Cablegate: Inl-Funded Program Update: Focus On Opdat

VZCZCXYZ0002
RR RUEHWEB

DE RUEHVJ #0182/01 0560822
ZNR UUUUU ZZH
R 250822Z FEB 10
FM AMEMBASSY SARAJEVO
TO RUEHC/SECSTATE WASHDC 1453
INFO RUEAIIA/CIA WASHINGTON DC
RUEAWJA/DEPT OF JUSTICE WASHDC
RHEFDIA/DIA WASHINGTON DC
RUEKJCS/SECDEF WASHDC

UNCLAS SARAJEVO 000182

SENSITIVE
SIPDIS

DEPT FOR EUR/SCE, S/WCI (ANDERSON), EUR/ACE (KEETON), INL
(CARROLL,SIMIC); DEPARTMENT OF JUSTICE FOR KARL ALEXANDRE

E.O. 12958: N/A
TAGS: PGOV PREL EAID EFIN KAWC KCRM KJUS BK
SUBJECT: INL-FUNDED PROGRAM UPDATE: FOCUS ON OPDAT
TECHNICAL ASSISTANCE

REF: A. 09 SARAJEVO 1430
B. 07 SARAJEVO 1405
C. SARAJEVO 21
D. 09 SARAJEVO 971

1. (U) Summary. The work being done by INL-funded Overseas
Prosecutorial Development and Assistance Program (OPDAT)
remains crucial to our rule of law agenda in Bosnia. In
addition to its training programs, OPDAT is providing
technical assistance to the State Prosecutor's Special
Department for Organized Crime (SDOC) aimed at beefing up
Bosnia's ability to investigate and prosecute terrorism,
organized crime, and corruption cases. This assistance has
come into even greater demand following the December 2009
decision by High Representative Valentin Inzko to extend the
mandate of international judges and prosecutors working on
war crimes cases but not on organized crimes cases at the
State Prosecutor's Office and the State Court. OPDAT is also
promoting discussions about needed judicial reforms in
support of Bosnia's aspirations of integrating into the EU.
The following is a review of key OPDAT training programs and
justice-sector initiatives from September to December 2009.
End Summary.

OPDAT Boosts SDOC's Fight Against Terrorism
--------------------------------------------

2. (SBU) OPDAT is continuing to provide technical know-how
and mentoring to prosecutors and legal officers working on
terrorism and terrorism finance cases in the State
Prosecutors Special Department for Organized Crime (SDOC).
Intermittent Legal Advisor (ILA) Scott Hulsey, who replaced
ILA Rick Willis, arrived in November for a six-month
assignment. Hulsey's expertise is especially crucial to SDOC
given HighRep Valentin Inzko's decision in December extend
the mandate of international judges and prosecutors working
on war crimes cases but not on organized crime cases (Ref A).
While Inzko's decision provides for international advisors
to work in SDOC given the continuing need for technical
expertise and transfer of technical know-how, it will take
some time for all of the (four) advisor slots requested by
Barasin to be filled and for nationals to replace five
positions vacated by internationals.

3. (SBU) ILA Hulsey, whose work has already been singled out
for praise by Barasin, is advising on several terrorism cases
of interest to the USG. These cases include that of two
defendants accused of bombing a local shopping center, which
killed one individual and severely injured several others.
ILA Hulsey is providing one-on-one mentoring to the
prosecutor working on the case by observing the trial and
advising on trial techniques and strategy. He is also
providing guidance on a terrorism financing case involving a
Middle Eastern-based charity that is an umbrella organization
for several charities operating in Bosnia, purportedly to
assist war orphans. Bosnian officials have been working on
the case for over seven years. To date, the State
Investigative and Protective Agency (SIPA) investigators have
found significant discrepancies between monies these
organizations claimed were spent on charitable programs and
funds actually spent. ILA Hulsey is helping to coordinate
joint meetings of prosecutors and investigators working on
the case, collate and analyze evidence collected, and develop
investigative and prosecutorial strategies.

4. (U) In addition, ILA Hulsey is assisting SDOC in
reviewing 76 possible terrorism cases that were recently
handed over by the General Crimes Department, and by
promoting police-prosecutor cooperation on specific,
high-profile cases. (Note: Acting on OPDAT's recommendation,
State Prosecutor Milorad Barasin had the General Crimes
Division transfer all of its terrorism cases to SDOC, which
was already processing terrorism finance cases. End Note)

State Court Confirms High-Profile Terrorism Indictment
--------------------------------------------- ---------

5. (SBU) As a result of OPDAT's mentoring, the State Court
in mid December confirmed a 300-plus page indictment filed by
the State Prosecutor's Office against Rijad Rustempasic and
four other suspected terrorists and weapons traffickers. The
defendants were initially arrested in March 2008 on terrorism
charges but were subsequently released with the consent of a
prosecutor (from the overburdened and ill-equipped General
Crimes Department), who apparently concluded that there was

insufficient evidence of criminal activity in the case. The
case was revived after a new prosecutorial team from SDOC was
assigned to the case and after it began receiving technical
assistance from OPDAT (first from ILA Willis then Hulsey), to
develop charges and a case strategy. Owing to this
much-needed technical support, Rustempasic and the other
defendants were subsequently re-arrested and indicted. The
trial against Rustempasic et al is to begin on February 19,
2010. (Note: To date, Bosnia, with USG assistance, has
successfully prosecuted one terrorism case. See Ref B. End
Note).

Study Trips to ICTY, European Court for Human Rights
--------------------------------------------- -------

6. (U) From October 18 to 23, 2009 OPDAT sponsored a legal
study visit to the International Tribunal for the Former
Yugoslavia (ICTY) for 12 judges from state-level, entity, and
cantonal courts as part of its long-standing efforts to
improve the processing of war crimes and to strengthen the
operations of courts and prosecutor's offices nation-wide.
The judges participated in discussions on topics they had
identified as being of particular interest to them, including
the use of ICTY case law; witness support; case management;
appellate practice; and use of the ICTY Manual on Best
Practices. Particularly noteworthy were the discussions
between the ICTY and Bosnian judges on the issues of
dissenting opinions and joint criminal enterprise. The ICTY
judges were surprised that their Bosnian colleagues did not
publish dissenting opinions -- a topic that is being debated
in Bosnia -- and both groups of judges exchanged views on
problematic aspects of the concept of joint criminal
enterprise.

7. (U) While at The Hague, the group also paid a visit to
the International Criminal Court. It attended a presentation
on the differences between an ad hoc tribunal and a permanent
international court and another on the different approaches
taken by common and civil law judges. The judges also had
the opportunity to sit in on court proceedings at both
Courts. As others have done in the past, several commented
on the conduct of judges, witnesses, prosecutors, and defense
counsels, noting that generally speaking, Bosnian judges need
to exert stricter control of courtroom proceedings, such as
by insisting that court proceedings begin and end on time.

8. (U) From November 15 to 19, 2009 the RLA accompanied
eight judges from the State Court, the Federation and
Republika Srpska Supreme Courts, the state-level
Constitutional Court, and the Sarajevo Municipal Court to the
European Court for Human Rights in Strasbourg. The study
visit stemmed from observations by international judges
working at the Court that Bosnian judges lacked understanding
of some aspects of the European Convention for Human Rights.
It is part of a wider Embassy initiative to support Bosnia's
efforts to move towards the EU, especially since the country
is falling behind its neighbors on its path to the EU.

9. (U) The judges met the Bosnian judge on the Court and
discussed aspects of the European Convention on Human Rights
(ECHR) that were of interest to them. They also heard
presentations from by Bosnian experts, who, among other
things, provided general descriptions of pending cases filed
against Bosnia. Of particular interest to the Bosnian judges
was the general discussion on the high-profile Sejdic/Finci
case, in which a Roma and a Jew alleged they were being
discriminated against since the Bosnia's constitution
prohibited individuals who identified themselves as "Others"
(i.e., Jews, Roma, individuals of mixed ethnic backgrounds)
from running for the Presidency and the House of Peoples.
ECHR interlocutors underscored that the Sejdic/Finci case be
the first case involving a possible violation of Protocol 12,
which deals with general discrimination. (Note: As noted in
Ref C, the European Court for Human Rights subsequently found
Bosnia in violation of the ECHR. End Note) The Bosnian
judges also learned how the Court implements its decisions
and how to effectively use the Court's database to review
case law. Additionally, they sat in on proceedings involving
a property rights case against Turkey. Several judges noted
that the case was similar to property rights cases of
non-Serbs who were forced to leave what is now the RS during
the 1992-1995 war.

OPDAT Brings Focus to Needed Reforms
------------------------------------

10. (SBU) On September 28-29 and later on October 1-2, OPDAT
organized two presentations on its findings on trends at the
State Court's Appellate Division to fifty State and
entity-level judges as part of its efforts to promote needed
reform at state-level institutions, which remain a top
Embassy priority. International judges working on the
appeals panel had long complained of the need to
significantly revamp the work of the panel. They have cited
among other complaints, opaque standards of review; the
tendency of the appeals panels to not only review the merits
of cases before them, but to essentially retry cases; and the
absence of sentencing guidelines. International prosecutors
working at the State Prosecutor's Office had also complained
to OPDAT about what they deemed to be a high rate of
reversals, revocations or modifications of verdicts which
often called for relatively light sentences for egregious
crimes -- particularly in organized crime, economic crime,
and corruption cases.

11. (U) OPDAT's exhaustive research, which examined
decisions in over 400 cases over the course of several
months, drew attention to the inconsistency in prison
sentences handed down by appeals panels, the fact that some
trials were too lengthy, the poor quality of written
decisions, and the need for appeals panels to narrow the
scope of what facts should be viewed as decisive facts, i.e.
facts that could change their decisions. OPDAT's research
also revealed that a much lower rate of verdicts were
modified, revoked, or reversed (30 percent, not 95 percent as
have been reported previously). The discussions that
followed the presentations of these findings were led by the
Honorable D. Brook Smith of the U.S. Third Circuit Court of
Appeals whose visit was sponsored by OPDAT. The Bosnian
judges and judicial staff welcomed the opportunity to have
frank discussions on the work of appeals panels, noting that
OPDAT's initiative had drawn attention to the need to reform
the work of appeals panels nation-wide.

12. (U) As a follow-up to discussions it spearheaded
outlined in Ref D, OPDAT also hosted two roundtables on
prison reform on October 6 and October 8, 2009. OPDAT
invited representatives of key missions following the issue
(OHR/EU Special Representative, the Council of Europe, the
European Commission, and the EU Police Monitoring Mission),
ICITAP, as well as key Justice Ministry officials to discuss
these issues. OPDAT introduced the concept of electronic
bracelets for individuals convicted of lesser crimes to free
up space for individuals convicted of graver crimes. (Note:
Construction of a state prison is expected to start in 2011
and end in 2013. End Note) Several key Bosnian judicial
officials have embraced the concept of electronic bracelets
and are planning to establish a working group to examine the
issue. They expressed willingness to begin working on draft
legislation to make the use of electronic bracelets legal in
Bosnia and have asked OPDAT to participate in this working
group.

Improving Trial Advocacy Skills
-------------------------------

13. (U) During November 5-7, 2009, OPDAT sponsored the visit
of Judge Charles Simpson of the U.S. District Court from the
Western District of Kentucky, who traveled to Bosnia to help
Bosnian judges and legal officers improve their trial skills,
particularly common law elements with which they are still
somewhat unfamiliar. Judge Simpson led a roundtable with 20
State Court and Sarajevo Municipal Court judges and legal
officers covering a wide range of topics. They included: how
to present evidence, conduct direct and cross examination,
and handle objections; whether judges should be allowed to
write dissenting opinions; and the importance of status
conferences -- an initiative introduced by U.S. judges at the
State Court designed to improve courtroom scheduling. The
judges found this discussion helpful and came to understand
the value of dissenting opinions. Many of them admitted that
they did not know how to handle objections and would like to
have training in this area.

English Language Training in High Demand
----------------------------------------

14. (U) Judges and judicial staff at the State Court
continue to attach great importance to the English language
program offered by OPDAT. They have repeatedly asserted that

the program is valuable as the Court receives a great number
of documents from the International Tribunal for the Former
Yugoslavia in English and English language skills are
essential for communication and cooperation with other
countries, including some in the region. Given this great
demand for its classes, OPDAT sought assistance from the
Embassy's Office of Public Affairs (OPA) to assist with its
ongoing English-language program. In response to OPDAT's
request, OPA made it possible for a Fulbright scholar, who
had experience teaching legal English, to teach an
English-language class for fifteen judges and legal officers.
The class, which includes State Court President Meddzida
Kreso, began November 19, 2009. In addition, the RLA and an
American judge teach legal English classes every week for 15
legal officers from the State Prosecutor's Office and the
State Court. While learning English, participants are
learning trial advocacy skills (i.e., direct examination,
cross examination, and closing argument).

Other Notable Activities
------------------------

15. (U) As part of its ongoing effort to improve donor
coordination and to seek opportunities to co-train and hence
reduce costs, OPDAT sponsored a second roundtable on October
27, with 14 providers of technical assistance. During the
roundtable, donors shared information about planned training
programs for the next six months, which OPDAT collected to
update its training calendar. The calendar is shared with
all donors as well as the Judicial Training Centers in the
Federation and Republika Srpska. As a result of this effort,
different institutions have been able to combine their
funding and do joint training.
ENGLISH

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