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