Tribunal Criminal Tribunal for the Former Yugoslavia

Page 2


2   THE PRESIDING JUDGE [Original in French]: Good morning. Perhaps we

3   should check that

4   everyone can hear? Can you hear me on the English channel?

5   MR. NIEMANN: Thank you, your Honour, yes.

6   THE PRESIDING Judge: Thank you. Mr. Hodak, can you hear me? Can you hear

7   the

8   interpretation?

9   MR. HODAK [Original in Serbo-Croat]: Yes.

10   THE PRESIDING JUDGE: Can everyone hear? Can the accused hear? The

11   Registrar has the

12   floor.

13   THE REGISTRAR [Original in French]: This is IT-95-T, the Court against

14   General Blaskic,

15   and this is a hearing for provisional release.

16   THE PRESIDING JUDGE: Thank you. Yes, this is a request for provisional

17   release that was

18   presented yesterday by the Defence, Who is seated at the Prosecutor's

19   bench?

20   MR. NIEMANN : If your Honour pleases, my name is Niemann and I appear for

21   the

22   Prosecution. I am assisted at the Bar table with Miss Payman,

23   THE PRESIDING Judge: Who is representing General Blaskic?

24   MR. HODAK [Original in Serbo-Croat]: Your Honour, General Blaskic is

25   represented by

26   attomeys at law Zvonimir Hodak and my colleague, Mrs. Nela Pedisic.

27   THE PRESIDING JUDGE: This is a request for provisional release under Rule 65

28   and,

29   therefore, although it is not compulsory, our Rules require that we hear the

30   host country,

31   in other words, the representatives of the Dutch government which we

32   have called. Are

33   they present? Are they going to be taking the floor? Registrar?

34   THE REGISTRAR: Your Honour, sir, right after the hearing yesterday, we

35   contacted the

36   Foreign Affairs Ministry of the Netherlands, and this morning we received

37   the following

Page 3

1   answer that I shall read to you The host 'Country is not able to appear

2   today given the

3   very short time span that was given. The person from the Ministry who

4   would have

5   appeared is abroad, and the host country would request a written request

6   in the future.

7   This was not the case since because of the very short time span we called

8   on the phone.

9   Therefore, in the future they are requesting to be informed in writing and

10   they would also

11   like to be informed in writing of the questions that are to be put to the

12   authorities.

13   Therefore, unfortunately, I was not able to fulfill the task that you

14   requested from me

15   yesterday. Thank you.

Page 4

1   THE PRESIDING JUDGE: Thank you to the Registrar, We shall withdraw to

2   determine what

3   we should do because of the absence of the host country. The hearing is

4   adjourned.

5   (The hearing adjourned for a short time)

6   (10.35 a.m.)

7   THE PRESIDING JUDGE: After having heard what our Registrar has read about

8   the position

9   of the host country, the Tribunal will now continue the hearing for the

10   request for

11   provisional release, and what happened this morning will be included in the

12   request. We

13   will interpret the question, rather, the answer from the host country and it

14   will be

15   interpreted as it should be, or it should be interpreted without the need for

16   hearing the

17   host country.

18   The Tribunal would, however, like to criticize that attitude. It is

19   difficult to

20   understand that there is not a single legal specialist within the Ministry of

21   Justice or of

22   Defense at the Netherlands who could come here, and to say we have to

23   inform in

24   advance in order to have somebody appear as a person called to the

25   Tribunal as provided

26   for in Rule 65. The Tribunal says that it will, therefore, interpret the

27   answer from the

28   Registrar, as it was transmitted quickly, it will interpret the request as it

29   wants because no

30   delays can be accepted, There is, of course, a reasonable delay which can

31   be accepted to

32   allow a lawyer who is coming from far away or when the Office of the

33   Prosecutor needs

34   time to be organized. We are not closed minded when it comes to all

35   different types of

36   consideration, but when asking for provisional release for somebody who is

37   incarcerated,

Page 5

1   it has to take place in the quickest manner possible. Since the host country

2   is the host

3   country here, it does seem to be an institution which might be something

4   which we could

5   mobilize immediately. It could be a civil service from the Ministry of

6   Foreign Affairs or

7   Justice.

8   Of course, the Tribunal will, therefore, interpret the answer which

9   will be

10   attached to the case file, the answer from the Ministry, and it will be part

11   of the answer.

12   We are now giving the floor to Mr. Hodak to present the request for

13   provisional release

14   for General Blaskic, but first, if you do not mind, I would like to ask

15   General Blaskic to

16   tell us whether he has any observations to make about what has just taken

17   place; if not,

18   we will immediately give the floor to Mr. Hodak.

19   Do you wish to speak, General Blaskic?

Page 6

1   THE ACCUSED GENERAL BLASKIC [Original in Serbo-Croat]: No, your

2   Honour, I have

3   nothing to say to this.

4   THE PRESIDING JUDGE: I am sorry, I did not hear that. I did not get the

5   interpretation of

6   that. Am I supposed to change buttons, change channels? Thank you. I am

7   sorry, 1

8   again made a technical error here. Under these conditions, the request for

9   provisional

10   release as presented by Mr. Hodak or by his colleague, we can now give

11   the floor to the

12   Defence.

13   MR. HODAK: Your Honour, Mr. President, yesterday I briefly elaborated my

14   position and the

15   position of my client in respect of the application of Rule 65(A), (B) and

16  . As you may

17   know, yesterday we were given one part of evidence by the Prosecutor

18   after a

19   considerable time, and we had a chance to read this evidence. We know that

20   the quality

21   of evidence will be decided on by the Chamber and that the Defence cannot

22   speak about

23   the quality of evidence, but I have to say that the evidence that we

24   received yesterday

25   from legal point of view are irrelevant. It is a kind of evidence which, for

26   example, speaks

27   about the creation of the Republic of Herceg-Bosna which is a political act

28   in which my

29   client did not take any part and, even if he had, this is not something that

30   he can be

31   charged with. All I want to say that in respect of relevant evidence,

32   competent evidence,

33   on which the decision can be based, we have not made any significant

34   progress from 2nd

35   April when Mr. Blaskic entered his plea of innocence.

36   As you know, General Blaskic appeared before this Tribunal voluntarily.

37   He

Page 7

1   was not arrested. He was not arrested in Germany, France or Austria, but

2   he arrived in

3   The Hague on a commercial flight and made himself available to this

4   Tribunal and this

5   Trial Chamber.

6   This proves that General Blaskic is not the kind of person which

7   would abuse

8   your goodwill in case he is provisionally released in accordance with

9   Article 65,

10   What we have stressed several times, and what we try to present

11   clearly in

12   our talks with the Prosecution before the arrival of General Blaskic to The

13   Hague, is that

14   the Croatian government will give written guarantees that General Blaskic

15   will always

16   appear before this Tribunal at the exact time whenever the Tribunal so

17   requests, that is to

18   say, at all hearings.

19   Why can the Croatian government guarantee for General Blaskic?

20   Simply

21   because General Blaskic is an active member, active officer, of the Croatian

22   Army. He is

Page 8

1   under the jurisdiction of the Ministry of Defence which is under the Croatian

2   government.

3   As an officer of the Croatian Army, General Blaskic is bound to obey all the

4   orders

5   issued to him by the Ministry of Defence and the government of Croatia. This is

6   the

7   reason why I can claim, why I can maintain, that the Croatian government is

8   prepared to

9   give all the necessary guarantees to this Trial Chamber, that the accused General

10   Blaskic

11   will always appear before this Trial Chamber whenever so requested by it.

12   A further reason which speaks in favor to what we suggested yesterday

13   and

14   what we are elaborating today is the law of the Republic of Croatia which has

15   been

16   recently passed on the co-operation of the Republic of Croatia with the

17   International

18   Tribunal in The Hague. It is a constitutional law and it was passed, voted, by the

19   Croatian parliament with two-thirds, with only one vote against and four votes

20   abstained.

21   So, a great majority of the Croatian parliament voted in favor of that

22   constitutional act

23   which commits, obliges, the Republic of Croatia to respect, to abide by, all

24   requests of the

25   International Tribunal, therefore, all the requests of this Trial Chamber and you,

26   -Mr.

27   President. So, each of your requests is a legal obligation of the Republic of

28   Croatia and

29   he Republic of Croatia is bound to respect its constitutional laws.

30   So, from the legal point of view, General Blaskic should appear before this

31   Tribunal whenever so requested and the government should give guarantees for

32   that.

33   Yesterday I said that General Blaskic is prepared to observe all conditions

34   that may be imposed by this Trial Chamber, that is, all restrictions that the trial

35   in its

36   decision would set out. Therefore, General Blaskic declares through myself,

37   Defence

Page 9

1   counsel, that he will observe those conditions and he will not default on it if this

2   Trial

3   Chamber trusts him.

4   I would like to add something which may not be as relevant from the legal

5   point of view but may be served as some sort of guidance for this Trial Chamber

6   in

7   reaching the decision this case; this is the personal family situation of General

8   Blaskic

9   which is at the same time very difficult and tragic. Yesterday we heard this story

10   and we

11   can prove that in a very short amount of time we can give names of 25 relatives

12   of

13   General Blaskic who have been killed in this war, including his father, Ivan, who

14   was

15   killed in the very area mentioned in the indictment. In addition to his father, 24

16   relatives

17   of General Blaskic were also killed. We have evidence to prove this and we can

18   make this

19   evidence available to the Tribunal and the Prosecution as soon as possible.

Page 10

1   Furthermore, General Blaskic cares for his mother after the death of his

2   father, his wife who is also unemployed, his son, his eight year old son, and his

3   one month

4   old son too. I here dispose of written documents proving that the wife of General

5   Blaskic

6   is currently in hospital. She is very seriously ill and she is being treated. His

7   children,

8   therefore, are being, taken care of by his friends which, you would admit, is

9   not a normal

10   situation, that although the parents are living, children have to be in

11   somebody else's

12   custody, children as young as one month.

13   The last piece of evidence which I would like to talk about today, Mr.

14   President, is something that I did not mention yesterday because I did not

15   know all the

16   relevant details. We spoke with the Prosecutor several times and the

17   Prosecutor knows

18   he was present at those talks, and we told him that until the constitutional

19   law of the

20   Republic of Croatia on the co-operation with the Tribunal in The Hague is

21   not passed, we

22   are willing to help General Blaskic arrive at the Hague voluntarily, but we

23   wanted for this

24   certain privileges which is perfectly normal in the talks between Prosecution

25   and Defence.

26   We requested that General Blaskic be granted certain privileges, that

27   is, to

28   have better conditions that he would have in a normal detention. We

29   requested that he be

30   accommodated outside the detention unit and that he be allowed to

31   communicate with his

32   wife by telephone, and that he also be enabled to have some physical

33   exercise and other

34   things which are normally available in a usual residence as opposed to the

35   detention unit

36   of the United Nations.

37   On I7th April, President Cassese met all our requests in his decision

38   and in

Page 11

1   which he stated an old Latin Rule which we translate "in dubio pro reo" ,

2   which says that

3   in case of doubt the Tribunal needs to be either lenient or rule in favour of

4   the accused.

5   President Cassese made us, therefore, intimated, that there are certain

6   doubts that General

7   Blaskic is actually a war criminal and that he committed the crimes alleged in

8   the

9   indictment. So he showed certain goodwill and allowed for some privileges to

10   be granted

11   to General Blaskic and reached a decision according to which General Blaskic

12   would be

13   allowed, is allowed, to live in a house with three rooms from which he could

14   telephone to

15   his wife and in which he could prepare his defence and meet -- he was also

16   enabled to

17   meet with his counsel and his wife outside that house in an hotel and he also

18   had the right

19   to spend a night with his wife, with his family, in an hotel once a month.

Page 12

1   We were satisfied with the privileges that were granted to him by the

2   President Cassese. However, yesterday we learned from the Registrar and

3   Mr. Marro

4   that, unfortunately, the Tribunal, that is the Registry, cannot implement

5   what President

6   Cassese granted to General Blaskic in his decision of 17th April. Legal and

7   other

8   obstacles that appeared in the implementation of the decision actually

9   prevent the

10   realization of what has been granted to General Blaskic.

11   The decision has been forwarded to New York and it is going to be

12   discussed

13   by legal advisers of the Secretary General. I do not know and I am not an

14   optimist in

15   respect of what they are going, to decide, because this is something which

16   can be

17   implemented at a practical level here only in The Hague.

18   Therefore, we are in this strange position. We have disclosed the

19   names of

20   witnesses to the Prosecutor. We have appeared voluntarily in The Hague, but

21   yesterday

22   we were notified that in spite of the goodwill of President Cassese there is

23   going to be

24   nothing; it was all to no avail.

25   therefore, think that this could be also one of the reasons that this

26   Trial

27   Chamber can take into consideration, namely, to take into consideration all

28   the facts that I

29   have mentioned here, If General Blaskic had, indeed, committed all the crimes

30   alleged in

31   the indictment, he would have never surrendered voluntarily to The Hague.

32   We know

33   that he is the only person from the former Yugoslavia who has come

34   voluntarily. If this

35   had not coincided with the birth of his son, he would have done it earlier.

36   The Prosecution knows that I explained several times to the Tribunal that

Page 13

1   they simply must take into consideration his personal situation, namely, the

2   birth of his

3   son, Once this was over and once General Blaskic came to my office, he told

4   me: "You

5   can now notify the Tribunal that I will come voluntarily. I am innocent. I am

6   a

7   professional soldier. I have graduated from a military academy and I have

8   always been the

9   first in my generation, the best student in my generation. Considering what

10   we have here

11   in relation to war crimes, I am certainly the last person that should be here. I

12   am the

13   person who abided by the Geneva Conventions in the most strict manner". I

14   have at my

15   disposal between 10 and 15 orders issued by him by which those who

16   committed war

17   crimes were severely punished.

18   I will not take any of your precious time. I have explained all the

19   reasons, all

20   the circumstances, that I believe to be relevant. I would like you to know

21   that we have

Page 14

1   not received any of the promises; any of the promises as for his house

2   arrest, not a

3   single promise has been really now fulfilled and General Blaskic does

4   not have

5   anything of what has been promised to him in respect to his

6   accommodation here.

7   I appeal to you to trust General Blaskic. He is prepared to observe all

8   conditions

9   imposed by this Trial Chamber and he is not going to default on his

10   promise. We

11   promise that it is possible here to have a trial of an officer, and this

12   can also be under

13   the conditions which are normal for any other trials.

14   THE PRESIDING JUDGE: One moment.

15   (The learned Judges conferred)

16   THE PRESIDING JUDGE: With the agreement of my colleagues and before I

17   give the floor to

18   the Prosecution, I would first like to give the floor to the Registrar. It has been

19   explained to the Tribunal what the current situation is concerning General

20   Blaskic's

21   detention. Turning to the Registrar, could you tell us where we are as

22   regards the

23   detention.

24   THE REGISTRAR[Original in French]: Your Honour, and your Honours, I am

25   unfortunately,

26   in a position where I must confirm what Mr. Hodak has said. The legal

27   situation is as

28   follows. President Cassese, in two orders pursuant to Rule 64 of the

29   Rules dealing

30   with the modification of detention conditions ordered the registry to

31   set up new arrangements for General Blaskic's detention. Unfortunately, the

32   legal specialists in

33   my office and myself realised that there were legal obstacles and

34   problems which had

35   not been noted by anybody to that point, and that those problems

36   created many

37   difficulties for us to implement the instructions which we had

38   ,received from

Page 15

1   president Cassese. I will not go into all the details unless you ask me

2   to.

3   We contacted the headquarters in New York to receive approval.

4   I am not

5   hopeless or completely pessimistic about getting an answer, but I

6   cannot make a promise at this point. The Registry was brought into this

7   very, very, recently, and it

8   was not involved in this from the very beginning. In any case, I am

9   not able to execute President Cassese's order.

10   Mrs. Sampayo, the Registrar, informed the President the day

11   before yesterday of this in writing, and we have given a copy of this

12   letter both to the Defence and to the Prosecution.

13   THE PRESIDING JUDGE: Turning again to the Registrar, could you,

14   however, tell the Tribunal, even approximately without revealing anything

15   that has to do with your

Page 16

1   competence, but what type of legal obstacles are involved and what

2   are you asking

3   New York to approve? Excuse me for asking you this question, but it

4   would throw

5   light on the work of the Tribunal because the issue is, apparently, a

6   complex one.

7   THE REGISTRAR: I will go into some of the details then. The problem is

8   twofold. The

9   practical execution of the decision from President Cassese does, in

10   fact, indicate that

11   we must have co-operation with the host country, that is, the

12   government of the Netherlands. The law in this country, that is the

13   Netherlands. apparently, does not permit the Dutch authorities under any

14   conditions to participate in being involved in

15   the detention of someone who has been held by another jurisdiction

16   which is not the

17   one of the Netherlands.

18   Therefore, the Dutch authorities who about this subject have

19   shown that they were willing to co-operate are coming up against a legal

20   obstacle which was

21   not foreseen. On the other hand, the Tribunal and the Registry are

22   unable to have the

23   authority concerning a different place of detention which is not

24   connected with the

25   United Nations, and the Registry has no authority over personnel

26   which is not UN

27   personnel, We can do this if we are competent and can give

28   instructions to make sure that follow up is ensured for the detention.

29   This is the request that we made to

30   headquarters. I am not sure that this situation is a simple one, since

31   there are also financial constraints which come into play here with the

32   other problems that I have

33   just mentioned to you.

34   THE PRESIDING JUDGE: Perhaps I can take the risk of saying that

35   possibly -- this is for

36   sure in any case -- the powers according to which the President

37   modified the detention conditions stem from Rule 64, and the Tribunal

38   must not make a mistake

Page 17

1   in its interpretation saying that right now we are working within the

2   framework of

3   detention.

4   THE REGISTRAR: General Blaskic is a detained person, not only is

5   he a detained

6   personpursuant to Rule 64, as you have just pointed out, but I can

7   also say de facto,

8   except for one night, he has always slept at the detention unit of

9   the United Nations

10   here in The Hague.

11   THE PRESIDING JUDGE: It is really very difficult for a court to give the

12   impression, to

13   make people think, that it has to rule depending on various obstacles

14   which are

15   before it. I can only deplore this fact, as I have pointed out. However,

16   given this fact

17   I must say that the Tribunal does not want to rule on a request for

18   provisional

19   release depending only on this















32   or that consideration, whether it be financial or having to do with legal

33   obstacles which might be legitimate, obstacles which the host country has

34   raised.

Page 18

1   I would, however, perhaps like the Prosecution, to whom I will

2   give the floor, to explain in his introduction, because he is really the

3   only party present here who is

4   supposed to know the origin of these agreements since the Tribunal is

5   not a party to them and, apparently, the Registry is not either. In the end,

6   only the two parties today who are responsible for the fate of the

7   request for provisional release as

8   expressed by Mr. Hodak could say something about these to say that

9   the agreements that were reached were reached outside of the knowledge

10   of the judges.

11   Obviously, the President did not work as a judge but, rather, as

12   the president

13   of the Tribunal. So before going into your conclusions, I will give you

14   the

15   floor. Could you tell us something more about the origin, the

16   type, the content of

17   these agreements and the interpretation you have of them. The

18   situation is an unfortunate one, but I must say about which the Tribunal

19   must not be involved. The

20   provisional release of a detained person who has been charged must be

21   judjed according to the text ruling or goverrning the provisional release.

22   So I now turn to the Prosecutor and ask him to speak, both to

23   develop the

24   conclusions which you would like to develop having to do with the

25   request for provisional release as part of Rule 64 which presented by

26   General Blaskic, Perhaps,

27   first, if you might give us some clarifications about your point of view

28   when it comes to these agreements which, apparently, cannot be

29   executed.

30   MR. NIEMANN: If your Honour pleases, my understanding of the

31   arrangements that were

32   entered into between the Prosecution and the Defence concerning Rule

33   64 were as

34   follows. It is my understanding, your Honours, that initially the

35   question of bail was

36   broached with the Prosecution, but the prosecution opposed any

37   question of bail I in

Page 19

1   terms of whether or not we would be agreeable to a submission made

2   by the Defence

3   on the question of bail. It then moved to a consideration of whether or

4   not the conditions of detention could be modified to such an extent that

5   would satisfy the

6   accused coming to The Hague voluntarily.

7   As your Honours know, it is not a matter for the Prosecution at

8   all to have

9   any business with the conditions of detention. That is a matter

10   beyond the competence of he Prosecutor. The only promise that the

11   Prosecutor could make or

12   any agreement that

Page 20

1   we could enter into would be the attitude that we took before the

2   President, if the

3   Defence thought fit to make an application under Rule 64 to go before the

4   President and

5   ask for a modification of the conditions of detention.

6   If your Honours please, the Prosecutor has fulfilled its promise. It

7   did do that

8   on certain conditions that were agreed between the parties. It went before

9   the President

10   and it agreed. It can do no more. That is the end of the Prosecutor's powers

11   in this.

12   Unfortunately, if this order that has been made by the President cannot be

13   implemented, it

14   does not change the position of the Prosecutor. We still supported that

15   position and we

16   still support it now, but we can do nothing to assist in the implementation

17   of the order

18   other than that because it is totally beyond our competence.

19   Your Honours, I do not know whether it is necessary for me to go

20   into the

21   order that was made by the President -- it is quite an extensive document --

22   but

23   throughout it raises the issue of involvement of the Netherlands

24   government. Obviously,

25   this was a question that had to be incorporated in this, because otherwise

26   you have a

27   situation where this person is outside of the only facility available in the

28   United Nations to

29   detained people here, namely, the prison at Scheveningen. So, therefore,

30   any other

31   arrangement could only be done with the assistance and co-operation of the

32   host

33   government.

34   My understanding was that initially there was to be an agreement by

35   the host

36   government in respect of the proposals that were made between the

37   parties, but hearing

Page 21

1   now from the Registrar, it would seem that any arrangements or

2   discussions that,

3   apparently, were had at an early stage have fallen foul of the law of the

4   Netherlands. But,

5   apart from that, there is not much that the Prosecution can do to assist, I

6   regret, because

7   it is a matter beyond our competence.

8   Your Honours, this is an application dealing with provisional release

9   pursuant

10   to Rule 65. If I may, I would like to now turn to that question.

11   Your Honours, the Prosecutor has and is opposed to the grant of

12   provisional

13   release pursuant to Rule 65. Your Honours, it is submitted that Rule 65

14   raises a

15   presumption of non-release. It is clear that the policy underpinning this

16   presumption

17   results from the grave nature of the offences in the Tribunal's jurisdiction.

18   Your Honours, this is reflected in some jurisdictions where very

19   serious or

20   capital offences, the old form of capital offences, used to exist; in some

21   cases there was

Page 22

1   no such thing as a right to bail. In respect of some offences, in some

2   jurisdictions there is

3   a presumption of bail, but this is the complete reverse, in our submission,

4   in relation to the

5   Tribunal. We say that this is so because of the very serious nature of the

6   crimes,

7   In our submission, your Honours, the severity of the accused's

8   charges is

9   clear from the indictment and his, the accused's, involvement in the killing

10   of over 100

11   civilians, including women and children, in the Lasva Valley area between

12   16th and 20th

13   April 1993 as part of a plan to systematically removed Bosnian Muslim

14   civilians from

15   central Bosnia. This, in our submission, highlights the seriousness of the

16   accused's crimes.

17   Your Honours, the provision of Rule 65 uses the term "exceptional

18   circumstances". In our submissions, "exceptional circumstances"

19   contemplate an unusual

20   or rare occurrence. Accordingly, the circumstances giving rise to the

21   Defence request

22   must be uncommon or of a very rare nature,

23   Your Honours, when dealing with applications of this kind, in most

24   jurisdictions it is common to look at the number of elements, a number of

25   the issues, that

26   are raised by a bail application. Firstly, courts traditionally look at the

27   nature of the

28   offence. In domestic jurisdictions, both civil and common law, the less

29   serious the

30   offence, the more likely an accused will be provisionally released pending

31   the trial.

32   However, this Tribunal's jurisdiction relates to the most serious

33   crimes known

34   to the criminal calendar. The accused, amongst other charges, is charged

35   with being

36   individually responsible and in his capacity as a superior for the acts of his

37   subordinates in

Page 23

1   the wounding, murder, deportation and maltreatment of civilians. In our

2   submission, it is

3   plain that the nature of offences are extremely serious. Therefore, in our

4   submission, the

5   nature of the offence does not give rise to exceptional circumstances

6   whereby provisional

7   release should be considered.

8   Another consideration that courts frequently look to is what was the

9   role

10   played by the accused in a crime? The question of whether or not the bail

11   is granted can

12   depend upon the role played. The greater the role in the crime, the less

13   likely the

14   application for bail could succeed, The accused has been charged as being a

15   participant in

16   the execution of war crimes as a superior to the perpetrators committing

17   those crimes.

18   Your Honours, the accused was the commander of the Croatian

19   Defence

20   Council, the Bosnian Croat armed forces in central Bosnia. During this

21   period he was

22   responsible through his subordinates, military and paramilitary, for the

23   persecution of

Page 24

1   Bosnian Muslims throughout the Lasva Valley area. The evidence is clear

2   that the

3   Croatian Defence Council, military and paramilitary, were participants

4   causing the death,

5   wounding, deportation imprisonment and destruction of the entire Bosnian

6   Muslim

7   community in that area. Significantly, the accused was present in Lasva

8   Valley when the

9   attacks were occurring. Therefore, this factor, the role of the accused, in

10   our submission,

11   should not be considered as an exceptional circumstance justifying his

12   release on bail.

13   Your Honours, the issue of the quality of the evidence has been

14   raised. As

15   can be seen from the indictment, the charges against the accused are

16   considerable. In our

17   submission, it is a strong case. High ranking officials from the United

18   Nations Protection

19   Forces, the Army of the Republic of Bosnia and Herzegovina, in addition

20   to military

21   orders from the accused, provide, in our submission, excellent evidence that

22   the accused

23   had full command over the HVO in central Bosnia when and where these

24   atrocities were

25   committed.

26   Numerous statements will provide evidence that it was the HVO

27   military and

28   paramilitary who were involved in, amongst other activities, the massacre

29   of at least 100

30   civilians between 16th and 20th April 1993. Significantly, if your Honours

31   please, the

32   night before the Lasva Valley massacre occurred on 16th April 1993, a co-

33   accused, Dario

34   Kordic, appeared with the accused on television where Kordic said: "My

35   soldiers are

36   ready, only waiting for orders." At 5.30 a.m. the following morning, the

37   murders,

Page 25

1   woundings, detention and destruction of Bosnian Muslim and Muslim

2   property

3   commenced by the HVO simultaneously across the valley in nine separate

4   villages, all

5   within 30 kilometers, whilst the accused was present in the middle of the

6   Lasva Valley.

7   A United Nations Protection Force witness from the Lasva Valley

8   area

9   conclude that the attacks were well planned, and that they would take at

10   least several

11   weeks to plan. The evidence against the accused has come from numerous

12   sources

13   thereby providing a great degree of reliability. Therefore, in our

14   submission, the quality of

15   the evidence is of such a high calibre that it is not an exceptional

16   circumstance within the

17   meaning of the Rule.

18   Further in our submission, your Honours, we have not heard of any

19   great

20   substance from the Defence as to their argument on the quality of the

21   evidence. Although

22   the Prosecution carries the burden of proving the guilt of he accused (and it

23   will discharge

24   that burden) in relation to this particular motion, it is their motion, If they

25   wish to assert

Page 26

1   that there are exceptional circumstances, then it must fall to them, in our

2   submission, to

3   convince you that there are exceptional circumstances. In our submission,

4   they have

5   ailed in their task.

6   The accused has raised on a number of occasions the question of the

7   length of

8   time awaiting the trial. In our submission, your Honors, the general rule

9   ordinarily

10   applied in relation to this, is that if the likely penalty is commensurate or

11   far outweighs the

12   likely time a detained accused would await his or her trial, then there is a

13   greater

14   likelihood that he or she would be released. This practice is an attempt to

15   avoid serving

16   sentences in excess of what reflects the true culpability. If this accused is

17   found guilty to

18   the full extent of the charges, it is submitted that an extensive period of

19   imprisonment

20   would be served.

21   Your Honours, in terms of dealing with this question of length of

22   time, it is

23   difficult, just upon a reading of the Rules, to have any clear idea of what is

24   a reasonable

25   time to be detained in custody pending the commencement of the trial. I

26   referred

27   yesterday, your Honours, to Rule 73 (B) which, at least in an indirect way,

28   contemplates

29   that a period of 60 days would not be excessive because that is the period

30   of time that is

31   allowed for the Defence to bring motions.

32   Another issue, if your Honours please, that I think is relevant and,

33   in my

34   submission, gives some assistance in determining this question of any

35   delay, relates to the

36   vast gulf that appears between the test to be applied in the submission of

37   the indictment

Page 27

1   under Rule 47(A), the reasonable grounds for believing test, and the

2   ultimate test under

3   Rule 87 of proof beyond a reasonable doubt. In our submission, your

4   Honours, there

5   must be a period of time contemplated when the Prosecution would move

6   from its

7   position at the time of submission of the indictment for confirmation to the

8   time when the

9   trial commences.

10   Similar provisions apply in numerous jurisdictions in Europe, and in

11   the short

12   time that I have had available to me, if your Honours please, and I profess

13   to have no

14   expertise as in such matters, but I understand that in Italy the position

15   with respect to the

16   maximum length of preventative measures before the trial starts, according

17   to the law of

18   ltaly, it is one year for crimes punishable with detention over 20 years or

19   with life

20   sentences. So, under the law of Italy, a period of one year is contemplated

21   as a period of

22   detention prior to trial in relation to those offences.

Page 28

1   In relation to lesser offences, for example crimes punishable

2   detention riot less

3   than six years the period is three months. So, your Honours, this is an

4   operation of that

5   particular Rule.

6   The situation in Germany, if your Honours please, it is a

7   complicated

8   provision but it generally relates to a period of six months for serious

9   crime and then there

10   is provision in the legislation to allow that to be extended. Your Honours,

11   as 1

12   understand the position in relation to France, the initial period is a period

13   of four months

14   once the case has been remitted to the judge d'instruction, and further

15   applications can be

16   made for an extension of this period. Where the offence is a grave offence,

17   such as armed

18   robbery, murder, rape, of that nature, they are punishable with sentences

19   for 25 years or

20   life imprisonment. The initial period of remand can be up to a period of

21   one year. I

22   understand, your Honours, there is an opportunity for appeal, but it can be

23   for that period

24   of time.

25   Your Honours, so these are the periods of time ordinarily

26   contemplated in

27   our jurisdictions in Europe, in my submission, which may be of some

28   assistance in

29   determining what is a reasonable time.

30   Another factor, your Honours, is the question of the likelihood of

31   appearing

32   for trial. This is another factor, as I say, that is often considered in

33   applications of this

34   nature, Despite the accused's submission that he attended the Tribunal

35   voluntarily, it is the

36   Prosecution's submission that if the accused was provisionally released, it

37   is highly likely

Page 29

1   that he would fail to attend at some time prior to judgment being delivered.

2   The maximum

3   penalty the Tribunal can impose for these offences is life imprisonment. It

4   is submitted

5   that these offences will be placed at' the high end of the scale of

6   seriousness and,

7   consequently, would result in a lengthy term of imprisonment if the

8   accused was

9   convicted. If the developments pre and during trial appear less favorable in

10   the accused's

11   mind than he may have envisaged when he volunteered himself to the

12   Tribunal, it is, in our

13   submission, likely that he may flee to avoid any possible lengthy

14   detention, In determining

15   this, it is that the accused has been at large since mid-November 1995 when

16   he would

17   have been aware of the issued indictments and warrants against him.

18   In our submission, this accused, as far as we know, and we have

19   heard

20   nothing from the Defence on this, has no property in this jurisdiction, so

21   he has nothing

22   here to hold him to this jurisdiction. He has no family in this jurisdiction

23   and he has no

Page 30

1   employment in this jurisdiction. Often courts take such matters into

2   consideration

3   because they consider, well, if the person's family, property and

4   employment are all in the

5   jurisdiction, then it is likely the person may be more inclined to stay. In

6   this case there is

7   none of that.

8   Another factor that is often considered in determining these

9   applications is

10   the likelihood of any danger being imposed to victims or witnesses. At this

11   stage the

12   Prosecution is not aware of any danger from this accused to any victim,

13   witness or other person. However, if released once witnesses become known to

14   the accused, the situation

15   may change. We just cannot be sure of this and, in our submission, we

16   cannot afford to speculate on this

17   Your Honours, also there is another consideration which, in our

18   submission,

19   is relevant. That is that if the witnesses themselves become aware that the

20   accused is at

21   large, then they themselves, in fear, may refuse to eo-operate any further

22   with the

23   Tribunal.

24   In our submission, and we will be seeking from the Tribunal

25   protective

26   measures in relation to witnesses, if those protective measures are granted

27   in relation to

28   witnesses, in our submission, they are far less effective, far less secure, if

29   the accused is at

30   large, because one of the major factors in providing comfort for witnesses

31   is the

32   knowledge of the fact that the accused is in custody and cannot gain access

33   to them.

34   It is regrettable, your Honors, and your Honour has observed this,

35   that we

36   have not heard from the host government in this country, but it is at all

37   possible that the

Page 31

1   Netherlands government may be reluctant to have indicted war criminals

2   roaming freely in

3   their community. They may say, no,'we are not prepared to permit this and

4   that anyone

5   who is released on bail from the Tribunal must return to Croatia or

6   wherever. If that is

7   the case, in my submission, your Honours, 'then there is absolutely no

8   guarantee

9   whatsoever that this accused will be available and present for trial,

10   particularly if things

11   change, particularly if when he sees the full extent of the Prosecution case

12   he decides that

13   his prospects of acquittal are not quite as good as lie had originally

14   anticipated.

15   Bail could be offered, a bail bond could be offered, but what amount?

16   What

17   amount could be set? In my submission, no amount of money would replace

18   freedom if

19   people have the opportunity to escape. This Tribunal cannot be equated

20   when dealing

21   with issues such as this with a State, a State that has coercive powers to

22   control the

Page 32

1   entering and exiting of people within and out of its borders, who can search

2   within its

3   community for people who have decided for whatever reason to hide. This

4   Tribunal has

5   no power to do that. It cannot control where people come or go. It cannot

6   do the usual

7   things that States do to keep people within its borders. In my submission,

8   your Honours,

9   once this accused is released into the community so far as the Tribunal's

10   powers are

11   concerned, that is the end of the matter.

12   Finally, your Honours, in due course it is expected that numerous

13   people will

14   be brought before these courts and tried for war crimes. No doubt if bail

15   can be granted

16   and readily granted, and if the meaning of "exceptional circumstances" is

17   not, in our

18   submission, given its full and proper meaning, then more and more

19   applications can be

20   brought and the precedent set by release will be invoked time and time

21   again. If States

22   co-operate with the Tribunal and put considerable resources, effort and

23   money into

24   tracking down and locating war criminals, people who have been indicted

25   by the Tribunal,

26   and they put this effort into surrendering them to the Tribunal and because

27   of the

28   precedent set we just then release them on bail and, as a consequence of

29   that they are

30   released, then I submit, your Honours, that the co-operation and assistance

31   of States may

32   likely fade, because they are not going to put their effort and energy into

33   such activities if

34   we have a practice whereby release on bail becomes an ordinary day

35   occurrence.

36   So, it is for these reasons, if your Honours please, that "exceptional

37   circumstances" means exactly that. It is a very rare and exceptional

38   circumstance.

Page 33

1   Indeed, it is hard to envisage what exceptional circumstance would justify

2   release. In our

3   submission, the Defence have come nowhere in establishing that in relation

4   to this

5   application:

6   Unless I can assist your Honours with anything further, that is my

7   submission

8   THE PRESIDING JUDGE: Thank you, Mr. Niemann. I believe that we are

9   reaching the end

10   of our discussions. Would the Defence or General Blaskic possibly like to

11   say something?

12   Does the Defence have a few comments to make? I will then give the floor

13   back to the

14   Prosecution because at one point there must be absolute bounds between

15   the two parties.

16   Mr. Hodak, would you like to speak again? I would also like to give the

17   floor to General

18   Blaskic and then, of course, at one point I have to close the proceedings.

19   Some brief

20   observations

Page 34

1   MR. HODAK: Your Honour, I will be short, Certain facts do not correspond to

2   the real

3   situation. As the Prosecutor stated, General Blaskic has indeed been

4   indicted for

5   individual criminal responsibility, but he also said that General Blaskic was

6   accused as a

7   perpetrator. I did not find that in the indictment. Although I have read it

8   several times,

9   this is not mentioned anywhere. There is not a single proof that General

10   Blaskic

11   committed any of the crimes alleged in the indictment. The Prosecutor,

12   among other

13   things, states that General Blaskic was commander of the HVO and that

14   other

15   paramilitary groups also committed crimes in the area of central Bosnia,

16   namely the Lasva

17   Valley. Unfortunately, this is not true and I will warn the Prosecutor of

18   that.

19   I will just mention to this Chamber the Dayton Agreement which

20   clearly says

21   that the HVO was the regular army of the Croatian people in Bosnia and

22   Herzegovina.

23   Therefore, in the Dayton Agreement, according to the Dayton Agreement, a

24   joint

25   command of Muslims and Croats has been established in Bosnia and

26   Herzegovina. In

27   August '95 the President of Bosnia and Herzegovina, Mr. Alija

28   Izetbegovic,appointed

29   joint commanders of the Army of the Federation of Bosnia and

30   Herzegovina, that is to

31   say, army of Bosnia and Herzegovina and Croatian Defence Council. Those

32   joint

33   commanders, and we are speaking about August '95, those joint

34   commanders are Rasin

35   Delic and General Tihornir Blaskic. General Tihomir Blaskic is charged

36   with war crimes

37   committed in April 93 and the presidency of Bosnia and Herzegovina

38   appointed him as a

Page 35

1   Council, which proves that he Croatian Defence Council was not a

2   paramilitary group but

3   a regular army.

4   As for the objection of the Prosecutor that we did not make any

5   concrete

6   comments on the evidence, I just want to ask him back, when did we have

7   time to make

8   any significant comments on the evidence which was disclosed only

9   yesterday evening?

10   Once again, the evidence is not relevant for this case.

11   As for the special exceptional circumstances, I can just state once

12   again that

13   one of those exceptional circumstances is the voluntary arrival of General

14   Blaskic to The

15   Hague.

16   As for the General Blaskic not having any property in the

17   Netherlands, I

18   would like to say that General Blaskic has already paid 217,000 Dutch

19   guilders to the

20   Dutch Government for the accommodation outside the UN detention unit

21   which has not

Page 36

1   been implemented, and he has requested to pay 200,000 guilders a month to

2   the Dutch

3   Government for his accommodation. Therefore, General Blaskic has means

4   to finance his

5   stay in the Netherlands.

6   As for the bail, it is a special guarantee that the accused will not

7   abscond in

8   every national system. In this case, the Prosecutor says that, that we

9   cannot think of any

10   amount of money in this case, but we must agree that all national

11   jurisdictions, all legal

12   systems, have this provision of bail. Therefore, I believe that a high

13   amount of bail can be

14   a guarantee that the accused, that the accused would appear before the

15   Tribunal.

16   As for the argument of the Prosecutor that his being at liberty would

17   affect

18   the witnesses, this is not true because all the witnesses that have been

19   contacted so far,

20   they have agreed to appear, they have agreed to give their statements while

21   General

22   Blaskic was at liberty. Therefore, I ask this Tribunal to make a precedent

23   here, to think of

24   reasons of justice and to enable General Blaskic to defend himself while at

25   liberty.

26   THE PRESIDING JUDGE: Thank you. General Blaskic?

27   THE ACCUSED: Your Honour, Mr. President, gentlemen, I have nothing special

28   to add except

29   that, once again, I would like to confirm that I have come here voluntarily

30   and that I have

31   made an undertaking to appear before this Tribunal whenever so requested

32   depending on

33   the decision that will be reached here.

34   THE PRESIDING JUDGE: I am sorry, you will have to start again.

35   T0 THE ACCUSED: Gentlemen, I do not have anything special to add to this

36   except that I would

37   like to say, once again, that I have come to this Tribunal voluntarily and

38   that I am ready to

Page 37

1   comply with all the requests of this Trial Chamber,

2   THE PRESIDING JUDGE: No clarifications? No additional comments? I turn to

3   my

4   colleagues now to ask if they have any questions they would like to ask.

5   Mr. Prosecutor

6   would you like to add something now?

7   MR. NIEMANN: I am sorry, your Honours, I did not receive the translation.

8   There is one

9   matter I would like to correct at this stage, and it relates to the question of

10   responsibility

11   and which I raised in my submissions, All I wish to do is to refer the

12   Chamber to Count 1

13   in particular and following of tile indictment where there are references to

14   Articles 7(l)

15   and 7(3) of the Statute. lt. was upon those provisions I was relying when I

16   made my

17   submissions about responsibility.

18   Thank you,

Page 38

1   THE PRESIDING JUDGE: Would the Defence like to add anything?

2   MR. HODAK: No, thank you,

3   THE PRESIDING JUDGE: All right. I will now tell you that the Chamber will

4   render its

5   decision this afternoon at

5   o'clock. I will take advantage of this moment to

6   tell you that

7   we will see one another once again for this status conference on

8   preliminary motions

9   following the communication of documents from the Prosecutor and, of

10   course, asking

11   the Prosecutor to submit them as quickly as possible pursuant to Rule 65,

12   and 7, that is

13   all documents he has except for the request he made and to which we will

14   give an answer

15   at the proper time.

16   We have decided we will see one another again on 28th May, the

17   28th May,

18   let me repeat. I do not know what day of week that is -- it is Tuesday

19   28th. On that date

20   I would like to have on our calendar all the people here and I would like to

21   ask Mr.

22   Hodak if he would prefer to have it in the mornings or in the afternoon?

23   MR. HODAK: Your Honour, I did not quite understand you. It was first 28th

24   and 27th.

25   Which is the date 28th or 27th?

26   THE PRESIDING JUDGE: No, 28th. What I am asking you is that it is not

27   important for the

28   Tribunal whether it be in the morning or in the afternoon, The Prosecutor

29   is here. You

30   can come here with your colleague. You are coming from quite a distance.

31   Would you

32   prefer it to be in the morning, or in the afternoon?

33   MR. HODAK: Your Honour, if possible the afternoon would suit us better for

34   technical

35   reasons. Thank you.

36   THE PRESIDING JUDGE: Thank you. Turning now to the Registrar.

37   THE REGISTRAR: I would like to call the attention of he Tribunal to the fact

38   that the

Page 39

1   courtroom will be being used by the Tadic case, so I think maybe 5 or 5.30

2   would be

3   good for the interpretation problems.

4   THE PRESIDING JUDGE: You have recalled very politely right now what you

5   said yesterday.

6   In fact I should have remembered. So it will be in the afternoon. Would

7   5.30 be all right

8   for you? 5.15?

9   MR. HODAK- Yes, your Honour.

10   THE PRESIDING JUDGE: Tuesday, 28th May at 5.15for the status conference,

11   answer to the

12   request that was made yesterday by the Prosecutor which I hope in the

13   meantime will

14   have been able to have checked everything that he has said he would check

15   on yesterday.

Page 40

1   In the meantime he will have already given all of the documents that are not

2   covered by

3   other Rules to the Defence, so that on 28th it can say on 28th whether it

4   does intend to

5   raise any preliminary motions. At that point the Tribunal will decide how

6   long after that,

7   60 days afterwards, whether it wail need 60 days in order to present their

8   preliminary

9   motions, if there are any.

10   In the meantime having to do with provisional release, Trial Chamber will

11   render its decision this afternoon at 5 o'clock. The court stands adjourned.

12   (The hearing adjourned)