The Processing of Cases at the National Level and the Use of ICTY Evidence before the Court of BiH

The actual transfer of cases creates considerable tension between, on the one hand, the obligation of the national authorities to cooperate with the ICTY, and, on the other hand, the fundamental rights provisions of both the Constitution and the ECHR. The relevant domestic legislation, namely the Law on the Transfer of cases was drafted with considerable involvement of the ICTY and, in some regards, raises concerns regarding the constitutionality and complete compliance with fundamental rights principles at the domestic level. The “adaptation and acceptance” of ICTY indictments in cases transferred by the ICTY in accordance with Article 2 of the Law on Transfer, rather than “(re)confirmation”, raises concerns regarding the fundamental rights of the defendant during the pre-trial phase despite the prior assessment of evidence by an ICTY judge or Trial Chamber before confirmation. Given the time lapse between confirmation of the indictment at the ICTY and transfer of the case to Bosnian authorities and other practical problems regarding the evidence at the domestic level, including potential difficulties in obtaining the evidence at the domestic level,²⁵⁵⁹ the limited assessment carried out by national judges in accordance with Article 2 of the Law on Transfer appears problematic.

The Prosecutor’s Office of BiH has processed and adapted all of the transferred ICTY indictments that were ordered to be transferred by the Referral Bench and submitted them to the Court for “acceptance”. Pre-trial custody was ordered in all transferred cases.

Given that there has been no duty on the side of the ICTY to assist national jurisdictions in their investigations and prosecutions (which could have been considered as a reciprocal duty to the duty of BiH and other countries in the region as UN member states to fully cooperate under Article 29 of the Statute), no clear regulations at the international level are in place and the national authorities are somewhat left to the good will or discretion of the ICTY. The Memorandum of Understanding between the ICTY-OTP and the BiH Prosecutor’s Office of 2007²⁵⁶⁰ addresses a couple of the concerns of the national authorities by, for example, highlighting the requirements under domestic law in relation to the procedural requirements and the corresponding assistance required by the ICTY-OTP for the prosecution of transferred cases. However, in practice a number of problems were not addressed sufficiently prior to the transfer of the defendants, such as the handing over of the ICTY prosecution case files at the time the accused was transferred to BiH authorities and custody for the accused was ordered at the domestic level.²⁵⁶¹ In accordance with Rule 11bis (D)(iii), the OTP is only required to transfer evidence that it considers to be relevant. Accordingly, the BiH authorities cannot formally request additional evidence in support of the case(s) at the domestic level other than going through the Registrar of the ICTY in accordance with Rule 33(B) of the RoPE, allowing the ICTY Registrar to make representations to the Chambers on issues arising in specific cases.²⁵⁶² The use of electronic copies of files of the ICTY-OTP is possible after entry into force of the relevant amendment to Article 8(2) of the Law on Transfer.

Despite the broad range of possibilities to use the evidence collected by the ICTY as provided for in the Law on Transfer (Articles 3 – 8) the actual use of such evidence at the domestic level still has to be assessed on a case-by-case basis. The defendant has the right to request the attendance of an (expert) witness if the witness’s statement made before the ICTY is introduced as evidence in proceedings before the ICTY.²⁵⁶³ The Law on Transfer also allows the use of statements of ICTY officials and the examination of relevant investigators (Article 7). However, as the examination of the investigator is expressly subject to the Convention on the Privileges and Immunities of the United Nations (a provision that was presumably introduced at the request of the ICTY itself), in practice the examination of ICTY investigators has not occurred despite the fact that it was requested by the Court of BiH in a number of situations.