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.
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