Cablegate: Action and Follow Up Report Following Doj Visit to Croatia


DE RUEHVB #0121/01 0561514
R 251514Z FEB 08







E.O. 12958: N/A

REF: (A) 07 Zagreb 1074 (B) 07 Zagreb 1000

1. (SBU) SUMMARY. Senior DOJ/OIA Trial Attorneys Michael Dittoe and
Teresa McHenry met with officials from the Croatian Ministry of
Justice Directorate for International Legal Assistance, Office of
the State Prosecutor and the Ministry of Foreign Affairs to discuss
extradition issues between the United States and Croatia and a
number of Croatian requests for extradition, some dating back as far
as 2005, that are still pending. The Attorneys also followed up on
the Croatian request for assistance in securing US witness testimony
in the Ademi-Norac war crimes trial, which is currently ongoing.
The results of those discussions, and the actions agreed upon during
the course of those discussions, as understood by post, are listed

Prospects for a new extradition treaty

2. (U) Both sides agree that the existing list treaty from 1901 is
badly outdated. However, the GoC still has difficulties with the
USG requirement for Croatia to agree to extradition of its
nationals. DOJ provided MOJ with a list of new EU-member states
that have agreed to extradition of their nationals. MOJ requested a
complete list of countries with which the U.S. has extradition
treaties that permit extradition of nationals.

Croatian difficulties with 60-day clock

3. (U) DOJ clarified that the 60-day clock in which Croatia must
pick up its fugitive begins tolling from the day of the final
verdict. As the defendant has the right of appeal, DOJ would not
notify Croatia of the verdict until the 30-day mark, when the order
of extradition was given to the Secretary for signature. MOJ noted
that this was not enough time for it to arrange travel of the escort
officers and obtain the necessary transit permissions. In response
to MOJ's concerns, DOJ agreed to notify MOJ when the clock begins,
and again at the 30-day mark.

Communication between DOJ and MOJ on pending cases
--------------------------------------------- -----

4. (SBU) DOJ requested a POC for case specific questions. DOJ noted
as an example how helpful it was in the recent Pavic case in
Michigan to speak directly with the prosecutor handling the case.
As the appropriate party will vary depending on the stage of the
case, MOJ proposed remaining the primary POC. It agreed to liaise
with the Office of the State Prosecutor or Investigative Judge as
appropriate and arrange conference calls as needed.

Simplification of transmission of requests

5. (U) Transmission of extradition requests through diplomatic
channels is mandated by the treaty. However, DOJ noted, that
requirement is satisfied by the request being sent from the Croatian
Embassy under cover of diplomatic note; it need not also go through
the Croatian MFA. DOJ and MOJ asked post to present by letters to
the MFA and MOJ a proposal for post to send future extradition
requests, following consular certification, directly to the Croatian
Embassy in Washington.

Changes in Croatian extradition requests

6. (U) MOJ agreed to advise the Croatian judiciary to be more
discriminate in making requests for extradition. In addition, it
will inform judges that requests to the United States must contain
supporting evidence. DOJ presented a Croatian translation of an
explanation of the U.S. extradition process, which MOJ will put on
its website.

7. (SBU) DOJ requested that, in consideration of the level of
evidence needed to support a request for extradition in U.S. court,
MOJ only make requests for extradition after the investigative judge
has issued an indictment. Exceptions could be made in cases
involving violent crimes in urgent circumstances, such as in the
case of apprehension at a port of entry en route to a country with
which Croatia does not have an extradition treaty. MOJ noted that
submitting only post-indictment cases is a significant change in
procedure but agreed and would so inform the judiciary.

Status of pending extradition requests

8. (SBU) Discussion of specific pending cases resulted in the
following conclusions:

Jozo NOVAKOVIC: There is insufficient evidence to support the
charges of torture and, as assault is not covered by the treaty, the
request for extradition will be declined.

Iso BJELANOVIC: There is insufficient evidence linking the subject
to the crime so the request for extradition will be declined.
However, the subject's case is of interest to ICE and DOJ/OSI;
witness statements provided by the prosecutor will be passed to
those offices.

Stevo CVJETICANIN: There is insufficient evidence to link the
subject to the crime, so the request will be declined.

Zeljko DRACA: It is understood that Croatia will not proceed with a
formal request for extradition in this case.

Milorad SUSNJAR: The request currently does not contain sufficient
evidence linking the subject to the crime. However, MOJ may be able
to obtain this evidence through a request for mutual legal
assistance asking U.S. authorities for a recent photo of the
subject, which could be used by witnesses in a photo array. MOJ will
submit this request within 30 days. If MOJ then determines that it
wishes to proceed with the request for extradition, it will reopen
investigative proceedings and bring an indictment against the
subject, when it may resubmit the request for extradition.

Slobodan MUTIC: MOJ agreed that it would seek an indictment in this
case, reframed as charges for murder rather than war crimes, and
resubmit the formal request for extradition in the next 90 days.

Slavko MAZIBRADA: MOJ agreed to correct the mistranslation in the
original request for extradition and resubmit its request, with
additional identifying information, in the next 30 days.

Nikola GOLUBOVIC: In response to DOJ's concerns that this case would
fall under the political offense exception, MOJ agreed to provide
additional background information to establish that the victims were
not legitimate targets of war. MOJ will also in the next 30 days
provide names of experts with whom DOJ can consult on these issues.

Predrag STRBAC: MOJ agreed to consult with the prosecutor handling
this case to determine if additional evidence exists that would
establish probable cause. MOJ will notify DOJ within 30 days of its
findings and whether it wishes to proceed with the request.

DOJ to assist in witness testimony for ICTY war crimes transfer
--------------------------------------------- ---------

9. (SBU) The attorneys' visit also provided an opportunity to meet
with the presiding judge in the Ademi-Norac case, an ICTY transfer
case involving war crimes by Croatian generals against ethnic Serb
civilians. Through Post (reftels), Judge Marin Mrcela had requested
USG assistance in locating victims and witnesses in the US and
facilitating their testimony, which DOJ is pursuing. Those requests
were also submitted formally through the Ministry of Justice. In
November, Mrcela had requested testimony of three individuals who
were known to be located in the US, and recently requested a fourth,
whose identity is protected. All individuals are ethnic Serbs and
either victims or witnesses to alleged crimes committed in 1993 in
the Medak Pocket operation. For two of the individuals, the ICTY
took testimony in the late 1990s, which is admissible in court. For
the two others, since their testimony was taken by police, under
Croatian law it is not admissible in court. Therefore, their
anticipated testimony is particularly important.

9. (SBU) In facilitating this request, DoJ's Dittoe had previously
advised what information and evidence DOJ needed to support such
assistance. In addition to letters rogatory, US prosecutors need
previous testimony, witness links to the defendants and alleged
crimes, and a statement of the Ademi-Norac case and charges. Based
on conversations with the judge and his presentation of evidence,
DOJ has concluded that there is sufficient evidence to locate these
individuals in the US, and if necessary, compel testimony. Most
likely all witnesses will testify via video-link; Mrcela has set
aside dates in March for the questioning. The Ministry of Justice
has been largely absent from this process, although Post understands
that they have successfully facilitated witness testimony from other
countries including Serbia, Norway, and Sweden.

10. (SBU) As of mid-February, approximately half of the endangered
witnesses and nearly sixty per cent of non-endangered Serb witnesses
who had been called in the Ademic-Norac trial have appeared to
testify. There are approximately 103 witnesses in total, about 28
of which, including the four in the U.S., remain to be questioned.
(NOTE: Of those 28, the judge estimates perhaps 19 will testify.
Several are critically ill, have refused to testify, or are
deceased. Five cannot be located. END NOTE.) The case is expected
to be completed in the next two months.


11. (SBU) COMMENT: DOJ's meetings with MOJ were very successful in
not only establishing a personal rapport with their counterparts,
but also in dispelling many of MOJ's misconceptions about the U.S.
extradition process - and was particularly well-timed, coming on the
heels of unsuccessful extradition from the U.S. of Goran Pavic.

12. (SBU) Over the course of the discussions, it became clear that
some of the difficulty the U.S. has had with Croatian extradition
requests arises from the difference between the GoC process with EU
countries versus that with the U.S. The evidentiary threshold and
level of documentation necessary to support extradition requests to
the U.S. is far higher than that required by EU-member states. As a
result, the MOJ was unprepared to properly support many of its
requests to the U.S. The extradition process is further complicated
by the lack of clear lines of internal communication within the
judiciary. DOJ's visit allowed us to clarify avenues we can use to
pursue additional information and evidence. Nevertheless, the
Croatian legal system - including the MOJ - remain burdened by its
own bureaucratic inertia.

13. (SBU) DOJ's visit hopefully impressed upon the MOJ and MFA their
ability to exercise discretion in forwarding extradition requests,
and also the necessity for doing so given the significant number of
unsubstantiated, unprofessionally processed indictments and
convictions following the war. The very technical, working level
discussions brought a better understanding to both sides of the
vastly different standards of evidence necessary in the U.S. and
Croatian legal systems and, we hope, will result in more successful
handling of bilateral extradition requests. END COMMENT.






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