IT-00-41 Ljubičić, Date: 2005 09 20, Hearing Type: IT

⁹⁰

Tuesday, 20 September 2005

[Deferral Hearing]

(Open session)

[The accused entered court]

--- Upon commencing at 2.56 p.m.

JUDGE ORIE: [French translation on channel 4]

THE REGISTRAR: [French translation on channel 4]

JUDGE ORIE: Five. I do not know whether five is -- now we have French on channel 5. Let's go back to channel 4. It seems as if we have English there.

THE INTERPRETER: Can you hear the English booth on channel 4?

JUDGE ORIE: Yes. So we'll -- the cases having been called, I think I first need to explain that we are simultaneously hearing the parties on 11 bis request both in respect of Mr. Ljubicic and Mr. Rajic. The parties agreed to such a simultaneous hearing and it's more practical to do so.

May I have the appearances? First in The Hague, since we are also in connection to Sarajevo in a videolink. Prosecution first.

MS. SOMERS: Thank you and good afternoon, Your Honours. For the Prosecution, Susan L. Somers. Also present behind me, Kenneth Scott. To my left Mr. Fergal Gaynor, to my right, Mr. Aleksandar Kontic, and case manager, Ms. Donnica Henry-Frijlink.

JUDGE ORIE: Thank you, Ms. Somers. May I have the appearances for the Accused?

MR. JONJIC: [Interpretation] Good afternoon, Your Honours. My ⁹¹ name is Tomislav Jonjic. I'm an attorney at law from Zagreb and Defence counsel for Mr. Ljubicic. Next to me is Mrs. Nika Pinter, attorney at law in Zagreb, and my co-counsel.

MS. KOSTA: [Microphone not activated]

JUDGE ORIE: Could you switch on the microphone? We are still listening to the translation of the previous --

MS. KOSTA: Thank you, Your Honours, my name is Doris Kosta. I'm an attorney at law from Split and co-counsel representing Mr. Rajic.

JUDGE ORIE: I do understand that lead counsel was not available to attend this hearing, lead counsel being Mr. Olujic.

MS. KOSTA: Yes, let us say he was not able to come although I believe this Trial Chamber is aware of the situation in this case. My client has initiated, back in May, a procedure to remove Mr. Olujic from the position of his Defence counsel. So therefore this procedure has been ongoing for four months now.

JUDGE ORIE: Yes. Mr. Rajic, may I just ask you whether you feel sufficiently represented today by Ms. Kosta?

THE ACCUSED RAJIC: [Interpretation] Yes, Your Honours. I believe that Mrs. Kosta can represent me and I am pleased that Mr. Olujic is not here today because I believe that he has no role in these proceedings. Thank you.

JUDGE ORIE: Yes. Then I'd like to turn to Sarajevo, where representatives of the government of Bosnia-Herzegovina are following the proceedings. Could I have the appearances from Sarajevo, please?

MS. POPADIC: Good afternoon, on behalf of the government of ⁹² Bosnia-Herzegovina, we have here representatives of the Ministry of Justice, the Office of the Prosecutor of Bosnia-Herzegovina, the representatives of the Registrar of the Court, the first one and the second one in Bosnia-Herzegovina. I'm the head of the delegation, Milana Popadic, representing the Minister of Justice of Bosnia-Herzegovina. To my left is Mr. Emir Neradin representing the Registry for section 1 and 2 of the Court of Bosnia-Herzegovina, Ms. Mechtild Lauth representing Registry section 1 and 2 of the Court of Bosnia-Herzegovina, Mrs. Slavica Terzic, representing the Prosecutor's Office of Bosnia-Herzegovina, Ms. Stephanie Godart, the Office of the Prosecutor of Bosnia-Herzegovina, and Mr. Nicholas Koumjian representing the Office of the Prosecutor of Bosnia-Herzegovina.

JUDGE ORIE: Thank you, Ms. Popadic. I noticed that there is also a representative of the Registry present in Sarajevo. Now I do not hear anything whereas it looks as if he was speaking. Then I may have overheard that.

The order the Chamber would like to follow is to first give an opportunity to the Prosecution to add anything that should be added at this moment to the written submissions already available to this Referral Bench, then give a similar opportunity to the Defence, and finally to the representatives of Bosnia and Herzegovina. And if the Chamber would have any further questions, they will then put to you after this and then if there are any final observations to be made, the parties will have an opportunity to do so.

Ms. Somers, may I first invite the Prosecution to make any further ⁹³ submissions in addition to what already has been submitted in writing to this Referral Bench, if there is any need to do so.

MS. SOMERS: Your Honour, there is from the perspective of the Prosecutor no need to supplement the - I think - rather detailed additional submissions that the Chamber requested as to the Accused Ljubicic filed on the 16th of September, and as to the Accused Rajic. They were due the 19th and I believe filed either just at that time, at noon or shortly before, but they supplement, they are responsive, we believe, to the questions that the Chamber wished a bit of fleshing out about and if there is anything specific that perhaps Chamber's interest may have been whetted about, we'd be happy and answer, but I think that we have fully complied. The aspect of level and gravity has been a bit further elaborated upon and they will help.

JUDGE ORIE: Thank you, Ms. Somers. Mr. Jonjic, if I could give you the floor first to make any additional submissions?

MR. JONJIC: [Interpretation] Thank you, Your Honours. The Defence of Mr. Ljubicic one day after the Prosecutor submitted a motion to refer the case to the national Court stated that it did not oppose the motion, namely the referral of the case to the national Court and we submitted that motion on the 22nd of July 2005. Several days later, on the 2nd of August 2005, we submitted our arguments detailing why we believe that this case should be referred to the Republic of Croatia rather than the judicial organs of Bosnia-Herzegovina. Based on that, you can see that the Defence agrees that the gravity of the crimes that our client is ⁹⁴ charged with and his rank are such that they fall within the scope of Rule 11 bis and therefore, there is no reason why this case should not be referred to national Court.

On the other hand, the Defence is fully aware of the fact that it does not have standing to propose that the case be referred to another state. Rather, this standing is that that belongs either to the Prosecution or to the Trial Chamber. We are now fully aware that we are here discussing the referral of this case to Bosnia and Herzegovina, not to the Republic of Croatia. However, we believe that it would be unprofessional to say the least if we did not point out certain arguments which are in favour of our client because we believe that his rights will not be fully protected if the case were to be referred to Bosnia and Herzegovina. So with your permission I would present several arguments regarding this issue.

Yesterday, the Defence received the motion from Bosnia and Herzegovina, from the government of Bosnia-Herzegovina, pursuant to the order issued on the 5th of August. We were unable to submit a written response to this because the statement came rather late. However, it is our position that this statement is rather superficial, that in this motion submitted by the government of Bosnia and Herzegovina, they failed to present their position regarding the questions put by the Trial Chamber. Rather, they submit their arguments concerning some different issues. With all due respect, in view of the Defence, the government of Bosnia and Herzegovina should not treat our client just like any other case or any other client, but the government of Bosnia and Herzegovina ⁹⁵ should have presented very specific views pursuant to the Chamber's order dated the 5th of August.

This position taken by the government of Bosnia and Herzegovina is something that causes concern, and we believe that this is just another evidence showing that the rights of our client will not be fully protected in Bosnia-Herzegovina.

Once again we reiterate that we are not entitled to propose that this case be referred to the Republic of Croatia, but we would like to point out that the jurisdiction for this case -- these case Susan Somers a universal one. Therefore, there are no obstacles to referring this case to Croatia. In accordance with the text of Rule 11 bis which was in force at the time when our client was transferred to the ICTY, the only viable alternative to a trial here before ICTY was a trial in Croatia. Rule 11 bis establishes concurrent jurisdiction. It does not give primacy to the Court of Bosnia-Herzegovina, where the crimes were committed. In the Mrksic case it was the OTP itself which demonstrated that it does not give a preference to the country where the crimes were committed. Before arriving here to the Detention Unit, the Accused resided in Croatia. Therefore, his situation was quite different from the situation of the Accused in other cases where we already have a ruling pursuant to Rule 11 bis. It is true what the OTP pointed out, namely that our client became a citizen of Croatia following the commission of the crimes or the events that are described in the indictment. However, his request to become a citizen of Croatia was submitted much earlier and, therefore, this argument of the Prosecution is simply an untenable one. ⁹⁶ The Defence is aware that the Trial Chamber in a number of other cases took the view that the extradition or transfer to a national government is not considered a pure case of extradition but, rather, enforcement of the UN charter, Article 27. There is a law that was passed in Croatia, the constitutional law on cooperation with the ICTY which should be treated as a legal source for resolving such cases rather than the UN charter. This law, constitutional law on cooperation with the ICTY in Article 9 prohibits extradition of the citizens of the Republic of Croatia to other states, which means that if our client is extradited to Bosnia and Herzegovina, this would represent a circumvention of this law and would represent a violation of the constitution of Croatia. And it is our view that this Court should not engage in such practice.

MS. SOMERS: I apologise for the interruption, Your Honour, but I have to object. This is an entire diatribe that has not been responded to as ordered by this Court in writing. The -- in our view it is entirely inappropriate to hold court as it were now on issues that the Defence was invited to brief or to at least put in response form. It effectively requires or could require response by the Prosecution. We did not expect anything of this nature to happen ore tenus today and would if need be -- well, we would like to ask for the opportunity to at least direct the Referral Bench's attention to the points, if need be, in our submission and, of course, the jurisprudence that has come through the Bench and through the Appeals Chamber. But this is what we're -- I'm caught by surprise by this.

JUDGE ORIE: Mr. Jonjic, most of what I hear I remember that I ⁹⁷^{BLANK PAGE} ⁹⁸ have read it already, especially in the second submission you made after the short first one. You were invited to add whatever should be added, and I do not know whether this very last portion seems to be from -- what I remember, the prohibition to extradite your own nationals was dealt with in rather constitutional terms in your submissions where it now is related to the law on cooperation. Perhaps I'm mixing it up but, of course, the issue of the non-extradition of nationals has been raised extensively also in your written submissions. As a matter of fact, everything I heard until now is -- well, at least it could give you the pleasure of being aware that we read your submissions very carefully.

Would you have any additional matters to raise?

MR. JONJIC: [Interpretation] Yes. With your permission, Your Honours, you are absolutely right. The Defence did indeed elaborate on this issue in our submission dated the 2nd of August. Therefore, I do not understand why is the Prosecution all of a sudden now surprised? The reason I mentioned the law -- constitutional law on cooperation with the ICTY is that we cited this law in our submission in paragraph 9 and in a footnote. However, I will be brief. I understood what you were trying to say to us.

What we would like to reiterate is the following: There was a procedure instituted against our client in Croatia. The investigation in that case was concluded, over 40 witnesses were heard. However the proceedings in Croatia were suspended because our client was transferred to the Tribunal. If our client is now extradited to Bosnia and Herzegovina, then our client will find himself in a very complex legal ⁹⁹ situation where the proceedings in Croatia were stayed in order for him to be transferred to the ICTY and then ICTY transferred him to another state. In our submission, dated the 2nd of August, we also mentioned the flaws and the shortcomings that exist in our view if our client is indeed tried in Bosnia-Herzegovina. We hope that Bosnia and Herzegovina will fully comply with the Trial Chamber's order dated the 5th of August and present its full view so that we would be able to respond to it. As I said in the beginning, the response of the government of Bosnia-Herzegovina was a very superficial one. They simply made reference to their previous submissions.

Our client has been in detention for almost four years and if I'm not mistaken this is the longest detention period in the history of this Tribunal. In other cases, the Trial Chamber believed that the length of the detention does not violate the rights of the Accused. There is a provision in the laws of Bosnia and Herzegovina stating that if the indictment is not confirmed within six months, then an accused has to be released from detention and that a final judgement must be passed down within one year.

The fact is that the state Prosecutor handling the case in Croatia, the case that was suspended, is ready and willing to continue with the trial. He will continue with this case if the case is referred to Croatia, and unlike that situation, the Prosecutor in Bosnia and Herzegovina will have to put in a lot of work to become acquainted with this case and all the details. The situation in Croatia is such that the Prosecutors there have been dealing with the cases from Lasva valley for ¹⁰⁰ nine or ten years now.

There is another problem that was raised in our submission of the 2nd of August and that is the issue of Defence counsel. According to the current situation, this counsel can refer this case to the authorities of Bosnia and Herzegovina, not to a particular court in that country. And those authorities need not refer the case to the state Court. They can refer the case to a county Court.

JUDGE ORIE: You're now at paragraph 13 of your written submission. I mean, you're doing exactly the same as you did before. You repeat what's already in writing. We might have some questions on that but it's -- and I verified in -- perhaps there could be a confusion in your -- let me just check that. Yes. In your written submission, you mainly referred to the constitution of the republic as far as the non-extradition of nationals is concerned in Article 9, and I now see that you're giving more emphasis on the constitutional law on cooperation with the ICTY; is that correct? Although you mentioned it in your written submission as well.

MR. JONJIC: [Interpretation] Not quite, Your Honour. The constitutional law does not contain a provision on the prohibition of extradition. This is contained in Article 9 of the constitution. The constitutional law only created an exception to that rule by permitting extradition exclusively to the ICTY. By your leave, Your Honour, I will conclude in a few minutes and I will avoid repetition.

JUDGE ORIE: Yes, please do so.

MR. JONJIC: [Interpretation] Another very important issue -- ¹⁰¹

JUDGE ORIE: May I nevertheless interrupt you for one second? Reading the transcript, and I'm looking at page 7, line 4 and 5, and that might have created my confusion. "This law, constitutional law on cooperation with the ICTY, in Article 9 prohibits extradition of the citizens of the Republic of Croatia to other states, which means that if our client," and then you -- so there you're referring to Article 9 of what you call the constitutional law and cooperation with the ICTY, whereas in your written submission, I find a reference to Article 9 of the constitution of the Republic of Croatia. So that's a bit in contradiction with each other. May I take it that your last statement saying that it's Article 9 of the constitution that prohibits the extradition of nationals and that the -- I don't know whether that's a constitutional law but at least a law on cooperation with the ICTY makes the exception? That's the correct understanding? Then please proceed.

MR. JONJIC: [Interpretation] That's correct, Your Honour. The general prohibition is contained in the constitution, whereas the constitutional law which has the same legal force and is enacted through the same procedure as the constitution has made an exception but only in favour of this Tribunal.

And to avoid repetition, the last issue that the Defence wishes to raise now is the situation regarding security in detention units and prisons in Bosnia-Herzegovina. The Defence has several testimonies and some information showing that the situation in prisons in Bosnia-Herzegovina is a very unsafe. According to some information we have not yet been able to substantiate, and verify, but if this ¹⁰² information is correct, commission is being set up in which representatives of the Detention Unit in The Hague should participate and this commission has found that the situation is very problematic. However that may be, it's a case -- it's true that the press in Bosnia-Herzegovina has reported more than once on insecurity in prisons, on detainees who are Croats or Serbs and this seems to be relevant, engaging in hunger strikes, addressing the authorities, asking that their status be improved, and the federal Minister of Justice, Mr. Slobodan Kovac, on the 15th of July, issued a decision that some detainees be transferred to the Kula prison in Split. However, the federal Ministry of Justice and the authorities of the Zenica prison did not respect this decision which illustrates how far his authority stretches and how laws are implemented. Three days ago, on the 16th of September, the media in Bosnia and Herzegovina reported that members of the Commission for Human Rights of the parliament of Bosnia-Herzegovina said that Serbs and Croats in the Zenica prison are at risk. As things stand at present, people convicted for crimes such as those our client is accused of, serve their sentences precisely in that prison. So should our client be convicted, he will be sent to serve his sentence in Zenica and the situation there is highly alarming. That is why the Defence proposes that the Chamber allow the authorities of Bosnia-Herzegovina to be heard on this issue. The Defence reiterates yet again that it does not have the authority to propose that the case be transferred to Croatia but we invite the Chamber to do so proprio motu. Thank you.

JUDGE ORIE: One question, Mr. Jonjic. You referred to ¹⁰³ publications but also to a commission that had found ... Are you intending to submit any documentary evidence on that? I'm a bit hesitant about newspapers. I wouldn't say that newspapers never give information which is helpful but sometimes by choosing the right newspaper, you get the support for the position you have adopted. So -- but especially the commission. You said the "commission has found." And a report from that commission?

MR. JONJIC: [Interpretation] That's correct, Your Honour. We only have information that this commission has been established, that it inspected these prisons and that they found many problems. However, we are unable to document this claim at present, but if we do manage to get evidence on time, we will submit it to the Chamber.

JUDGE ORIE: Thank you, Mr. Jonjic. For the Defence of Mr. Rajic, Ms. Kosta?

MS. KOSTA: [Interpretation] Your Honour, the Defence of Mr. Rajic fully abides by its written submission and its response to the Prosecution motion of the 26th of July. With respect to the response of the government of Bosnia-Herzegovina, which we received only yesterday, we wish to point out that it represents a subjective attitude of the authorities of Bosnia and Herzegovina and that it does not paint an objective picture. Therefore, I oppose completely any transfer of the case of my client, Ivica Rajic to the judiciary of Bosnia and Herzegovina. I will be very happy to answer any questions Your Honours may have.

JUDGE ORIE: Thank you, Ms. Kosta. I now turn to Sarajevo. Ms. Popadic, would you like to add ¹⁰⁴ anything to what you have already submitted to this Chamber? And I emphasise that you were invited as, I think, you did, not to repeat earlier submissions but to refer to them to the extent necessary. Nevertheless, at this moment, it seems that Mr. Jonjic has raised issues on recent developments or reports or findings of a commission on the detention situation. If you are in a position to include that in your submissions, you're invited to do so. Please proceed.

MS. POPADIC: [Interpretation] Thank you. Your Honour, the position of the government of Bosnia and Herzegovina has been fully set out in our written submission of the 15th of September 2005, and we have nothing to add.

This was the response to the order issued by the Chamber of the 5th of September. There is no doubt that there have been problems in the prison in Zenica, in the penal institution there, but probably due to lack of information, the statements made by the Defence of the Accused are incorrect. Therefore, I will attempt in my capacity as a representative of the Ministry of Justice, to clarify the situation and the events that have taken place.

The Court of Bosnia and Herzegovina and the Office of the Prosecutor of Bosnia and Herzegovina, at state level, has a detention unit which meets international standards and which is fully equipped, and fully prepared to receive all accused who are to be tried in sections 1 and 2 before the Court of Bosnia-Herzegovina. It is true, however, that there is no prison at state level, and the Ministry of Justice is competent to construct a state prison. There has been much activity in this respect. ¹⁰⁵^{BLANK PAGE} ¹⁰⁶ A plan has been drawn up. This would be both a detention unit and a prison, with 306 cells, and this would meet all European standards. Funds have been collected and work is underway, very expeditiously, to construct this prison at the state level in Bosnia-Herzegovina. All persons accused by the Court in Bosnia and Herzegovina in recent times are now serving their sentences in the institutions at entity level, which are penal institutions, so that persons residing in one entity serve their prison sentence in the penal institutions of that same entity.

The events we have just heard about from the Defence counsel of the Accused have actually taken place, but the persons serving their sentences were convicted at the entity level. They were tried before the cantonal Court in Sarajevo. And these persons were sent to serve their sentences in the entity to which the Court before which they were tried belongs.

In this particular case, it was the cantonal Court in Sarajevo that tried the case. The persons convicted were sent to serve their sentence in Zenica, which is the same entity, the entity of the Federation of Bosnia-Herzegovina, and, in line with this and pursuant to the entity laws on the execution of prison sentences, persons tried in Republika Srpska before the Courts of Republika Srpska serve their sentences in that entity.

If there are any additional questions, we can clarify that what the Defence has stated does not hold water, because persons who are convicted by the Court of Bosnia and Herzegovina are sent to serve their ¹⁰⁷ sentences in the entity of their residence.

The Ministry of Justice has a plan, whereby it has been established that the prison of Bosnia and Herzegovina should be built very soon.

In view of the fact that in this particular case, or, rather, the particular case raised by the Defence, the Minister of Justice issued a decision pursuant to the law on the execution of criminal sanctions, detention and other measures, of Bosnia-Herzegovina, pursuant to provisions whereby the entities were duty-bound to harmonise their legislation concerning the service of prison sentences, after Bosnia and Herzegovina, or, rather, the parliament of Bosnia-Herzegovina, at the beginning of this year, enacted a law on the execution of penal sanctions, detention and other measures.

Let me point out that apart from the written submissions submitted by the government to the Chamber, this delegation is at Your Honours' disposal and we are willing to answer any questions Your Honours may have.

JUDGE ORIE: Thank you, Ms. Popadic. If I could just put a small question in respect of your response about what happened in Zenica. I understood the concern of the Defence mainly to be that inmates would suffer from ethnical bias within the prison walls. May I ask you, first of all, whether what happened in Zenica against Serbs and/or Croats, that's one question. And the second question is are you aware of the existence of any report by a commission who would have given any findings on the matter?

MS. POPADIC: [Interpretation] Following the final judgement of the ¹⁰⁸ cantonal Court in Sarajevo, the four convicts were sent to serve their prison terms at the level of that entity, which was the prison in Zenica, the correctional penal institution in Zenica.

The events which took place in Zenica occurred between the persons serving their prison terms during their free time and in the course of their activities, leisure activities.

JUDGE ORIE: Ms. Popadic, you might not be able to see it but Mr. Jonjic is on his feet. I do not know whether he has any matter to raise or to intervene or was it the matter of receiving the sound? It was the audio which bothered you, Mr. Jonjic?

MR. JONJIC: [Interpretation] No, Your Honours. I'm not receiving interpretation but I can see what you're asking me. In order not to waste time to hear her submissions, let me say the following: Mrs. Popadic is claiming that this has to do with a persons convicted by the cantonal Court in Sarajevo. One of the persons on hunger strike mentioned in the committee report is Mr. Ivan Bakovic --

JUDGE ORIE: Mr. Jonjic, I put two very specific questions to Ms. Popadic. The first was whether the -- well, victims, or at least whether they were Serbs or Croats, and the second was whether she has any knowledge of a report on -- delivered on this matter. She was about to answer my question, although perhaps not very directly, but she is invited now to tell me whether these were Serbs or Croats, and, second, whether there is any report available. I would like to avoid a discussion without any supporting material for the Chamber. At the same time, we -- Ms. Popadic, we are waiting for one second since the audio is still -- ¹⁰⁹ it's now functioning well?

Yes. So I don't think at this moment there would be any reason to interfere with the answer. And if the -- either the government or the Defence would like to submit to the Chamber in the near future documents and preferably not newspapers, although I would not under all circumstances exclude them, but we all know that the press sometimes is in favour of one point of view whereas other newspapers might be in favour of another point of view.

May I return to you, Ms. Popadic, and ask you to directly answer my questions whether these were Serbs or Croats, and second whether you're aware of the existence of any report.

MS. POPADIC: [Interpretation] Among the four persons regarding whom there was a request to transfer them from Zenica, the three of them were of Serb ethnicity and one person was of Croatian ethnicity. All of the events, including the visits of the commission, took place at the level of the federal ministry, in view of the fact that most of the persons, I think three persons, were sent to serve their prison terms based on the federal entity law on serving prison terms. Therefore, the body competent to decide in those cases was the federal Ministry of Justice, not the entity Ministry of Justice. The action taken by the state Ministry of Justice was to request from the ministries of justice in entities to ensure that entity laws are in compliance with the law of Bosnia-Herzegovina on enforcing criminal sanctions.

JUDGE ORIE: One of your previous sentences, it seemed that you said that there was a commission, at least visits of a commission. Is ¹¹⁰ there any report delivered by any commission?

MS. POPADIC: [Interpretation] I have repeated already several times that this falls under the jurisdiction of the federal Ministry of Justice because the -- rather, the body competent to act in this case were the cantonal Prosecutor's office and the cantonal Court rather than the Ministry of Bosnia-Herzegovina and the state Court of Bosnia and Herzegovina.

JUDGE ORIE: I apologise for interrupting. My simple question was whether any commission who investigated the matter has delivered any report, whether competent report or incompetent report, whether -- whatever. I am just inquiring into the existence of a report.

MS. POPADIC: [Interpretation] Your Honours, I will kindly ask the referral Chamber to give me a deadline so that I could request, put in a request to receive this. The federal Ministry of Justice is not duty-bound to provide such reports to the Ministry of Justice of Bosnia and Herzegovina, and if, indeed, there is a report, then the report exists within the federal Ministry of Justice rather than the Ministry of Justice of Bosnia-Herzegovina that I'm representing here.

[Trial chamber confers]

JUDGE ORIE: Ms. Popadic, the Chamber would highly appreciate if you would get in touch with the competent organs to see whether a report exists, to ask for a copy of this report and to submit a copy of the report to the referral Chamber.

[Trial chamber confers]

JUDGE ORIE: I would like now to see whether there are any ¹¹¹ questions by my colleagues to either Prosecution, Defence, or the representatives of the government.

JUDGE PARKER: Thank you. I have a question for Ms. Popadic. Can you please tell me when it is expected that the construction of the prison will be completed, the prison you have spoken of?

MS. POPADIC: [Interpretation] The mid-term plan, which covers the period until the end of this year, and the following year, plans for a building of the prison of Bosnia and Herzegovina with 306 cells. This facility would also have a detention facility. The plan, which is in existence, indicates that there are expectations that the future prison will satisfy all established standards, the standards established at the European level, for facilities of this nature.

JUDGE PARKER: The particular point that I was interested in is what is the expected completion date of the construction? Are you able to help the Bench with that, Mrs. Popadic?

MS. POPADIC: [Interpretation] This plan envisages that the completion of the building would enable the facility to become operational on the 31st of December 2006.

JUDGE PARKER: Thank you.

JUDGE ORIE: I would have a -- since Judge Kwon has no questions and Judge Parker has no further questions, I would have a few questions for Defence counsel.

Mr. Jonjic, one of your concerns is that it's at the discretion of the Court in Bosnia-Herzegovina whether or not counsel, not belonging to the bar of Bosnia-Herzegovina, could act before that Court. It is my ¹¹² recollection that recently this system was changed and would allow counsel that have acted on behalf of a defendant before this Tribunal to act before the BH Court as well. Fortunately, we have the BiH representatives present, but I first address you whether you are informed about this, and ...

MR. JONJIC: [Interpretation] Your Honours, yes. You are completely right. It is true that recent amendments of the law are now allowing, in exceptional cases, the lawyers who do not practise in Bosnia-Herzegovina to represent their clients, but only before the state Court of Bosnia and Herzegovina, exclusively that Court. The lawyers practising in other states don't even have a theoretical possibility of representing clients before ordinary courts, including cantonal county Courts which have jurisdiction over such cases, and to which theoretically the authorities of Bosnia-Herzegovina could refer war crimes cases. So the Tribunal is referring this case to the national authorities of Bosnia-Herzegovina who in turn would decide to whom to assign this case. So there is a theoretical possibility.

JUDGE ORIE: I have noticed that in your submissions, Mr. Jonjic, you have quoted that part of the Stankovic decision that this Chamber feels not competent or at least is not the -- that it's not up to us to decide which court is competent in Bosnia and Herzegovina. At the same time, that's a part you're not quoting, we have established that there is legislation enacted which makes only the state Court the competent court after a referral by the Tribunal. So on the one hand I admire that you have correctly understood that we are not deciding the matter, but would ¹¹³^{BLANK PAGE} ¹¹⁴ you have any specific reason to expect that Bosnia-Herzegovina would act in violation of its own laws, which prescribe such cases to be referred to the state Court?

MR. JONJIC: [Interpretation] Your Honours, it is fortunate that we have representatives of Bosnia-Herzegovina present here today who could clarify this. I am concerned that there is a fact that Mrs. Popadic failed to comment, namely that the state Prosecutor, Mr. Kovac, issued certain instructions to the federal authorities that they did not comply with. In addition to that, Mrs. Popadic told us that the federal ministry or rather the federal bodies are not duty-bound to comply with the orders of the state bodies at the central level. Therefore I'm afraid that there is a possibility for abuse in this system if that were not the case then we would not be wasting any time on this issue.

JUDGE ORIE: Mr. Jonjic, isn't it true that a lot of attention has been paid by this Referral Bench to the issue of monitoring? And would you consider that if a decision to refer a case to Bosnia-Herzegovina, which heavily relies upon the legislation enacted in view of the state Court, that the Prosecutor would not report that and that it would all happen, this what you yourself called a theoretical possibility, without any response? Is that what you expect? And I'm also looking to you, Ms. Somers, to see what the position of the Prosecution would be, a Prosecution who is the authority that should report on the monitoring. Mr. Jonjic?

MR. JONJIC: [Interpretation] No, Your Honours. The Defence is fully aware of the fact that the Chamber has put in a lot of effort to ¹¹⁵ determine the conditions under which the inmates serve their sentences, and that the Chamber also gave appropriate instructions to the Prosecutor. We also know that there was an appeal in the Stankovic case which was partially granted, and that there is monitoring in place, monitoring of the proceedings there. Therefore, it would be irrational to believe that we believe the Prosecution to be negligent when it comes to this issue; however, we have to do our duty professionally. We have to zealously represent the interests of our client. Therefore we believe that we need to point that there is this potential risk.

JUDGE ORIE: Yes, you'll not be blamed for doing your job, Mr. Jonjic.

Is there anything would you like to add, Ms. Popadic, to what has been said on the competence of the state Court and the possibility for counsel who have represented their clients before this Tribunal to act before the state Court?

MS. POPADIC: [Interpretation] Thank you. Naturally I will first respond to the first portion of the question. I will quote the law. The Court of Bosnia-Herzegovina is the only competent court in Bosnia-Herzegovina for the cases referred pursuant to Rule 11 bis. Article 2, paragraph 1, of the law on the cases referred by the ICTY provides, I'm reading now, the provision, that the adapted indictment is accepted by the state Court of Bosnia and Herzegovina if it is established that the indictment of the ICTY has been appropriately adapted and if such adapted indictments satisfies formal requirements of the law on criminal procedure of Bosnia-Herzegovina. ¹¹⁶ In accordance with the law on referral of cases by the ICTY, or any other law, the case referred in accordance with Rule 11 bis may not be transferred to any other court in Bosnia and Herzegovina.

JUDGE ORIE: Thank you for that answer. Ms. Somers?

You're still answering the question. If you would like to continue, Ms. Popadic, please do so.

MS. POPADIC: [Interpretation] With respect to the Defence of the Accused in proceedings in Bosnia and Herzegovina, the question of whether the same counsel from abroad may continue representing an Accused before the Court of Bosnia and Herzegovina, I will point out that pursuant to Article 12 and Article 3.4 of the additional rules, Defence counsel acting before section 1 of the War Crimes Department and section 2, the Organised Crime and Corruption Department, a judge of the Court of Bosnia and Herzegovina may approve counsel and admit counsel before the Court of Bosnia and Herzegovina, bearing in mind the knowledge of law, whether other counsel would have sufficient time to prepare should the case be referred under Rule 11 bis, and taking into account other relevant circumstances in each particular case. Of course, the counsel -- a counsel who is licensed by a competent organ or bar association of his country. This shows that counsel, regardless of whether or not they are nationals of Bosnia-Herzegovina, may represent clients before the Court of Bosnia-Herzegovina, but in each particular case, this has to be approved by a judge of the Court of Bosnia-Herzegovina. Thank you.

JUDGE ORIE: Ms. Somers, the issue of the case to be sent, ¹¹⁷ although of a theoretical possibility to another court, is that -- would you like to say anything about it? Because I introduced the monitoring and the Appeals Chamber made it perfectly clear that the monitor something mainly a matter for the Prosecution.

MS. SOMERS: If I may ask your indulgence to go back to a point, a follow-up to what my learned colleague in Sarajevo has just said. There is a particular provision which I think is most important for both counsel and for the Referral Bench to be aware of and we have included it in our earlier submissions on another matter but it is that in Article 3.4, 4(b), and this is the list of basically who can appear on the list of practitioners before the state Court, specifically says, "if the advocate has already appeared before the ICTY in a case that has been transferred to the Court under Rule 11 bis of the Rules of Procedure of the ICTY, whether any other advocate would have adequate time for the preparation of the Defence." In other words, the concerns that were raised earlier by this Referral Bench have been responsively addressed by the Bosnia-Herzegovina authorities, and I wanted to make sure that we drew Your Honour's attention to this. It is part of the submission filed 12 August 2005 with respect to the accused Ljubicic.

JUDGE ORIE: Yes.

MS. SOMERS: I hope --

JUDGE ORIE: I was referring to a specific provision that dealt with the matter and that's what I had in mind, yes.

MS. SOMERS: With respect -- I believe that this Bench is aware that the Prosecution has withdrawn its appeals as to the points concerning ¹¹⁸ monitoring, as this Bench knows, the -- I bear you news that the Prosecution has withdrawn its appeals.

JUDGE ORIE: Well, that's at least news for us, Ms. Somers.

MS. SOMERS: That -- but in addition to the issues concerning what this Bench and the Appeals Chamber have deemed prosecutorial obligations, there are numerous organisations that actually have been brought to the attention of this Bench that do monitoring at stages beyond the proceedings, that the responsibility is monitoring the proceedings. And that is where the focus would be of course. Conditions beyond that, I would assume that depending on what stage things are at would have to be looked at but certainly this Bench is aware of the Prosecution's efforts with other organisations in terms of monitoring and I would only turn your attention to our withdrawals. They have been filed.

JUDGE ORIE: Yes, I do understand. The core issue was that if the case would be sent to any other court than the state Court, would the Prosecution find this a matter to be reported or even a matter which would trigger a motion for revoking the referral? It is a tricky issue because on one hand side, the decision of the Referral Bench sends the case to a state. At the same time, to say the least, there is an expectation that the issues of a fair trial should be judged on the basis of the legislation in force in respect of the state Court rather than in respect of any other court.

Could you give your views on this matter?

MS. SOMERS: The Prosecution has based its submissions on the legislation that indicates that these matters will be before the state ¹¹⁹ Court of BH. That is a state Court matter. And this -- the -- the international presence has been referred to as one of the grounds that lends particular importance or support to the compliance with fair trial standards, that is one of the obligations of this Bench to address. And the submissions do both oral and written, are undertaken with the understanding that the obligation is that these matters will be heard before the state Court of BH.

JUDGE ORIE: Still doesn't answer my question.

MS. SOMERS: There has been no matter raised to the Prosecution that any court other than BH would be implicated. I think the only suggestion was Mr. Stankovic's reference to the Trebinje Court which was not addressed with any degree of --

JUDGE ORIE: But do I understand between the lines that it would certainly be a matter that would be part of a report and that would need thorough consideration of the situation that would exist if a case would not be sent to the state Court?

MS. SOMERS: Excuse me a second.

[Prosecution counsel confer]

MS. SOMERS: If in fact the state Court were to, for any reason, deviate from our understanding, both -- well the understanding to us and to this Bench, then we would expect the state Court to indicate so formally and put everyone on notice.

JUDGE ORIE: Yes. That's what you expect from the state Court. It still doesn't answer my question but --

MS. SOMERS: If there is a specific -- I find myself constrained ¹²⁰ because there may be matters of agreement and policy that I would be happier -- if the Chamber would like me to -- if bench would allow a five-minute break I would be very happy to come back but I want to make sure that I am clear on what it is you're asking so I can give you an answer.

JUDGE ORIE: What I'm asking is, what would the Prosecution do, seen from their position as monitors of the proceedings, if such a thing, that is a transfer of the case from the state Court or any other court or -- would happen?

MS. SOMERS: Since that is not the understanding that has been --

JUDGE ORIE: No, no.

MS. SOMERS: It is possible to ask for literally a five-minute recess I would be happy --

JUDGE ORIE: Perhaps I first continue and see, but because we are close to one hour and a half anyhow.

I would have first of all, Ms. Kosta, is it true that at least some of the concerns about representation of Accused is dealt with by the previous answers and the previous observations? Because I find them especially on page 6 of your August 8th submission, which is called a response to the request.

MS. KOSTA: [Microphone not activated]

JUDGE ORIE: Microphone, please. Microphone, please.

MS. KOSTA: I apologise. I believe that my colleague, Mr. Jonjic, has raised certain issues and that Your Honours have, in accordance with this, put certain questions to the representatives of Bosnia and ¹²¹^{BLANK PAGE} ¹²² Herzegovina.

JUDGE ORIE: Yes, but I'm mainly asking about representation of accused which appears on page 6 under number 1, Bosnia-Herzegovina does not allow lawyers, and somewhere else it says that before the ICTY you can choose counsels from all over the world, which is not true for Bosnia and Herzegovina, 1 and 6 are covered by the discussions we just had, isn't it?

MS. KOSTA: Yes. The whole discussion so far raised by the Defence of the accused Ljubicic and the questions and answers that have followed respond fully to the issues raised in our submission.

JUDGE ORIE: Yes. I would have one other question for you, Ms. Kosta. A lot of words are spent on the issue whether the level of responsibility should be understood as a level of actual involvement of the crime or as the rank of the Accused. That's especially on page 2 and 3. You very much insist on the rank of the person involved to be considered, and not his actual involvement in the crime. On page 5 of that same submission --

MS. KOSTA: It's on page 3.

JUDGE ORIE: Well, I think it starts on page 2 in English, but it certainly goes into page 3 where you come to the conclusion that it's clearly evident that it's important for the UN Security Council and the ICTY to know the rank. You are very much emphasising the rank. Now, at the same time, I read on page 5, first line, under paragraph 3, "The Defence emphasis that the status of Ivica Rajic in the wars of the 1990s indeed was not high." ¹²³ I have been wondering why so many words were spent on the distinction between actual involvement and rank where the outcome seems to be exactly the same as proposed by the Prosecution. The Prosecution says perhaps on a different basis that the level of responsibility is not that high that it would prevent any referral. Now, you make -- you spend a lot of words or Mr. Olujic I don't know who has written it, you spend a lot of words on the wrong criteria which finally, if I understand you well, doesn't make any difference as far as the outcome is concerned. Because if you only look at the rank, it would be a relatively low rank as well, not preventing a referral. Is that a correct understanding? Or is there any explanation why it needed so much attention although without any practical result?

MS. KOSTA: I believe that the -- it was being carried away with the explanation. I agree with Your Honour's conclusion.

JUDGE ORIE: Yes, thank you for that answer. Ms. Somers, I have one question for you and that's the following: You did analyse the gravity of the crimes in general terms in the submissions as to whether that should be an obstacle to a referral. You may have noticed that the Referral Bench, in most of its decisions, not only looks at the gravity of the crimes but also sees whether there is a legal framework in place which would cover all the charges in the indictment, if I refer you to Article 140, whether there are crimes against humanity or not, we see that in one of the cases, crimes against humanity are charged, in the others not. You didn't spend much words on that. Is this because you would take it that these matters have been ¹²⁴ dealt with sufficiently by the referral Chamber and would that also include a specific analysis of the crimes that appear in the indictment?

MS. SOMERS: Your Honour, thank you. There are two ways that this issue is addressed. One was the Bench requested a submission on weight and our indication was that it is very fact-driven and dependent on circumstances. There can be one accused who could be responsible directly or indirectly for the death of 7500 people, and it could be a very low-level person contributing or there could be one, or maybe a hundred, or someone high up who had a very remote role. So in that instance I'm separating that particular question.

The Bench and the Appeals Chamber have indicated we are limited of course to the facts that are set out in the indictment so there was not an attempt based on Rulings of this Bench to elaborate tremendously on the factual aspect of things.

JUDGE ORIE: Perhaps you may have misunderstood me. What the Chamber has done meticulously in quite a number of cases is to say, count 1, this type of crime we find it there, we find it under the 1993 or -- so we try to identify whether the legal framework that would allow a conviction, and, if there would be a conviction, whether there would be appropriate mechanism for sentencing, whether that's in place, and we have dealt with that several times in quite some detail. Do we have to understand your silence on this matter to be that everything has been said about that or because every case is different?

MS. SOMERS: We have taken the Chamber's invitation to rely on other decisions and in fact I think that this Chamber has -- this Bench ¹²⁵ has been very, very thorough in analysing both the nature of the corresponding or closely corresponding legal framework for charging purposes in BH with the types of charges here. There is -- that would go as to both 7(3) and 7(1) types of responsibility. We do not see substantial deviation that would have required further analysis point by point because there are 7(1), 7(3) charges. The basic facts have been set out and we think that as the Chamber said it will ultimately be in the hands of the receiving jurisdiction which, in this instance, BH, to craft it appropriately. We think this has been dealt with in decision after decision. The fact that there may be -- in this instance, Bosnian Croat accused as opposed to let's say any other nationality would not change that equation. The times of crimes refer to the same types of crimes against the civilians or similar, without great distinction, perhaps there was -- I think there was a destruction charge against one accused that may be different from some of the other cases. But I believe that all issues have been dealt with very much, very thoroughly by this Bench.

JUDGE ORIE: Of course the question was about whether there was anything new here that had not been covered yet and you mentioned destruction charges as one element.

MS. SOMERS: That was one. That type of charge is -- again it can be seen in the Bosnian criminal structure. It does exist, and the jurisprudence of this institution as to destruction has been -- has considered also what was in existence in the former Yugoslavia, which is reflected in the current practice as well in BH.

JUDGE ORIE: Yes. Thank you for that answer. ¹²⁶ [Trial chamber confers].

JUDGE ORIE: The -- Ms. Somers, you asked for five minutes to confer within the OTP. We'd like to have a short break, and then give an opportunity to all parties and -- or I should say interested parties present, that means Prosecution, Defence, and the representatives of Bosnia-Herzegovina, to -- well, add whatever has to be added and then you'll have an opportunity to answer the question on how under the monitoring system you would respond to a case not to be sent to the state Court but to any other jurisdiction within Bosnia-Herzegovina. Mr. Registrar, what would be the shortest break, for technical reasons, possible?

15 minutes for technical reasons? Would that be sufficient in view change of tapes or we would expect that we no not need not more than another 10 or 15 minutes. I don't know whether that would be covered by the tape which is running at this time or whether a change of tape would be needed.

I understand that 20 minutes are needed. We will adjourn until quarter to five, and you should prepare for any further brief submissions, not taking more than three to five minutes.

We will adjourn.

--- Recess taken at 4.23 p.m.

--- On resuming at 4.48 p.m.

JUDGE ORIE: We will resume. I see that the videolink with Sarajevo is still functioning properly, at least in the expectation that you hear what I say at this moment. ¹²⁷ Ms. Somers, we have now a final round of any additional observations, but since the Chamber has put a specific question on your desk, I'll give you an opportunity first to answer the question and to make any further observations you'd like. But within a couple of minutes.

MS. SOMERS: Thank you, I'm grateful for the pause that the Bench gave. I wanted to check during that time period the law that was implicated here and it is Article 2 on the transfer of cases, Your Honour, which specifically refers to the Court of BH which is defined as the state Court of BH as appears to be set forth. I'll check with my colleague that that is correct. And I would ask the Bench if perhaps some of what I'm directing, as I must go through the Bench, perhaps if some of this could be confirmed with our esteemed colleagues in BH, but because that is the understanding that 11 bis cases, not cases that are perhaps the subject of investigation that may be sent to other -- that may be sent to the authorities of Bosnia-Herzegovina for distribution as they see fit, but 11 bis appears to be limited or directed to the state Court. If in fact that is its legislation, then it appears that Your Honour's question would be more hypothetical and it would appear to involve perhaps, going against the legislation. Accordingly, if it be possible to redirect, if there would be no problem in how the state court officials or how the BH officials view that.

JUDGE ORIE: Does it make any sense to ask them whether they would violate their own law? I don't think, as a matter of fact, that that would be a question to put anyhow. It's -- at the basis of all this is the observation by Mr. Jonjic that, theoretically, it would be possible ¹²⁸ that orders would not be followed. He did not specifically pay attention to the, I would say, explicit legislation which would make the state Court the competent court, and where he only relied on the introductory remark by the Chamber in Stankovic saying that of course that we would not be the competent organ to decide which would be the competent court, but at the same time, noting that it was the legislation.

I think everyone agrees that this is not what is expected to happen. You've still not answered my question.

MS. SOMERS: If I can try to just bring another couple of points to Your Honour's attention, certainly, should it be learned that a court other than the state Court, which is legislatively mandated to hear it, is hearing it, this would be a matter that we would believe would be a subject to reporting, of course.

JUDGE ORIE: That's an answer to my question.

MS. SOMERS: I think the point in an of itself, it struck us as so hypothetical because it presupposed a violation of legislation which we found somewhat difficult. But having said that we want the Referral Bench to just take note that cases that are not 11 bis but that have originated here are being addressed by the system in BH in which the -- this office has expressed its faith by doing that so we think that one can also read the pronouncements of this Bench as the system as a whole has a framework which assures accused of a fair trial.

JUDGE ORIE: That might be beyond what the -- it's not for this referral Bench to give an explanation to its own decisions in subsequent hearing. So therefore I leave it entirely your words that our decisions ¹²⁹^{BLANK PAGE} ¹³⁰ could be understood that way.

MS. SOMERS: Was there anything further on this point? I just wanted to check that, thank you.

JUDGE ORIE: No. Is there anything else that you would like to add? You don't have to.

MS. SOMERS: No, of course I just emphasise that the only -- that the only jurisdiction at issue is of course Bosnia-Herzegovina. I know there has been discussion raised but this is the only one that we have so much as considered a referral to with respect to both Accused. I'll just check quickly.

[Prosecution counsel confer]

MS. SOMERS: Thank you, Your Honours. At this point, nothing further.

JUDGE ORIE: Thank you. Mr. Jonjic, any further observations? If you would keep them on the practical level and not go to too much the theoretical level, although we do not blame you for having done it, but ...

MR. JONJIC: [Interpretation] Thank you, Your Honours. The Defence of Mr. Ljubicic wishes to add just one sentence. We hope that the submission by the government of Bosnia-Herzegovina, which had been announced and which this Chamber expects will clarify some outstanding issues, including the results of the commission.

Another issue that should be discussed is the prison, which is currently being built and which should be completed next year, which could house 306 inmates. ¹³¹ The state Prosecutor, the main state Prosecutor of Bosnia and Herzegovina, Mr. Jucevic [phoen] has announced that about 10.000 people would be prosecuted. So this is something that creates -- that raises certain questions and we would like the government of Bosnia-Herzegovina to clarify this. Thank you.

JUDGE ORIE: Thank you, Mr. Mr. Jonjic. Ms. Kosta, do you have any further observations?

MS. KOSTA: [Microphone not activated]

JUDGE ORIE: Could you please switch on your microphone?

MS. KOSTA: I have no further remarks. I just wish to state that I support the proposal of my colleague, Mr. Jonjic, to have the government of Bosnia and Herzegovina submit further submissions to this Chamber, including any supporting material.

JUDGE ORIE: Yes. Just avoid whatever misunderstanding, I did understand Ms. Popadic to say that she would inquire as to whether there was a report. If there was a report, she would like to receive a copy and then the Chamber would appreciate if a copy would be submitted to this Chamber. So just to avoid whatever misunderstanding, the Chamber does not -- is not yet in a position to ask for the report where it does not even know whether it exists.

Ms. Popadic, would you like to add anything? And would you also respond to the question what to do with 9.700 people accused or prosecuted?

MS. POPADIC: [Interpretation] Thank you. I will not be long in my remarks. We believe that the remarks of the Defence are unfounded. They ¹³² have to understand that the state Court of Bosnia-Herzegovina is the competent court for cases under Rule 11 bis, and it is not competent to assign such cases to other courts for further proceedings, other courts meaning the courts of the entities.

We have to make a distinction. The Court of Bosnia and Herzegovina is the competent court for cases referred under Rule 11 bis. Once this Court takes over the indictment, it will be the only court processing such cases. Cases which have not been referred under Rule 11 bis, which are the cases that were investigated by the ICTY, the cases where indictment has not yet been issued, when it comes to such cases, they can be, in accordance with the law, be transferred for further proceedings to courts in the entities. This is something that the state court can do. It can transfer such cases to other courts. However, these are not 11 bis cases.

JUDGE ORIE: This Referral Bench is only competent to hear referral cases and nothing else. So that's perfectly understood and is perfectly in line with what Ms. Somers said. Rules of the road cases are not within our competence.

MS. POPADIC: [Interpretation] All such cases which fall under Rule 11 bis are the cases for which the sole competent court is the state Court of Bosnia and Herzegovina.

As for detention and prison term sentences, in accordance with the law of Bosnia-Herzegovina for enforcing criminal sanctions and other measures, let me just add that in accordance with all international standards, the issues have been resolved and once -- there is a plan to ¹³³ build a detention unit within that prison as well. However, once again we have to distinguish -- make a distinction between the persons who will be tried by the state Court of Bosnia and Herzegovina who will serve their prison sentence in this prison which is right now being built. These persons will be kept separate from other inmates, inmates who were sentenced by other courts.

On behalf of the delegation, and on behalf of the government of Bosnia and Herzegovina, I took it upon myself to request from the federal ministry, the ministry which in accordance with the law on enforcement of criminal sanctions of Bosnia-Herzegovina, acted in this case, and as far as I'm aware, established the commission that visited the prison in Zenica. The report of this commission, if it exists, should exist within the federal Ministry of Justice. And on behalf of the Ministry of Justice of Bosnia-Herzegovina and the government of Bosnia and Herzegovina, I will request that this report be sent to us.

And I really cannot comment upon this any further without knowing the contents of the report, without knowing what it covered and what issues were discussed. That is something that we are not familiar with. Furthermore, I would like to state that the government of Bosnia and Herzegovina is convinced that Bosnia and Herzegovina is capable to ensure a fair and expeditious trial to all Accused in accordance with Article 6 of the European Convention on Human Rights. This view, and these assurances given by the government of Bosnia and Herzegovina, were reviewed by the referral Chamber in other cases, and this was also confirmed by the Appeals Chamber in September of this year. The right of ¹³⁴ an accused in Bosnia and Herzegovina will not be jeopardised by -- will not be jeopardised at all, either in the course of the proceedings against him or in the course of serving their sentence.

On behalf of the Prosecution of Bosnia and Herzegovina, and on behalf of the chief Prosecutor of Bosnia and Herzegovina, who has expressed concern after it was announced that the OTP planned to send to Bosnia and Herzegovina only electronic version of the relevant material pursuant to Rule 11 bis, I am now informing the Chamber of this and would like to kindly ask the Chamber to issue an order to the OTP requesting them to provide us either with originals or certified copies of all exhibits which support the charges against these accused and also to submit them in an electronic form. In addition, we would like to request that the Defence counsel in these cases also submit their documentation and their material to the authorities of Bosnia and Herzegovina.

JUDGE ORIE: Ms. Somers, does the last remark by Ms. Popadic trigger any need to respond?

MS. SOMERS: Excuse me just a second, Your Honour. I'm consulting with Mr. Kontic on this. Thank you.

[Prosecution counsel confer]

[Trial chamber confers]

JUDGE ORIE: Yes, Ms. Somers?

MS. SOMERS: Thank you very much. I've consulted with my colleague Mr. Kontic. I'm informed that the OTP indeed will be sending only electronic.

JUDGE ORIE: Only electronic. ¹³⁵

MS. SOMERS: That is our understanding, that electronically it would involve thousands and thousands of pages of duplicated effort.

JUDGE ORIE: But I think that Ms. Popadic is asking for the documents supporting the indictment. Isn't it true that the authenticity of documents very often could be challenged in court, and I have some difficulties to understand how you would deal with these matters just having available electronic copies.

MS. SOMERS: Excuse me one minute.

JUDGE ORIE: I'm not talking about disclosure in general.

MS. SOMERS: Okay, but maybe I misunderstood the question then.

JUDGE ORIE: I think it was, but let's just verify with Ms. Popadic. I would -- and I could check that in the transcript. I think Ms. Popadic you are mainly concerned about documents that -- let me just have a look: "exhibits which support the charges against these accused and also to submit them," so not only in hard copy but also in electronic form. Do I understand you well that you're not insisting on disclosure of all of the material available to the OTP, to provide that all in hard copy?

MS. POPADIC: [Interpretation] Naturally in accordance with the law on the referral of cases and admissibility of evidence, there is a need to forward the entire material in possession of the OTP, both hard copies and electronic version, and to transmit it to the Prosecutor's office in Bosnia-Herzegovina.

JUDGE ORIE: I take it that I therefore have misunderstood you and did you mean by supporting the charges all material available? I do not ¹³⁶ know whether it would make any sense to make a distinction between material disclosed and material intended to be used as evidence at trial, which, of course, would limit the number of documents that should be immediately, in hard copy form, be sent to Bosnia and Herzegovina. But there seems to be at least a problem.

JUDGE PARKER: Ms. Somers, I have difficulty comprehending how it could be intended that a trial would be conducted in Bosnia-Herzegovina without the originals at least of statements made by those who are to call -- be called to give evidence as witnesses in the trial, and without the originals of any exhibits. Is-- and certainly, that has not been suggested to us until this moment. Is that what you intended? Or were you dealing with some more remote material that might have some relevance to the case, when you said that it was intended that there only be electronic provision of material?

MS. SOMERS: Your Honours, what I have been informed of by my colleagues who are handling the logistical side of this Chamber's orders, of this Bench's orders, is that electronic was the means of communicating the documents. Now, whether or not it's scanned -- I'm not clear exactly of how the technical side of it is being implemented. If, rather than asking the Chamber to issue any orders, I'm sorry, the Bench to issue any orders today, would it be possible to perhaps order to us clarify it? Because I don't want to give you information that I do not have at my fingertips, and I don't want to go on the record as saying something from another division that I'm not able to address fully. We do have the record from BH, and we have your inquiry. Is it possible to be allowed to ¹³⁷^{BLANK PAGE} ¹³⁸ have the technical people indicate whatever is in order?

JUDGE ORIE: Ms. Somers, it's -- of course, I take it we will give you sometime but it's not a technical issue.

MS. SOMERS: I understood your point.

JUDGE ORIE: It's not a technical issue. It's just to have the original or a certified copy of a piece of paper in front of you so that you can see whether it's signed by Mr. X or Mr. Y that you have if you want to confront the witness with a statement he has earlier given that you can say, Is it your statement? Yes or no? I hardly can imagine that you give him a CD and say, Is on this CD your statement? Of course, I'm now exaggerating, but very often, stamps on documents -- well, we usually do not, on from the beginning, accept that all the documents would be printed-out electronic versions. That's certainly not what this Chamber, this bench has in mind. So it's not mainly a technical matter. It's also a legal, procedural matter.

JUDGE KWON: Your submission should deal with the evidence on law of Bosnia.

MS. SOMERS: Right, well I understood Judge Parker's question as well on that. The point I was making is I don't know whether everything is scanned to indicate all the detailed stamps and the signatures that have been in some instances used, and because I don't know how it's been inputted I would ask for the opportunity to have that presented to this Chamber -- to the Bench but laid out exactly as to what OTP and the BH authorities have discussed. And I'm afraid at this moment I'm not able to do so but of course there is the legal side and the technical. I'm not ¹³⁹ disputing the legal side. I just don't know what has been discussed and I don't want to represent something that I can't stand on.

JUDGE ORIE: Yes.

MS. SOMERS: So if I could ask the Chamber to or the Bench to specifically give us its question, which is both legal and technical, and then we can report back to the Bench at a time to be assigned.

[Trial chamber confers]

JUDGE ORIE: Yes. The Chamber would very much like to receive a written submission on the matter, Ms. Somers. I think it's -- the main issue being what, apart from an electronic version, will be sent to Bosnia and Herzegovina in hard copy? Would you please address it in such a way that the government of Bosnia and Herzegovina, once having seen it, will be able to comment on it? And of course another question is whether it's not time, apart from informing this Referral Bench, also to see whether an agreement could be reached so that these issues do not arise at the end of the hearing of what is the fifth or the sixth referral to Bosnia and Herzegovina. So therefore we would like to see your submissions. Of course, they will be publicly filed so the government is invited to respond to it. Of course, if the Defence would like to respond to that, it will be given an opportunity to do so, although I already can indicate that the time available for such responses will be limited. So a quick response is allowed.

Then I have a further question to you, Ms. Popadic, and I'd like to also hear the response of the Defence. You expect the Defence to submit any documents to the, as I understood you, to the government and ¹⁴⁰ not to the Court that finally will be competent to hear the matter. I would like to have an explanation on why a Defence should be under an obligation to inform a government on any material they intend to use in their defence at trial, rather than to submit it directly to that competent court.

MS. POPADIC: [Interpretation] Either to the Prosecutor's office or to the Court, not to the government but to the authorities, that is to the OTP and the Court of Bosnia and Herzegovina.

JUDGE ORIE: Any response? I must admit, Ms. Popadic, that I have not prepared by studying carefully any disclosure obligations under your law of criminal procedure so I might not have the right questions for you at this moment. But perhaps Mr. Jonjic, you would have either any observations or questions in this respect.

MS. POPADIC: [Interpretation] If I may, Your Honour, if I may add something.

Or, rather if the Prosecutor may by your leave, Your Honours, clarify these requests of ours.

JUDGE ORIE: Mr. Jonjic, perhaps it's better to first listen to the Prosecution in Sarajevo rather than to respond without knowing the exact meaning of the observations. Yes, please proceed. In Sarajevo, I mean, yes. I take it Mr. Koumjian is the one who will address us? Yes. If a microphone would be given to Mr. Koumjian then we could hear him, or do the interpreters hear what Mr. Koumjian says? I do not receive translation.

MR. KOUMJIAN: [Microphone not activated] ¹⁴¹

[Technical difficulty]

JUDGE ORIE: Mr. Koumjian, you are invited to restart because of technical difficulties, two of the three Judges, that is the majority, could not hear you. Please proceed.

MR. KOUMJIAN: [Microphone not activated] Can Your Honour hear me now?

JUDGE ORIE: I now can hear you now. Please proceed.

MR. KOUMJIAN: Our concern is with the situation where Defence counsel perhaps through their own choice, would choose not to follow the case in Sarajevo and new counsel would have to be appointed. In the previous orders of the Referral Bench, being an order involving a transfer of material from the Defence which we believe would belong to the client, that would include previous disclosures from the OTP and work of the Defence investigators to new counsel if new counsel is assigned.

JUDGE ORIE: Yes. Isn't that a general obligation for counsel to pass all the necessary information, documentation, work product, to the one who is will succeed them? Is it your opinion that we should give a specific order whereas it has been stressed again and again that counsel who are in a position to defend also before the state courts so that there might not ever be a situation in which they would have to transfer their material?

But now we have several versions. We have transfer of material from previous counsel to new counsel. We have transfer of material from Defence counsel to the OTP or to the Prosecution. Another variety now is transfer of material from counsel to the Court and I think we now left ¹⁴² behind us any transfer of material by counsel to the state as such. Still it's not entirely clear to me what you would expect. I mean, I do understand that you don't want to end up in a situation where new counsel has not available the material that was disclosed to previous counsel and not -- have not available their work product and exhibits they might have found elsewhere. I fully understand that. The question is, but perhaps we should hear Mr. Jonjic to what in his view should happen. Were there are any other concerns? Is there any disclosure issue that would play a role in the law on procedure in Bosnia and Herzegovina. You know disclosure is dealt with quite differently in the common law tradition compared to the civil law tradition.

MR. KOUMJIAN: Your Honour, our concern was simply that new counsel got material. If it is understood by Defence counsel from the ICTY, perhaps through Registry, are met and we just wondered that -- realised we need to work out a mechanism to actually transfer them to the new counsel and maintain the confidentiality of that information.

JUDGE ORIE: Yes. At least the issue is clear now. Mr. Jonjic?

MR. JONJIC: [Interpretation] Thank you, Your Honour, for giving us the opportunity to be heard on this.

Should it be the case, as Mrs. Popadic said originally, that Defence counsel are expected to hand over documentation and material to the authorities, to the -- or to the OTP or the Court, then this will be completely unacceptable to the Defence counsel. The Defence counsel has a completely different idea of what representing the -- their client ¹⁴³ entails. If this refers to handing the material over to the accused and evidently then that would be of course completely acceptable, as the OTP has -- in Sarajevo has expressed the view that the present counsel may not be permitted to represent the accused before the Court in Bosnia and Herzegovina, then it goes without saying that against Defence counsel are duty-bound to hand over all the material to the accused or rather to his new Defence counsel. There follows from the rules on appointment of counsel before this Tribunal and the code of ethics of the bar association of Croatia, and this is the same all over the world, more or less. If I may add something else, Your Honour, as we are now discussing electronic disclosure, although this may not be customary, we wish to assist the OTP, we have no experience of record-keeping before the war crimes court but we do have experience in cases before the Court in Sarajevo that concerns organised crime, and, in that court, the record is disclosed only on audio tapes. Of course, for a lawyer who has to prepare motions, submissions, and so on, it is very difficult to follow the audio recording, and there is no written transcript as such. As we have here the representatives of the government of Bosnia and Herzegovina, we wish to ask them to clarify whether the same will obtain before the war crimes court.

JUDGE ORIE: Thank you.

[Trial chamber confers]

JUDGE ORIE: There are two issues. First, documents to be sent in the context of the referral, whether they should be just electronic copies or whether they should be accompanied by hard copies and to what extent ¹⁴⁴ they should be accompanied by hard copies. The Chamber would like to receive submissions on the matter as said before by the Prosecution so that both Defence and the government of Bosnia and Herzegovina could respond to that within strict time limits, the time limit being five working days on from filing these submissions. I take it, Ms. Somers, that courtesy copies could be sent perhaps in an informal way so that both the government and the Defence has time to prepare.

The Chamber would certainly encourage any further conversations between the OTP and the Prosecution in Sarajevo to practically resolve these matters because that's more important than submissions to this Chamber. The matter has to be resolved.

As far as the transfer of, well, let's say, the file, documents, work product, from counsel to subsequent counsel, the Chamber considers this at this moment a matter which is entirely within the professional obligation by counsel and to that extent follows Mr. Jonjic. If for whatever reason the Prosecution in Sarajevo would not agree with that, and we do understand that that was their main and only concern, then, of course, you could make any submissions, but you're certainly not encouraged to do that because the Chamber has no doubt that it's fully within the ambit of the professional obligations by counsel. This, then, concludes this 11 bis hearing. The Chamber will --

[Trial chamber confers]

JUDGE ORIE: This, then, concludes this 11 bis hearing. The Chamber will give -- deliver their decisions in the case against Mr. Ljubicic and against Mr. Rajic in due course. ¹⁴⁵ The Chamber would like to thank first of all the representatives of the government of Bosnia and Herzegovina and of the state Court and of the Prosecutor's office in Sarajevo for their contribution to this hearing. The Chamber also thanks defence and Prosecution for informing the Chamber on matters relevant for the decision to be taken. We stand adjourned.

--- Whereupon the hearing adjourned at 5.32 p.m.