Page 2
1
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
20
21
22
23
24
25
26
27
28
29
30
31
32
33
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)