by Nenad SAVIC
This lawsuit comes with several so-called "motions for disclosure of evidence and identity of witnesses," filed by Zepter's attorneys in several cities in the USA. These legal requests are related to activities of employees of the ICG and its collaborators, their mode of activity and other, for this case relevant information. They complement a similar previously initiated case filed with a lower court in Brussels. This multipronged approach is an attempt of Zepter's attorneys to reveal identity of almost all confidential sources of the ICG in Serbia and neighboring countries. The ICG has fiercely fought these motions, but the court in Brussels has already rejected their basic argument that publication of their "sources" would endanger lives of some of them.
The focus of the dispute are two ICG reports, dated March and July 2003, as well as an e-mail message sent by Dr. Lyon on June 10, 2003 to the then deputy prime minister of Serbia Zarko Korac. In reports "Serbia After Djindjic" and "Serbian Reform Stalls Again", analyzing the assassination of the Prime Minister, and the results of the police operation Sabre, respectively, the ICG (Lyon), described Zepter group as one of "front" companies used by the State Security Agency (BIA) and military Counter-Intelligence Service (KOS) for money laundering and arms trade. Philip Zepter was described as a "member of the new Serb oligarchy", which earned privileged status under Milosevic's rule through informally established monopolies and access to funds from the national bank. In return they financed the regime and its "parallel structures". The message containing the analysis by "an unidentified author", which Dr. Lyon sent to Zarko Korac after the dismissal of Mladen Dinkic from the post of the governor of the National Bank of Serbia, among other asserts that members of that oligarchy had enormous influence on the late prime minister through their men in his cabinet: Philip Zepter (Zoran Janjusevic), Stanko Subotic (Beba Popvic), and Milorad Miskovic (Nemanja Kolesar). The same analysis mentions Al Qaida as one of buyers of Zepter's weaponry.
The source of Lyon's claims about the Zepter Group is the infamous report about its activities by the Anti Fraud Department (AFD) of the Office of the High Representative (OHR) for Bosnia-Hercegovina, whose parts have already been reprinted by several tabloids in Serbia. The issue of origin and authenticity of this document is still unclear, two years after it was leaked to the media, and will to the large extent influence the future developments in the trial and its ultimate outcome. The defense of the ICG and Dr. Lyon, besides numerous objections regarding jurisdiction and various attempts to obstruct and slow down the trial, is essentially based on the "privilege of fair reporting and commentary, as well as on the principle of neutral reporting," customary means for defense of media in defamation and protection of "free speech" cases. These legal constructs protect statements and their authors from responsibility for defamation provided they are "an accurate reproduction of an official state act or action". According to the American law, the privilege applies only if "paraphrasing or quoting of official government documents is clearly attributed or can be discerned from the overall context of the report". Consequently, if it could be proven that the AFD report is an authentic OHR document, Dr. Lyon and ICG defense would be considerably strengthened, as Lyon has quoted AFD's report as the source of his assertions.
"However," as Peter Sheridan, one of Zepter's attorneys explains, "ICG and their researchers are not journalists and therefore do not have the right to that type of protection". Sheridan adds that the fair reporting privilege does not imply that the author is free to blindly rely and repeat assertions from some official document if these assertions are of doubtful accuracy. "The claims made in the AFD document were obviously very questionable as the document was on every page marked as ‘for strictly research purposes, not for any legal use'". Next, Sheridan mentions that the AFD document clearly stresses that for most assertions made in the document there is neither evidence of any kind, nor confirmation from several sources, "which literally means that accusations made in the document are based on nonsensical rumors". "Dr. Lyon did not mention that fact anywhere in his reports, he never attempted to check the accuracy of these accusations, he never contacted Mr. Zepter and allowed him to comment on them, all of which would be hallmark of normal journalistic conduct".
Sheridan also points out several details that seriously bring into question the authenticity of the AFD report. According to Sheridan, "one of documents on which AFD relied in the writing of their report about Zepter group is a letter of certain Charles Briefel, director of human rights department in OSCE, who allegedly wrote a letter to the Republic of Srpska government, in which he pointed out criminal activities of Mr. Zepter". However, in the meantime Briefel, as NIN was able to confirm, denied writing the said letter, claiming that he "did not recall ever dealing with such issues and sending such a letter". The German embassy in Sarajevo, described in the AFD report as the initiator of the investigations about Zepter Group activities, also strongly denied any involvement in such an investigation.
NIN has attempted to obtain from the OHR information about the origin and authenticity of the AFD report, as well as a confirmation that such a department exists. However, OHR spokesperson Oleg Milisic, after consulting legal advisors was only prepared to repeat that "it is not OHR practice to comment on documents ascribed without confirmation to the OHR, nor to answer questions related to such issues, and reported by the media".
This, somewhat confused explanation reflects obvious nervousness within the OHR whose "sitting on the fence" in this dispute is difficult to explain. OHR officials in the past gave contradictory statements on the same topic. Thus, for example, in June 2003, the then spokesperson Vedran Perisic made a similar statement for BETA news agency, but also added that "if you check the official OHR web site, you will not see any mention of the Anti-Fraud Department". However, as NIN was able to confirm, the OHR web site still includes a clear explanation of the activities of the AFD within the OHR. Anthony Sarkis, OHR legal advisor, responding to a similar question by Zepter's attorneys, repeated the "no comment" official line but also added that "the OHR was in not was a party in the preparation and publication of media reports about that Zepter-AFD topic".
Peter Sheridan, however, is convinced that certain Mr. Rauch and his wife could reveal important information regarding when and how the AFD report about the Zepter Group was created and how Dr. Lyon obtained its copy. The Rauches, currently living in Cleveland, worked for the OHR in Bosnia in 2002. Sheridan believes that "at the time of preparation of the AFD report, Mr. Rauch was a high official of that department (if it exists) and he participated in the writing of the Zepter Group report". "Consequently, recently, in Cleveland, we filed a law suit with the goal of obtaining relevant information," Sheridan adds.
Besides the Rauches, Zepter's lawyers have submitted identical lawsuits in New York and Washington against the Open Society Institute, George Soros' organization, and Carnegie endowment. Sheridan explains that in their investigation "OSI and similar organizations, that is their employees, appear in the role of a sort of logistic support to the ICG, which supports their goals in several ways". Sheridan also adds that the OSI and the Carnegie Endowment, unlike the ICG, immediately submitted the relevant documentation, which was useful for further investigation.
These "motions to reveal sources" are very interesting because of a part of the lawsuit that has to do with unknown individuals. Sheridan claims that "after our investigations some persons whom we believe were aware of Dr. Lyon's and ICG activities against our client but failed to do anything to prevent their defamation will be added to the lawsuit". Documents submitted by Zepter's lawyers to the court, clearly reveal their belief that all significant donors of the ICG were aware of ICG and Lyon's activities through private seminars and briefings, which is their customary practice. The list of "significant" donors of the ICG is very impressive and includes some extremely powerful individuals from the USA.
Nevertheless, the key for success of the lawsuit is evidence proving their theory regarding Dr. Lyon's and ICG motivation to discredit Philip Zepter and the Zepter Group. According to Zepter's lawyers, during his stay in the Balkans, in Bosnia between 1995 and 1999 and later in Serbia, as a consultant for several western companies, Dr. Lyon befriended and entered business deals with individuals who are in direct competition with business interests of the Zepter Group. Consequently, he is trying to assist them through his work for the ICG by discrediting Philip Zepter and the Zepter Group. Peter Sheridan, unfortunately, was unable to reveal identity of these individuals, "as that would clearly indicate the direction of our investigation and give an opportunity to the ICG to keep blocking our efforts," but he claims that during the trial he will offer several witnesses and a lot of evidence proving this theory.
Nevertheless, mentioning this topic, in the lawsuit against Lyon and the ICG, Zepter's attorneys quoted the article "Mister percent" published in July 2003 by Nedeljni Telegraf. The article, among numerous "business" activities of Dr. Lyon, mentions his alleged mediation in business deals with the Army of Yugoslavia, in a sale attempt of TV Pink, as well as profitable deals with cigarettes and oil in Bosnia-Hercegovina. Certain Jasenko Lolic is mentioned as one of his alleged partners in these deals in Bosnia-Hercegovina. NIN has managed to contact Jelenko Lolic, a well-known businessman from Banja Luka, who confirmed friendly relations with James Lyon. Lolic, who has made his fortune "trading with cigarettes, sweets and many other goods," strongly denied any joint business ventures with Dr. Lyon. Lolic also stated that "Milenko Vracar, former minister of finances in the government of the Republic of Srpska, formerly a director of the Zepter Bank, is behind this." The two of them clashed in the cabinet of Prime Minister Ivanic regarding import of cigarettes to Bosnia-Hercegovina. Lolic denies that he could in any way compete with Zepter, although he is also involved in banking (Nova Banka) and believes that Vracar used Zepter's problems with the ICG to indirectly attack Lyon. Dr. Lyon, including everyone else in the ICG, could not comment for this article as they "have been strictly instructed by the lawyers not to say anything regarding this topic".