That Someone Guilty Be Punished - International Center for ...

798. E-mail communication with Pipina Katsaris, legal advisor-head of the Rule 11 bis Monitoring
Project and Capacity Building and Legacy Implementation Project, Human Rights Department,
OSCE Mission to BiH, Sept. 30, 2009. All public reports of the OSCE Mission to BiH on
the transferred cases are available on the websites of both the OSCE Mission (www.oscebih.org/
human_rights/monitoring.asp?d=1) and the ICTY (www.icty.org/sid/8934).
799. Id.
800. Id.
801. Id.
802. Law on the Transfer of Cases from the ICTY to the Prosecutor’s Office of BiH and the Use
of Evidence Collected by ICTY in Proceedings before the Courts in BiH (“Law on the Transfer of
Cases”), Official Gazette of Bosnia and Herzegovina, No. 61/04, 46/06, 53/06, 76/06 (Unofficial,
Consolidated Version), at http://www.sudbih.gov.ba/files/docs/zakoni/en/BH_LAW_ON_TRANS-
FER_OF_CASES_-_Consolidated_text.pdf.
803. See OSCE, Mission to Bosnia and Herzegovina, First Report, Case of Defendant Radovan
Stanković Transferred to the State Court pursuant to Rule 11bis, March 2006. See also OSCE Mission
to Bosnia and Herzegovina, First Report, Case of Defendant Gojko Janković Transferred to the
State Court pursuant to Rule 11bis, April 2006.
804. The Law on the Transfer of Cases requires the Bosnian prosecutor to “initiate criminal
prosecution according to the facts and charges laid out in the [confirmed] indictment of the ICTY,”
after adapting the transferred indictment to ensure its compliance with Bosnian criminal procedure
law. Law on the Transfer of Cases, Art. 2(1). While the state prosecutor cannot drop any charges
confirmed by the ICTY, he can in principle add charges. While the state prosecutor attempted to
do so early on in the case of Gojko Janković, the SDWC soon decided to refrain from doing so. The
head of the SDWC explained that there simply is not enough time to conduct further investigations
within the period allotted for adapting charges. Although additional charges could in principle be
added later, the value of doing so would have to be weighed against the impact on the office’s finite
resources. Interview with David Schwendiman, then deputy chief prosecutor of BiH and head of
SDWC, Sarajevo, July 14, 2009.
805. For example, defendants in trials before the BWCC have opposed the state prosecutor’s
attempts to apply provisions of the Law on the Transfer of Cases concerning the use of evidence
from ICTY proceedings and the establishment of facts already judged to have been proven in legally
binding ICTY cases.
806. Interview with Judge Meddžida Kreso, president of State Court of BiH, Sarajevo, Dec. 4,
2006. RS Prime Minister Dodik has charged that state-level judicial institutions are being “used
against Serbs” and has labeled them “political institutions.” See Velma Sarić and Maria Hetman,
“Bosnia: Future of International Judges and Prosecutors in Doubt,” IWPR Tribunal Update, No. 613,
Aug. 28, 2009, www.iwpr.net/EN-tri-f-355447.
807. See International Center for Transitional Justice, The War Crimes Chamber in Bosnia and
Herzegovina: From Hybrid to Domestic Court, p. 19 (2008); Human Rights Watch, Narrowing the
Impunity Gap: Trials before Bosnia’s War Crimes Chamber, pp. 30–35 (Feb. 2007); OSCE, Mission to
Bosnia and Herzegovina, Second OSCE Report, Case of Radovan Stanković Transferred to the State
Court pursuant to Rule 11 bis, May 2006. Local as well as international NGOs criticized the lack of
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