1. 1 Wednesday, 2nd December, 1998

    2 (Open session)

    3 --- Upon commencing at 10.05 a.m.

    4 (The accused entered court)

    5 JUDGE RODRIGUES: Good morning, ladies and

    6 gentlemen. We are here to deal with a matter which has

    7 to do with case number, Mr. Registrar ...

    8 THE REGISTRAR: Case number IT-95-14/1-T, the

    9 Prosecutor versus Zlatko Aleksovski.

    10 JUDGE RODRIGUES: Thank you. Can we have the

    11 appearances for the Prosecution first? Mr. Niemann?

    12 MR. NIEMANN: Good morning, Your Honours. My

    13 name is Niemann, and I appear with my colleague,

    14 Mr. Meddegoda, and Ms. Erasmus is the case manager for

    15 the Prosecution, Your Honours.

    16 JUDGE RODRIGUES: Thank you very much,

    17 Mr. Niemann. Mr. Mikulicic for the Defence.

    18 MR. MIKULICIC: Good morning, Your Honours.

    19 My name is Goran Mikulicic, and I represent Mr. Zlatko

    20 Aleksovski as Defence counsel.

    21 JUDGE RODRIGUES: We have here also a

    22 representative of the Croatian Embassy. Can you

    23 introduce yourself, please?

    24 MR. MILJENIC: My name is Orsat Miljenic. I

    25 am First Secretary of the Croatian Embassy in The

  2. 1 Hague, and I am here, as you wished.

    2 JUDGE RODRIGUES: Yes. Thank you for

    3 coming. The Chamber wanted to have this hearing

    4 because it was notified of a motion for the provisional

    5 release of Mr. Aleksovski once and now a second time,

    6 and the Chamber felt that we needed to discuss this

    7 matter in public. Therefore, I think the best way of

    8 proceeding would be to give the floor to Mr. Mikulicic,

    9 that is, the Defence; after that, to Mr. Niemann on

    10 behalf of the Prosecution; and also, we can give the

    11 floor to the representative of Croatia regarding

    12 guarantees of cooperation in addressing this issue.

    13 So let us begin with Mr. Mikulicic, please.

    14 MR. MIKULICIC: Good morning once more, Your

    15 Honours, and my learned friends from the Prosecution.

    16 As Your Honours are aware, the trial of my

    17 client, Mr. Zlatko Aleksovski, started before this

    18 Honourable Tribunal in January this year.

    19 Mr. Aleksovski was delivered to the appropriate bodies

    20 of the Tribunal last year, at the end of April. Before

    21 that, the Republic of Croatia or, rather, the Ministry

    22 of the Interior, acting upon instructions from the

    23 Tribunal, arrested Mr. Zlatko Aleksovski on the

    24 territory of the Republic of Croatia, and then the

    25 actual process of delivery to the Tribunal took place.

  3. 1 Allow me to remind you of some facts related

    2 to these previous proceedings.

    3 When this International Tribunal was formed,

    4 the Republic of Croatia adopted a law whereby it

    5 established the basic principles for its cooperation

    6 with this Tribunal. It is a constitutional law; in

    7 other words, a law which, according to the national

    8 legislation of any country, plays a significant part in

    9 the overall structure of laws. This law obliges the

    10 Republic of Croatia to cooperate in every respect with

    11 the International Criminal Tribunal and to act

    12 according to the requests of this Tribunal as required

    13 by the bodies of the Tribunal.

    14 I don't know whether it is necessary to refer

    15 to the fact that the law on cooperation with the

    16 International Tribunal was adopted throughout the world

    17 but in a limited number of countries, so that these

    18 laws are rather the exception than the rule in the

    19 International Community of sovereign states. I wish

    20 thereby to underline the fact that from the very first

    21 moment that the Tribunal was formed, the Republic of

    22 Croatia manifested good faith to cooperate with the

    23 Tribunal.

    24 So in accordance and pursuant to the

    25 constitutional law on cooperation with The Hague

  4. 1 Tribunal, Mr. Aleksovski was arrested on the 8th of

    2 June, 1996, and he has been in detention since then.

    3 Partly he was in the custody of the Republic of Croatia

    4 and, as of the 28th of April, 1997, he has been held in

    5 the United Nations' detention unit in The Hague.

    6 While he was in custody in the Republic of

    7 Croatia, in accordance with the law I have referred to,

    8 the procedure of giving over the accused to the

    9 International Tribunal was carried out in the District

    10 Court in Split as that was the competent court for the

    11 area in which Mr. Aleksovski was arrested. Due to

    12 reasons of health, in the course of those proceedings,

    13 Mr. Aleksovski was transferred to a specialised prison

    14 hospital in the capital of the Republic of Croatia, in

    15 Zagreb. It is the only hospital of its kind in Croatia

    16 which specialises in medical treatment of detained

    17 persons and persons serving a prison sentence. That

    18 hospital, of course, does not have any pretensions of

    19 being a high quality clinic, so that many tests and

    20 checkups have to be done in civilian hospitals under

    21 escort of prison authorities.

    22 Precisely due to these health difficulties,

    23 the Minister of Justice of the Republic of Croatia, by

    24 his decision, postponed the handover of Zlatko

    25 Aleksovski to this Tribunal because, in accordance with

  5. 1 the laws of the Republic of Croatia, it is stipulated

    2 that if a person is suffering from any medical

    3 problems, he has to be treated first before being given

    4 over to the custody of the Tribunal. After the

    5 Defendant's health was more or less stabilised, he was

    6 handed over to the Tribunal, as I said, on the 28th of

    7 April, 1997.

    8 I am saying all this because I wish to

    9 emphasise two very important circumstances: One is

    10 that from the very first, the Republic of Croatia

    11 demonstrated absolute readiness to cooperate with the

    12 Tribunal and, secondly, that my Defendant, Mr. Zlatko

    13 Aleksovski, has certain chronic ailments about which I,

    14 as a layman, cannot say much, except by referring to

    15 the medical documentation which exists ever since the

    16 time he was held in the prison hospital in Croatia and

    17 also in the detention unit of the United Nations here

    18 in The Hague.

    19 Precisely because of his health, Your

    20 Honours, you allowed our hearings to take place during

    21 half a day only so that Mr. Aleksovski would be able to

    22 follow those proceedings. I should like to remind you

    23 of a rather unpleasant incident when Mr. Aleksovski

    24 fainted during a sitting due to the fact that

    25 physically he is unable to be immobile for long periods

  6. 1 of time because of those ailments that I have referred

    2 to.

    3 This trial has entered its final stages.

    4 Both the Prosecution and the Defence have filed their

    5 closing statements, and it was normal to expect those

    6 final statements to be made orally, but due to various

    7 circumstances that you are familiar with, which I would

    8 not like to go into so as not to waste time, there has

    9 been a stay in the proceedings awaiting the position

    10 and ruling of the Appeals Chamber. In view of such a

    11 situation, it is not quite clear when the proceedings

    12 may be resumed, so allow me to recall the Status

    13 Conference held on the 17th of November this year when,

    14 considering the possibility of the resumption of

    15 proceedings, you realistically assessed that this may

    16 not occur before May or June next year, that is, that

    17 the trial may not be completed before then. The

    18 Defence wishes to say, by making these references, that

    19 the proceedings have been extended far beyond the date

    20 we had expected.

    21 In view of such a situation, referring to

    22 Rule 65 of the Rules of Procedure and Evidence of this

    23 Tribunal, the Defence has submitted a motion for the

    24 provisional release of Mr. Aleksovski.

    25 It is our view that this Defence motion is

  7. 1 founded on circumstances envisaged by Rule 65 itself

    2 and also it is based on certain precedents within this

    3 Tribunal. Allow me to recall some of the circumstances

    4 which the Defence considers to be important when a

    5 determination is made about this request.

    6 The Defence fully understands, in view of the

    7 significance and the seriousness of the offences that

    8 are being tried before this Chamber, that detention is

    9 the rule and provisional release the exception.

    10 However, it is in this particular case the Defence

    11 feels that this exceptional possibility of the

    12 Defendant being able to defend himself in freedom can

    13 apply. In view of the existence of exceptional

    14 circumstances that are required for provisional release

    15 of the accused, the Defence feels that such exceptional

    16 circumstances are in place. They are reflected in the

    17 fact that the Defendant has been in detention for more

    18 than two and a half years, and the Defence feels the

    19 duration of this detention is in itself an exceptional

    20 circumstance because modern European laws, in

    21 accordance with the European Commission for Human

    22 Rights, are prone to reducing that detention as much as

    23 possible in such proceedings.

    24 Allow me to tell you, Your Honours, how the

    25 Croatian law regulates this.

  8. 1 The Croatian Penal Code does envisage

    2 detention of the accused on the basis of the view that

    3 detention is a measure to ensure the accused's presence

    4 in the proceedings. Detention is not a punitive

    5 measure; it is one of the measures which a criminal

    6 court pronounces in relation to the accused in order to

    7 ensure his presence at trial and also in order to

    8 prevent any future commission of criminal offences.

    9 These are circumstances which are decisive when a

    10 ruling is made on detention according to the laws of

    11 the Republic of Croatia, which means that detention, as

    12 a rule, is envisaged for those perpetrators of criminal

    13 offences who do not have a regular place of residence

    14 so it is not quite certain that court summons will

    15 reach them, and for those accused for whom it has been

    16 established that they have a tendency towards criminal

    17 acts so that if they were allowed to live at liberty,

    18 they may repeat such offences. So it is a measure of

    19 society to prevent such offences.

    20 Even under those circumstances, detention in

    21 the investigating stage of the proceedings may not last

    22 longer than six months. If, upon the expiry of six

    23 months, the procedure has not been completed, the

    24 accused must be released, regardless of the existence

    25 of all these circumstances I have described.

  9. 1 So that would be, very briefly, the way in

    2 which Croatian laws deal with detention.

    3 In this specific case, the detention period,

    4 counting the time spent in the Republic of Croatia and

    5 the time in the U.N. detention centre here, has been

    6 going on for more than two and a half years. So it is

    7 far beyond any time limits which are considered, in

    8 modern legal theory, appropriate for pre-trial

    9 detention.

    10 The condition of the health of my Defendant,

    11 Mr. Zlatko Aleksovski, is of such a nature that for him

    12 to be able to function normally, it is absolutely

    13 essential that he should have freedom of movement and

    14 that he should be able, on a daily basis and

    15 particularly when his condition deteriorates, to be

    16 under the supervision and control of a physician or a

    17 physiotherapist.

    18 It is quite obvious that the conditions under

    19 which he has been living over the past two and a half

    20 years do not definitely give him the opportunity, not

    21 to improve his condition but even to maintain it at a

    22 satisfactory level from a medical standpoint. In spite

    23 of the fact that the Kingdom of the Netherlands is

    24 providing a very high standard of medical care, it is a

    25 fact that that medical care, under conditions of

  10. 1 detention in the U.N. unit, is not applied to the

    2 extent to which in this case it would be necessary.

    3 That is the reason why the condition of Mr. Aleksovski

    4 is unstable. He suffers from vertigo, pains in the

    5 lumbar and cervical areas of the vertebral column,

    6 troubles and difficulties which require exercises; his

    7 ability to concentrate, to sleep at night, has been

    8 impaired because due to these disorders, he suffers

    9 from insomnia and has to take certain sedatives, and we

    10 all know that such sedatives do not really treat the

    11 cause of the disease but only partially treat the

    12 consequences.

    13 Years are passing, Mr. Aleksovski is getting

    14 older, and, of course, these ailments are worsening.

    15 However, the Defence firmly believes that under

    16 different conditions, if Mr. Aleksovski could be

    17 treated daily, and this treatment would consist of

    18 exercises and physiotherapy and freedom of movement in

    19 open space rather than within a limited area, would

    20 significantly improve his condition. So we are

    21 underlining these circumstances which we consider to be

    22 exceptional.

    23 Similarly, it is the view of the Defence that

    24 there is absolutely no risk that the provisional

    25 release of the accused would in any way jeopardise or

  11. 1 impair the regular operation of this Tribunal. The

    2 Defence wishes to assure Your Honours that there is no

    3 reason at all to fear that my defendant,

    4 Mr. Aleksovski, would not respond to a court summons

    5 and appear in this courtroom or any other courtroom in

    6 which the Trial Chamber is sitting.

    7 Mr. Aleksovski is a family man who has

    8 unfortunately been separated from his family for quite

    9 some time. Like his family, he has permanent residence

    10 in the Republic of Croatia so that his release would

    11 mean that he would reside where he has permanent

    12 residence and, of course, would be prepared to a

    13 restriction of his freedom of movement.

    14 The Defence proposes that such freedom of

    15 movement could be limited by applying domestic Croatian

    16 law, and that law envisages the possibility that the

    17 competent state body, in this case, the Ministry of the

    18 Interior or the Ministry of Justice, temporarily

    19 deprive the person for whom such a measure is envisaged

    20 of his passport, thereby preventing him from leaving

    21 his place of residence in his domicile state.

    22 Another measure that is envisaged is stricter

    23 police supervision in the sense that police supervision

    24 can be provided on a 24-hour basis so that the accused

    25 could not leave his residence without reporting to the

  12. 1 police.

    2 Something else I wish to underline is that

    3 the penal legislation of the Republic of Croatia has

    4 built-in provisions which fully comply with the high

    5 standards of this Tribunal with respect to the

    6 application of those provisions, whereby the accused

    7 can be under the obligation to respond to a summons

    8 from this Court at all times, so I think that the

    9 readiness of the Republic of Croatia to apply these

    10 measures should not be doubted at all. That readiness

    11 has been demonstrated repeatedly, and in this

    12 particular case, the readiness of the Republic of

    13 Croatia is confirmed by the very arrest of

    14 Mr. Aleksovski and the proceedings undertaken to

    15 transfer him into the custody of this Tribunal.

    16 The Defence wishes to underline the fact that

    17 measures to ensure the presence of Mr. Aleksovski at

    18 trial which are being applied, in this case, detention

    19 is not absolutely necessary in this case. It would be

    20 sufficient to apply the other measures that are at the

    21 disposal of the law, those that I have referred to, and

    22 that is, limited movement within the place of residence

    23 by temporary confiscation of the accused's passport.

    24 The passport would be deposited with the competent

    25 body, and police control would be provided on a 24-hour

  13. 1 basis.

    2 The next requirement envisaged for the

    3 provisional release of the accused is a provision

    4 envisaged in the national law of the Republic of

    5 Croatia, and that is that the accused will not

    6 represent any threat to the victims, witnesses, or any

    7 other persons he may come into contact with. As I

    8 mentioned a moment ago, the point is to prevent the

    9 possibility of an accused being at liberty repeating an

    10 offence or constituting a threat. That simply is not

    11 possible in this case.

    12 Mr. Aleksovski is charged with criminal

    13 offences committed in the municipality of Busovaca in

    14 the Republic of Bosnia and Herzegovina, and in the

    15 course of these proceedings, Your Honours, you have had

    16 occasion to hear and see witnesses from the area, and

    17 you, yourself, have seen that all these people are

    18 continuing to live in the territory of

    19 Bosnia-Herzegovina, therefore, in another state in

    20 relation to the state in which Mr. Aleksovski is

    21 domiciled.

    22 Therefore, there is simply no opportunity for

    23 him to come into contact with those people because, as

    24 I have just said, his movement, by deposition of his

    25 passport and by police supervision, would be limited.

  14. 1 Therefore, there would be no physical possibility of

    2 Mr. Aleksovski getting into touch with those people or

    3 of him constituting any kind of threat to any

    4 witnesses, victims, or any third parties involved in

    5 these proceedings. Such a possibility is ruled out for

    6 the simple reason that those persons that

    7 Mr. Aleksovski could possibly influence are living in

    8 the territory of another state to which Mr. Aleksovski

    9 would not be able to travel because of the measures I

    10 have referred to.

    11 Regarding the last precondition, and that is

    12 the host country's opinion on this case, I have seen,

    13 Your Honours, that you have requested from the

    14 authorised bodies of the Dutch authorities their

    15 opinion on this, but I would like to remind you of the

    16 already expressed position of the Dutch authorities

    17 when they stated in brief that they will not go into

    18 court decisions, and if any of the detainees happen to

    19 be released, then the Dutch authorities would act

    20 within their national laws which say that a person who

    21 happened to be on Dutch territory, if they did not have

    22 a permit for residence on the territory of the Kingdom

    23 of the Netherlands, would simply be sent to the country

    24 from which they had been brought into the Netherlands,

    25 meaning that with the release of Mr. Aleksovski, the

  15. 1 Dutch authorities would simply act in accordance with

    2 their regulations, and Mr. Aleksovski would be returned

    3 to the Republic of Croatia where he was originally

    4 brought from, in view of the fact that Mr. Aleksovski

    5 does not have a residence permit in the territory of

    6 the Kingdom of the Netherlands. So all of these

    7 circumstances, in the view of the Defence, point to the

    8 fact that really there is a possibility to apply Rule

    9 65(B) on the provisional release of the accused.

    10 I would also like to ask you to take into

    11 account, without pretensions to prejudice any facts

    12 which have been presented in the proceedings, to take

    13 into account circumstances indicating any doubts that

    14 Mr. Aleksovski had committed the crimes that he is

    15 accused of. My learned colleague, the Prosecutor,

    16 obviously has a different view from the Defence, but

    17 the Defence feels that the evidence proceedings have

    18 confirmed what Mr. Aleksovski himself had stated in his

    19 first appearance before this Tribunal when he stated

    20 that he did not consider himself to be guilty on any of

    21 the counts from the indictment.

    22 The Defence sincerely feels that the

    23 proceedings did not confirm the counts of the

    24 indictment, and thus the Defence said, in its written

    25 statement, that it would like to have an acquittal

  16. 1 regarding Mr. Aleksovski.

    2 The Defence also considers that there are

    3 realistic circumstances in this case to waive the

    4 compulsory detention with the provisional release of

    5 the accused because the conditions have been met for

    6 making such a decision, and it is quite certain that

    7 Mr. Aleksovski will respond to any court summons. It

    8 is quite certain that the Republic of Croatia will

    9 undertake all legal measures in order to support this

    10 appearance with its internal legislature, and, of

    11 course, there are the circumstances that I talked

    12 about.

    13 The Defence proposes to Your Honours to

    14 consider these exceptional circumstances and proposes

    15 that it decides on the provisional release of the

    16 accused.

    17 JUDGE RODRIGUES: Thank you, Mr. Mikulicic.

    18 Mr. Niemann, I think that before giving you

    19 the floor, it might be better to hear the

    20 representative of the Embassy of Croatia. In that

    21 case, we will have the complete position of the

    22 Defence.

    23 I don't know whether I pronounced your name

    24 correctly, Mr. Miljenic. As you have heard,

    25 Mr. Mikulicic has presented a series of arguments

  17. 1 regarding the cooperation of the Republic of Croatia

    2 with the Tribunal so that the Chamber can be sure that

    3 should Mr. Aleksovski be provisionally released, he

    4 would certainly appear to be tried in this Tribunal.

    5 Could you give us the views of the Republic

    6 of Croatia regarding the guarantees that the Chamber

    7 could have if it were to make such a ruling regarding

    8 such a future appearance of the accused?

    9 MR. MILJENIC: Thank you, Mr. President.

    10 With your leave, I would like to continue in the

    11 Croatian language.

    12 JUDGE RODRIGUES: We have highly competent

    13 interpreters, so please continue in your own language.

    14 MR. MILJENIC: In brief, I have been

    15 authorised to state that the Republic of Croatia, in

    16 the case that Mr. Aleksovski is provisionally released

    17 to the territory of the Republic of Croatia of which he

    18 is a citizen and is a permanent resident there, will

    19 take all legal measures in accordance with its internal

    20 laws, especially in accordance with the constitutional

    21 law on cooperation with the Tribunal that

    22 Mr. Aleksovski performs all the orders of the Court and

    23 that he appears before this Tribunal in case he is

    24 summoned.

    25 Also, I would like to stress that

  18. 1 Mr. Aleksovski is one of the examples that the Republic

    2 of Croatia has met and will continue to meet the

    3 requests of the Tribunal when it arrested him and

    4 handed him over to the Tribunal.

    5 That is all. Thank you.

    6 JUDGE RODRIGUES: Thank you. Thank you very

    7 much, Mr. Miljenic. For the moment, we have no

    8 questions for you, and we can continue our discussion,

    9 so please be seated.

    10 Mr. Niemann, it is your turn now to give us

    11 the views of the Office of the Prosecutor.

    12 MR. NIEMANN: If Your Honours please: Your

    13 Honours, the position of the Office of the Prosecutor

    14 is that we are opposed to the motion by the Defence,

    15 and we have provided Your Honours with a written

    16 response to the Defence motion. What I now have to say

    17 will, in large part, be supplemental to that and also

    18 address some of the issues raised by my colleague,

    19 Mr. Mikulicic.

    20 Your Honours, the import of Rule 65(B) is

    21 that release may be ordered by the Trial Chamber only

    22 in exceptional circumstances, after hearing the host

    23 country, and only if satisfied that the accused will

    24 appear for trial, and, finally, if released, that he

    25 will not pose any threats to victims, witnesses, or

  19. 1 persons.

    2 The appearance for trial, Your Honours, is

    3 perhaps difficult to understand in the circumstances of

    4 this application as the trial has, in large part, been

    5 concluded, but clearly the issue is whether he will be

    6 here for the rest of the proceedings should he be

    7 released.

    8 It's upon the accused, Your Honours, to

    9 establish that the circumstances are exceptional. In

    10 fact, it is an obligation upon them to convince you

    11 that he will appear for trial, that he will not pose

    12 any danger to victims and witnesses, and, finally, that

    13 the host country has been heard. The criteria are

    14 conjunctive, so if the accused fails to meet any one of

    15 these criteria, then his application must, accordingly,

    16 fail.

    17 Your Honours, having regard to the

    18 seriousness of the offence, the Rules envisage that

    19 pre-trial detention will be the rule rather than the

    20 exception, and it is only in rare cases - rare cases -

    21 where provisional release will be granted.

    22 Your Honours, this is not a situation which

    23 you have in a domestic jurisdiction where this Court

    24 has the power to make an order to the police force of a

    25 nation state to keep a person under surveillance, which

  20. 1 you can do in a national setting. This is not a

    2 situation where the place where the person will reside

    3 has the same interest in the Prosecution, as would be

    4 in a national setting. In a national setting, the

    5 state has an interest in the criminal proceedings going

    6 forward and that those criminal proceedings will not be

    7 interrupted or frustrated or prevented by the escape or

    8 absence of the accused person. So the state itself in

    9 a national setting has a vested interest in making sure

    10 that that person will attend.

    11 When it comes to the deployment of police

    12 resources and the taking of measures necessary to

    13 secure the attendance of accused persons, in a national

    14 setting, the state not only has an interest in making

    15 sure that he does attend, but they can deploy their

    16 resources and will deploy their resources to see that

    17 that happens. That's not the case here.

    18 Your Honours have no direct authority to

    19 order that borders be checked so that accused persons

    20 cannot escape from one jurisdiction to another, so

    21 again not like a national setting where airports can be

    22 given orders to ensure that persons fitting certain

    23 descriptions don't leave or that border points be

    24 provided with information. Your Honours are not in

    25 that position where you can directly order that.

  21. 1 In a national setting, there are various

    2 measures that can be put in place to keep the Court

    3 alert to the continued presence of the accused when

    4 released on bail, and that includes such things as

    5 having the accused report regularly to the Court once a

    6 week, if necessary, or to an official who is under the

    7 direction and control of the Court to ensure that the

    8 person is still in the jurisdiction. None of that is

    9 available to Your Honours directly, and, Your Honours,

    10 we have here, as I've mentioned, no situation where

    11 there's a presumption of granting bail.

    12 Your Honours, the states involved in the

    13 former Yugoslavia where the accused is capable of

    14 ending up, some have no interest in this matter, and

    15 others are even against the work of the Tribunal. We

    16 have no resources to deploy to ensure that he attends

    17 for trial. We have no control, as I have said, over

    18 borders or over his travel, and we can't do anything to

    19 ensure that we check on a regular basis to ensure that

    20 he is present within the jurisdiction.

    21 This accused did not voluntarily surrender,

    22 and the period of time that he spent in The Hague

    23 pending trial was not excessive, having regard to the

    24 work of the Tribunal and to the complexity of these

    25 proceedings.

  22. 1 Mr. Mikulicic has gone over the grounds of

    2 the Defence in making their motion, and, in summary, I

    3 wish to address them as well myself. The first point

    4 that he raises, though, relates to no reasonable

    5 suspicion that he has committed the crime, and he has

    6 said that as part of his motion to be filed before Your

    7 Honours. Reasonable suspicion was considered to be a

    8 relevant consideration by the Trial Chamber when it

    9 dealt with an application for provisional release of an

    10 accused person by the name Delalic in the Celebici

    11 case, and this was a decision where the Trial Chamber

    12 said that the test settled upon was that to have a

    13 reasonable suspicion, there must exist facts or

    14 information which would satisfy an objective bystander

    15 that the accused may have committed the crime.

    16 I address this point because it has been

    17 specifically raised by Mr. Mikulicic in his motion, and

    18 he said that the situation exists here that there is no

    19 reasonable suspicion that this accused has committed

    20 the crime.

    21 Your Honours, in our submission, it is odd to

    22 speak of reasonable suspicion at this stage of the

    23 proceedings. Normally, this term is used, this

    24 "reasonable suspicion," at a much earlier stage of the

    25 proceedings. For example, persons are initially

  23. 1 interviewed on a reasonable suspicion. Persons are

    2 searched on a reasonable suspicion. They are indicted

    3 on a reasonable suspicion. They are arraigned on a

    4 reasonable suspicion. But they certainly are not

    5 convicted on a reasonable suspicion. A suspicion,

    6 therefore, is well down the chain of proof.

    7 As the case proceeds, the suspicion should

    8 move from being a mere suspicion to a prima facie

    9 case. In the Tribunal, the prima facie case stage is

    10 at the end of the Prosecution case, a point we are well

    11 past now; and unlike suspicion, a prima facie case has

    12 to be based on evidence, and, Your Honours, it is not

    13 necessary for there to be a formal motion that no prima

    14 facie case has been established for this to be a

    15 relevant consideration in the proceedings.

    16 If, at the end of the Prosecution case, it is

    17 clear that there has been no prima facie case

    18 established, then it is for the Prosecution, firstly,

    19 to move to have the counts dismissed. This, in fact,

    20 happened in two trials that have proceeded in this

    21 Tribunal, the Celebici trial and the Tadic trial. If

    22 the Prosecution doesn't do it and the Court is mindful

    23 of the fact that there is no prima facie case, it is

    24 then for the Tribunal itself, the Trial Chamber itself,

    25 to dismiss the counts.

  24. 1 Your Honours, if the Prosecution took no

    2 action in this case, Your Honours, in our respectful

    3 submission, would not have allowed the case to proceed

    4 on any counts beyond the Prosecution case if you had

    5 come to a firm conclusion that a prima facie case

    6 hasn't been established.

    7 So, Your Honours, we submit that this case

    8 has moved not only beyond reasonable suspicion, it has

    9 moved to the point of prima facie case. In our

    10 submission, we are at the point of determining whether

    11 or not we have proof beyond a reasonable doubt, and the

    12 Prosecution would assert that that is the point that we

    13 are at and that that has been, in any event,

    14 established by the evidence.

    15 Your Honours, in our submission, it is

    16 inappropriate to raise reasonable suspicion at this

    17 level. It is something that has been determined. It

    18 was determined when the indictment was submitted by the

    19 Prosecutor, it was determined by the confirming Judge,

    20 it was determined by Your Honours when you first

    21 considered the application for provisional release

    22 filed by Mr. Aleksovski in January of this year. It is

    23 a matter that was considered by the Prosecution at the

    24 end of the presentation of its case and, Your Honours,

    25 in our submission, it is not a matter to be raised now

  25. 1 as we are past that point.

    2 So in respect of that, it is our submission

    3 that the Defence assertion that there is no reasonable

    4 suspicion has long past.

    5 Turning now to the length of the detention.

    6 Your Honours, when considering the time spent

    7 in custody for the purposes of this particular

    8 application, it is our submission that the ten months

    9 that Mr. Aleksovski spent in Croatia should not be

    10 taken into account. Clearly, Your Honours, if he had

    11 come here earlier, the issue of when his trial would

    12 have been commenced would have been dealt with much

    13 earlier and the case would have clearly been probably

    14 over by now without any question. So that first ten

    15 months is not a matter that we submit should be taken

    16 into account in determining what is an exceptional

    17 circumstance.

    18 Your Honours, the period of time that he

    19 spent pre-trial in The Hague, from when he first

    20 arrived in The Hague in April of 1997 to January of

    21 1998, when this trial started, we submit shouldn't be

    22 taken into account either, and the reason we say that

    23 is because he has already brought an application before

    24 you requesting provisional release, and Your Honours

    25 have already dealt with that, dealing with the

  26. 1 pre-trial period.

    2 The period of time that it has taken for his

    3 trial, in our submission, is not a matter that should

    4 be considered in the process of exceptional

    5 circumstances. In our submission, Your Honours, the

    6 trial must take its course; it took its course in a

    7 manner which was expeditious; there was no party to the

    8 proceedings that delayed it or in any way prevented it

    9 from going as expeditiously as it can. So it is not

    10 appropriate to say in those circumstances that these

    11 are exceptional circumstances.

    12 If a party to the proceedings could be

    13 singled out and be shown to have delayed the

    14 proceedings, then perhaps that may be an issue that

    15 could be considered by you. But the length of time

    16 that a trial takes is a matter in the hands of the

    17 Court, and this particular Trial Chamber has been most

    18 diligent in ensuring that the proceedings move along as

    19 quickly as possible, and it cannot be said that in any

    20 way has this been an exceptionally delayed trial, has

    21 the process been delayed an exception -- that the

    22 process of presenting the evidence before you, both by

    23 the Prosecution and Defence, takes time, but that is

    24 something which is an inevitable consequence of a

    25 trial. There is nothing exceptional about it at all.

  27. 1 If there is a large trial and there is lots of evidence

    2 on very complicated and difficult issues, this takes

    3 time, but it is not exceptional; it is merely a

    4 characteristic of the trial, and it is not something

    5 that should be raised and presented to you as a basis

    6 of why the accused should be given provisional release.

    7 So the only matter that, in our submission,

    8 is relevant for your consideration is: Is there going

    9 to be a delay from now until the conclusion of the

    10 trial?

    11 Well, Your Honours, this would be a decision

    12 made based on speculation. We don't know whether there

    13 is going to be a delay. If there is a delay, again, it

    14 is a natural incidence or consequence of the trial. It

    15 is something that has occurred in the course of the

    16 trial. As Mr. Mikulicic hasn't canvassed these issues,

    17 I don't have to canvass them either, but we are in a

    18 position at the moment where it has been put to you

    19 that the trial is definitely going to conclude next

    20 June. Well, I don't know how that can be in any way

    21 determined, and if it is, and it is because there are

    22 difficulties associated with scheduling and so forth

    23 which would cause that to happen, then, in my

    24 submission, that is not an exceptional circumstance;

    25 that is a natural consequence of proceedings which

  28. 1 would occur in any jurisdiction where the state is not

    2 in a position to immediately make available courts and

    3 chambers and so forth to proceed with the trial as

    4 expeditiously as one might want. It is not an

    5 exceptional circumstance; it is a natural consequence.

    6 Now, in our submission, it is quite

    7 speculative to say that this case will go that long

    8 anyway. We could have a decision tomorrow from the

    9 Appeals Chamber, and it could be a decision which could

    10 go in any direction, but it could be a decision which

    11 could permit the trial to resume immediately, and so

    12 that the time lost would be a week or so. We don't

    13 know and we simply can't tell that that is going to

    14 happen. There is nothing certain about this at all.

    15 So this application that is made by the

    16 Defence, in our submission, Your Honour, is based on

    17 some speculative assumption of something that may or

    18 may not occur in the future, and it is not based in any

    19 respect on matters that have been dealt with in the

    20 past; they have been dealt with and they are not

    21 appropriately reconsidered at this stage, in our

    22 submission.

    23 What, Your Honours, needs to be considered is

    24 the consequences, the potential consequences, of

    25 granting this accused person provisional release at

  29. 1 this stage.

    2 Your Honours, the Prosecution has no doubt at

    3 all that, if the opportunity presents itself, this

    4 accused person will escape the jurisdiction of this

    5 Tribunal. The Prosecution has no doubt about that.

    6 Why does it have no doubt about it? Because this

    7 accused person has seen the full ambit of the

    8 Prosecution case against him, he has endeavoured to

    9 present his defence, and he knows the strength and the

    10 likelihood of his potential conviction. Of course,

    11 there is a possibility he may be acquitted, but if he

    12 has a choice, if the choice is, "Should I run the risk

    13 of being acquitted by going back to The Hague, or

    14 should I now take this opportunity to escape?" in our

    15 submission, he will take the latter, because it is a

    16 natural and normal thing to do in the circumstances.

    17 Why could he do it? Because, Your Honours,

    18 he is not under the direct control of the Tribunal.

    19 Once he leaves The Hague and once he goes back to

    20 Croatia, we are then dependant upon what happens in

    21 that jurisdiction.

    22 Your Honours, it has been said by

    23 Mr. Mikulicic and by the representative from the

    24 Croatian Embassy that there will be certain measures

    25 applied to ensure that Mr. Aleksovski returns to the

  30. 1 jurisdiction of the Tribunal. These measures are, it

    2 seems, apparently to be based on Croatian law. I am

    3 not sure that there exists in Croatia a special

    4 provision with respect to war crimes, persons charged

    5 with war crimes, but it may be that Mr. Mikulicic can

    6 assist us with that in terms of pre-trial detention.

    7 It may be that there is in existence a more rigid

    8 regime singled out for persons charged with those

    9 crimes. No doubt, if Mr. Mikulicic is aware of that,

    10 he may be able to assist us. Certainly I am no expert

    11 in that area.

    12 In any event, Your Honours, the Trial Chamber

    13 in the Blaskic case, when it came to consider a motion

    14 for provisional release, said that the interpretation

    15 of the principles applied by this Tribunal should not

    16 be influenced by the laws of national states in

    17 relation to provisional release, and the view taken by

    18 the Trial Chamber in that case was based on the fact

    19 that this Tribunal didn't have the resources or

    20 facilities at its disposal to enable it to directly

    21 enforce its orders.

    22 With respect to the enforcement of orders, if

    23 Your Honours were to impose certain orders, you would

    24 have to be, in our respectful submission, satisfied

    25 that they would be carried out. Now, it has been

  31. 1 suggested that Mr. Aleksovski was sent here by Croatia

    2 as a direct consequence of its desire to ensure that it

    3 was a good international citizen and it complied

    4 directly with the mandates and requirements of this

    5 Tribunal. I wonder, Your Honours, whether that is the

    6 case. Certainly from the perspective of the Office of

    7 the Prosecutor, it didn't seem to be the case because

    8 it was necessary for the Office of the Prosecutor to

    9 continually follow up with Croatia on securing

    10 Mr. Aleksovski's surrender to this Tribunal. I wonder,

    11 Your Honours, what information would become available

    12 to you if certain leading members of the International

    13 Community, who spoke to and dealt with Croatia on this

    14 issue, could be permitted to come forward and give

    15 details, if they would do that, of the efforts they put

    16 in to securing not only the surrender of Mr. Aleksovski

    17 but Mr. Blaskic and Mr. Kordic as well. And I am not

    18 sure, Your Honours, that if that material became

    19 available, that we would reach the same conclusion that

    20 there was prompt and willing action by Croatia in

    21 relation to having these accused persons surrendered

    22 and whether that willing cooperation would extend to

    23 other orders that may be issued in the brief that was

    24 filed by the Republic of Croatia in relation to the

    25 subpoena of duces tecum argument on the 18th of August,

  32. 1 1997. It is there clearly laid out for Your Honours.

    2 It is a public submission clearly laid out

    3 how it is asserted by Croatia, in no uncertain terms,

    4 that the Tribunal didn't have competence or

    5 jurisdiction over states and their officials and it

    6 cannot issue compulsory coercive orders to a state or

    7 its officials; that the Tribunal does not have the

    8 inherent power to order such compulsory coercive orders

    9 to states or their officials; the Tribunal does not

    10 have the express power to issue such compulsory

    11 coercive powers to states or their officials. The

    12 limits of the International Tribunal's legal authority

    13 and the recognised immunity of states and their

    14 officials under international law cannot be

    15 circumvented by addressing an order to an individual

    16 state official; that the Tribunal lacks competence to

    17 determine whether a state has violated its obligations

    18 and can neither enforce its orders against states or

    19 their officials nor sanction states or their officials

    20 for failing to comply with such orders. All such

    21 matters must be referred to the Security Council.

    22 What does that mean, Your Honours? That

    23 means that according to this very state where this

    24 person, it has been suggested, should be released

    25 provisionally, has maintained previously - and there is

  33. 1 no suggestion that it has changed its position, so far

    2 as I can see - that you don't have the power to make

    3 any orders binding on them in any event. So you can't

    4 tell Croatia to provide 24-hour police surveillance.

    5 They may or may not do it depending on whether they

    6 want to. But their attitude is: You can't do it. You

    7 can't tell Croatia to make sure that he doesn't escape

    8 and go into another jurisdiction, not according to what

    9 their previous position has been, at least, anyway.

    10 Perhaps there is an argument that you may be able to

    11 order his return to The Hague because, as they tell us,

    12 it is part of their constitutional law, but that may

    13 not even be enforced either if it is not what they want

    14 to do.

    15 But the biggest risk, Your Honours, is that

    16 he will leave Croatia and that he will go somewhere

    17 else. Now, what if he goes back, for example, to the

    18 Lasva Valley? He was there during the course of the

    19 war. What's going to happen then? We have no one that

    20 can go in and do anything about it, and we have no

    21 agreement with them to hand him over. So, Your

    22 Honours, he could be lost to the jurisdiction at this

    23 important stage of the proceedings, and that would

    24 indeed be an unfortunate consequence. The victims have

    25 come forward and witnesses have come forward and

  34. 1 testified under difficult and strenuous conditions.

    2 They have an expectation that these proceedings will

    3 come to a just conclusion, whatever way Your Honours

    4 may decide. These proceedings would be frustrated,

    5 they would come to an abrupt and immediate end if this

    6 accused didn't return. So, Your Honours, in our

    7 submission, if that happened, if that occurred, the

    8 very limited resources of the Tribunal, which will only

    9 have an opportunity to try the very tip of the iceberg

    10 of cases that could potentially be tried in Yugoslavia,

    11 would, in this case, have been a nullity; and the

    12 consequence of that, Your Honours, is that you would

    13 not have been able to contribute to that very important

    14 component of the mandate of this Tribunal; namely,

    15 contributing to the restoration of peace and security

    16 in the former Yugoslavia.

    17 If Your Honours would bear with me just a

    18 moment?

    19 Dealing now, Your Honours, with the question

    20 of the accused's state of health.

    21 I was given some documents this morning,

    22 immediately prior to these proceedings commencing. I

    23 haven't had an opportunity to examine them. But up

    24 until that point in time, at least I can say, that

    25 there was no evidence at all about his state of

  35. 1 health. Certainly the Prosecution was not in

    2 possession of any information concerning his state of

    3 health.

    4 Your Honours, if the conditions of his

    5 detention are not conducive to maintaining a

    6 satisfactory state of health of this accused person,

    7 the matter is not resolved by granting him provisional

    8 release. The problem is solved, in our respectful

    9 submission, by addressing the conditions of detention

    10 so as to accommodate his medical condition. This is

    11 assuming that there is a genuine problem with his

    12 detention conditions which are exacerbating or

    13 contributing to his medical condition.

    14 It may be, Your Honours, that steps have

    15 already been taken. I don't know. I have no

    16 information at all to know whether or not special

    17 measures are in place or whether or not medical

    18 assessments have been made and that the conclusion of

    19 those medical assessments is that no special provisions

    20 should be put in place.

    21 Your Honours, if there is a problem here,

    22 then the Prosecution is the first to say that something

    23 should be done about it, if that is the case. I very

    24 much doubt that it is the case, but if it is, that is

    25 our position.

  36. 1 In the decision of the Trial Chamber in the

    2 case of Kovacevic, Their Honours there said that the

    3 accused must establish that he cannot be treated

    4 effectively in the Netherlands. It is not a question

    5 of whether he cannot be treated effectively in the

    6 detention centre, that's in the Netherlands, and they

    7 go on to say the fact that "an accused who is ill would

    8 be in better spirits and more receptive to medical

    9 treatment in his own country with the support of his

    10 family does not, in our view, amount to an exceptional

    11 circumstance."

    12 So, Your Honours, we have no evidence at all

    13 about whether or not he can receive appropriate

    14 treatment in the Netherlands. There is no evidence at

    15 all before us on that. I would be very, very surprised

    16 if a modern country, such as the Netherlands, couldn't

    17 provide him with the necessary medical support that he

    18 needs having regard to his condition, and I would be

    19 surprised if Croatia was in a better position than the

    20 Netherlands to do that either, frankly. So in my

    21 submission, Your Honours, he has the burden to

    22 establish to you that he can't receive the treatment

    23 here, and in no way has he discharged that burden. We

    24 have heard certain assertions made by Mr. Mikulicic

    25 from the bar table, but that's not evidence, and there

  37. 1 is not much one can do with that. Be that as it may,

    2 none of it, so far as I'm not a medical person, and

    3 none of it, so far as I know, leads to a conclusion

    4 that he cannot be adequately and properly treated here.

    5 Your Honours, when coming to consider this

    6 application, I think it is necessary, in our

    7 submission, for you to have regard to the fact that

    8 this is the second time that the application has been

    9 made, and in our submission, it would be appropriate

    10 for Your Honours to consider carefully whether or not

    11 there are any changed circumstances which would justify

    12 a provisional release now as opposed to January of

    13 1998, the beginning of this year, when Your Honours

    14 came to consider the first motion.

    15 If Your Honours conclude that nothing has

    16 changed in terms of his circumstances and that they are

    17 no more exceptional now than they were before, it is

    18 our respectful submission that this motion should be

    19 denied.

    20 Your Honours, in conclusion, it's our

    21 submission that we're dealing with an application here

    22 which has been provoked by ultimately something that

    23 the accused himself has done. I'm not critical of the

    24 course they've taken. It's entirely up to them to

    25 decide whether they want to introduce further evidence

  38. 1 or not, but the consequence of that was to reopen the

    2 case, and they must have expected that the Prosecution

    3 would respond, and we did. And if that's what their

    4 complaint is about in seeking a justification for this

    5 provisional release, then, Your Honours, they can't

    6 proceed on the basis that all will ignore their

    7 involvement in it and only look to the role that the

    8 Prosecution has taken. The Prosecution has its

    9 responsibilities and duties, and it responded to a

    10 situation it was placed in. If that brought about or

    11 will bring about any delay, then that is a reaction to

    12 something that the Defence themselves did.

    13 In our submission, they can't now come before

    14 you and say, "Look at what's happened to us? We've

    15 been delayed here by the Prosecution," and to simply

    16 ignore the fact that they themselves set upon, embarked

    17 upon, the course to introduce this additional material

    18 which brought about this delay.

    19 In our submission, Your Honours, it's not a

    20 matter of simply saying, "The Prosecution is delaying

    21 it; therefore, we should be entitled to provisional

    22 release." This is a much bigger issue, and, in any

    23 event, I emphasise that it is speculative and uncertain

    24 as to how long the delay is going to be. There is no

    25 reason why some further application can be brought if

  39. 1 I'm wrong and it turns out that there is some extensive

    2 delay. If that happens, well, that can be done later

    3 on down the track when it's established that there has

    4 been such a delay.

    5 The point is that the trial was not delayed.

    6 It proceeded expeditiously. Pre-trial detention was

    7 dealt with in the first motion, and, in our submission,

    8 the period of time spent in Croatia is not a relevant

    9 consideration.

    10 If Your Honours will excuse me. Yes, Your

    11 Honours, unless there are any other further matters

    12 that I can assist you with, those are our submissions.

    13 JUDGE RODRIGUES: Mr. Mikulicic, do you have

    14 anything to add in response or to respond to what

    15 Mr. Niemann has said?

    16 MR. MIKULICIC: Thank you, Your Honours. The

    17 Defence would like very briefly to respond to a few

    18 points made by my learned friend, Mr. Niemann. So

    19 allow me, I will follow the same order in which he

    20 presented his views.

    21 It is true, as my learned friend Niemann has

    22 said, that this Tribunal has no jurisdiction over

    23 domestic law when it comes to any coercive measures

    24 towards the accused, but it is not true that such

    25 jurisdiction doesn't emanate from some other

  40. 1 instruments. The Tribunal doesn't have direct

    2 jurisdiction because it cannot give orders to domestic

    3 police authorities or law enforcement authorities, but

    4 the Republic of Croatia is obliged to act in accordance

    5 with the requests of the Tribunal pursuant to the

    6 constitutional law that it has adopted on cooperation

    7 with the Tribunal. Therefore, the jurisdiction of the

    8 Tribunal in relation to the local police in Croatia is

    9 reflected in the jurisdiction of the competent bodies

    10 of the Republic of Croatia which is duty-bound to

    11 cooperate with the Tribunal.

    12 Without entering into a review of that

    13 cooperation in the past, we believe, in this particular

    14 case, that that cooperation has been highly effective

    15 because it was precisely the Republic of Croatia

    16 reacting to the request of the Tribunal that it

    17 arrested Aleksovski and surrendered him to the

    18 Tribunal. Therefore, the Republic of Croatia has

    19 demonstrated its wish to cooperate fully.

    20 I think that it is not fair that my learned

    21 colleague, Mr. Niemann, should mention as an example of

    22 non-cooperation by the Republic of Croatia the subpoena

    23 duces tecum from the Blaskic case. I think, pro primo,

    24 that this is a case that is still being litigated, so

    25 we cannot refer to the arguments of other cases which

  41. 1 are still in trial.

    2 Secondly, I think that these two cases cannot

    3 be compared because, in the other case, the Republic of

    4 Croatia feels that those requests affect the security

    5 issues of Croatia. It is a well-known fact that the

    6 appearance of Mr. Aleksovski in the Tribunal cannot,

    7 under any circumstances, be considered a security issue

    8 for the Republic of Croatia. Therefore, it is quite

    9 realistic to expect that the Republic of Croatia will

    10 pro futuro cooperate with the Tribunal as it has

    11 already done in surrendering Mr. Aleksovski to the

    12 Tribunal.

    13 Another question raised by Mr. Niemann is the

    14 question of reasonable suspicion for the acts

    15 Mr. Aleksovski is being charged with. These are

    16 obviously questions of fine shades of meaning in the

    17 interpretation. The Defence is fully aware of the

    18 degrees of suspicion as proceedings advance, and the

    19 Defence did not refer to that level of suspicion that

    20 is required for the indictment, nor the prima facie

    21 case at the end of the Prosecution case, but the

    22 reasonable suspicion that, at the end of the trial,

    23 each one of us will think whether the accused has,

    24 indeed, committed the offence. So I'm referring to

    25 that level of suspicion, rather than the level of

  42. 1 suspicion required to initiate a trial in the first

    2 place.

    3 I do not agree with the Prosecutor that ten

    4 months spent in the custody of the Republic of Croatia

    5 should not be taken into account. If we view this fact

    6 quite pragmatically, it means ten months in detention,

    7 and not because Mr. Aleksovski drove a car in a drunken

    8 state and killed a pedestrian, but rather because the

    9 Republic of Croatia, acting upon orders of this

    10 Tribunal, ruled detention for Mr. Aleksovski.

    11 Therefore, the time spent by Mr. Aleksovski in

    12 detention in the Republic of Croatia should, indeed, be

    13 taken into account when ruling on this motion.

    14 Colleague Niemann says that by being released

    15 Mr. Aleksovski would be in a position to choose to

    16 reappear in court or to flee, but there is no such

    17 choice before Mr. Aleksovski, because in the event of

    18 his provisional release, measures will be enforced

    19 against him which will totally deprive him of the

    20 possibility of choice, and that is police surveillance

    21 and the confiscation of his passport.

    22 I think there is no need for me to remind you

    23 that there is absolutely no chance of Mr. Aleksovski

    24 leaving the territory of the Republic of Croatia if he

    25 has no passport and still less his chance of appearing

  43. 1 in the Lasva Valley for which, anyway, he has no reason

    2 to go because his family is not living there, nor are

    3 there any friends there, nor is he employed there. So

    4 there is no objective opportunity for him to do that,

    5 nor is there any subjective wish on his part to do

    6 that.

    7 The logic of my learned friend, Mr. Niemann,

    8 when speaking about these possibilities and when making

    9 comparisons with the subpoena duces tecum hearings is,

    10 in the view of the Defence, a logic which is not

    11 applicable. It appears as if he is expecting illegal

    12 behaviour in advance. In my deep conviction, that

    13 cannot be a position taken by a judicial body. The

    14 position must be the opposite. One must expect legal

    15 behaviour, and illegal behaviour is an exception.

    16 In this case, I assure you that the Republic

    17 of Croatia will take all the necessary steps to prevent

    18 any illegal or unlawful behaviour, and what I have in

    19 mind is the possibility of Mr. Aleksovski not appearing

    20 in court when called by the Trial Chamber.

    21 The question of health: The fact is that

    22 Mr. Aleksovski, while being in detention, is

    23 aggravating his condition. Here, I agree with

    24 Mr. Niemann. I have no doubts regarding the high

    25 medical standards applied in the territory of the

  44. 1 Kingdom of the Netherlands. What is more, I'm prone to

    2 agree with the Prosecutor that those standards are

    3 higher than the medical standards in the territory of

    4 the Republic of Croatia, perhaps lower than in the

    5 Kingdom of Sweden, but that is not the point. The

    6 point is not the medical standards. The point is

    7 detention in closed space where those standards cannot

    8 be applied.

    9 I wish to draw your attention to a single

    10 illustration. Mr. Aleksovski needs physical therapy on

    11 a daily basis. That physical therapy, within the U.N.

    12 detention unit, is not provided. It was interrupted,

    13 and, according to the situation as it is now, it is

    14 applied once in 10 or 15 days which is absolutely

    15 inadequate. He needs daily treatment; however, this

    16 simply is not possible. Let me repeat that I have no

    17 doubts that the Kingdom of the Netherlands can provide

    18 this but not under conditions of detention, and here we

    19 are dealing with detention.

    20 Colleague Niemann has reminded you that the

    21 Defence, at the beginning of this year, already

    22 submitted a motion for provisional release of the

    23 accused, and let me follow on to that by saying that

    24 that motion was submitted even before the beginning of

    25 trial. In the meantime, evidence has been presented in

  45. 1 court, witnesses have been heard, documents have been

    2 admitted, maps, videotapes. In the meantime, the

    3 health condition of Mr. Aleksovski has deteriorated as

    4 a result of detention. Therefore, the conditions today

    5 within which we are considering this motion for

    6 provisional release are substantially different from

    7 the conditions that existed at the beginning of this

    8 year when the Trial Chamber received the first motion.

    9 Therefore, these two motions cannot, under

    10 any circumstances, be identified because they are quite

    11 different. Why? Because the circumstances under which

    12 they were made are quite different.

    13 Therefore, it is our submission that all the

    14 circumstances do exist, as we have argued them in

    15 writing, and we appeal to this Honourable Trial Chamber

    16 to grant the motion for the provisional release of

    17 Mr. Aleksovski, with our full assurances that by making

    18 such a ruling you would be assisting in improving

    19 Mr. Aleksovski's health. You would not, in any sense,

    20 undermine these proceedings because the Defence wishes

    21 to assure you that Mr. Aleksovski will respond to any

    22 summons from this Trial Chamber and appear in The Hague

    23 and be ready to face up to your decision, whatever it

    24 might be.

    25 Thank you.

  46. 1 JUDGE RODRIGUES: I see that we have been

    2 working for an hour and a half already, but in spite of

    3 the need for a break, I would like to address a few

    4 questions to Mr. Miljenic and to see whether the

    5 Prosecutor or Mr. Mikulicic have any questions, because

    6 after that, we can have a break and we can release

    7 Mr. Miljenic, because I'm sure he has other things to

    8 do.

    9 In any event, Mr. Niemann, do you have any

    10 questions to address to Mr. Miljenic?

    11 MR. NIEMANN: Well, not directly, Your

    12 Honour, other than the point that I have made was not

    13 to suggest that Croatia would commit any illegality.

    14 What I am saying is they have expressed their position

    15 in writing in a proceeding which is contrary to the

    16 procedures that Your Honours are now examining, which

    17 means that if Your Honours are to release him on

    18 provisional release, you would be seeking, I would

    19 imagine, to support that or back that up with

    20 appropriate orders.

    21 This state has said in this Chamber in public

    22 that it doesn't recognise your authority to do that.

    23 Now, unless they have changed their position, our

    24 position is that any orders that you do make, one can

    25 expect them to be treated in the same way. If there

  47. 1 are any questions of Croatia, it is, have they changed

    2 their mind since they filed the Blaskic motion? If

    3 they have changed their mind, well, that would be

    4 interesting. If they haven't changed their mind, then

    5 our position remains the same.

    6 JUDGE RODRIGUES: Mr. Mikulicic, do you have

    7 any questions because it would be preferable to hear

    8 those questions while we are together. I have some

    9 questions, and after that, perhaps Mr. Miljenic can

    10 answer all of those questions together.

    11 Do you have any questions, Mr. Mikulicic?

    12 MR. MIKULICIC: Your Honours, the Defence has

    13 no questions at this time, but if, in the course of

    14 further proceedings, there is a need for that, I would

    15 like to ask you to permit me to do that.

    16 JUDGE RODRIGUES: My question is as follows,

    17 Mr. Miljenic: Thank you again for coming and for being

    18 here with us. It is true that the Tribunal was

    19 established to achieve justice under conditions of

    20 peace, which are very difficult conditions, and to make

    21 a contribution to peace, but I think these objectives

    22 of the Tribunal will never be accomplished unless we

    23 establish cooperation among the affected states and the

    24 Tribunal, that is, if the persons, I say "the persons"

    25 but also the authorities, do not show trust in the

  48. 1 Tribunal and the work we are doing here.

    2 There is something I would like to ask you.

    3 In my opinion, cooperation has to be based on mutual

    4 respect and mutual confidence; otherwise, it is not

    5 possible to cooperate. My question is as follows:

    6 What is the Croatia that you represent here? I'm sorry

    7 for using this figure of speech, it is not good or bad,

    8 but the Croatia described by the Prosecutor,

    9 Mr. Niemann, or the Croatia described by

    10 Mr. Mikulicic? Which is the one that you are

    11 representing here?

    12 MR. MILJENIC: Thank you very much for your

    13 question. I would first like to state that the

    14 Republic of Croatia is not a party in these

    15 proceedings, and as you see, I'm not involved in the

    16 same way that my colleagues are, but I'm appearing at

    17 your request as some sort of friend of the Court in

    18 order to help you in reaching your decision.

    19 I would like to thank you for your question

    20 because it follows upon my desire to comment on the

    21 statements by Mr. Mikulicic and Mr. Niemann, as opposed

    22 to Mr. Niemann who went into speculation in his remarks

    23 regarding the Republic of Croatia. I would just like

    24 to state a number of facts that I am able to at this

    25 moment, and that is that the Republic of Croatia --

  49. 1 Mr. Mikulicic has warned me to speak a little

    2 slower.

    3 And that is that the Republic of Croatia, the

    4 only two persons who happen to be on its territory and

    5 against whom an indictment was raised by this Tribunal,

    6 Croatia had arrested them and surrendered them to this

    7 Tribunal. This is Mr. Aleksovski and Mr. Skopljak, who

    8 was on the same indictment and who was, in the

    9 meantime, released in accordance with a decision by the

    10 Tribunal.

    11 As far as the rest of the accused are

    12 concerned who were Croatian citizens, General Blaskic

    13 surrendered voluntarily, he had been in the territory

    14 of the Republic of Croatia, while in the other cases,

    15 the Republic of Croatia intervened in a way in their

    16 surrender so that they are all here at the Tribunal.

    17 This is as far as the cooperation of the Republic of

    18 Croatia is concerned.

    19 I would also like to refer to the question of

    20 the subpoena which has been raised here in a wrong

    21 context, and in my opinion, it was wrongly

    22 interpreted. If you permit me, as far as the question

    23 of the subpoena, the Prosecution requested for a

    24 binding order to be issued to the Republic of Croatia,

    25 and in case this was not respected, the Republic of

  50. 1 Croatia would be penalised. The Republic of Croatia

    2 was opposed to this as something which was contrary to

    3 international law, and what the Prosecution forgot to

    4 mention, the Appeals Chamber of this Tribunal supported

    5 the position of the Republic of Croatia, so what was

    6 quoted here was confirmed by the Appeals Chamber, and

    7 that is that the Tribunal does not have the power to

    8 issue orders or penalties against officials or states.

    9 So this is a section of international law where Croatia

    10 insisted on its rights, just like any other state.

    11 JUDGE RODRIGUES: Excuse me for interrupting

    12 you, Mr. Miljenic. Could you go more directly to the

    13 circumstances surrounding Mr. Aleksovski? What are the

    14 guarantees that you can give because Mr. Mikulicic said

    15 that the case has still not been completed. So will

    16 you please focus on Mr. Aleksovski only?

    17 MR. MILJENIC: Yes, I was going to say that

    18 this case has been resolved. The Appeals Chamber had

    19 made its decision, so this is no longer an issue.

    20 As far as Mr. Aleksovski is concerned, I have

    21 been authorised to state what I stated at the

    22 beginning. I would like to repeat that the Republic of

    23 Croatia, in the example of Mr. Aleksovski whom it

    24 arrested and in the example of Mr. Skopljak who it also

    25 arrested and surrendered to the Tribunal, indicated

  51. 1 that so far it has met all the requests of the Tribunal

    2 of that kind. The other accused citizens of the

    3 Republic of Croatia who are not on Croatian territory

    4 could not be arrested. That would be all.

    5 If have you have any other questions ...

    6 JUDGE RODRIGUES: For the moment, we are

    7 satisfied, and we wish to thank you for your

    8 cooperation and participation and for coming here and

    9 clarifying the situation. You may be seated. We are

    10 going to have a break, and you can carry on with your

    11 regular duties because we will not need your presence

    12 any further.

    13 I think it is really time to have a break;

    14 otherwise, the interpreters will be really too tired,

    15 so let's have a 20-minute break. Then we will have

    16 some questions, and then we will have another break to

    17 make a determination regarding this motion. A

    18 20-minute break.

    19 --- Recess taken at 11.45 a.m.

    20 --- On resuming at 12.19 p.m.

    21 (The accused entered court)

    22 JUDGE RODRIGUES: I would like to ask

    23 Mr. Mikulicic: You said, Mr. Mikulicic, that the

    24 conditions following the first ruling have changed.

    25 Could you elaborate these changes for us, please, with

  52. 1 regard to the health of Mr. Aleksovski?

    2 MR. MIKULICIC: Your Honours, when I said

    3 that, compared to our first request, the circumstances

    4 had changed, I thought then at the changed

    5 circumstances in regards to two aspects: The first

    6 aspect is the health of Mr. Aleksovski and the second

    7 one is of a procedural nature.

    8 The health of Mr. Aleksovski in relation to

    9 the first case early this year has changed because his

    10 health difficulties have worsened. I repeat, you

    11 yourselves were practically direct witnesses when he

    12 collapsed during proceedings at this Tribunal. He was

    13 taken to the hospital where he was given medical care.

    14 In the meantime, he also had an attack during his stay

    15 at the detention unit when he was also taken to the

    16 hospital. So these are the circumstances which

    17 indicate that his health condition, due to his stay in

    18 an enclosed environment, are getting worse.

    19 As far as the second point, I had in mind the

    20 fact that the evidence procedure had been completed

    21 before this Tribunal so you were able to hear testimony

    22 from witnesses, and you also could see certain evidence

    23 which, in the conviction of the Defence, point to the

    24 conclusion that Mr. Aleksovski did not commit those

    25 crimes that he is charged with under the indictment.

  53. 1 In that sense, I was thinking about the changed

    2 circumstances.

    3 JUDGE RODRIGUES: Another question that I

    4 would like to address to Mr. Niemann: After the

    5 explanations given by the representative of the

    6 Croatian Embassy, have you changed your opinion, or do

    7 you maintain your position with regard to the subject

    8 of this decision?

    9 MR. NIEMANN: I am reinforced in my position,

    10 Your Honour. The position taken by the representative

    11 of Croatia was that they have no obligation to comply

    12 with orders made by Your Honours and that not only do

    13 they not have the obligation to do so, they are content

    14 in that position because it has been approved, as they

    15 say, by the Appeals Chamber. So my position is now, I

    16 submit, much stronger than it was when I made my

    17 original submission.

    18 May I go on a little bit in relation to that,

    19 Your Honour? There was a case before this Tribunal

    20 dealing with an accused person called Simic. This

    21 accused person was very badly disabled as a consequence

    22 of being shot and was in a wheelchair, and he came

    23 before the Tribunal and an application was made by him

    24 for provisional release, and it is instructive, Your

    25 Honours, and it may assist you if I was to just briefly

  54. 1 go over the circumstances under which he was given

    2 provisional release.

    3 He came armed with a letter from the Prime

    4 Minister and the Minister of the Interior of the

    5 Republika Srpska. Not only did they offer a monetary

    6 sum in relation to his bail, but they undertook in

    7 writing under seal that they would comply with any

    8 orders issued by the Tribunal, and they specifically

    9 spell that out, that they would comply with orders of

    10 the Tribunal in relation to the arrest of that accused,

    11 if necessary. I think this is in stark contrast to

    12 what we have heard in relation to Croatia.

    13 There are some other interesting aspects of

    14 the order that was given in that case too that may

    15 assist Your Honours.

    16 There was a letter filed before the Trial

    17 Chamber from the International Police Task Force in

    18 Bosnia, and in this letter they undertook, on behalf of

    19 the Tribunal, to monitor the accused person and to make

    20 sure that he complied with conditions that were imposed

    21 by the Tribunal.

    22 In addition to that, the order was that he

    23 would submit himself and go into custody and remain in

    24 custody for the length of the trial, so it was purely

    25 dealing with pre-trial; it had nothing to do with the

  55. 1 trial itself. Once the trial took place, these

    2 provisional release conditions would fall away and he

    3 would remain in custody until the conclusion of the

    4 trial.

    5 The next point about it, Your Honours, is

    6 that he was severely disabled. This man was in a

    7 wheelchair and had been shot in circumstances that had

    8 occurred very close to the time that he was arrested

    9 and brought here.

    10 Under all of these conditions, the Prosecutor

    11 agreed. The Prosecutor made no opposition at all to

    12 the provisional release and consented to it because

    13 there was a reasonable certainty. There wasn't going

    14 to be the prospect, which there is here, the very real

    15 prospect that we say exists, that there is a trial, all

    16 the resources of bringing everyone here for the hearing

    17 have all been expended at enormous cost, it can't be

    18 repeated again, frankly, because of the limitations on

    19 our resources, and in the case of Simic, because he is

    20 going to be remanded in custody for the whole period of

    21 the trial, there is no risk of that happening, that he

    22 will escape at the last moment, and that the trial will

    23 amount to naught. That is our very concern here, Your

    24 Honours, in relation to that.

    25 The issue of the medical condition of the

  56. 1 accused that was raised by Mr. Mikulicic a moment ago,

    2 Your Honours. We have no evidence of that. All we

    3 have are some matters that we may have observed in the

    4 course of the proceedings. I have no way of assessing

    5 the significance or importance of that in terms of

    6 medical assessment. I don't know whether Your Honours

    7 are better equipped to do so. But in our submission,

    8 if this is a genuine application to seek provisional

    9 release based on his medical condition, the very least

    10 we should expect to see is for a medical practitioner

    11 to come along and to give us details and an explanation

    12 as to why his continued detention is incompatible with

    13 his medical condition. We have none of that. All we

    14 have is we are told that by Mr. Mikulicic. Now, I'm

    15 not sure what his medical background is either, but it

    16 seems to me that this is the only effective way that

    17 this issue can be resolved: We need to have some

    18 evidence upon which this order could be based.

    19 Your Honours, the last point I would like to

    20 make is that it seems to me from what Mr. Mikulicic was

    21 saying, that apparently Mr. Aleksovski was receiving

    22 adequate medical attention, he was getting his

    23 exercises on an appropriate basis at The Hague

    24 detention centre, but for some reason or another, that

    25 was stopped. I don't know what the basis for that was

  57. 1 or why it was stopped or whether it was an appropriate

    2 or proper decision to do so. But if there is any

    3 question whatsoever that his medical condition is being

    4 exacerbated or made worse because of this decision to

    5 stop allowing him to have what is necessary for him to

    6 do, his exercises or whatever it is, then we strongly

    7 urge Your Honours to investigate that matter and see

    8 that it is reinstated, because if he needs this sort of

    9 assistance, he should get it. We would be the last to

    10 be saying that we want anything to happen to him

    11 because of some medical condition which could be

    12 prevented. We encourage it, and we really do urge Your

    13 Honours to investigate that matter.

    14 But I say, Your Honours, that this is not a

    15 case where provisional release is appropriate and,

    16 indeed, to answer Your Honour's original question, I am

    17 in no way now assured at all that any orders issued by

    18 Your Honours will be complied with.

    19 JUDGE RODRIGUES: To finalise our discussion,

    20 which is approaching its close, I should like to give

    21 the floor to Mr. Aleksovski to see if he has anything

    22 to say or, rather, to add to what Mr. Mikulicic has

    23 already said, rather than repeating anything he has

    24 said but only if you have any additional remarks to

    25 make. Mr. Aleksovski?

  58. 1 THE ACCUSED: Good day, Your Honours. I took

    2 notes about all the things discussed in this Trial

    3 Chamber, so I will try briefly to say what I think and

    4 also to ask you to permit me to defend myself from

    5 freedom.

    6 First of all, let's start from the

    7 beginning. I addressed this Tribunal and I said that I

    8 believe in this Tribunal. It's 12.30, the 2nd of

    9 December, '98; I still trust this Tribunal and I will

    10 continue to trust this Tribunal.

    11 You stated recently, a little ironically,

    12 that you like to see me in this courtroom. I

    13 understand that that was a little saying, but I would

    14 like to tell you that you will have the opportunity to

    15 see me again in this Trial Chamber and I believe that I

    16 will leave it as an innocent person.

    17 Mr. Niemann has just mentioned one of the

    18 reasons why I will appear before this Trial Chamber, is

    19 that I do not expect objectively to receive a high

    20 sentence, strict sentence, and I subjectively expect -

    21 I believe this is realistic - that I will leave here as

    22 an innocent person, and that's the primary reason why I

    23 will come here, in case I am acquitted, in case my

    24 motion is granted.

    25 My life was always average, normal. Any fear

  59. 1 that I will commit any kind of crime or something that

    2 is not fitting, as you said in one of the recent

    3 sessions, with the behaviour of a regular citizen of

    4 the world. It is absurd, in my world view. I don't

    5 expect to commit any kind of stupidity. I promise you

    6 that.

    7 When you said at one of the past sessions

    8 that some of my friends and acquaintances would come,

    9 you were right. Mrs. Vasvija is my former colleague,

    10 and by chance, I know Mr. Tomic because he defended

    11 clients who were in my prison. Maybe you didn't know

    12 this, but you guessed, let's say.

    13 I would also like to say, regarding my motion

    14 for provisional release, there are subjective reasons

    15 why my counsel and I discussed and proposed for you to

    16 permit me to defend myself from liberty. Primarily the

    17 reason for this is my health. By chance, life has led

    18 me to get some kind of hereditary illnesses. I am not

    19 expert in this and I cannot tell you too many details,

    20 but I would like to tell you that I have considerable

    21 difficulties on account of this, and I will explain

    22 what these symptoms are.

    23 From '79, the year of '79, I noticed that I

    24 have elevated blood pressure, and like any younger man,

    25 I was not afraid of illness. I lived normally. I was

  60. 1 active in sports. I was, amongst other things, in a

    2 local soccer club in Zenica. Also, in the aero club, I

    3 was a parachute jumper. But I was advised to stop

    4 this, and I did. I continued with my studies, and as

    5 you had the opportunity to see, I come from a working

    6 class family, wasn't too poor or too rich, I had health

    7 insurance in Zenica, I had therapy, with interruptions,

    8 but as time went by, these difficulties took their

    9 toll.

    10 I began to suffer from constant elevated

    11 blood pressure. Medical experts would probably explain

    12 that better. It went pretty high. I also suffer from

    13 tachycardia, which is the faster beating of the heart,

    14 and I also suffer from --

    15 JUDGE RODRIGUES: Mr. Aleksovski, excuse me

    16 for interrupting you, but we are familiar with your

    17 health problems, so there is no need to repeat them.

    18 We are familiar with these problems already. So can

    19 you please close your statements?

    20 THE ACCUSED: Could I say a few more words

    21 and then I will conclude?

    22 JUDGE RODRIGUES: Yes, but quickly, please.

    23 THE ACCUSED: Thank you. I would just like

    24 to say, Mr. Prosecutor asked the question why I stopped

    25 the therapy that I had in the detention unit. First of

  61. 1 all, physiotherapy was not stopped because of my will

    2 but because of the lack of objective possibilities to

    3 implement it the way it is supposed to be because it

    4 was senseless to provide therapy in the way possible.

    5 The doctor told me that I had problems with my spine, I

    6 need to have spinal surgery. The doctor also said I

    7 was young, but that this surgery posed considerable

    8 threat of paralysis.

    9 As far as my heart problems, heart disease, I

    10 am on therapy which, because of the kind of therapy,

    11 has to be interrupted every four or five months; then I

    12 have to take a break and then it begins again because

    13 this is very serious therapy.

    14 Thank you.

    15 JUDGE RODRIGUES: Thank you. We are now

    16 going to have a break of more or less a half hour, and

    17 then we will meet again to render our ruling.

    18 --- Recess taken at 12.37 p.m.

    19 --- On resuming at 1.06 p.m.

    20 (Ruling)

    21 (The accused entered court)

    22 JUDGE RODRIGUES: We are going to render our

    23 decision. After having heard the conclusions of the

    24 parties, as well as their arguments, and having heard

    25 the opinion of the Republic of Croatia, and after

  62. 1 having given the floor to the accused, Mr. Aleksovski,

    2 the Trial Chamber renders the following decision:

    3 The provisional release of an accused cannot

    4 be ordered by a Chamber, except under conditions

    5 envisaged under Rule 65 and 65(B) of the Rules of

    6 Procedure and Evidence.

    7 It is the opinion of the Chamber that the

    8 four conditions set out by this Rule are cumulative.

    9 It is up to the Defence to prove that each one of those

    10 conditions has been fulfilled. The Chamber is of the

    11 opinion that, with respect to the motion for the

    12 provisional release of Mr. Aleksovski, the Defence has

    13 not, in its written motion nor in its oral arguments,

    14 given the elements which would have allowed the Judges

    15 to reach the conclusion that the conditions of Rule

    16 65(B) have been met and, more specifically, that there

    17 were exceptional circumstances regarding the state of

    18 health of Mr. Aleksovski.

    19 The Judges note, finally, that there are no

    20 other exceptional circumstances which lead to the

    21 description of the procedure made by the Defence.

    22 Consequently, the Trial Chamber rejects the motion for

    23 the provisional release of the accused,

    24 Mr. Aleksovski.

    25 The Trial Chamber requests that the Registry

  63. 1 take all useful measures which would allow the accused,

    2 Mr. Aleksovski, to have the treatment required by his

    3 state of health.

    4 That is the decision of the Trial Chamber.

    5 The Judges must always act in conformity with the

    6 Rules, and the Rules do not allow the Chamber to make

    7 any other decision.

    8 Therefore, the hearing is adjourned, and the

    9 decision has been rendered.

    10 Excuse me, but Mr. Olivier Fourmy has drawn

    11 my attention to the fact that the decision has been

    12 taken in accordance with Article 65(B). In the English

    13 transcript, let me say it in English, "... there are no

    14 other exceptional circumstances which do not lead to

    15 the description ..." Where it says "do not lead to the

    16 description," it should read "which arise from the

    17 description ..."

    18 Is that correct now? Yes.

    19 Before adjourning, I should like to address

    20 myself to Mr. Aleksovski to say what I have already

    21 said. The Rules are the Rules, and the Judges have to

    22 implement those Rules, and we are doing that.

    23 If we do not meet again before Christmas, I

    24 take advantage of this opportunity to wish all of you

    25 who do celebrate Christmas a Merry Christmas.

  64. 1 --- Whereupon the hearing adjourned at

    2 1.13 p.m. sine die