For a wide variety of reasons, thoughtful people have tended to be critical of the International Criminal Tribunal for the Former Yugoslavia. John Laughland’s “Travesty! The trial of Slobodan Milošević and the corruption of international justice”  is perhaps the most eloquent indictment of its procedures. The damage to international jurisprudence caused by ICTY is, however, greatly augmented when its flawed practices are eagerly transposed into the setting of domestic courts which are also engaged in the war crimes punishment business and, quite often, in a form that is even more extreme.
The effective withdrawal of Srebrenica “crown witness” Dražen Erdemović from viva voce participation in Srebrenica-related trials conducted before the State Court of Bosnia and Herzegovina in Sarajevo is telling proof of what can happen when a judicial clone outdoes its corrupt model at the Hague.
Quite simply, by consensus of all Sarajevo State Court chambers which have been called upon to rule in this matter, Dražen Erdemović has been excused from testifying there in person and was thus exempted from cross examination before that court. In Sarajevo, the universal principle that in criminal proceedings the accused person is entitled to confront witnesses against him has been amended by the creation of what should henceforth be known as the “Erdemović exception”. In lieu of having to make a personal appearance and submitting to cross examination, Erdemović is uniquely allowed to refuse the summons to give evidence. The Prosecution, whose witness he is, are permitted instead to submit transcripts of his testimony given in past cases. This is a development that has received scant attention or analysis in juridical circles, but as a precedent it is of fundamental significance for the administration, and evolution, of criminal justice.
In order to depict how the “Erdemović exception” operates, we are publishing below an illustrative decision of the Sarajevo court chamber in the Srebrenica-related Jević et al. case rendered on September 7, 2011. The English language translation of this decision follows. The Serbo-Croatian original, signed by Judge Mira Smajlović, is appended as an attachment.
Note may be taken of the fact that the chamber admits being cognizant of Erdemović’s legal position arising from the plea agreement that he signed with the Prosecutor at ICTY in 1996. According to that agreement’s terms, Erdemović does not have an option but the duty to testify in Srebrenica cases whenever called upon to do so, either at the Hague or before a domestic court. The corollary of that arrangement is that in case of his refusal to cooperate the chamber, including the one presided by Mrs. Smajlović, has the indisputable power to compel him to appear.
No less curious than this chamber’s reluctance to use its undisputed prerogatives is its reasoning in acceding to the prosecution motion that Erdemović be spared the inconveniences of testifying in open court and submitting to the rigours of cross examination. In stating the grounds for their view, the chamber make it clear that they are aware of the relevant paragraph of the European convention on human rights and its prescription that a criminal defendant is entitled to “confront and cross examine” witnesses against him. The chamber have nevertheless decided to grant the Prosecutor’s petition to submit transcripts instead of producing the witness, to which they piously add that “regardless of the admission of the cited statements, the defense reserves the right to submit a written petition for contacting the witness for the purpose of cross examination. In that written submission, the defense shall refer to the specific portions of the witness’ statement which is the subject of the cross examination, and the chamber shall issue the final decision”.
Judge Smajlović and her chamber are either blissfully unaware or they choose to ignore the accepted definition of the concept of “confronting and cross examining witnesses”. In civilized jurisprudence this important safeguard has always been taken to mean that the cross examination is to be conducted in person and in the courtroom where the proceedings are taking place, not by post, as the Sarajevo court has now evidently reinterpreted it:
“In the instant case, defense attorneys are called to state their positions in written form concerning the questions that they would put to the witness in cross examination, which questions, with the chamber’s approval, will then be forwarded to the relocation state where Dražen Erdemović is currently living”.
This ruling clearly illustrates the understandable anxiety of the prosecution, who recognise the numerous vulnerabilities of their star witness Erdemović, especially after the publication of Germinal Čivikov’s devastating analysis of the palpable falsehoods and inconsistencies of his earlier testimony. But it is also a disturbing illustration of the court’s pliability and its readiness to violate fundamental legal principles in order to accommodate the Prosecution by shielding the Srebrenica “star witness”, and his improbable story, from discreditation in open court.
If such devices must be resorted to for the Srebrenica narrative to be preserved, is that not an additional reason to take a hard and critical look at all its claims? If practices that are evident in this decision of the war crimes court in Sarajevo, which none would dispute to be an authorized franchise of ICTY at the Hague, portend the up-and-coming legal situation, one fears that hard won procedural safeguards are crumbling fast.
Decision of the State Court of Bosnia and Herzegovina regarding Prosecution’s motion to submit transcripts in lieu of Dražen Erdemović’s personal appearance.
Court of Bosnia and Herzegovina
Case no. S1 1 K 003372 10 Krl
The Court of Bosnia and Herzegovina, sitting in chamber composed of judge Mira Smajlović, as president, and Zoran Božić and Mitja Kozamernik, as members, in criminal proceedings against the accused Dusko Jević and others for genocide based on article 171 of the Criminal Code of Bosnia and Herzegovina [KZ BH], deliberating upon the submission of the Prosecution of Bosnia and Herzegovina no. 2 [number T 20 0 KTRZ 0000538 10 of 31/08/2011] wherein a request is made to accept the testimony of Dražen Erdemović as a witness before ICTY, with reference to articles 3 and 5 of the Law on the transference of cases from ICTY to the Prosecutor of Bosnia and Herzegovina and on the use of evidence acquired by ICTY in cases litigated before BH courts [hereinafter the Law on case referral], on 07/09/2011 publishes the following
The Prosecution’s petition no. 2 [number T 20 0 KTRZ 0000538 10 of 31/08/2011] is accepted in part, whereby it is allowed to enter into evidence and to read statements given by Dražen Erdemović in the capacity of a witness, namely:
1. Statement given to ICTY on 12/08/1998 [summary of statements of June 24, 25, 26 and 27, 1997].
2. Statement given to ICTY on 03/11/2001.
3. Transcript of testimony given by Dražen Erdemović before ICTY in the proceedings against Popovic Vujadin and others on May 4 and 7, 2007.
As for the rest of the petition, which refers to the acceptance of a drawing made by witness Dražen Erdemović made before ICTY on 03/05/1996, the Prosecution’s petition is denied as without foundation.
This position was acceptable to Rade Golić, defense attorney for accused Golijan Vlastimir, who added, however, that he opposed the inclusion of other statements given by the cited individual because on their face they contain no indication in which capacity they were given.  In the defense attorney’s opinion it should be noted that Dražen Erdemović did sign an agreement admitting guilt and some of the statements date back to the period preceding that. Moreover, the subject statements do not meet the criteria from article 5 of the Case referral law because they were not taken in accordance with rule 71 of the ICTY Code of procedure and evidence. The defense attorney reiterated these assertions in a written submission on 31/8/2011. In his statement of 5/9/2011 in addition to recalling these assertions, the defense attorney explicitly opposed the inclusion of Dražen Erdemović’s testimony in the Krstic case because there is no reference to that in the indictment.
Attorney Petko Pavlovic, who represents the accused Zoran Goronja, did not oppose the inclusion of transcripts of witness Dražen Erdemović’s evidence of May 4 and 7, 2007 in the trial of Popović and others. But like the other defense attorneys he also regards as improper the inclusion of the witness’ statements made before the finalization of the agreement admitting guilt, as well as statements made in cases other than those heard by this court. In addition, the defense attorney does not believe that the subject statements satisfy the requirements of article 5 of the Law on the referral of cases, because they were not taken in accordance with article 71 of the ICTY Code of procedure and evidence. These statements also fail to meet the criteria of article 273 of the BH Code of criminal procedure, for which reasons the defense attorney asks that the Prosecutor’s petition be denied as without foundation.
After a written inquiry by the court, the Registry at ICTY in their letter of 19/8/2011 made it known that that witness protection measures ordered by the Tribunal are still in effect, so that it is prohibited to disclose this witness’ place of residence, given the fact that for his personal safety he was relocated to a third country [i.e. the relocation state]. However, in order to advance the level of cooperation with the BH Court, ICTY is willing to pass the international mutual legal assistance  request on to the relocation state, in order to facilitate the delivery of the summons to testify to Dražen Erdemović and so that the possibility of acquiring this witness’ written statement could be considered based on questions that Bosnia and Herzegovina organs will forward along with the assistance request.
At the main hearing conducted on 1/7/2011 the B-H Prosecutor moved for the admission into the record of statements made by Dražen Erdemović in cases heard before ICTY, and the said motion was submitted to the chamber in written form as Motion no. 2 on 31/8/2011.
In that submission the Prosecutor petitions for admission into the evidence of statements made by Dražen Erdemović in trials before ICTY, as well as statements made by that witness as cited in Annex A, number 11 of the instant indictment. The Prosecutor bases his petition on article 5 of the Law on case referral, invoking ICTY jurisprudence in the Krstić and Popović cases. In his submission of 1/9/2011, the Prosecutor clarifies that this concerns statements made by Dražen Erdemović gave to ICTY on June 24, 25, 26, and 27 1996, and on August 12, 2998, statements of November 3 and 6, 2007, and a drawing made by the witness for ICTY on May 30, 1996. In the same submission the Prosecutor announced that he was withdrawing his petition for the admission of statements given by Dražen Erdemović before ICTY on April 24 and June 25, 1996. At the hearing conducted on September 6, 2011, the Prosecutor also withdrew the statement of November 6 [no year stated].
The defense attorney for the accused Franc Kos, Dušan Tomić, at the hearing conducted on July 1, 2011, opposed the Prosecutor’s motion on the grounds that it failed to meet conditions for the admission of this witness’ statements as prescribed by art. 273 of the B-H Code of criminal procedure because adequate steps were not taken to ensure this witness’ presence in the courtroom.
The defense attorney for the accused Stanko Kojić, Milan Romanić, made a written submission stating the insufficient efforts were made to ensure the presence of Dražen Erdemović, who is the key witness in the instant proceedings, as a result of which the motion is contrary to the provisions of art. 273, par. 2 of the B-H Code of criminal procedure. Also unacceptable for the defense is Dražen Erdemović’s statement where he refuses to appear in proceedings before the Court of Bosnia and Herzegovina, considering that when he signed the agreement admitting guilt he assumed the obligation to always be at the disposal not only of the Tribunal but of domestic courts as well so that the truth about events which occurred in July of 1995 could be established. Nevertheless, for reasons of judicial economy the above-named defense does not oppose the admission of the transcript of Dražen Erdemović’s testimony in Popović Vujadin and others before ICTY, no. IT-05-88-T of May 4 and 7, 2007.
Following consideration of the Prosecution petition and responses to it by the defense, the chamber has taken the position stated in its order for the following reasons.
First of all, the provisions of par. 3, art. 1 of the Law on the referral of cases prescribes: “Evidence acquired in conformity with the Statute and Code of procedure and evidence of ICTY may be used in proceedings before courts in Bosnia and Herzegovina.”
The cited article regulates the use of evidence gathered by ICTY in proceedings before courts in B-H. With that aim in mind the Law on the referral of cases is conceived as a lex specialis in order to remove the risk that might arise in case evidence assembled by ICTY is shown to be inadmissible according to the Code of criminal procedure, and it prescribes the procedures and conditions that are applicable for the use of such evidence before other courts.
The statements and the transcript which the chamber has decided to admit satisfy the criteria of art. 3, par. 1, because it is not asserted nor is it obvious that there were any irregularities in the acquisition or use of that evidence in conformity with the Statute and Code of ICTY.
Furthermore, the provision of art. 5, par. 1, of the Law on case referral provides that “the transcript of the statement given by a witness before ICTY in conformity with Rule 71 of the Stature and Code of Procedure and Evidence of ICTY may be used before the court on condition that the testimony or ex parte statement is relevant to the issue under consideration.”
Therefore, in view of art. 5 of the Law on case referral the court may admit a statement made by the witness in proceedings before ICTY if the transcript was created in conformity with the relevant provisions of the Code of Evidence and Procedure and if the witness was given notice of his rights. Thus, the chamber finds admissible the transcript of evidence given by witness Dražen Erdemović before ICTY on 12/8/1998 and 3/11/2001.
Analogically, the cited provision also refers to oral testimony given under oath and subjected to cross examination, therefore the chamber also finds admissible transcript of testimony in the Popovic and others case on May 4 and 7, 2007.
The chamber has made the assessment that the admission of cited statements is relevant for issues under consideration in the current case, bearing in mind that the court has a continuous obligation to ensure a fair trial to the defendant, as guaranteed in art. 6, par. 1 of the European convention on human rights (right to a fair trial) and by art. 6, par. 3 (the right to confront and cross examine witnesses). The above means that, regardless of the admission of the cited statements, the defense reserves the right to submit a written petition for contacting the witness for the purpose of cross examination. In that written submission, the defense shall refer to the specific portions of the witness’ statement which is the subject of the cross examination, and the chamber shall issue the final decision.
In the instant case, defense attorneys are called to state their positions in written form concerning the questions that they would put to the witness in cross examination, which questions, with the chamber’s approval, will then be forwarded to the relocation state where Dražen Erdemović is currently living.
In that context, the chamber had in mind defense objections whereby the admissibility of statements of 12/8/1998 and 6/11 allegedly given by Dražen Erdemović in the capacity of a suspect is challenged. However, at the main hearing held on 6/9/2011, the prosecutor withdrew his petition with regard to 6/11, while after reviewing the 12/8/1998 statement the chamber reached the conclusion that it was given after the sentence following admission of guilt took legal effect, which implies that Dražen Erdemović could not have had the status of a suspect. Furthermore, the warnings given to the witness at the beginning of the statement correspond to warnings given to a witness (the right not to answer certain questions), and the fact that there is a summary of earlier statements from 1997 does not alter the conclusion of the chamber with regard to this issue because witness Dražen Erdemović confirmed by his signature that the content of the statement was presented to him and that he continues to affirm everything he said. The chamber will not present any particular reasons for admitting the transcript of Erdemović’s testimony in Popović and others before ICTY because the defence stated no objections to their admission.
However, the evidentiary material which will not be admitted is the drawing made by Dražen Erdemović before ICTY on 30/5/1996 because it was created at a time when he had the status of a suspect and it is not of decisive significance in the instant case.
Since witness testimony is regarded as integral if given orally and directly, or if criteria for indirect evidence from art. 273 of the B-H Code of criminal procedure are met, the chamber regards it as proper to note that when the final assessment of the evidence is made, the admitted statements of Dražen Erdemović will be subject to the provisions of art. 3, par. 2, of the Law on the referral of cases.
[SEAL] President of the chamber,
s/Mira Smajlović, Judge
Appellate instructions: In conformity with the provision of art. 318, par. 2, of B-H Code of criminal procedure, this Decision cannot be appealed, but it can be challenged within the appeal to the verdict.
 Žerminal Čivikov: „The Star Witness“ [Belgrade, 2010], accessible at: http://www.srebrenica-project.com/DOWNLOAD/books/Star_witness.pdf
 In that context the defence attorney points out statements dated 24 April 1996, 25 June 1996, 24, 25, 26, 27 June and 12 August 1998, 3 November 2001, and 6 November, no year indicated. In the submission of 5/9/2011 the defence attorney asserts that during questioning warnings were given as to a suspect, thus making such statements a priori unacceptable.
 ICTY would forward this request to the relocation state in conformity with the provisions of the European convention on mutual assistance in criminal matters of 20/4/1959.