BOSNIA - HIGHREP PROPOSES "NO CONTACT" POLICY WITH

C O N F I D E N T I A L SECTION 01 OF 02 SARAJEVO 001738 SIPDIS DEPARTMENT FOR EUR(JONES) AND EUR/SCE(HYLAND/FOOK); NSC FOR HELGERSON/WILSON; OSD FOR BEIN E.O. 12958: DECL: 01/01/2015 TAGS: PGOV PINR PREL KJUS KDEM PHUM BK SUBJECT: BOSNIA - HIGHREP PROPOSES "NO CONTACT" POLICY WITH DODIK UNTIL DODIK COMPLIES WITH STATE-LEVEL LAW ENFORCEMENT AND JUDICIAL INSTITUTIONS REF: SARAJEVO 1743 AND PRIOR Classified By: Ambassador Charles English. Reason 1.4(b) and (d). ¶1. (C) SUMMARY: The ongoing confrontation between Republika Srpska PM Milorad Dodik, the RS government and state-level law enforcement and judicial authorities intensified on November 13. The RS government issued a defiant statement asserting that it "had no legal obligation" to comply with a request from the State Prosecutor's Office for documentation in connection with a preliminary investigation into alleged corruption associated with the construction of the RS government building and other RS contracts. It also asserted its right to hire the U.S.-based law firm Dewey and LeBoeuf to represent it in this matter and claimed the firm had offered to turn over the requested documents to the State Prosecutor's Office. Dewey and LeBoeuf sent a separate letter to the State Prosecutor's Office on November 13 echoing the RS statement, but did not contain clear statement offering to surrender unconditionally the documents. Regardless, according to OHR's Legal Department and the State Prosecutor's Office, has no professionally recognized status or privileges in Bosnia that would allow it to represent the RS government before a Bosnian court on a domestic matter. In a separate development, the State Court approved the State Prosecutor's request for a temporary seizure order (TSO), which the State Prosecutor's Office tells us that it will ask the State Investigation and Protection Agency (SIPA) to deliver to RS authorities on November 14. Finally, OHR met with representatives of the Quint Embassies to discuss Dodik's refusal to comply completely and unconditionally with a request from the State Prosecutor's Office. OHR proposed that PIC member states adopt a "no contact" policy with Dodik until he complies. This proposal will be discussed at the November 14 Steering Board Ambassadors (SBA) meeting, and post requests Washington guidance on it. END SUMMARY HighRep: Concern with Dodik's Defiance of Rule of Law -------------- -------------- ¶2. (C) On November 13, OHR met with representatives of the Quint Embassies to discuss Dodik's refusal to comply �0A;completely and unconditionally with a request from the State Prosecutor's Office for RS government documentation in connection with a preliminary investigation. OHR noted that Dodik and the RS government had committed publicly and privately to complete and full compliance and that it was "unacceptable" that they had failed to meet these commitments. A fundamental principle was at stake, OHR argued, about whether the RS would obey the law and respect the authority of state-level law enforcement and judicial institutions. OHR said that it did not want to escalate the confrontation with Dodik, but also that the PIC cannot ignore Dodik's challenge to the rule of law. The HighRep plans to propose at the November 14 SBA that PIC member states adopt a "no contact" policy with Dodik, which would involve no meetings at the Ambassadorial level with Dodik and no official visits by Dodik to PIC member states. OHR said they expected the Russians to balk, but wanted the support of other PIC member states. The HighRep wants to use the PIC to deliver a clear message to Dodik that he must comply and to signal that he would be isolated diplomatically if he did not. Quint representatives promised to seek instructions from capitals. RS Government Issues Defiant Statement -------------- ¶3. (C) Not long before the OHR-Quint meeting, the RS government issued a defiant statement asserting that it "had no legal obligation" to comply with the State Prosecutor's request because the State Prosecutor had failed to establish that the case was within its jurisdiction. The RS government statement asserted that the State Prosecutor's Office had claimed it was acting based on a violation of the RS Criminal Code, which therefore made the alleged criminal violations a matter for the RS Prosecutor's Office (Note: The RS claim is inaccurate. The State Prosecutor's Office has two claims to jurisdiction in this matter, including an alleged violation of the state Law on Public Procurement - Reftel. End Note) ¶4. (C) The statement also noted that the RS had retained the SARAJEVO 00001738 002 OF 002 U.S. law firm Dewey and LeBoeuf to represent it in this matter and that the law firm "has as its disposal the documentation that the BiH Prosecutor's Office is requesting." The RS government claimed that Dewey and LeBoeuf had offered to turn these documents over to the State Prosecutor's Office, but that the State Prosecutor's Office had refused to accept them (Comment: This is inaccurate. On October 30, Dewey and LeBoeuf requested a meeting with the prosecutor in charge of the preliminary investigation, but the firm did not offer to surrender the documents without condition. Dewey and LeBoeuf's November 13 letter states that the firm "is willing to cooperate" with the State Prosecutor's Office, but does not contain a clear statement offering to unconditionally turn the documents over. End Comment) The RS government asserted its "indisputable legal right" to retain Dewey and LeBoeuf and claimed that Dewey and LeBoeuf "were ready to cooperate" with the State Prosecutor's Office. Finally, the statement accused the State Prosecutor's Office of pursuing the investigation for "political motives" and implied that, in doing so, it was violating the law. Dewey and LeBoeuf: No Legal Standing -------------- ¶5. (C) In what was clearly a coordinated move, Dewey and LeBoeuf sent a letter on November 13 to the State Prosecutor's Office, which echoed much of what was contained in the RS government's statement. According to OHR's Legal Department and the State Prosecutor's Office, the firm does not have the right of legal representation in the territory of Bosnia. Dewey and LeBoeuf's right to represent the RS on matters of international law is not under question, but the firm has no professionally recognized status or privileges in Bosnia that would allow it to represent the RS government before a Bosnian court on a domestic matter. Furthermore, according to OHR and the State Prosecutor's Office, because Dewey and LeBoeuf does not enjoy any professionally recognized status or legal privileges in Bosnia, the delivery of RS public documents by RS government officials to them (as a private entity) may amount to the perpetration of a criminal offense under the RS Criminal Code. ¶6. (C) Regardless, the RS government and its ministries are obligated by law to keep original documents in their archives, so, by law, the requested documents should still be in the RS government's possession (Note: As we reported previously, the State Prosecutor's Office requires originals or certified true copies as part of its investigation. Meer copies, if that is indeed what Dewey and LeBoeuf possesses, are insufficient because they are not admissible as evidence under the state Criminal Procedural Code. End Note). Finally, the State Prosecutor's Office told us today that it previously had no problems with collecting documentation from RS authorities, noting the RS had provided it with documents related to the RS oil industry in April 2008. Court Approves the Temporary Seizure Order -------------- ¶7. (C) Also on November 13, the State Court approved the State Prosecutor's request for a temporary seizure order (TSO),which the State Prosecutor's Office tells us that it will ask the State Investigation and Protection Agency (SIPA) to deliver tomorrow. The State Prosecutor's Office will ask SIPA to simply deliver the TSOs to the appropriate RS government bodies and ask that they turn over the requested documentation. The State Prosecutor's Office anticipates that RS officials will ignore or otherwise turn away the SIPA investigators. (Note: It is worth noting that the State Court could have refused the State Prosecutor's request for the TSOs if it believed that the State Prosecutor's Office was acting outside its jurisdiction. End Note) ENGLISH