BOSNIA - STATE PROSECUTOR REQUESTS TEMPORARY

C O N F I D E N T I A L SECTION 01 OF 02 SARAJEVO 001734 NOFORN SIPDIS EUR (JONES),EUR/SCE (FOOKS, STINCHCOMB),INL (KIMMEL),NSC FOR HELGERSON, OSD FOR BEIN, DEPARTMENT OF JUSTICE FOR OPDAT (ALEXANDRE) E.O. 12958: DECL: 11/12/2018 TAGS: PGOV PREL PINR PHUM KDEM KCRM KJUS BK SUBJECT: BOSNIA - STATE PROSECUTOR REQUESTS TEMPORARY SEIZURE ORDER FOR RS DOCUMENTS REF: A. SARAJEVO 1723 ¶B. SARAJEVO 1626 ¶C. SARAJEVO 1596 ¶D. SARAJEVO 1548 ¶E. SARAJEVO 1519 Classified By: AMBASSADOR CHARLES ENGLISH FOR REASONS 1.4 (B) AND (D) ¶1. (C/NF) In light of the Republika Srpska (RS) government's failure to submit documents needed for an inquiry into corruption associated with government building and other contracts in the RS, the State Prosecutor's Office on Monday requested a temporary seizure order from the State Court, which we anticipate the Court will approve over the next several days (Ref A). Once it is approved, the State Prosecutor's Office plans to send two or three State Investigative and Protective Agency (SIPA) investigators to Banja Luka to deliver the temporary seizure order to the appropriate RS officials. (Note: The request for the court order was filed under seal, so its execution ould not become public. End Note) The RS governmnt has fifteen days to comply completely and uncnditionally with the court order. If it fails todo so, the State Prosecutor's Office will have t seek a a search warrant from the State Court to obtain the documents. ¶2. (C/NF) Despite public and private promises from the RS government and RS PM Dodik that they would comply with the State Prosecutor's request, Dodik has over the last week sought to inject the New York-based law firm Dewey and LeBoeuf into the controversy. The law firm claimed in an October 31 letter to the State Prosecutor's Office to possess some of the documents it had requested, but the State Prosecutor's Office has refused to meet with Dewey and LeBoeuf for several reasons. First, the RS government's legal obligation is to turn the requested documents over to the State Prosecutor's Office directly (not through an intermediary). Second, the issue of compliance with the State Prosecutor's Office request is not subject to negotiation (just as a similar order from a U.S. District Attorney or FBI would not be subject to negotiation),as Dewey and LeBoeuf's October 31 letter appeared to imply. Third, it remains unclear whether Dewey and LeBoeuf is legally registered to practice law in Bosnia and whether the firm has business as well as other necessary licenses. Finally, there is no legal role for Dewey and LeBoeuf in this process, since no one has been charged with a crime or no suspects have been named. In any case, if there were criminal charges filed against the RS government, it would be the responsibility of the RS Public Attorney to represent it in any legal proceeding. ¶3. (C/NF) We understand that Dewey and LeBoeuf has questioned whether the State Prosecutor's Office and the State Court have jurisdiction over this matter because the alleged criminal activities are violations of the RS criminal code and therefore fall under the RS government's jurisdiction. This assertion echoes assertions made by Dodik and other RS government officials early on in this confrontation. As we have noted in the past, the RS government, either directly or indirectly through Dewey and LeBoeuf, is not competent to decide on jurisdictional issues. Nor, for that matter, is the RS judiciary. Only the Court of Bosnia and Herzegovina is competent to determine questions of jurisdiction. The State Prosecutor's Office argues that it has jurisdiction in the case because the case involves crimes that seriously harmed Bosnia's economy and/or had detrimental effects beyond the territory of an entity, in this case, the RS. This is provided for under Bosnian law and established Bosnian jurisprudence. In other words, this is not the first time the State Prosecutor's Office has exercised jurisdiction over similar matters. The State Prosecutor's Office also believes that the case involves violations of the state-level Law on Procurement. The RS government (and its legal representatives),would have the opportunity to challenge the jurisdiction of the State Prosecutor's Office at the conclusion of a first and second instance trial and ultimately before the BiH Constitutional Court. SARAJEVO 00001734 002 OF 002 ¶4. (C/NF) Comment: The State Prosecutor's decision to request a temporary seizure order was forced upon it by Dodik. Dodik failed to comply completely and unconditionally with its initial request. Though the State Prosecutor's Office continues to proceed deliberately and carefully, we are not optimistic that Dodik and the RS will comply. The international community needs to send a strong signal to Dodik that he must comply fully and unconditionally with state-level authorities in this case and uphold the rule of law. We suggest inserting language in the PIC communique along the lines of the following: "The PIC understands that the RS has not yet complied fully and unconditionally with the State Prosecutor's request for RS government documents in connection with a preliminary investigation despite its public commitment to do so. The RS government has a legal obligation to deliver the requested documents to the State Prosecutor's Office. This is not subject to negotiation. It is a fundamental matter of the rule of law." This language deliberately avoids provoking Dodik by singling him out personally, and it avoids mentioning the court order given that it is under seal, but it sends a clear message about our expectations. ENGLISH