BBC Russian

Page 404

�1�� Friday, 13 October 2006

�2�� [Rule 11 bis Hearing]

�3�� [Open session]

�4�� [The accused entered court]

�5�� --- Upon commencing at 4.04 p.m.

�6�� JUDGE ORIE:� Good afternoon.� Madam Registrar, would you please

�7�� call the case.

�8�� THE REGISTRAR:� Good afternoon, Your Honours.� This is case number

�9�� IT-96-23/2-PT, the Prosecutor versus Dragan Zelenovic.

10�� JUDGE ORIE:� Thank you, Madam Registrar.

11�� We're here today for a hearing under Rule 11 bis.� May we have the

12�� appearances.� Prosecution first.

13�� MS. SOMERS:� Good afternoon, Your Honours; counsel.� For the

14�� Prosecution, Susan Somers; to my left, Mr. Aleksandar Kontic, legal

15�� officer; to my right, extreme right, Ms. Verica Balikic, case manager;

16�� assisted by Mr. Greg Bodulovic.

17�� Thank you.

18�� JUDGE ORIE:� Thank you.

19�� And for the Defence.

20�� MR. JOVANOVIC: [Interpretation] Good afternoon, Your Honours.� I'm

21�� attorney-at-law Zoran Jovanovic from Belgrade appearing on behalf of

22�� Mr. Dragan Zelenovic.

23�� Thank you.

24�� JUDGE ORIE:� Thank you.� And then we have a videolink with

25�� Sarajevo.� Perhaps I should have first have checked whether the -- I do

Page 405

�1�� not receive interpretation at this moment, but -- yes.

�2�� Could you please introduce yourselves from Sarajevo.� That's --

�3�� you're representatives of the -- of Bosnia and Herzegovina.� Please

�4�� proceed.

�5�� MS. BASIC: [Interpretation] Yes.� Your Honours, on behalf of the

�6�� government of Bosnia and Herzegovina and the delegation of Bosnia and

�7�� Herzegovina, we would like to thank the Referral Chamber for allowing us

�8�� to participate via videolink.

�9�� I would now like to introduce to you the members of the

10�� delegation.� Mr. Emir Neradin, registry office for section 1 and 2 of the

11�� court of Bosnia and Herzegovina; Ms. Mechtild Lauth, office of the

12�� registrar for department 1 and 2 of the court of Bosnia-Herzegovina;

13�� Mr. Philip Alcock from the Prosecutor's office of Bosnia and Herzegovina;

14�� Ms. Stephanie Godart of the Prosecutor's office of Bosnia and Herzegovina;

15�� and I as head of the delegation, Fatima Basic come from the Ministry of

16�� Justice of Bosnia and Herzegovina.

17�� JUDGE ORIE:� Thank you, Ms. Basic, for introducing yourself.

18�� Mr. Zelenovic, I had not yet asked you whether you could hear us

19�� in a language you understand.� Yes, you can?

20�� THE ACCUSED: [Interpretation] Yes.� Yes.

21�� JUDGE ORIE:� Mr. Zelenovic, it maybe clear that additional

22�� opportunity will be given to the parties now and to the government of

23�� Bosnia and Herzegovina to add whatever they would like to add to their

24�� written submissions.� You may remain seated.

25�� I had in mind to give a short opportunity to the Prosecution to

Page 406

�1�� make any further submissions, or to reserve their time, as you have done

�2�� before, I take it, I remember, Ms. Somers, to say, well, nothing to be

�3�� added at this moment, but I'd like to have some time at a later stage.� I

�4�� think that altogether some 20 minutes would do.

�5�� Would you like to add anything at this moment, Ms. Somers, or

�6�� would you rather reserve your time?

�7�� MS. SOMERS:� May I reserve, please?

�8�� JUDGE ORIE:� Yes.

�9�� MS. SOMERS:� Thank you.

10�� JUDGE ORIE:� So 20 minutes still available to Ms. Somers.

11�� Mr. Jovanovic, is there anything you'd like to add to the

12�� submissions you've given already and annexes attached to it, or if you

13�� would like to summarise at this moment?� You have also -- altogether you

14�� have 20 minutes available to -- and if there is any need, if there is a

15�� lot of new stuff, then of course you could apply for more time.

16�� Anything you'd like to add or to summarise?

17�� MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.

18�� Very briefly, given that all of the arguments of the Defence were

19�� included in our motion on the 22nd of September, now I would just like to

20�� briefly point out some additional issues which were contained in our

21�� motion, but I would like to give you additional clarification.� Not even

22�� in relation to all of the points, just some of the points.� I can do it at

23�� any time that the Chamber deems convenient.

24�� JUDGE ORIE:� If you want to give any additional clarification,

25�� you're invited to do that right now.

Page 407

�1�� MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.

�2�� Your Honours, as I have stated, the arguments of the Defence are

�3�� contained in our written motion.� In a way, the Defence found itself in a

�4�� situation where we not only challenged the arguments listed by the

�5�� Prosecution in this referral case, but we also had to challenge some other

�6�� decisions issued here at ICTY in the case against Stankovic and Jankovic,

�7�� which is a bit of an awkward situation.

�8�� I would now like to point out some of the issues that I consider

�9�� relevant.� I am fully aware of the position taken previously by the

10�� Referral Chamber about the fact that there exists in Bosnia and

11�� Herzegovina a court that can accept the cases referred by the ICTY and

12�� that there are no impediments for cases being tried there.� What I think

13�� needs to be further clarified, and perhaps additional clarification can be

14�� given by the representatives of Bosnia and Herzegovina, is the application

15�� of the law.

16�� In Stankovic and Jankovic cases, the Referral Chamber already took

17�� the position considering the law that is to be applied, whether it is

18�� going to be the law of the SFRY, which was in force at the time when the

19�� crimes were committed, or whether it is going to be the law on criminal

20�� law of Bosnia-Herzegovina, which was adopted in 2003, the Criminal Code of

21�� Bosnia-Herzegovina.� And in Annex I of Defence submission, I attached the

22�� indictment issued by the prosecutor of the Brcko district dated the

23�� 13th of July, 2005, which is to say at the time when the state court of

24�� Bosnia and Herzegovina and the war crimes chamber in Sarajevo had already

25�� been established and when the new Criminal Code of Bosnia and Herzegovina

Page 408

�1�� had already been adopted, the code with amendments, particularly those

�2�� pertaining to Article 4(A) of the Criminal Code.

�3�� I would like to draw the attention of the Chamber to the fact that

�4�� this was the case referred by the Prosecution of this Tribunal to the

�5� ��Brcko district.� The OTP here did not issue an indictment.� However, they

�6�� completed the entire investigation and referred the case to Bosnia and

�7�� Herzegovina.� The decision of the Prosecution was quite clear.� They

�8�� qualified the crimes in that indictment in the light of the law that was

�9�� in force at the time when the crimes were committed, which was the

10�� Criminal Code of the SFRY.

11�� I additionally emphasise that --

12�� JUDGE ORIE:� Yes, Ms. Somers.

13�� MS. SOMERS:� I'm sorry.� I beg your pardon for interrupting at

14�� this time.� But in order -- at this moment so that there is no

15�� misunderstanding, it was not a referral by the Office of the Prosecutor.

16�� At best, it was a Rules of the Road case.� It is not a referred case.� So

17�� the language I think needs to be clarified considerably.

18�� JUDGE ORIE:� Yes.� Mr. Jovanovic, Ms. Somers draws our attention

19�� to the fact that it was not a referred case but that it was a case

20�� which -- I understand the Rules of the Road with the full consent of the

21�� OTP was dealt with by a court in Brcko and not by this Tribunal.� They

22�� gave the green light to have the case prosecuted over there.

23�� Unless you would disagree, you're invited to proceed.

24�� MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.

25�� Naturally this was a case where the indictment had not yet been

Page 409

�1�� issued by this Tribunal.� However, the evidence accompanied by the letter

�2�� of the Prosecutor was sent to Bosnia, to the Brcko district.� This was not

�3�� a case where -- this was not a case of a referral under 11 bis.� I fully

�4�� agree with that.

�5�� This case pertain to the events in the Luka camp in Brcko.� Goran

�6�� Jelisic was convicted by this Tribunal for the same events, and in this

�7�� case the same events were included.� So as I said, as long as the law of

�8�� Bosnia and Herzegovina was in force, the Prosecution of Bosnia and

�9�� Herzegovina qualified these acts, among other things, in Count 4 -- or,

10�� rather, in Count 6 of the indictment as rape and other acts based on

11�� Article 4.

12�� Article 4 speaks of the principle of legality and the principle of

13�� lex mitior, that is to say that, namely, the law more beneficial to the

14�� accused needs to be applied.� The different approach taken by the

15�� Prosecution in Bosnia and Herzegovina, even though it concerns in this

16�� case the Brcko district, can lead to legal uncertainty; namely, the

17�� accused finds himself in a situation where the Referral Chamber submits to

18�� the Prosecution and to the Chamber in Bosnia and Herzegovina -- rather,

19�� when they allow them to choose which law is going to be applied should the

20�� case be referred.� So the accused does not know in advance which law is

21�� going to be applied.

22�� I think that it is necessary to establish very clear criteria --

23�� JUDGE ORIE:� Mr. Jovanovic, this seems to be a big

24�� misunderstanding.� The only thing this Referral Bench has done in the past

25�� is to make sure that whatever law will be applied in accordance with the

Page 410

�1�� local legislation, the legislation in Bosnia-Herzegovina, not knowing

�2�� exactly what case law would develop, that there is nothing in either the

�3�� old law or in the new law which would result in a situation where the

�4�� applicable law would not enable to try these cases, without saying

�5�� anything on which law had to be applied, because it's not within the

�6�� competence of this Referral Bench to decide for the courts in Bosnia and

�7�� Herzegovina, how they should interpret their legal system, especially in

�8�� view of the applicability of law in terms of time.

�9�� So there's a consistent case law of this Referral Bench which

10�� makes abundantly clear, I would say, that this Referral Bench is not

11�� saying apply this law or apply that law.� We're just having an overview

12�� and see that no results could be expected which would be, our law does not

13�� provide for the instruments which would allow to punish those who are

14�� found guilty of the crimes covered by the indictment as it lies before

15�� this Tribunal at this moment.� That's the only thing we're doing.

16�� So it seems that your argument was based upon a wrong

17�� understanding of the task of this Referral Bench.

18�� Please proceed and keep this in mind.

19�� MR. JOVANOVIC: [Interpretation] Yes.� Thank you, Your Honour.

20�� At the outset of my presentation, I said that given the previous

21�� rulings of this Chamber has established that there is a firm legal

22�� framework in Bosnia-Herzegovina, regardless of which law is going to be

23�� applied, be it the one which was in force at the time when the crime was

24�� committed or the one that was adopted later, and this is all pursuant

25�� Article 4(A).

Page 411

�1�� The important distinction that I would like to draw your attention

�2�� to is the sentence which is provided in the law.� At the time, when these

�3�� crimes were committed, the law which was in force when the crimes were

�4�� committed stipulated that the maximum sentence was 20 years, whereas the

�5�� new law specifies that the minimum sentence is 10 years and maximum

�6�� sentence is 20 to 40 years.

�7�� I just wanted to reiterate that regardless of the role of the

�8�� Chamber that you have just explained yourself, at the time when the

�9�� Chamber rules on whether this case is going to be referred to Sarajevo or

10�� not, the accused finds himself in a situation where he doesn't know which

11�� law is going to be applied.� I think that Bosnia and Herzegovina needs to

12�� establish clear criteria as to exactly which law is going to be applied

13�� under those circumstances.� Naturally, both laws facilitate unhindered

14�� proceedings, and naturally there is a possibility that the charges would

15�� be dropped and proceedings suspended.

16�� Now, as to Bosnia and Herzegovina, I think that they need to

17�� clarify the following:� Once the case is referred and once --

18�� JUDGE ORIE:� Mr. Jovanovic, are you telling -- at this moment are

19�� you saying that Bosnia and Herzegovina should clarify for this Referral

20�� Bench, or are you saying Bosnia and Herzegovina should clarify in its

21�� future case law, well, whatever you'd like to address?� Is it relevant at

22�� this moment for our decision, or is it just for future development in the

23�� case law of Bosnia and Herzegovina?

24�� MR. JOVANOVIC: [Interpretation] I think that in general their

25�� position needs to be clarified.� As for the jurisprudence of the Referral

Page 412

�1�� Bench, it is quite clear.

�2�� JUDGE ORIE:� Before we continue, we have some difficulties with

�3�� the videolink at least.

�4�� [Trial Chamber and registrar confer]

�5�� JUDGE ORIE:� It seems to us that the videolink with Bosnia and

�6�� Herzegovina has been re-established.� Did you miss important parts?� Are

�7�� you long already deprived from what was said in The Hague?

�8�� Could I ask you, Ms. Basic, to inform me?

�9�� MS. BASIC: [Interpretation] Your Honours, we didn't miss anything.

10�� We heard everything that was said, and we can even reply to the question

11�� raised by the Defence.

12�� In accordance --

13�� JUDGE ORIE:� I would first, as a matter of fact, give an

14�� opportunity to Mr. Jovanovic to finish had his argument and then there

15�� will be an opportunity to -- to make your observations in relation to

16�� that.

17�� Mr. Jovanovic, I consulted with my colleagues.� The future

18�� development of case law in Bosnia-Herzegovina is not something that would

19�� be very important, very relevant.� We are looking forward to -- to see

20�� what happens there, but it's not relevant for our decision at this moment.

21�� So you are invited to proceed and to leave this.

22�� One question, you said maximum sentence was 20 years under the old

23�� law.� Isn't it true that death penalty was the maximum sentence?

24�� MR. JOVANOVIC: [Interpretation] Yes.

25�� JUDGE ORIE:� Then you're referring to the term of imprisonment

Page 413

�1�� that could be imposed.� Then that's well understood.

�2�� Please proceed.

�3�� MR. JOVANOVIC: [Interpretation] Yes, Your Honour, I was referring

�4�� to the term of imprisonment, because the 20-year imprisonment was in fact

�5�� a substitute for the death penalty.� However, pursuant to further

�6�� developments, it became impossible to implement the death penalty any

�7�� longer.

�8�� I have nothing else to add, Your Honours.� I would just like to

�9�� draw your attention to the fact that it is possible to qualify the act in

10�� two different -- significantly different ways given the sentence envisaged

11�� for that act, and that it would be beneficial if clear criteria were to be

12�� established so that the accused know exactly, even though it's not going

13�� to be contained in the decision as you stated, the decision only specifies

14�� that it's possible to conduct the proceedings in Bosnia-Herzegovina.

15�� However, I think that Bosnia and Herzegovina needs to establish very clear

16�� criteria so that the accused knows which law is going to be applied.

17�� JUDGE ORIE:� Mr. Jovanovic, now I think for the third time you try

18�� to revisit a matter on which I first said that it was based on a

19�� misunderstanding, then I said it was irrelevant, and now you try it for

20�� the third time, which is -- well, let's say not very intelligent to do.

21�� Please proceed.

22�� MR. JOVANOVIC: [Interpretation] No, Your Honours.� I just

23� ��announced that this was it as far as my arguments were concerned in

24�� relation to this issue.

25�� As for all other directions given to the Defence as to stating our

Page 414

�1�� position, it is fully explained in our motion dated the 22nd of September,

�2�� and I have nothing further to add to it.

�3�� Thank you.

�4�� JUDGE ORIE:� We've read that carefully.

�5�� Ms. Basic in Sarajevo, I would like to give you an opportunity to

�6�� add anything you think of relevance to the submissions, the extensive

�7�� submissions, including case law, full text case law for us.

�8�� May I ask you also to keep in mind what I just said to

�9�� Mr. Jovanovic about the relevance of some of his submissions and that

10�� further development of case law in Bosnia and Herzegovina is not within

11�� the competence of this Chamber to further elaborate on.

12�� Please proceed.

13�� MS. BASIC: [Interpretation] Your Honours, we believe that given

14�� the gravity of the crime and the level of criminal responsibility, this

15�� case meets the criteria under Rule 11 bis for referral to the BH

16�� Prosecutor, especially if we bear in mind the fact that the Stankovic and

17�� Jankovic cases were referred and are being successfully tried, all the

18�� more reason to back the motion to have this trial, too, referred to

19�� Bosnia-Herzegovina.

20�� As for the application of law, perhaps my colleague Mr. Neradin

21�� can provide an answer to that.

22�� JUDGE ORIE:� Yes, Mr. Neradin, you're invited to deal with the

23�� matter.� Please keep in mind that of course this Referral Bench has

24�� already received a lot of information and has in its decisions I think

25�� also already explained what our role in this is.

Page 415

�1�� Please proceed.

�2�� MR. NERADIN: [Interpretation] Thank you.

�3�� Given the fact that this is not what this hearing is really about,

�4�� all I can say is that the BH court has already established a body of case

�5�� law in a number of trials that have been completed so far.� The Abduladhim

�6�� case, the Appeals Chamber of the BH court has passed a judgement in that

�7�� one.� There are three other cases where we have sentences; in the

�8�� Samardzic, Simsic, and Paunovic cases.� The court applied the Bosnia and

�9�� Herzegovina Criminal Code in these proceedings.� These judgements have

10�� already been forward and fully explained.

11�� Thank you.

12�� JUDGE ORIE:� Yes.� Thank you very much, because we have received

13�� the full text of the judgements you're referring to now.� I must admit I

14�� have not read them in full yet but will do so before a decision will be

15�� taken, that we are acquainted with these developments in the case law of

16�� Bosnia-Herzegovina.

17�� Is there anything else, Ms. Basic, you would like, or Mr. Neradin,

18�� you'd like to add at this moment?

19�� MS. BASIC: [Interpretation] At this point in time, I have nothing

20�� to add. �Thank you very much.

21�� JUDGE ORIE:� Yes.� Then I am moving to you, Ms. Somers.� You

22�� reserved your time.� We're now in the second round, more or less.� Would

23�� you like to make observations either in addition to what you have put on

24�� paper already or in response to what the Defence or the government of

25�� Bosnia and Herzegovina has submitted?

Page 416

�1�� MS. SOMERS:� Thank you, Your Honour.� Just a couple of points and

�2�� very briefly.

�3�� JUDGE ORIE:� Yes.

�4� ��MS. SOMERS:� With respect to what has been raised by my learned

�5�� friend opposite, Mr. Jovanovic, the case, just to set the record straight,

�6�� that was referred to in Brcko was not an OTP investigation.� It was at all

�7�� times a Bosnian investigation.� Strictly rules of road and received a

�8�� green light in August of 2000 for continued processing in

�9�� Bosnia-Herzegovina.� So that there is no misunderstanding that it was not

10�� subject to indictment here as was alleged on page 5, line 16, I believe,

11�� in the record.

12�� In terms of the level and gravity, which are the principal issues,

13�� we stand, of course, on our submissions that this case falls squarely

14�� within the contemplated level of the accused, lower to intermediate, and

15�� the gravity of offence falls squarely as has been effectively confirmed by

16�� this Bench and the Appeals Chamber in the sister case of Jankovic.� The

17�� fact that those cases are well under way provides a body of law that

18�� should be allowed, as I understand it, to be applied to this case should

19�� it be referred and allow for a speedy trial in Bosnia-Herzegovina in the

20�� state court; that the designation of Bosnia-Herzegovina is correct as we

21�� indicated in our submissions.� There really should be no issue on that.

22�� And that the direct perpetration, 7(1) charges, are the gravamen.� There

23�� is no 7(3) in this case as both we emphasise and BH.

24�� If there is anything we can help the Bench with, please let us

25�� know, but I think that we just want to stand on our submissions and

Page 417

�1�� correct the record that was made today, as done.

�2�� JUDGE ORIE:� Yes.

�3�� Mr. Jovanovic, is -- do you feel any need at this moment to

�4�� respond to what Ms. Somers just said?

�5�� MR. JOVANOVIC: [Interpretation] No, Your Honour.� I believe the

�6�� matter has been clarified in relation to Annex I.

�7�� As for the other matter, this is something that has already been

�8�� raised by the Prosecution and the Defence has already replied to that.

�9�� JUDGE ORIE:� Yes.� Thank you.

10�� [Trial Chamber confers]

11�� JUDGE ORIE:� I have one question for you, Mr. Jovanovic.

12�� You're explaining in your submission that you're concerned about

13�� witnesses living in Serbia which under the European Convention on Mutual

14�� Assistance in Criminal Matters could not be forced to appear before a

15�� court in Sarajevo and might not be inclined to go to Sarajevo.� It is not

16�� entirely clear to me what your -- what your concern is.� Are you afraid to

17�� lose them as witnesses at all, or are you concerned about the way in which

18�� they'll bring their information, bring their knowledge of the events

19�� before the court in Sarajevo?

20�� MR. JOVANOVIC: [Interpretation] Your Honour, it's certainly not

21�� the latter.� I'm not concerned about that, what the witnesses might

22�� possibly say before the court.� It's only about the accessibility of

23�� witnesses or their desire to respond to a Defence summons to appear in a

24�� trial held before a Sarajevo court.� There is the ECMACM that exists

25�� pursuant to an agreement or a treaty signed between Bosnia and Herzegovina

Page 418

�1�� and Serbia.� This sort of assistance would be provided only in cases where

�2�� witnesses living in Serbia was in a position to testify via videolink at

�3�� the Sarajevo trial.� It is pursuant to that agreement that the Belgrade

�4 ��court would then make sure that all the conditions, technical conditions,

�5�� were in place for something like that to be done.

�6�� However, based on a brief preliminary investigation, there are a

�7�� number of witnesses potentially essential for our case who reside in

�8�� Belgrade.� Any binding summons by a BH court, and this has been explained

�9�� on a number of occasions because in keeping with the BH Criminal Code it

10�� is the duty of a witness to respond to a summons, which is the same as

11�� applies in Serbia, and a failure to respond to a summons is liable for

12�� penalty.� However, a summons cannot be served on citizens of the Republic

13�� of Serbia or those residing there.

14�� JUDGE ORIE:� Yes.� That's all clear from your written submissions

15�� already, but let me then be more concrete.

16�� If they, even after you've explained to them, because you write in

17�� your submission they are afraid of being prosecuted, I think the treaty as

18�� such, do we agree on that, protects whatever witness who is called to

19�� appear on the basis of this convention is -- has a, how do you say, has a

20�� safe conduct if he appears?� Do we agree on that?

21�� MR. JOVANOVIC: [Interpretation] Your Honours, I apologise.� I may

22�� have misunderstood, but it is precisely safe conduct that was discussed

23�� when the ruling was made in the Stankovic and Jankovic cases, and doubt

24�� was cast on the possibility of their having such a measure implemented.

25�� Let's say there is a person who is charged with specific crimes in

Page 419

�1�� Bosnia-Herzegovina.� If this person resides in Serbia, at the moment this

�2�� person reaches Bosnian soil this person will be arrested.� So safe conduct

�3�� does not apply in this case.� At least that's my position.

�4�� JUDGE ORIE:� Yes, that's your position.� Although the -- if he is

�5�� summoned under the convention you just mentioned, he has a safe conduct

�6�� under that convention.� Isn't the convention not quite clear on that?

�7�� Isn't it true that the European Convention says that someone who is

�8�� summoned on the basis of this convention and appears before a foreign

�9�� court could not be arrested, prosecuted, whatever?� I mean -- and if you

10�� say that's not in the convention -- I haven't got that text here at this

11�� moment, but ...

12�� MR. JOVANOVIC: [Interpretation] Your Honour, I think the position

13�� of Bosnia and Herzegovina is that any such person would be arrested, any

14�� persons being investigated or under detention measures.� The moment they

15�� step on Bosnian soil they will be arrested.

16�� JUDGE ORIE:� We'll ask Bosnia and Herzegovina.� But let's just

17�� assume that that is then not a way to get these people in before the court

18�� in Sarajevo.� Isn't it true that under that same convention you could ask

19�� a witness to be heard or to be examined in Serbia in the presence of the

20�� parties who come from Bosnia and Herzegovina and even could attend the

21�� examination of a witness in accordance with that treaty, what they call an

22�� examination under letters rogatory?

23�� MR. JOVANOVIC: [Interpretation] Yes, Your Honour.� We're now

24�� talking about those witnesses willing to respond to the prompting by the

25�� Defence, and then it's down to them to organise a videolink.

Page 420

�1�� JUDGE ORIE:� Mr. Jovanovic, isn't it true that if through letters

�2�� rogatory a witness would be examined on the territory of Serbia not as

�3�� part of the trial but perhaps in pre-trial proceedings, that where you

�4�� couldn't force a witness to come from Serbia to Sarajevo, that you could,

�5�� however, force a witness to appear before in his local court and be

�6�� examined there so that at least the transcripts or the report of that

�7�� testimony or -- perhaps I shouldn't call it testimony, but that statement

�8�� can then be used abroad in Sarajevo?� And isn't it true that under those

�9�� circumstances it depends on Serbian law that the situation were exactly

10�� the same if someone if -- if someone was summoned before a Serbian court

11�� and is therefore under an obligation to appear?

12�� MR. JOVANOVIC: [Interpretation] Your Honour, you're entirely

13�� right.� My interpretation is much the same as in Bosnia-Herzegovina there

14�� is the obligation of a witness to attend a Serbian court for proceedings

15�� being held before a Serbian court.� The Law on Criminal Procedure applies

16�� to proceedings before Serbian courts.� Therefore, if there's a summons by

17�� a BH court and the person receiving the summons lives, resides in Serbia,

18�� there is no obligation whatsoever to appear and to respond to the summons,

19�� unlike a situation with a tribunal which has the power to issue a binding

20�� summons.

21�� So a Bosnian court has no power to issue any form of binding

22�� summons to anyone, resident or citizen of the Republic of Serbia.

23�� JUDGE ORIE:� It seems, Mr. Jovanovic, we still do not yet

24�� understand each other.� Let me try to be clearer.

25�� If -- and we are still talking about the European Convention on

Page 421

�1�� Mutual Assistance in Criminal Matters.� If a court in Bosnia and

�2�� Herzegovina would like to receive the information available to a witness

�3�� who lives in Serbia and who is unwilling to come to Bosnia and

�4�� Herzegovina, couldn't they then ask the Serbian authorities to examine

�5�� that witness in Serbia before a Serbian judge, add to that request that

�6�� the parties in the Bosnia and Herzegovina case could attend that

�7�� examination of the witness?� Would the witness under those circumstances

�8�� not be under an obligation to appear before the Serbian court where he

�9�� gives testimony which will then be relayed on paper to the court in Bosnia

10�� and Herzegovina?� That's the situation I'm talking about.

11�� Is that a possibility, in your view; and would he be under an

12�� obligation then to appear before his Serbian court?

13�� MR. JOVANOVIC: [Interpretation] Your Honour, my interpretation of

14�� the agreement is that this means assistance.� A court in Serbia can and

15�� indeed must, within the terms of this agreement, make sure that a witness

16�� is heard, but I don't think this is binding for any citizen of Serbia to

17�� appear and testify before a Sarajevo court.� So although this may be done

18�� before a court in Belgrade, this is still a trial that is held before a

19�� court in Bosnia and Herzegovina.� In that sense, there is nothing binding

20�� and no obligation.

21�� Perhaps we could imagine a similar situation.� Say the OTP are

22�� summoning a person in Serbia for --

23�� JUDGE ORIE:� Mr. Jovanovic, have you any case law to rely upon,

24�� any practice which would support your position?

25�� MR. JOVANOVIC: [Interpretation] Your Honour, this is not an

Page 422

�1�� example from the case law.� I am in touch with the justice ministry of the

�2�� Republic of Serbia, their legal assistance department, and they told me

�3�� about this position that I'm informing you about now.� There have been

�4�� videolinks between the Belgrade court and the Sarajevo court, and this

�5�� seems to work very well, but that still doesn't mean that a witness can be

�6�� subpoenaed to appear at a Sarajevo court in any way.

�7�� My grievance was therefore related to the impossibility to ensure

�8�� the presence of a witness before the court in Sarajevo.� I was just

�9�� telling you that this Tribunal has the power to order a witness to appear,

10�� irrespective of the witness's place of residence or nationality.� This

11�� Tribunal has the power to subpoena a witness and to issue binding orders

12�� to the witness's country, whereas the BH court does not have the same

13�� powers, and I don't think an agreement has been signed that might further

14�� this process and cooperation in legal matters.

15�� JUDGE ORIE:� Yes.� Thank you for these answers, Mr. Jovanovic.

16�� JUDGE ORIE:� Then I'd like to give an opportunity to you,

17�� Ms. Basic, to respond to what was said by Mr. Jovanovic.� He suggested

18�� that if through the channels of the European Convention on Mutual

19�� Assistance in criminal cases, if someone would be summoned living in

20�� Serbia that that witness would not enjoy a safe conduct as provided for in

21�� that convention.

22�� Could you please respond to that, because it was not totally clear

23�� to me on what basis Mr. Jovanovic took that position.

24�� MS. BASIC: [Interpretation] Thank you, Your Honours.� I would like

25�� to pass the floor to Mr. Neradin for this issue.

Page 423

�1�� Thank you very much, Your Honours.

�2�� JUDGE ORIE:� Yes, Mr. Neradin, you may understand that I was

�3�� specifically referring to -- I think it's Article 12 of that -- of that

�4�� convention.

�5�� Yes, please.

�6�� MR. NERADIN:� [Interpretation] As you've already stated,

�7�� Bosnia-Herzegovina is a signatory to the ECMACM.� It is pursuant to

�8�� Article 12 of that convention there is guarantee of immunity to all

�9�� witnesses summoned before this court that are nationals of a different

10�� country.� Bosnia and Herzegovina has ratified a contract with Serbia and

11�� Montenegro in legal assistance in criminal and civil matters.� On the 2nd

12�� of June, 2005, Article 14 guaranteed the same sort of immunity to those

13�� subject to criminal prosecution.� These witnesses are free to leave within

14�� 15 days after their presence is no longer legally required.

15�� As for forcing a witness or subpoenaing a witness from Serbia,

16�� generally speaking, if there is a witness who refuses to appear, there is

17�� the possibility of using the instrument of legal assistance and legal

18�� cooperation, be it by videolink, as counsel has mentioned, or by taking a

19�� deposition from a witness pursuant to all these international agreements

20�� that are after all binding for Bosnia and Herzegovina.

21�� Thank you.

22�� JUDGE ORIE:� Thank you for your clarification, Mr. Neradin.

23�� I have at this moment no further question.� I'm looking to my

24�� colleagues.� They have no further questions.

25�� Then I would give a brief opportunity to the parties, if there is

Page 424

�1�� need to add anything which has been said, you have an opportunity to do

�2�� that now.

�3�� Ms. Somers.

�4�� MS. SOMERS:� Your Honour, I can see nothing further that would

�5�� need to be added.

�6�� JUDGE ORIE:� Thank you.

�7�� Mr. Jovanovic.

�8�� MR. JOVANOVIC: [Interpretation] Your Honours, I have nothing to

�9�� add.

10�� JUDGE ORIE:� Yes.� Ms. Basic, is there anything you'd like to add

11�� from Sarajevo?

12�� MS. BASIC: [Interpretation] No, Your Honour, there is nothing we

13�� would like to add.

14�� JUDGE ORIE:� Thank you.

15�� Finally, Mr. Zelenovic, you have been here listening to argument

16�� which is of a rather high technical nature, legally technical nature.� I

17�� can imagine that there is nothing you would like to add to that, but if

18�� there's anything at this moment you'd like to say, and you are aware

19�� we -- I mean, we are dealing with these legal technical matters because

20�� it is of course for you not a legal technical matter, but it's what will

21�� happen to you, but if you'd like to add anything, you may do so.

22�� THE INTERPRETER:� The microphone was not on.

23�� JUDGE ORIE:� Could you switch on your microphone if you say

24�� something.� Mr. Zelenovic, the interpreters couldn't hear you.

25�� THE ACCUSED: [Interpretation] I have nothing to add.

Page 425

�1�� JUDGE ORIE:� Thank you very much, Mr. Zelenovic.� Please be

�2�� seated.

�3�� The Chamber will consider everything that has been submitted and

�4�� will give its decision in due course, or if it feels that it's not able

�5�� yet, to return to the parties.

�6�� We stand adjourned.

�7�� --- Whereupon the Rule 11 bis Hearing adjourned

�8�� at 4.53 p.m.

�9

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