Herzegovina and that those reports

7 cannot be said to be biased in any way.

8 With respect to another fact in relation to Mr. Gojko Jankovic, I

9 would like to express another anxiety on the part of the Defence team, and

10 it has to do with the provisions of the law on the protection of witnesses

11 that are under threat and are jeopardised. Without entering into the

12 details, and this has been dealt with in detail in our brief, but bearing

13 in mine the character of the indictment against Mr. Jankovic, we have

14 every reason for serious concern in this case, if the case were to be

15 referred to the state court in Bosnia-Herzegovina, that the provisions

16 would be strictly applied, that is to say the provisions of the law on the

17 protection of witnesses under threat and jeopardised witnesses.

18 That law was discussed in the Mejakic trial, and I'd like to

19 indicate that in our brief we dealt with that extensively. But the fact

20 is that if the Referral Bench or Trial Chamber were to grant protective

21 measures to a certain number of witnesses, the Defence would be deprived

22 of cross-examining those witnesses. The Defence would not be able to

23 learn the names of those witnesses and that that would be in force for 30

24 years after judgement. And all that would be contrary to the standards of

25 a fair trial as they have been established in the provisions that I

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1 mentioned earlier on.

2 We have already --

3 JUDGE ORIE: You're saying that anonymous witnesses are against a

4 fair trial.

5 MR. LAZAREVIC: Yes. Well --

6 JUDGE ORIE: I do share, of course, the concern you express for

7 anonymous witnesses, but would it not be helpful and would it the it not

8 assist the Chamber to see what exactly where the limits are as they are

9 established already by international courts on human rights because -- I'm

10 not an expert in the field, but at least one could not say that the

11 European Court on human rights would forbid at all --

12 MR. LAZAREVIC: Yes, Your Honour, I can understand.

13 JUDGE ORIE: -- witnesses.

14 MR. LAZAREVIC: I can understand.

15 JUDGE ORIE: Of course, it's a general statement you gave rather

16 than --

17 MR. LAZAREVIC: Yes. Yes, our concerned. I can elaborate if that

18 is what Your Honour wants me to.

19 [Interpretation] The Jankovic case is a rather special case before

20 this court because his indictment included other co-accused, and there is

21 already a judgement in that case, and even the appeal went through in the

22 Kunarac case.

23 As a Defence counsel who came across protective measures in this

24 Tribunal, I believed that this victimological approach was quite correct

25 and that it would be necessary in the interests of justice to provide a

1 certain level of witness protection. However, measures granted before

2 this Tribunal in the Kunarac case were quite sufficient to ensure the

3 exercise of the right to a fair trial, because in these trials, it was

4 possible for the Defence to cross-examine witnesses. They were made aware

5 of the details of the witnesses on time, and they were in a position to

6 prepare their cross-examination even including questions that had to do

7 the credibility of the witness concerned.

8 The provisions of the law that is in force in Bosnia-Herzegovina

9 and that have to do with the protection of witnesses under threat and

10 witnesses in danger, I want to quote this very specifically, I think they

11 go a step further from the highest standards of protection that this

12 Tribunal had, and that was the one step too many, thus affecting the right

13 of the accused to a fair trial.

14 That is our position with regard to these provisions.

15 JUDGE ORIE: That's not an answer to my question. Please proceed.

16 MR. LAZAREVIC: I apologise. [Interpretation] In conclusion, may

17 I just say a few more things in relation to some of the concerns that the

18 Defence has in the Jankovic case.

19 Immediately after Mr. Jankovic's surrender and after he came to

20 The Hague, Mr. Jankovic, via satellite, on television, watched the TV news

21 at 7.00 in the evening, and the date would be around the 13th of March.

22 In this particular news broadcast, different persons were giving comments

23 on his surrender, presenting their own views on what kind of a criminal he

24 was. Regrettably, we also have information these are some of the

25 witnesses who had already appeared before this Tribunal.

1 I have not seen this videotape, although I did take measures to

2 get it. I'm just going to deal with this in one minute.

3 After that, in a television programme entitled "Without

4 Anaesthesia," journalist Emir Suljagic spoke to a certain

5 Mr. Refik Hodzic. We have received information that Mr. Hodzic is one of

6 the officials of the court in Bosnia-Herzegovina. According to the

7 information we received from the family, he was making inappropriate

8 comments.

9 JUDGE ORIE: Mr. Lazarevic, either you provide us with this

10 material or you do not speak about it. So therefore, it's of no use to

11 tell us what you heard, that others told you what they saw on television

12 without substantiating that by material. If you have it, fine; if not,

13 please proceed.

14 MR. LAZAREVIC: Your Honour, I understand your concerns and if you

15 could give me just one second I will tell you what are the measures of

16 concern to me, what were the measures that I undertook in order to secure

17 these because that shows very much in detail what is the extent of

18 cooperation of the authorities of Bosnia-Herzegovina with counsels.

19 JUDGE ORIE: Have you -- have you documented that? I mean, if you

20 asked for their cooperation I take you've sent them letters?

21 MR. LAZAREVIC: Yes, yes, yes I'll be very brief. I've sent two

22 letters asking for the copies of these two. I haven't received an answer

23 so far. The letters were sent on 25th of April and 28th of April to Milan

24 Trivic, general manager of Bosnian TV. I introduced myself, stating that

25 I am counsel for Mr. Gojkovic. I asked for assistance and so far I

1 haven't received the answer. This is what I wanted to raise before the

2 Trial Chamber. And thank you, I have nothing further.

3 JUDGE ORIE: Thank you very much, Mr. Lazarevic.

4 I now turn to you, Mr. Halilagic. The Referral Chamber is aware

5 that before we were informed about the wish of the government of Serbia

6 and Montenegro to attend this hearing that you were inclined to just stick

7 to what you had said in earlier cases. If there would be, however,

8 anything you'd like to add to that, you have an opportunity to do so.

9 MR. HALILAGIC: [Interpretation] Your Honour, I shall be very

10 brief. As the representative of Bosnia-Herzegovina, I wish to say that at

11 this point in time, I do not see any need to file any other submissions in

12 relation to what we have already submitted in writing and also at the

13 hearing that was held in the Mejakic and Stankovic cases.

14 We believe that the court of Bosnia-Herzegovina is in a position

15 to take over these cases that are under discussion now in accordance with

16 Rule 11 bis before The Hague Tribunal. Bosnia-Herzegovina, at the request

17 of the Tribunal, on several occasions submitted information on relevant

18 questions related to legal and practical issues. If necessary, we can

19 give additional information regarding questions that have not been dealt

20 with in our briefs. If you would like to hear our answers, could you

21 please postpone that for another occasion.

22 Bosnia-Herzegovina did not see any need to file any additional

23 submissions. The Tribunal has been informed of this. However, in the

24 meantime, the situation has changed. The delegation of Serbia and

25 Montenegro appear, but we believe that it is inappropriate for the

1 Government of Bosnia and Herzegovina -- the Government of Serbia and

2 Montenegro --

3 THE INTERPRETER: Interpreter's correction.

4 MR. HALILAGIC: [Interpretation] -- to be the only government

5 present. We heard of this only last night, and therefore we were not in a

6 position to organise our own trip to The Hague, but we heard about Serbia

7 and Montenegro at such a late date. We are prepared, otherwise, to deal

8 with any questions that you may have, Your Honours. Thank you.

9 JUDGE ORIE: Thank you very much, Mr. Halilagic.

10 Ms. Somers, you asked whether could you brief and then supplement

11 anything in --

12 [Trial Chamber confers]

13 JUDGE ORIE: Ms. Somers, you asked, since you were very brief, to

14 be in a position to supplement, and we are at this moment hearing the

15 parties and the government. Would you like to add anything in relation to

16 what you have -- would you like to add anything to what you said in

17 relation to what has been raised by the parties?

18 MS. SOMERS: I think Bosnia-Herzegovina very ably represented its

19 position. The only thing I wanted to draw Your Honours' attention to is

20 that the indictment itself contains a third individual. It's Jankovic --

21 Zelenovic.

22 JUDGE ORIE: Zelenovic, Yes.

23 MS. SOMERS: And that under Rule -- should the Chamber -- should

24 the Bench invoke the power that is authorised under 11 bis (A), the

25 entire -- if referral is ordered, the entire indictment then of course can

1 be factored in and transferred.

2 JUDGE ORIE: Yes of course there is the specific issue of the

3 referral of a case of an accused who has -- who is still at large.

4 MS. SOMERS: Exactly.

5 JUDGE ORIE: And just to make things clear, this hearing is held

6 for the purpose of hearing the parties, and since you cannot hear anyone

7 who is still at large --

8 MS. SOMERS: Understood I just wanted to because of the fact --

9 JUDGE ORIE: We might deal with that in written submissions rather

10 than anything else.

11 MS. SOMERS: The other point is that the issue of accused Rasevic,

12 perhaps being -- because of the -- well, the content of the nationals --

13 well, splitting the case would be inappropriate. The idea is to keep all

14 accused together. So if the referral of course is made, then we of course

15 advocate that all should -- the entire transfer should include the -- the

16 whole group of accused.

17 Thank you very much, Your Honours, for the extra time.

18 JUDGE ORIE: Now, having heard the parties and having heard the

19 government of the state specifically mentioned in the request by the

20 Prosecution, I now turn to the representative of -- representatives of

21 Serbia and Montenegro.

22 In other cases you have expounded on developments in your law.

23 You have expounded on -- I would say on how Serbia and Montenegro could

24 cope with a referral. The Chamber is aware of that. I take it that the

25 main reason for your present -- presence at this moment is to perhaps add

1 some specific reason apart from the general reasons you've given already

2 this morning in other cases such as whether a trial preferably should be

3 held close to the victims or, rather, to the place where some other

4 evidence is. So therefore, if there's any very specific reason why in

5 respect of your national this case should preferably be heard in Belgrade

6 rather than in Sarajevo, you have an opportunity to briefly address that

7 specific matter.

8 MR. DJERIC: Thank you, Your Honour. The main purpose, of course,

9 of our submissions in this case is to state our ability -- to state that

10 we are able and willing to take up the case and that we are adequately

11 prepared to do so, to accept the case. Therefore, in light of our

12 arguments made this morning to which we stick in this case as well, I

13 would just say that on the basis of Rule 11 bis (A), we think that we fall

14 under the jurisdictions that may be considered for referral, and we do not

15 have to add anything specific. We would just like to reiterate our

16 argument that the Chamber should primarily look into the issue of the

17 fairness of the trial and compare possibilities in that respect, and we

18 are confident, of course, that the Chamber will do so.

19 Therefore, we don't have anything specific to add to our morning

20 submissions. There is just one small point, and this is related to the

21 submission of Bosnia-Herzegovina in this case as well as in Mejakic case,

22 which provide us with an interpretation of -- of the implementation of the

23 doctrine of superior responsibility in Bosnia and Herzegovina.

24 Of course we are not contesting this interpretation. It's a

25 reasonable interpretation. But we have some reservations in the same way

1 as for instance amicus curiae in Norac Professors Damaska and Krapac had

2 some reservations. In other words, we think that it is more appropriate

3 to try to interpret the law applicable -- the criminal law applicable to

4 the case to produce the same effects as the -- same effects as possible as

5 the doctrine of superior responsibility, but we have certain -- some

6 reservations as to the applicability of international customary law,

7 direct applicability of international customary law of superior

8 responsibility. However, I repeat we are not contesting the argument. We

9 are just -- proposed by Bosnia and by the Prosecution, we are just -- we

10 just think that it would be more appropriate to give weight to the opinion

11 of amicus curiae.

12 And with this I conclude my observations and just would like to

13 repeat that we stand by our submissions in our written submission of the

14 6th of May this year. Thank you very much.

15 JUDGE ORIE: So just to briefly summarise, there are no very

16 specific reason for these -- from this case apart from one of the accused

17 is one of your nationals and you have set out before the importance of --

18 the importance of and the advantages of trying those cases in Belgrade

19 rather than at any other place.

20 Since your position directly affects the position of the

21 Government of Bosnia and Herzegovina, I would like to give you,

22 Mr. Halilagic, an opportunity to respond. It was appreciated that the

23 representative of Serbia and Montenegro did not start a battle, a kind of

24 a beauty contest on who is the best but just explained his -- what the

25 availability of the -- of the judicial structure in Serbia and Montenegro

1 to try this case. Would you like to respond? Or would you like to make

2 any further submissions, because it's not a debate between you and

3 Mr. Djeric.

4 MR. HALILAGIC: [Interpretation] Yes, Your Honour. Again I'm going

5 to be brief.

6 On behalf of the government of Bosnia-Herzegovina, I wish to

7 guarantee all the accused a fair trial. I have been working for the

8 Ombudsman for already eight years, and we know that the relevant

9 convention is being applied. We can guarantee a fair trial with giving

10 guarantees to all the accused that they can present their defence

11 properly.

12 JUDGE ORIE: These were your submissions. Then we'll have an

13 opportunity now to ...

14 [Trial Chamber confers]

15 JUDGE ORIE: The Chamber suggests that we have a short break, that

16 we'll use that break also to see whether we have any additional questions.

17 Then the parties will have a brief opportunity to make any final

18 observations they'd like to make.

19 We have a break until twenty-five minutes to six.

20 --- Recess taken at 5.12 p.m.

21 --- On resuming at 5.37 p.m.

22 JUDGE ORIE: On behalf of the Chamber, I would like to put a few

23 questions.

24 Mr. Lazarevic, you have written submissions. You stated that

25 Bosnia-Herzegovina has not ratified the European Convention on mutual

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1 assistance in criminal matters. Are you aware that --

2 MR. LAZAREVIC: Yes, yes. I understand what Your Honour is

3 referring at.

4 JUDGE ORIE: Are you aware that Bosnia-Herzegovina meanwhile did?

5 MR. LAZAREVIC: Your Honour, I was not aware of that situation,

6 and I am grateful to Your Honour for sharing this information with me in

7 this case. I withdraw this part of my motion and ask for it to be

8 withdrawn.

9 JUDGE ORIE: I'm just trying to find out. Would that have, in

10 your view, consequences for the safe conduct issue?

11 MR. LAZAREVIC: Yes, as a matter of fact I believe it would have.

12 Also, I cannot be completely certain unless I look at this ratification,

13 whether there are any reserves on this ratification, whatever. I mean, I

14 am not aware of this, I am not expert in constitutional law should any --

15 JUDGE ORIE: We could ask.

16 MR. LAZAREVIC: Yes, of course, but basically it would certainly

17 make some difference. And while I do believe that it will assist the

18 Defence in many ways.

19 JUDGE ORIE: Also perhaps it might have some consequences in terms

20 of forcing witnesses residing abroad to testify, because I think you

21 rightly indicated that -- and you gave us an example if the case would be

22 heard in Bosnia and Herzegovina that there would be no way to force

23 witnesses to appear from Serbia and Montenegro, but of course the same

24 would be true the other way around, that under this convention there

25 always would be a possibility of letters rogatory in which the witness

1 could be heard if need be under oath in his own territory. So that would

2 be on both sides.

3 And I take it, but I'm now addressing both the Serbia and

4 Montenegro and the representatives of Bosnia and Herzegovina that if the

5 case would be referred and to whatever state it would be referred that the

6 state to which it would not be referred would assist by positively

7 responding on requests for letters rogatory. Is that a correct

8 understanding?

9 I first address you, Mr. Halilagic. Is my assumption correct that

10 if the case would be referred to Serbia and Montenegro that Bosnia and

11 Herzegovina, under its treaty obligations, European Convention on Mutual

12 Assistance in Criminal Matters would assist for example by executing

13 letters rogatory?

14 MR. HALILAGIC: [Interpretation] Your Honour, yes, we would take

15 all the necessary steps for our part. And if I might be able to state a

16 sentence with respect to the convention, may I go ahead with respect to

17 the convention?

18 JUDGE ORIE: Yes.

19 MR. HALILAGIC: [Interpretation] Thank you. We ratified the

20 convex, but I wish to stress that we applied the convention regardless of

21 the fact that it wasn't ratified. So even before it wasn't ratified. So

22 even before its ratification we applied it. I work in the ministry of

23 justice, and I know that in all cases we did apply the convention fully

24 regardless of the fact that it wasn't ratified.

25 JUDGE ORIE: Yes, thank you.

1 Mr. Djeric.

2 MR. DJERIC: Yes. I can confirm that we will fully apply the

3 provisions of the convention.

4 JUDGE ORIE: Yes. Thank you very much for that answer.

5 Mr. Lazarevic, in the written submissions, in paragraph 72, the

6 last one, you more or less stated that if an accused would have access to

7 testimony in other cases which might become evidence, only -- would have

8 access to it only by listening to tapes, then that would be a violation of

9 a basic right of the accused, and then you specifically mentioned to be

10 informed promptly on the nature and the course of the accusation.

11 My question is: Access to potential evidence, isn't that

12 something different from being informed promptly on the nature and the

13 course of the accusation, because you put the two together as if it were

14 the same.

15 MR. LAZAREVIC: I apologise to Your Honour, and perhaps I was

16 misunderstood.

17 The access to the -- to the evidence is one issue, and Your Honour

18 is quite right, is another issue, but in our view it was related to each

19 other, because after reading -- after reading the proverbs of Bosnian code

20 of criminal proceedings, it seems that the Prosecution -- that the

21 prosecutor's office in Bosnia-Herzegovina is not limited with -- with the

22 indictments of this Tribunal, and they have the right to exceed the limits

23 of these. They have the right to amend the indictment with some other

24 accused, with some additional factual allegations. So in a way that if

25 such a situation happens, this is the way we see the connections between

1 the access to the -- to the evidences and the right of the accused to be

2 fully informed of what the charges are. So that's the sense in which we

3 explain this.

4 JUDGE ORIE: Yes. It sounds as if you're introducing even a third

5 element, and that is a kind of rule of speciality that one should only be

6 prosecuted for the crimes for which you have been referred. That's -- and

7 not for --

8 MR. LAZAREVIC: No. I'm not stating there is any rule with

9 imposition of -- I understand that. That is not what I'm stating.

10 JUDGE ORIE: Then I have another question for the representative

11 of Bosnia and Herzegovina. Could you inform the Chamber about any

12 regulations concerning remuneration of Defence counsel before the state

13 court, and I am referring to assigned Defence counsel.

14 MR. HALILAGIC: [Interpretation] Your Honour, the ministers of

15 Bosnia-Herzegovina have brought in provisions concerning remuneration for

16 Defence counsel.

17 JUDGE ORIE: And apart from provisions, is there a budget as well?

18 MR. HALILAGIC: [Interpretation] Yes.

19 JUDGE ORIE: Thank you for that answer.

20 Finally, I'd like to --

21 [Trial Chamber confers]

22 JUDGE ORIE: If there is any specific regulation on, well, let's

23 say the remuneration as such, so not to the right to have counsel

24 assigned, because that is among the material that you have sent, but if

25 there are any specific regulations and if there are any specific measures

1 taken in respect to the budget, the Chamber would like to receive a copy

2 of it.

3 MR. HALILAGIC: [Interpretation] Certainly. You will receive a

4 copy with respect to remuneration for Defence counsel. A copy of the

5 decision of ministers, thank you.

6 JUDGE ORIE: So information as complete as possible. If there

7 would be any measure taken in terms of budget, then this would certainly

8 assist the Chamber when it -- when it seeks, whether it can be satisfied

9 that the fair trial is guaranteed in Bosnia-Herzegovina.

10 MR. HALILAGIC: [Interpretation] I would like -- once again like to

11 stress that we in Bosnia-Herzegovina apply the most modern world standards

12 fully. The European Convention is a component part of the human rights

13 convention and Bosnia-Herzegovina gives full guarantees and its law does

14 that the standards will be respected fully. In addition to that,

15 Bosnia-Herzegovina has prepared all other necessary measures to enable a

16 fair trial for all accused in Bosnia-Herzegovina.

17 JUDGE ORIE: Thank you, Mr. Halilagic.

18 I finally have the following question. Whoever can answer it may

19 do so. Many references were made today to OSCE reports on the practice in

20 Croatia and Bosnia-Herzegovina. These reports were not always without

21 critical notes on these practices. Do there exist similar reports in

22 respect of the practice in Serbia and Montenegro?

23 Just to explain to you what my problem would be, there do not

24 exist any reports on my ability to play tennis. However, there are some

25 reports that the tennis of my neighbour is not as good as it could be.

1 Nevertheless, my tennis is worse than that of my neighbour. I hope you

2 understand what the issue is.

3 Whoever wants to answer the question may do so. Yes, Mr. Djeric.

4 MR. DJERIC: Thank you, Your Honour. I -- we have a mission of

5 the OSCE in Serbia and Montenegro. I believe they have a regular --

6 regular reports on various aspects of -- on various matters that are in

7 their mandate in the same way as in Croatia. I cannot refer you to

8 specific reports. They can be supplied, and I think it's available on the

9 Internet. I think that the last report was sometime around 2003.

10 JUDGE ORIE: Was that specifically on the prosecution of war

11 crimes?

12 MR. DJERIC: I'm not sure. I cannot confirm that. What I can say

13 is that I have seen a Human Rights Watch report, maybe you're aware of it,

14 that covered all the states on the territory of former Yugoslavia, or at

15 least Bosnia, Croatia, and Serbia and Montenegro, and this is also some --

16 some information on this -- on this issue. But I cannot -- we can do a

17 research and then file later. I'm not aware of --

18 JUDGE ORIE: In you say it is on the Internet and if the parties

19 would agree that whatever Human Rights Watch reports and OSCE reports are

20 published on the Internet, so public documents, could be consulted by the

21 Chamber, then we certainly would be able to find them. These are, then,

22 more or less legal sources rather than matters that are in need of

23 evidence here at this moment.

24 I see Prosecution nodding yes. Defence would also agree?

25 MR. LAZAREVIC: Yes. We agree with this.

1 JUDGE ORIE: Okay. Thank you very much for this assistance.

2 Any further answers to that question? Then I have no further

3 questions. The Bench has no further questions.

4 I'd like to give an opportunity to both parties to make any final

5 observations.

6 Ms. Somers you're not obliged to do it, if you say everything has

7 been said that should be said.

8 MS. SOMERS: This has been a very long day for all parties and I'm

9 trying not to repeat. The Prosecution in the earlier cases that were

10 heard in March of this year when Serbia and Montenegro were invited,

11 albeit they were not part of the initial referral, in no way by

12 participating in such a hearing in no way that would serve as a waiver of

13 what we have interpreted as the rules requirement of who can make the

14 request, and we're clearly standing, Your Honours, by our recent

15 submissions. We understand what the Chamber's ruling was, but we think

16 that it can become perhaps complicated ultimately if this type of

17 last-minute event were a pattern and we have a concern for that.

18 If in fact these cases are referred, we of course believe that the

19 appropriate and sole venue should be Bosnia-Herzegovina, and I think it's

20 amplified today by comments about the changes. Bosnia has indicated it's

21 been mindful of some of the comments that were made at earlier hearings

22 about are they becoming party to certain conventions, and they in fact

23 have continued to make the efforts that were required to bring them into

24 compliance with the concerns that were raised by this Chamber about things

25 such as safe conduct, witness protection, et cetera.

1 The referral to Bosnia-Herzegovina, if referral is granted fits

2 squarely within the rule and fairly within the rule without any type of

3 manoeuvering, and we hope that if there are any further questions that may

4 arise at any point, I believe the Chamber -- the Bench had offered some

5 extended time period. It seems some mention of some seven days for some

6 submission.

7 JUDGE ORIE: Seven days, that was only for the nationality of one

8 of the accused. That's not the substance. It's mainly the procedural

9 issue that was at sake.

10 MS. SOMERS: If anything came up that required comment we would

11 seek permission to do so. Thank you very much for the audience.

12 JUDGE ORIE: Defence. Mr. Lazarevic.

13 MR. LAZAREVIC: Thank you, Your Honour. [Interpretation] Bearing

14 in mind that I briefly have to sum up what my client drew as his own

15 conclusion and bearing in mind the instructions he gave me, I just wish to

16 say the following: Mr. Todovic, from 1997 when his indictment was made

17 public, left the territory of Bosnia-Herzegovina under threat.

18 Immediately afterwards, his family did too. After that, the Krnojelac

19 trial took place and these threats continued both vis-a-vis himself and

20 the members of his family.

21 Finally, when he surrendered, the threats intensified even

22 intensified even further and that's why the question of his safety was

23 raised by his attorney.

24 Mr. Todovic, bearing in mind the fact that he spent his entire

25 life and career in judicial authorities and also in correctional

1 facilities, it is not possible to provide them with a fair trial, him

2 personally, before any court of law in Bosnia-Herzegovina. Therefore, he

3 believes that it would be fair to him that if this trial does not wish

4 to -- if this Tribunal does not wish to deal with this trial that he be

5 sent to a third country. If he were to be referred to any other country

6 and in this respect he primarily means Serbia and Montenegro who have

7 expressed the wish, he will certainly not appeal any such ruling.

8 Thank you.

9 JUDGE ORIE: Thank you, Mr. Lazarevic.

10 Mr. Domazet.

11 MR. DOMAZET: [Interpretation] Your Honour, I will be very brief.

12 I will basically just repeat what I said at the very end.

13 My client, Mitar Rasevic, wishes for his trial to start as soon as

14 possible whether that is going to be in The Hague or Sarajevo or Belgrade

15 is for you to decide. He trusts your decision and he just wants to have

16 fair conditions ensured to him, a proper defence, and he wants the trial

17 to take place as soon as possible.

18 JUDGE ORIE: Thank you, Mr. Domazet.

19 Mr. Lazarevic, for your second client.

20 MR. LAZAREVIC: As for Mr. Gojko Jankovic, I have to say that

21 regardless of the assurances we received from the representatives of

22 Bosnia-Herzegovina, who themselves guaranteed a fair trial just now, I'm

23 afraid that this is a guarantee that is not sufficient, especially not in

24 relation to Mr. Jankovic bearing in mind the nature of the accusations

25 levelled against him and the facts that are already mentioned to the

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1 Court, and unfortunately because of the lack of cooperation on the part of

2 Bosnia-Herzegovina I could not have presented this evidence to the Court.

3 I promise if there is anyway for me to do so that I shall present

4 you with this evidence. Thank you.

5 JUDGE ORIE: Thank you, Mr. Lazarevic.

6 [Trial Chamber confers]

7 JUDGE ORIE: Apart from some documents in the public domain, legal

8 texts, press releases, et cetera, the Chamber received three letters about

9 the nationality of the three accused, the letters dated the 4th of April,

10 2005. Since much has been said about the letters and nationality, we'd

11 like to mark them for identification so that it's clear.

12 Mr. Usher, could you -- Mr. Registrar, would you please assign

13 numbers to these three letters concerning each accused so that they're

14 marked for identification.

15 MS. SOMERS: Your Honour, do you wish a formal motion for -- to

16 have them moved into evidence?

17 [Trial Chamber confers]

18 JUDGE ORIE: Yes, if you'd like to tender them into evidence --

19 MS. SOMERS: Yes. The Prosecution does request that these items

20 be marked and tendered into evidence.

21 JUDGE ORIE: No objection from the Defence? Is there any? No.

22 I note that these are just the informal translations of those

23 letters and not the originals.

24 MS. SOMERS: Sir, the -- I will submit them. They were on

25 Sanction. The B/C/S version is on Sanction, and that was the translation

1 that was provided. But we will resubmit them with --

2 JUDGE ORIE: Would that be acceptable for the Defence if there.

3 Would be any -- any problem of course the Defence could address the

4 Chamber. I take it that no response is a response that there's no

5 objection.

6 Well, then, if you assign numbers to the -- and already take into

7 account that the originals will receive a number as well.

8 Since the cases have the same numbers as the normal cases, we will

9 assign "R" numbers, which are referral numbers. So not specifically

10 Prosecution but they are tendered by the Prosecution, are admitted as R1,

11 2, and 3.

12 Mr. Registrar, number 1 would be the letter concerning Mr. --

13 THE REGISTRAR: Yes, thank you, Your Honour. Number R1 will

14 concern the letter regarding Mr. Mitar Rasevic. R2 will be the letter

15 concerning Mr. Savo Todovic. As to the third letter, R3 will concern

16 Mr. Gojko Jankovic, bearing in mind that the three letters were -- are in

17 English and the original in B/C/S which will be communicated later on to

18 the Registry.

19 Thank you very much, Your Honour.

20 JUDGE ORIE: Thank you, Mr. Registrar.

21 This concludes the hearing. I address the representatives of

22 Bosnia and Herzegovina. Mr. Halilagic, you indicated to the legal officer

23 of the Referral Chamber that you might need to ask for a further delay

24 since you were a bit surprised by the developments in view of the presence

25 of the representatives of Serbia and Montenegro. May I take it that

1 there's no need or would you ask for any further delay?

2 MR. HALILAGIC: [Interpretation] Your Honour, I give up on that

3 request. We have said everything we have to say. I hope that we will

4 proceed in this manner.

5 JUDGE ORIE: Yes.

6 MR. LAZAREVIC: Your Honour, I apologise. It's only a technical

7 issue probably, but having in mind that these three letters have been

8 tendered into evidence and then one of them deals with Mr. Todovic's

9 nationality and citizenship, saying probably that he's not a citizen of

10 Serbia and Montenegro, and that we have other document challenging this

11 letter, should I be allowed to tender this also into evidence?

12 JUDGE ORIE: If there is a copy available, that would then get

13 number R4.

14 Is this the Prosecution aware of the contents of the document?

15 Has it seen it?

16 MS. SOMERS: No, Your Honour. We have seen nothing.

17 JUDGE ORIE: You have seen nothing. Would you have a spare copy?

18 Could it first be shown to the -- is there any translation?

19 MR. LAZAREVIC: Yes, Your Honour. The only one that we have in

20 B/C/S. It's a formal decision.

21 JUDGE ORIE: You'll be allowed to.

22 MR. LAZAREVIC: -- copies --

23 JUDGE ORIE: -- you will allowed to provide this within the same

24 seven days. You can add that to the material in respect of the

25 nationality of -- of this accused.

1 MR. LAZAREVIC: Thank you, Your Honour.

2 MS. SOMERS: Your Honour, pursuant to this discussion, would the

3 Chamber consider requesting of the Defence the application, a copy of the

4 application for citizenship? It perhaps might also lend some insight into

5 the sequence of events that seem to be somewhat at issue.

6 JUDGE ORIE: If it -- does there exist a copy of the application?

7 MR. LAZAREVIC: I must say that I don't have a copy of it. Since

8 it was done through the embassy, I do believe that there is a record on

9 this, and I believe that representatives --

10 JUDGE ORIE: Shall we take the same rule that if you think it's of

11 any assistance for your, I would say, claim of nationality for whomever of

12 the three accused you may do so, but within the next seven days. Yes?

13 MR. DJERIC: We are at the disposal of the --

14 JUDGE ORIE: Yes, of course.

15 MR. DJERIC: -- and we can supply ourselves the necessary document.

16 JUDGE ORIE: No, I'd rather have it done by the Defence counsel,

17 then.

18 And if there's nothing else, I would like to thank the -- the

19 original in B/C/S already provided receives number R4, and we expect a

20 translation to be provided. To that extent, it's provisionally admitted.

21 [Trial Chamber confers]

22 JUDGE ORIE: Yes. This, then, concludes the 11 bis hearing. I'd

23 like to thank the representatives of the Government of Bosnia and

24 Herzegovina and also the representatives of Serbia and Montenegro.

25 We stand adjourned, and a decision will be given in due course.

1 --- Whereupon the Rule 11 bis hearing adjourned

2 at 6.07 p.m.

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