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.
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
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
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
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.
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
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
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
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
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,
10 MR. KARNAVAS: Your Honour, if I may be heard briefly. Michael
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.
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
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
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
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
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
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
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
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
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.
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
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
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.
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
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
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
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.
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]
12 Pages 23 to 28 – redacted – closed session.
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.
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
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
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,
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
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
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
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
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
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.