BOSNIA - DODIK VS SIPA: A TIMETABLE FOR

C O N F I D E N T I A L SARAJEVO 001596 C O R R E C T E D C O P Y - ADDED CAPTION NOFORN SIPDIS EUR (FRIED/JONES),EUR/SCE (FOOKS/STINCHCOMB),INL (KIMMEL); NSC FOR BRAUN; OSD FOR BEIN E.O. 12958: DECL: 01/01/2016 TAGS: PGOV PREL ECON KCRM KJUS BK SUBJECT: BOSNIA - DODIK VS SIPA: A TIMETABLE FOR CONFRONTATION REF: A) SARAJEVO 1587 B) SARAJEVO 1561 C)SARAJEVO 1547 D) SARAJEVO 1536 E)SARAJEVO 1519 Classified By: Ambassador Charles L. English for Reasons 1.4 (B) and (D ) ¶1. (C) SUMMARY: The State Prosecutor's Office plans to ask the State Court for a seizure order on October 20, which would authorize the State Investigation and Protection Agency (SIPA) to obtain documents from the RS Tax Administration and other RS government offices in connection with a State Prosecutor's Office investigation. Republika Srpska (RS) officials, including RS PM Milorad Dodik, have repeatedly said that they would cooperate with state-level law enforcement and judicial institutions only if certain conditions were met. More recently, they have suggested they would forcibly resist any attempt by SIPA to exercise its jurisdiction in the RS. These comments suggest that, despite the best efforts of the State Prosecutor's Office to avoid a confrontation, one is likely. Conversations with the State Prosecutor's Office -- informed by Bosnian law -- suggest the confrontation could come quickly, as early as next week, though it may also unfold slowly and build to a climax over the last couple weeks of October/first week of November. The stakes are high. If Dodik successfully prevents SIPA and the State Prosecutor's Office from exercising their jurisdiction in the RS, he will have effectively nullified state-level authority in the RS and made good on his claim that his government, and not the state, is sovereign within the RS. This is not a challenge we can ignore, and we will need to be ready to meet it, but as the timetable contained in paragraph five below makes clear, we may not have a lot of time to prepare. END SUMMARY RS Refusal to Cooperate and Veiled Threats -------------- ¶2. (C) Republika Srpska and Alliance for Independent Social Democrat (SNSD) officials, including RS PM Dodik, Serb member of the Tri-Presidency Radmanovic, and SNSD Secretary General Vasic have all implied in recent days that the RS is prepared to prevent, perhaps forcibly, state-level law enforcement and judicial institutions from exercising their authority with the RS. At issue is a request from the SIPA on behalf of the State Prosecutor's Office for documentation from the RS Tax Administration and other RS government offices. The State Prosecutor's Office requested the documents in connection with an investigation into alleged corruption associated with the construction of the RS government building. SIPA requested the documents in September. Despite a September 27 RS government public statement and private commitment from Dodik that the RS would comply unconditionally with the request, no documents have been delivered to SIPA or the State Prosecutor's Office. The State Prosecutor's Office has told us that while they already possess copies of some of the documents, they require originals that can be entered into evidence at the State Court -- a requirement under Bosnian law. SIPA/State Prosecutor's Office - Three Options -------------- - ¶3. (C) Despite RS assertions to the contrary, RS authorities are required by law to cooperate with SIPA and the State Prosecutor's Office. The RS government cannot attach conditions to their compliance, though they have sought to do so. Finally, RS authorities, including the RS courts, have no authority to decide on jurisdictional issues. Only the courts of Bosnia and Herzegovina are competent to determine questions of jurisdiction. Given RS authorities refusal to cooperate, SIPA and the State Prosecutor's Office now have three options for pursing the matter. -- First, SIPA, under its own police authority pursuant to the Law on Police Officials, could request that the responsible person in the RS Tax Administration and/or other RS government offices to appear at a SIPA police station for an enquiry. SIPA would reiterate its request for the delivery of the requested documents, and ask why the Tax Administration (and other relevant agencies) has failed to comply with it. If the person(s) did not appear, SIPA may, without a warrant, detain the person(s) for up to 6 hours. -- Second, the State Prosecutor's Office may, pursuant to the Criminal Procedural Code, ask the State Court to issue an order for the seizure of the documents. Once the court order is issued, anyone in possession of the documents must turn them over. If the responsible person refuses, he/she may be fined, and ultimately, imprisoned. It is unclear who would be designated the "responsible person" in this case. A likely candidate is the Head of the RS Tax Administration, but he might claim he is acting under instructions from the RS government (i.e., PM Dodik). SIPA could enforce the court order by seizing the documents. -- Third, the requested documents may be seized even without a court order, if the State Prosecutor's Office and the police determine there is a risk with delay. If the seizure is opposed, the State Prosecutor must ask the State Court for subsequent approval of the seizure. Going With Option Two -------------- ¶4. (C/NF) The State Prosecutor's Office has told us that it plans to pursue option 2 -- seeking a seizure order from the State Court -- because SIPA is reluctant to act independently and because action without a court order on the basis of "urgency" (option 3) is not, at this point, justifiable. The State Prosecutor's Office had planned to request the seizure order on October 13, but agreed to delay until October 20 in order to allow the Ambassador time to travel to Banja Luka and underscore to Dodik and other RS officials our expectation that the RS cooperate with SIPA and the State Prosecutor's Office. The State Prosecutor's Office underscored that it plans to do everything in its power to avoid a confrontation with RS authorities, but given Dodik's threats, has warned that this remains a distinct possibility. The Timetable -------------- ¶5. (C/NF) Though events will inevitably be fluid, based on conversations with the State Prosecutor's Office we have laid out a rough timetable for events that may follow the October 20 request for a temporary seizure order. The seizure order will cover several RS government buildings as well as some private institutions in the RS. It makes clear that a confrontation with the RS could develop quickly (as early as next week),particularly if the RS acts on its threats to prevent, perhaps forcibly, state-level law enforcement and judicial institutions from exercising their legitimate authority. -- October 20: The State Prosecutor's Office submits a request to the State Court for a temporary order to seize documents/objects; the Office needs original documents to enter into evidence at the State Court. -- October 21/22: The State Court approves/rejects the request (We assume it will approve the request); the State Prosecutor's Office and SIPA will have fifteen days in which to execute the order. -- October 23: The State Prosecutor's Office plans to act quickly once it has the court order because it does not want to allow RS authorities time to destroy evidence or for information to leak out that the State Prosecutor's Office has a court order. However, it currently plans to send only two or three SIPA inspectors (who may be armed but will not draw arms) to deliver the seizure order to RS officials. There are three possible outcomes: 1) RS authorities cooperate fully and unconditionally (unlikely); 2) RS authorities cooperate partially (possible); 3) RS authorities obstruct the SIPA inspectors (likely given Dodik's threats). -- October 24: SIPA inspectors will know fairly quickly whether RS authorities are not cooperating at all. However, RS authorities may respond partially or flood the State Prosecutor's Office with useless and irrelvant documents, which would take time to sort through. -- November 4/5: If RS authorities have only cooperated partially or not cooperated at all, the State Prosecutor's Office will ask the court for a search warrant. By waiting until November 4/5, the expiry of the 15-day period for executing the seizure order, the State Prosecutor's Office would allow RS authorities every opporunity to comply with the court's lawfully-issued order before seeking a search warrant. -- November 6/7: The State Court approves the State Prosecutor's request for a search warrant. -- November 7/8: SIPA inspectors, and if needed, a SIPA SWAT team, execute the search warrant. -- Possible Additional Action in the Event of Obstruction: The State Prosecutor's Office may have anyone obstructing SIPA's inspectors detained for up to 24 hours. The State Prosecutor's Office would then have another 24 hours to interview the obstructer(s) and to determine whether it wished to ask the Court to fine (up to 50,000 KM; approximately 34,411 USD at today's exchange rate) and release the obstructer(s) or to imprison the obstructer(s) immediately for contempt of court (for up to 90 days). -- After SIPA inspectors pay an initial visit to the RS Tax Administration and other RS government offices, we will likely see a series of moves and counter moves by the RS and SIPA/State Prosecutor's Office. At any point in this process, the RS could use force either to prevent SIPA inspectors from executing the order or from acting against individuals who obstruct SIPA. ENGLISH