Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1

1 Friday, 19 July 2002

2 [Motion Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 11.07 a.m.

6 JUDGE SCHOMBURG: First of all, good morning to everybody.

7 THE INTERPRETER: Microphone, Your Honour, please.

8 JUDGE SCHOMBURG: Could you please call the case.

9 THE REGISTRAR: Yes, Your Honour. This is the case number

10 IT-02-60-PT, the Prosecutor versus Vidoje Blagojevic, Dragan Obrenovic,

11 Dragan Jokic, and Momir Nikolic.

12 JUDGE SCHOMBURG: Thank you. And may we have the appearances for

13 the Office of the Prosecutor, please. Mr. McCloskey.

14 MR. McCLOSKEY: Good morning, Mr. President, Your Honours. My

15 name is Peter McCloskey and today with me are Stacy de la Torre and

16 Melissa Epstein, and the case manager, Janet Stewart.

17 JUDGE SCHOMBURG: Thank you. And for the Defence for

18 Mr. Obrenovic, please.

19 MR. WILSON: Good morning, Mr. President and Your Honours, my name

20 is David Wilson with Dusan Slijepcevic.

21 THE INTERPRETER: Microphone, please.

22 JUDGE SCHOMBURG: Could you please take the microphone.

23 MR. WILSON: Excuse me. Good morning, Mr. President, Your

24 Honours. I am David Wilson, counsel for Obrenovic, seated at the table

25 with Mr. Dusan Slijepcevic, who is co-counsel for Mr. Obrenovic.

Page 2

1 JUDGE SCHOMBURG: For Mr. Blagojevic.

2 MR. KARNAVAS: Good morning Mr. President and Your Honours.

3 Michael Karnavas for Mr. Blagojevic, and with me is Suzana Tomanovic, my

4 legal assistant.

5 JUDGE SCHOMBURG: Thank you. For Mr. Jokic.

6 MS. STOJANOVIC: Good morning, Your Honour. My name is Miodrag

7 Stojanovic, Defence counsel for Dragan Jokic, and with me is my co-counsel

8 Cynthia Sinatra. Thank you.

9 [French interpretation on English channel]

10 JUDGE SCHOMBURG: On channel 4 we --

11 JUDGE SCHOMBURG: Now we have French on channel 4, but probably we

12 can continue.

13 And it's now Defence counsel for Mr. Nikolic, please.

14 MR. LONDROVIC: [Interpretation] Good morning, Your Honour. I am

15 Veselin Londrovic, appearing for Mr. Momir Nikolic, and my co-counsel,

16 Stefan Kirsch, is also appearing for Momir Nikolic, and Ms. Vesna Anic is

17 helping us with interpretation. Thank you.

18 JUDGE SCHOMBURG: Thank you very much for this. Then I learned

19 that we have today, and we all appreciate this very much, representatives

20 acting under Rule 74 as amici curiae, friends of the Court. May I please

21 ask you for your names and your capacity.

22 MR. JOVICIC: [Interpretation] Good morning, Your Honour. My name

23 is Trivun Jovicic. I am an advisor of the Ministry in the Embassy of

24 Bosnia and Herzegovina.

25 MR. LUKOVAC: I am a Minister consul, charge d'affaires of

Page 3

1 Bosnia-Herzegovina here in the Netherlands, and I'm working here as a

2 mandatory of the Presidency in this moment.

3 JUDGE SCHOMBURG: Thank you very much for coming and assisting the

4 Court. We now turn to the main persons of this case and this, of course,

5 is the accused. May I, first of all, ask the three of them being present

6 here whether they can understand me in a language they understand, and at

7 the same time already now whether there are any observations as regards

8 their health condition and their situation in the Detention Unit.

9 Mr. Obrenovic, please.

10 THE ACCUSED OBRENOVIC: [Interpretation] Your Honour, I do hear and

11 understand in my own language what is being spoken in the courtroom. I

12 have no objections to the conditions of detention.

13 JUDGE SCHOMBURG: Thank you. Please be seated.

14 Mr. Blagojevic.

15 THE ACCUSED BLAGOJEVIC: [Interpretation] Your Honour, I do

16 understand. I have no complaint against the conditions of detention.

17 JUDGE SCHOMBURG: Thank you.

18 And finally, Mr. Nikolic.

19 THE INTERPRETER: Could the microphone be switched on, please.

20 THE ACCUSED NIKOLIC: [Interpretation] I hear and understand in my

21 own language. I have no complaints against the conditions in the

22 Detention Unit.

23 JUDGE SCHOMBURG: Thank you for this. As you can see from the

24 scheduling order, the intention is first to have a relatively brief Status

25 Conference. We are obliged to have this Status Conference 120 days after

Page 4

1 the -- after either the initial appearance or the last Status Conference.

2 And therefore this Status Conference is due today.

3 In preparation of our hearing today, the parties met with the

4 senior legal officer in this case and discussed procedural issues. Some

5 have not yet been resolved; others can be probably resolved within the

6 next minutes. Later, without a break, we'll go immediately over to the

7 hearings on provisional release as regards Mr. Obrenovic and

8 Mr. Blagojevic.

9 If I understood correctly, one major problem addressed yesterday

10 in the Pre-Trial Conference was -- in the preparing of this hearing now

11 was matters related to 66(B), as regards those statements. We are aware

12 that our sister Tribunal, the Appeals Chamber, made a ruling on 66(B).

13 Unfortunately until to date, it was not possible for us to receive the

14 decision in writing because it was an oral decision, and we didn't have

15 the transcripts until now.

16 The OTP, the question I may ask to you, do you have already access

17 to the decision, and does it change your position?

18 MR. McCLOSKEY: We have not yet had access to any written decision

19 or any transcript of the oral decision, though I did get a reliable

20 account from the OTP appellate lawyers, and it appears clear to me from

21 that account that the Appellate Chamber defined 66(B) as including witness

22 statements under documents, which was the main thrust of the litigation.

23 And as such, as I said yesterday, it is our purpose now to provide the

24 Defence with all material witness statements for their inspection, and we

25 are in the process of putting those -- that material on searchable CDs and

Page 5

1 hope to have that accomplished within a few weeks.

2 And as for the actual formal response to -- I would like to have a

3 written order before we withdraw our motion or concede the motion or

4 decide what exactly we do with our motion. But for practical purposes, it

5 appears that it has been clearly decided and that there's no reason to

6 stop the discovery that we have now planned to provide that material.

7 JUDGE SCHOMBURG: Thank you for these comments. Anything else as

8 regards this point only? I can't see anything.

9 Then let me address when it comes to the question of disclosure on

10 the one concern emanating from previous cases. The Bench would really

11 appreciate that we have access to the same documents that the parties have

12 in their possession. It's extremely difficult for Judges to decide on a

13 more or less virtual basis, having not the facts before us. And I heard

14 that some documents will be provided on a CD. And please provide also

15 this Trial Chamber with these documents.

16 Let me now turn to questions --

17 MS. SINATRA: Your Honour, if you will allow me to address the

18 Court, I just wanted to clear this up. The Court wants the Prosecution to

19 disclose to the Chamber all witness statements that the Defence receives?

20 JUDGE SCHOMBURG: The major part, especially when it comes down to

21 a CD. And sometimes it's really necessary for the basis of our rulings

22 and decisions, especially on the question of relevance of the one or other

23 document. And when we have later dispute whether or not the one or other

24 should be disclosed or not disclosed, in addition, then we have a better

25 basis for our decision. That's the point.

Page 6

1 MS. SINATRA: If there's no contest about disclosure, if the

2 Prosecution has already stipulated that he will turn over the witness

3 statements to the Defence, is that still presented to the Chambers for a

4 decision?

5 JUDGE SCHOMBURG: I think we have had in the past extremely good

6 experience working together with the OTP and the parties on these issues,

7 and we got the necessary on the basis of such an informal request.

8 MS. SINATRA: Your Honour, I think the only thing I'm considering

9 is it's the decision of the Defence and the decision of the Prosecution

10 what evidence they will use in their case in chief to present to the Trial

11 Chamber. So we receive all of the statements, and I thought it was like a

12 filter as to what we decided to present to the Trial Chamber. But if the

13 procedure is different at this point, then I'm just trying to make sure

14 I'm clear on it. That's all.

15 JUDGE SCHOMBURG: Now we are discussing only those material

16 disclosed by the OTP. Please understand the general concept of this

17 Tribunal, and here, it is the necessity to come as close as possible to

18 the truth. And this also means that what is usual, for example in your

19 legal system, cannot translate it one to one in our system here, when we

20 are mandated to find the truth, or to search the truth, knowing very well

21 that there is not the one truth. But we need some factual basis. I think

22 it was done probably in the past in other cases, so it should be here.

23 MS. SINATRA: Thank you very much, Your Honour.

24 JUDGE SCHOMBURG: Thank you.

25 Very briefly that we can expedite the proceedings, I have before

Page 7

1 me one motion, the Prosecution motion for variation from page limits from

2 10 to 11. I think it's not worthwhile really discussing, and I can't see

3 any objections to this. And therefore, this motion is granted.

4 We have numerous other motions before us. And I think it was

5 already discussed yesterday that in general, these decisions will not be

6 provided for you before September.

7 This brings me already now - I come back, if necessary, to the

8 point of disclosure later - the time schedule. I know that in the past we

9 envisaged already twice an earlier start of this case. Unfortunately, the

10 reality of the Tribunal always brings new surprises and some cases are a

11 little bit belated, but you should be assured that within Trial Chamber

12 II, the second priority is given to the case before us. Therefore, even

13 in a worst case scenario, the trial of this case can start in May next

14 year. But we have to be prepared. We have to have this trial ready by

15 the end of this year, because I said it's dependent on the development in

16 the Stakic case and there it's only the worst case scenario to finalise in

17 May. I hope and I am still optimistic that we can come there further to a

18 finalisation of this case. Therefore, it is necessary to -- within the

19 schedule, to come to a solution bringing us to the end of this year with

20 all disclosure and additional material.

21 One point here seems for me the Butler report, the Butler report

22 playing an extremely important role in the Krstic case already, and I

23 understood that this Butler report should be updated for the purposes of

24 this case. I think it's necessary to do it as soon as possible, and

25 taking into account that the pre-trial brief should be ready the 1st of

Page 8

1 November, which is All Saints', but hopefully doesn't mean anything for

2 the case, the 1st of November. At the end of October in this context, the

3 Butler and the updated Butler report should not only be finalised but

4 disclosed to the parties and provided to the Bench. I think this is a

5 reasonable time schedule for the parties. If not, please let me know.

6 Then, as mentioned, pre-trial brief 1st of November, reply by the

7 Defence 25 November, and then immediately in the beginning of the next

8 year, we should have a Pre-Trial Conference. I believe that from the

9 point of view of today this should be a reasonable time schedule.

10 It is our obligation to invite the parties to come as soon as

11 possible to agreed facts or judicial notice or other means of coming

12 together and limiting the contested areas to the absolutely necessary. I

13 can't go today into any details, but I believe it's mandatory for this

14 trial and for the function of this trial that not in each and every trial

15 all the chapeau elements of crime have to be addressed and proven once

16 again on the basis of the witnesses heard already in earlier cases.

17 May I ask the parties now: Are there any problems related to the

18 disclosure of material under Rule 66 or Rule 68?

19 MS. SINATRA: Your Honour, if I might. I would like to, on the

20 record today, formally withdraw a motion that was accidentally filed by

21 the Defence yesterday entitled "Dragan Jokic's Amended Requested for

22 Disclosure." We will refile that at another time. But I'd like to on the

23 record, because I can't write a formal written notice to the Court, revoke

24 and withdraw that motion for consideration.

25 JUDGE SCHOMBURG: Sorry. Can you give me a reason why you can't

Page 9

1 write such a formal --

2 MS. SINATRA: Well, I can next week. I've already packed my

3 computer to go home.

4 JUDGE SCHOMBURG: We have it in the transcript, but please, as it

5 is usual in these cases, please let us know in writing as well.

6 MS. SINATRA: Yes, Your Honour. I will follow up with a written

7 motion. Thank you.

8 JUDGE SCHOMBURG: Thank you for this. Anything additional,

9 please?

10 MR. KARNAVAS: Your Honour, if I may be heard briefly. Michael

11 Karnavas.

12 The issue of disclosure remains, in my opinion, fairly

13 problematic. I understand that the Prosecution is trying to provide us

14 with the disclosure material at a fairly rapid pace. However, they have

15 their limitations, given the need for translation and checking the

16 translation and what have you. Nonetheless, from January, when we first

17 had our status hearing, I mentioned the Butler report. Here we are close

18 to August. Butler is nowhere near. He's vacationing, as I understand

19 it. And I would like to make sure that the Court's remarked today that it

20 should be done by that -- that it's actually an obligation on the OTP to

21 make sure that it is in our hands, because the report itself is only a

22 hundred pages, but the footnotes to the report, the previous one, refer to

23 about a thousand pages, and we need to go over all of that material to

24 make sure that we get to the truth, as the Court is obligated to do so.

25 So that's a critical issue.

Page 10

1 The other issue, as I understand it, Mr. McCloskey indicated -- he

2 used the word "material witness," and I'm a little confused, because in

3 our motion and in the reply that I filed, based on the leave that I was

4 granted, I believe I made it abundantly clear that our position is that we

5 want everything, their entire file dealing with Srebrenica. And I am

6 insistent on that, Your Honour, because if you look at the indictment and

7 in the way that it is phrased, they have at least Mr. Blagojevic involved

8 from the beginning to the very end. And if we are to get at the truth,

9 then witnesses that they may not believe are material to their case or

10 they may believe are not exculpatory witnesses may indeed have information

11 that is exculpatory or may lead to witnesses that have exculpatory

12 information. Therefore, I want to make sure that I'm very clear on the

13 record that we want the entire Srebrenica file from the Prosecution. And

14 I believe we're entitled to it, based on the joinder indictment that they

15 have proposed to this Tribunal.

16 Now, I may reconsider my position if they somehow amend the

17 indictment based on court orders, but as it stands, I believe that in all

18 due fairness to all of the accused that we should be entitled to the

19 entire file. And with that in mind, I would urge the Court to urge the

20 Prosecution to perhaps hire additional staff, do whatever it needs to do

21 to ensure that they could make the copies well in advance, buy the CDs,

22 whatever it takes, so that we can proceed with all deliberate speed.

23 If we had the discovery -- the disclosure, as I've indicated, we

24 could be ready for trial as early as November. I understand we have some

25 limitations, but the longer it takes for us to get the material, the less

Page 11

1 prepared we're going to be. And if we're going to get to the truth, then

2 we need to have access to this material. Thank you.

3 JUDGE SCHOMBURG: Thank you. Before giving the floor to the OTP,

4 I want to emphasise that when we currently ask or request the OTP to do

5 this and that until a concrete date, there is no doubt that the OTP feels

6 obliged under this request to do so. This is true also for the Butler

7 report.

8 As regards the other material, we can't discuss in detail Rule 68

9 to a certain extent applying -- to be applied correspondingly as regards

10 formal witness statements.

11 I would invite, if necessary, the OTP to comment on the question

12 of the Srebrenica file.

13 MR. McCLOSKEY: Yes, Mr. President. There was no misunderstanding

14 whatsoever what the end of October meant, as you have said.

15 And regarding the discovery, we, of course, under the reciprocal

16 discovery provisions as invoked by three of the four accused, Mr. Karnavas

17 being one of those, we intend to provide the material that may be --

18 excuse me, the documents and other things described, including witness

19 statements that may be material to the preparation of the defence. That

20 does not say the entire Prosecution file. I don't think Mr. Karnavas is

21 suggesting Rule 70 material is something that he should have. I

22 appreciate that he's giving us a clue on what he feels is material to the

23 preparation, and we will look at this very broadly. And in effect, when

24 you're looking at a large number of documents, it's much simpler for us to

25 interpret it broadly and to give him the broadest possible, as opposed to

Page 12

1 pick and choose. So the only picking and choosing that we'll do are

2 material such as Rule 70, material that is internal to the Prosecution,

3 certain materials that would be highly confidential under the rules in any

4 investigation. So, I don't expect we have a real problem, and if there's

5 something in particular Mr. Karnavas wants, he and I have always been able

6 to discuss these things. And I don't think we'll have a problem. And

7 when we do, we'll file motions. But I don't see any particular point of

8 litigation right now but -- and we may get there, but we're doing our best

9 to provide full and complete disclosure under the rules.

10 JUDGE SCHOMBURG: Indeed, I believe for today, we can leave this

11 with the -- this exchange of views. If there should be in future any

12 dispute, feel free to contact the Trial Chamber directly if you need an

13 order, if you feel not treated in the correct way, and if you believe that

14 there is additional material you really need. So we can't go into any

15 further details, if there is not a question of utmost importance as

16 regards disclosure today.

17 Then I would have one additional question to Mr. Karnavas: What

18 is the position of yours and, of course, your client as regards second

19 Defence counsel in the case?

20 MR. KARNAVAS: We've taken care of that detail, Your Honour. I

21 mean, I assume that -- I assume that you're concerned that we don't have a

22 second counsel at this point.

23 JUDGE SCHOMBURG: That's right, yes.

24 MR. KARNAVAS: If -- as I understand the rules, we are entitled to

25 one. We will have one. And I suspect that it will most likely be

Page 13

1 Ms. Tomanovic that's currently working on the case. So I would not be

2 concerned, I mean, if I were you.

3 JUDGE SCHOMBURG: That's really nice; but on the other hand, on

4 some experience in previous cases, we appreciate that at the earliest

5 point in time there is a Defence team. And I don't want to ask the

6 accused already today that in case one Defence counsel, for the one or

7 other reason, can't be present - and in these cases we have before us,

8 this will be always the one or other day the case - that the accused agree

9 in writing that they, in the absence of the other Defence counsel, are

10 prepared to continue the case only in the presence of one Defence

11 counsel. This is the underlying reason. And I think this should be done

12 as soon as possible.

13 I hope you will be always present here, Mr. Karnavas, but it may

14 be that also you, the one or other day, want to take, say, holiday or

15 other unexpected things will happen. So it's in the interests of justice

16 to have two Defence counsel, to have an entire Defence team, and that if

17 necessary only one Defence counsel acts.

18 MR. KARNAVAS: I understand, Your Honour. I fully appreciate, and

19 I trust that I can count on His Honour to assist me from prying more

20 resources from the Registry, because that's one of the considerations.

21 They have a different view as to how somebody charged with these sorts of

22 allegations should be represented, and the resources are limited. And

23 we're trying to stretch the resources, particularly since the case may go

24 on for another year before we go to trial. But I do understand the

25 Court's position, I respect the Court's position, and obviously we will

Page 14

1 honour the Court's position. Thank you.

2 JUDGE SCHOMBURG: And now you have exactly touched the point why I

3 raised this issue today.

4 MR. KARNAVAS: Thank you, Your Honour.

5 JUDGE SCHOMBURG: Then -- please.

6 MR. LONDROVIC: [Interpretation] Your Honours, on behalf of the

7 Defence of Mr. Nikolic, I would like to ask you to bear in mind that he

8 was arrested in April of this year. And with due respect for the fact

9 that the other co-accused were arrested earlier, the Defence counsel for

10 Mr. Nikolic stressed to your legal officer that we do need more time than

11 the others to get prepared for this trial.

12 As far as materials are concerned, we have so far received only

13 the supporting material, 16 or 17 witness statements from the Krstic

14 case. And earlier today, Mr. McCloskey informed us here at the Status

15 Conference that the rest of the materials are pending. Defence for the

16 accused Nikolic intends to invoke Rule 65(B), reciprocal disclosure, that

17 is, and we will do that fairly soon, which will enable us, hopefully, to

18 receive a large volume of materials, including those of the Zvornik and

19 Bratunac Brigades. We will need a lot of time to do that. And to that

20 end, I am kindly asking you to extend the time allocated for preparing

21 pretrial briefs. The time we have now, in our opinion, is too short for

22 us to get prepared for a fair and just defence and proper representation

23 of Mr. Nikolic.

24 JUDGE SCHOMBURG: I learned about your concern yesterday, and we

25 discussed it briefly. The rule to be applied here is normally that the

Page 15

1

2

3

4

5

6

7

8

9

10

11

12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.

14

15

16

17

18

19

20

21

22

23

24

25

Page 16

1 case should be ready for trial within six months. And taking into account

2 that the necessary documents will be provided to you immediately, I think

3 it's fair enough to expect you to be ready for trial by the end of the

4 year. There is a period of, say, five months for you. And take into

5 account what I said before: Maybe the case can start, worst case, in

6 May. So please proceed in the way that is most appropriate for you. I

7 have no doubts that you will be provided with the necessary material

8 immediately, and try to stick to the schedule as indicated before. I

9 think it's possible.

10 Any other issues for the Pre-Trial Conference? Sorry, for the

11 Status Conference? Then I take the opportunity finally to hand down a

12 decision. It's the decision on the accused Blagojevic's request for

13 judicial notice and deletion of facts from the indictment. The Trial

14 Chamber has decided that this motion is denied. We make reference to the

15 arguments put forward by the OTP. First of all, it should be emphasised

16 that Rule 94(B) applies only to those facts proven beyond a reasonable

17 doubt in other proceedings.

18 Invocation of Rule 94(B) is clearly contingent upon a previously

19 judicial conclusion that such facts are indeed true. Judicial conclusion

20 that certain facts were not proven beyond a reasonable doubt in a previous

21 trial does not suggest that such facts are true or false or provable or

22 not provable. Rather, it simply reflects the other Trial Chamber's

23 opinion that in that particular proceeding, it had not been presented with

24 evidence sufficient to establish those facts beyond a reasonable doubt.

25 Such conclusions by a Trial Chamber are not adjudicated facts within the

Page 17

1 meaning of Rule 94(B). But I'm quite sure we will come back to Rule 94(B)

2 in another context; at least, I hope so.

3 May we then turn immediately to the hearings on provisional

4 release as regards Mr. Blagojevic and Mr. Obrenovic. The representatives

5 of Mr. Jokic and Mr. Nikolic and the accused Nikolic himself, they are

6 excused for now. Thank you.

7 MR. LONDROVIC: [Interpretation] Your Honours, may we stay and

8 listen to the proceedings? Can we get your permission to do that?

9 JUDGE SCHOMBURG: We were confronted with this question already

10 earlier. And at that time, we decided that it's a matter decided -- only

11 to be decided on an individual basis with respect to the individual

12 applying here for provisional release. And therefore, please understand

13 that we would ask you, if necessary and if you so want, to listen in the

14 public gallery.

15 MR. LONDROVIC: [Interpretation] Thank you.

16 MR. KARNAVAS: Your Honour, just to make sure that I understand,

17 you want me gone, too, right? Am I to leave as well? I'm not sure.

18 JUDGE SCHOMBURG: Please.

19 MR. KARNAVAS: Thank you.

20 JUDGE SCHOMBURG: Mr. Karnavas, it's very kind. But as I said

21 earlier, we should discuss only this case with the accused and, of course

22 their representatives, in the case we have before us. And this is also

23 the provisional release of your client. Right?

24 MR. KARNAVAS: So we are going to handle both at the same time?

25 JUDGE SCHOMBURG: Right.

Page 18

1 MR. KARNAVAS: That's fine.

2 JUDGE SCHOMBURG: I think it's appropriate.

3 [The Defence counsel withdrew]

4 JUDGE SCHOMBURG: The Trial Chamber is fully aware that it's

5 mandatory to have individual decisions because the personal situation of

6 each accused is a different one. But nevertheless, I think we can all

7 agree that certain points are in common, and they should be discussed in

8 this joint hearing on the both motions on provisional release we have

9 before us.

10 We have received not only the motion, the response, we have

11 received the reports on the behaviour of the accused whilst in custody.

12 Therefore, I think we can limit ourselves to the core issues of the

13 question of provisional release. And I would ask also the parties to be

14 as short as possible and to avoid, if possible, repetitions. May the

15 Defence for Mr. Obrenovic - this was the first motion filed - please

16 start.

17 MR. WILSON: Thank you, Mr. President. On behalf of

18 Mr. Obrenovic, we appreciate the opportunity to appear before the Trial

19 Chamber today in support of his motion for provisional release. I will

20 take into account your instructions just issued that you have read

21 everything, and I certainly will not make any attempt to repeat everything

22 that we have said in our filings. I believe that the filings on behalf of

23 Mr. Obrenovic and also, for that matter, the ones filed by the Prosecution

24 are complete and accurately set forth the opposing views on this issue.

25 The defendant -- the accused, Mr. Obrenovic, fully understands

Page 19

1 that it is his burden to show that, first of all, he will return for trial

2 as required; and secondly, that he will pose no danger to any witnesses.

3 We have set forth in great detail, or I believe sufficient detail, at any

4 rate, in our motions the reasons why we believe that it is clear that he

5 will return for trial. He has cooperated with the Prosecution, with the

6 Tribunal, and with the United Nations Detention Unit from the time that he

7 became involved in this case. In fact, from well before he became

8 involved in the case, when he was interviewed by the Prosecution months

9 before his arrest. He was also asked by them to provide certain documents

10 and access to certain evidence. He cooperated in those instances.

11 He always appeared voluntarily for the interview sessions that

12 were set for him, and at the close of the second interview, as we have

13 said, it was very clear to Mr. Obrenovic that he was, in all likelihood,

14 going to be indicted. We have set out in our brief his offer to the

15 Prosecution to surrender himself if they would notify him when and where

16 to show up. For five months there was nothing further on the case. He

17 remained at his place of business, his place of work, and at his home, and

18 that's where he was arrested, without incident, some five months after

19 that offer.

20 We appreciate that it is the Prosecution's authority to arrest

21 rather than to honour such requests. There's nothing we can do about

22 that. However, we do believe that the record in this instance should

23 hopefully lead the Trial Chamber to conclude that there are no adverse

24 inferences to be drawn in this instance from Mr. Obrenovic not

25 surrendering himself. He did everything he could do to do so.

Page 20

1 Since he was arrested, he has cooperated with the Tribunal and

2 with the United Nations Detention Unit. We have cooperated with the

3 Prosecution. I believe and certainly hope that Mr. McCloskey would agree

4 that we have been cooperative in our approach to the case. We have

5 announced to the Court from my very first appearances that we did not

6 intend to contest the uncontestable or contest the things that were not

7 really of importance to us. We have a very straightforward defence in

8 this case, and it is that did he not know about the incidents which were

9 charged in the indictment, nor should he have known, under the

10 circumstances.

11 It is a very complex case. Mr. Obrenovic is quite comfortable

12 with the concept of Your Honours -- as of course he must be, but he is, in

13 truth, comfortable with the concept that Your Honours will make those

14 decisions after you have heard all of the evidence from the Prosecution

15 and all of the evidence from the Defence. That's all we ask for.

16 He, as he said to Mr. McCloskey and to the Office of the

17 Prosecution, at any rate, on the record at his interview, if he is

18 released, he will not run. He has nowhere to go. His family has lived in

19 that Zvornik area and in the Bosnia area for more than 50 years. He comes

20 from a very stable family. He has a wife, children. He's no longer in

21 the military. It's his hope that if he is released on provisional release

22 he can return to Zvornik and help support his family. He has a wife and a

23 6-year-old son. His absence is a great hardship on them because they, of

24 course, lose his income since he's here.

25 We are very concerned, of course, by the fact that we still don't

Page 21

1 have a trial date. We understand why we don't have a trial date. We

2 certainly listen to what the Court tells us, and we appreciate the fact

3 that there are so many courtrooms and so forth and that there are other

4 cases also which may get to trial before us. But the bottom line, Your

5 Honour, is that there is an excellent chance that our case will not go to

6 trial for perhaps another year. If that is true, then Mr. Obrenovic,

7 without ever having been convicted of anything, will have spent more than

8 two years in prison before he gets to trial. As the Court has pointed out

9 in numerous decisions, both this Trial Chamber and others, that is not the

10 acceptable standard in most instances and it's not necessary in this

11 case.

12 We would just like to make a couple of points with regard to the

13 Prosecution's brief on this case. They point to Mr. Pandurevic and say

14 Mr. Pandurevic, they believe, is in Serbia. Is he? I don't know. I'm

15 sure they know more about that than we do. And they point out the fact

16 that Mr. Obrenovic could go to Serbia and suddenly remove himself from the

17 jurisdiction of the Court. Now, whether that is true with the situation

18 in Serbia today I think is arguable, but I think the most telling point on

19 this issue is that he did not go to Serbia.

20 We invite the Trial Chamber to compare his situation to

21 Mr. Pandurevic's. Mr. Obrenovic has faced everything responsibly. He has

22 done what everybody has asked him to do. He shows up when people ask him

23 to do so. He answers the questions. He provides physical evidence. And

24 since he has been arrested, he has behaved responsibly at the Detention

25 Unit, as set forth in Mr. McFadden's statement.

Page 22

1 We would invite you to compare that with the case of

2 Mr. Pandurevic, if Mr. Pandurevic is, in fact, a fugitive. The telling

3 point again is that Mr. Obrenovic is here, and he is here because he

4 stayed at his location and because he has met his responsibilities.

5 So we believe that the argument, the invocation of the Pandurevic

6 spectre that somehow if he's released he's going to do what Mr. Pandurevic

7 did is not a very good argument and not a very persuasive one. He could

8 have done that months before his arrest if that was his intention. He

9 didn't. The proof is in the pudding, as we say in our system, and we

10 believe that in this instance he has established as best he possibly can

11 that he is a responsible person, that he will follow your orders, that he

12 will do exactly what you tell him to do.

13 The second prong of the test which we also understand is that he

14 will not be a danger to any other witness. The Prosecution has filed

15 the --

16 JUDGE SCHOMBURG: Sorry. If you want to address the confidential

17 filed motion of the Prosecution now, then we should go, please, into

18 closed session.

19 MR. WILSON: Very well, Your Honour.

20 JUDGE SCHOMBURG: Closed session, please.

21 THE REGISTRAR: Closed?

22 JUDGE SCHOMBURG: Yes.

23 [Closed session]

24 (redacted)

25 (redacted)

Page 23

1

2

3

4

5

6

7

8

9

10

11

12 Pages 23 to 28 redacted closed session.

13

14

15

16

17

18

19

20

21

22

23

24

25

Page 29

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 [Open session]

12 JUDGE SCHOMBURG: When we are then in public session, I should

13 like the Defence counsel for Mr. Blagojevic to address in the same "to the

14 point" manner the issues especially related to his client.

15 MR. KARNAVAS: [No microphone]

16 JUDGE SCHOMBURG: I think you can wait.

17 Please.

18 MR. KARNAVAS: Thank you, Mr. President. First, I want to thank

19 the Chamber for fast-tracking this request.

20 I think the brief that we presented adequately sets forth what the

21 law is. It's pretty set and concrete. There's no need for me to repeat

22 what's in the brief or to go over material that was so artfully and

23 succinctly put by Mr. Wilson.

24 In looking at the Prosecution's response, paragraph 7, they focus

25 on one aspect, and that is they say that Mr. Blagojevic has not

Page 30

1 satisfactorily established that he will appear for trial. That's one of

2 the two-pronged requirements. Therefore, I think we can discard any

3 argument that the Prosecution has with respect to Mr. Blagojevic should he

4 be released, will, in any way, shape, or form influence or intimidate in

5 any way witnesses, victims, or other persons. So in essence, as I read

6 their objection to Mr. Blagojevic's provisional release, it's based on

7 that we have not provided or satisfied the first prong. In looking at

8 their response, they then do not, in any concrete fashion, set out as to

9 how it is that we have not satisfactorily established that he will not

10 appear for trial. It's just a blanket statement being made by the

11 Prosecution, as I would expect them to make when not having anything other

12 to argue.

13 This case began with the arrest of Mr. Blagojevic back on

14 August 10th, almost a year ago. He was totally unaware that he had been

15 indicted. He had never been asked to provide a statement. OTP's office

16 in Banja Luka is only 3 to 5 kilometres away, a 5-minute distance. He was

17 totally unaware that he was -- that he was under indictment or that he was

18 a suspect or even a witness, even though he was fully aware that other

19 members of the Drina Corps or the Bratunac Brigade were being questioned

20 at the time, and he was fully aware, as the whole world was aware, that

21 General Krstic was on trial and was convicted and was given a stiff

22 sentence. And yet, never did he leave the RS. He did not try to

23 influence anybody. He did not try to escape to a foreign country. So he

24 was readily available. In fact, part of his job was to have daily contact

25 or occasional contact with SFOR. So to say somehow that now he presents a

Page 31

1 flight risk, to just make a blanket statement without any concrete

2 evidence, I think, to put it mildly is sheer poppycock. There is nothing

3 there to suggest that he will not return.

4 The Prosecution then goes on to state that because of the severity

5 of the charges, that is a consideration. And obviously, it is. But as we

6 pointed out, there have been other instances in other cases, and I

7 hesitate to mention names, because I don't think it's appropriate, but

8 there have been other instances where accused who are in an advanced age

9 with very serious crimes, in essence, if they were convicted, would die in

10 prison. And that in and of itself is a life sentence.

11 We did point out that this particular Trial Chamber did release

12 accused Jokic. The Prosecutor at the Court's invitation indicated that

13 should he be convicted, he would be facing a 30- or 40-year sentence. At

14 age 45, he would end up getting out at age 85, either -- assuming that he

15 would still be alive in prison. That in and of itself is a life sentence;

16 yet, the Prosecution did not object to Mr. Jokic's release and did not

17 raise this issue, even though when you look at the indictment, you can see

18 that he is prominently in almost every single count, with the exception of

19 the most serious counts of genocide.

20 The Prosecution in paragraph 11 indicates that - and it's a quite

21 clever argument, if I may say - they indicate that they have strong

22 evidence, strong evidence. Now, it is clear from -- and it's established

23 here in the Tribunal that the Trial Chambers will not look at the weakness

24 or the strength of a Prosecution's case in determining whether somebody

25 should be provisionally released. That is available in the United States,

Page 32

1 for instance. It's codified. But here, there's a two-prong test. And

2 if -- and I suggest that that is exactly what the Prosecution is

3 attempting to do here, is to argue that somehow their case is so strong

4 it's an inevitable conviction; keep him in. If you further read into

5 their motion, it would be clear that what they are saying actually is that

6 as a matter of public policy, anybody charged with genocide or complicity

7 with respect to Srebrenica in genocide should not, as a matter of law, be

8 released, which is clearly impermissible, clearly impermissible. And I

9 think we argued that point quite well in the brief.

10 There is absolutely not one identifiable, concrete piece of

11 evidence refuting the conditions that have been set forth by

12 Mr. Blagojevic in the brief. The Prosecution does not argue, for

13 instance, that the conditions are not strict enough. They do not argue

14 that the RS, the Republika Srpska, is not or has not cooperated, or will

15 not cooperate. They do not argue that somehow he's going to cross over a

16 bridge into a foreign country that has been less than cooperative in the

17 past. They don't argue that he will intimidate any witnesses. It is

18 clear, because of his housing situation, he will be living off base. So

19 he will be living in the city limits. He will be reporting to the police

20 on a daily basis. They will have access at any time or day to go in and

21 make spot checks. The only thing obviously we have requested, and I would

22 be making this request irrespective of this particular hearing, is that we

23 have the opportunity to visit the site, given the importance and

24 complexity of this case, in order for Mr. Blagojevic to assist in the

25 preparation of his Defence, as he is entitled to under the statute and

Page 33

1 under all the -- international legal instruments upon which the statute

2 was founded.

3 I don't want to belabour the point. I think the conditions that

4 we have set forth, Your Honour, are very clear. These are the same

5 conditions that other Trial Chambers have adopted in other cases. And I

6 think what the Prosecution is attempting to do in a subtle way is to have

7 this Trial Chamber send a message. And it's quite clear, as you have

8 indicated, Mr. President, that this Tribunal is not mandated to sending

9 messages. It's mandated to apply the law. And as a matter of fairness,

10 we believe Mr. Blagojevic should be allowed to be provisionally released

11 because in this case, it smacks of unfairness on the other side. They

12 never contacted him, either as a witness or a suspect. They never gave

13 him the opportunity to provide a statement. They never gave him the

14 opportunity to turn himself in. And once, obviously, he was arrested, he

15 exercised his right to remain silent, and he has a right to do so. Not to

16 mention the way he was arrested, as if he was some sort of drug kingpin,

17 obviously did not put him in the frame of mind to view the Prosecution as

18 if they were there to be fair.

19 So as a matter of fairness, Your Honour, given the fact that you

20 have to look at the totality of the circumstances, I believe that we have

21 met our burden, and the burden should shift on the Prosecution to

22 establish as to how it is they believe we have not established

23 sufficiently that he will appear for trial. Thank you.

24 JUDGE SCHOMBURG: Thank you, Mr. Karnavas.

25 Before we turn to the Office of the Prosecutor, may I ask the

Page 34

1 amici curiae from Bosnia and Herzegovina, whether they want to add

2 anything to that what they have given us in writing until now, especially

3 the guarantees?

4 Microphone, please.

5 MR. JOVICIC: [Interpretation] I apologise. Your Honour, thank you

6 for allowing me to speak. I am representing the Government of Republika

7 Srpska at this trial. And as you know, this government has submitted a

8 guarantee. I can, however, state that the government has provided some

9 additional guarantees for Mr. Obrenovic. Unfortunately, due to shortness

10 of time, I cannot offer the same kind of guarantees for Mr. Blagojevic,

11 although I am certain the government would have provided them had I had

12 time to ask for them.

13 With your leave, I will read the additional guarantees which the

14 Government of Republika Srpska has provided for Mr. Obrenovic. They are

15 very brief, and I hope will not take up too much time.

16 JUDGE SCHOMBURG: Until now, it was the custom in this Tribunal to

17 have these guarantees in writing, and I think it's appropriate if you,

18 after this hearing, present the documents to the registry or the senior

19 legal officer in this case sitting before me.

20 I appreciate this. One question: The guarantees as regards

21 Mr. Blagojevic, they date, indeed, 20th of June, 2002? Because it was to

22 a certain surprise to receive these guarantees before the motion on

23 provisional release dated the 17th of July, 2002.

24 MR. JOVICIC: [Interpretation] Your Honour, as far as I know, the

25 Defence submitted a request to the Government of Republika Srpska asking

Page 35

1 for a guarantee. As I was able to be present at a government session, and

2 immediately after this session, I arrived in The Hague, I brought the

3 original with me. As you see, the time is very short, or rather the time

4 that has elapsed since the guarantee was issued.

5 JUDGE SCHOMBURG: Thank you. Then let's proceed this way: that

6 additional documents are given to the senior legal officer.

7 Please, your colleague wants to address the Court as well?

8 MR. LUKOVAC: [Interpretation] Thank you, Your Honour. Your

9 Honour, on behalf of the Presidency, I wish only to indicate that our

10 Presidency does not have the required instruments which would enable it to

11 provide guarantees pursuant to requests for provisional release. There is

12 some confusion, because this guarantee was issued by the government, and

13 I'm speaking on behalf of the Presidency.

14 JUDGE SCHOMBURG: Thank you for this clarification.

15 I think it's now for the Office of the Prosecutor to respond.

16 MR. McCLOSKEY: Again, Mr. President, our responses are in written

17 form, but I would merely and briefly emphasise the foundation of both

18 arguments are a flight risk, and that is because both these men,

19 Commander Blagojevic at the time, and Deputy Commander Obrenovic at the

20 time, were involved in the largest mass execution since World War II, and

21 they will be facing life sentences if they're convicted.

22 At the same time, they live right across the river from Serbia

23 where Vinko Pandurevic, the former colleague of both of them, has been

24 a -- has been hiding out for a long time, as well as others that I don't

25 need to go into at this point. There is no record of them turning

Page 36

1 themselves in, nor would it have been the obligation of the Prosecutor to

2 allow such men in such circumstances to turn themselves in.

3 The world, unfortunately, is not as nice a place as described by

4 the Defence counsel, and the people in it and the governments in the

5 former Yugoslavia cannot meet the responsibilities that one would expect

6 in a civilised world, and flight risk to Yugoslavia is a very reasonable

7 possibility under all of these circumstances. That is principally what we

8 are founding this argument on, as well as the other argument related to

9 Mr. Obrenovic.

10 JUDGE SCHOMBURG: Thank you. May we finally turn to the main

11 persons. It is a question of the ongoing or not ongoing detention,

12 deprivation of liberty, and therefore, I have to ask both Mr. Obrenovic

13 and Mr. Blagojevic, do you want to add anything from your point of view to

14 that what has already been said?

15 Mr. Obrenovic first, please.

16 THE ACCUSED OBRENOVIC: [Interpretation] Your Honour, first of all,

17 I wish to thank you for considering my request. I wish to tell you that

18 if you grant my request, I will strictly adhere to any conditions set by

19 you. I will do nothing to hinder the investigation or do anything of that

20 sort and that I will appear at any time and place set by you. Thank you.

21 JUDGE SCHOMBURG: Thank you.

22 Mr. Blagojevic.

23 THE INTERPRETER: Microphone, please.

24 THE ACCUSED BLAGOJEVIC: [Interpretation] Your Honour, I wish to

25 say that any conditions imposed by the Chamber in connection with my

Page 37

1 possible provisional release, pursuant to my request that I will strictly

2 adhere to those.

3 JUDGE SCHOMBURG: Thank you. The Trial Chamber will hand down, as

4 soon as possible, a decision in writing on this issue.

5 MR. KARNAVAS: Your Honour, I know that I shouldn't be

6 interrupting you. I just wanted to clarify the matter of the guarantee,

7 because you had that particular question. I might be able to assist you

8 as to why.

9 JUDGE SCHOMBURG: I understand that you, in preparation of your

10 motion, asked for this --

11 MR. KARNAVAS: In advance.

12 JUDGE SCHOMBURG: In advance.

13 MR. KARNAVAS: And it was only yesterday that the gentleman had

14 the opportunity. But also, we got the guarantee in about five days, which

15 is a record time to start with, because it normally takes two or three

16 months sometimes. So we were trying to fast-track this.

17 JUDGE SCHOMBURG: Yes. Thank you for this additional

18 clarification, and the case is adjourned.

19 --- Whereupon the Motion Hearing adjourned

20 at 12.30 p.m.

21

22

23

24

25