1 Thursday, 20 July 2000
2 [Motion Hearing]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 11.03 a.m.
6 JUDGE HUNT: Call the case, please.
7 THE REGISTRAR: [Interpretation] This is case number IT-99-36-PT,
8 the Prosecutor versus Radoslav Brdjanin and Momir Talic.
9 JUDGE HUNT: Appearances, please.
10 MS. KORNER: Joanna Korner on behalf of the Prosecutor, together
11 with Anna Richterova and Adele Erasmus.
12 JUDGE HUNT: Thank you very much.
13 For Mr. Brdjanin.
14 MR. ACKERMAN: Good morning, Your Honours. I'm John Ackerman, and
15 I appear here on behalf of Mr. Brdjanin.
16 JUDGE HUNT: Thank you, Mr. Ackerman.
17 And for Mr. Talic.
18 THE INTERPRETER: The microphone is not on.
19 JUDGE HUNT: Your microphone is not on.
20 MR. DE ROUX: I'm Xavier de Roux acting for Mr. Talic.
21 JUDGE HUNT: Thank you, Mr. De Roux.
22 MR. PITRON: [Interpretation] Michel Pitron, counsel for Mr.
23 Talic. And Ms. Natasha is with us this morning.
24 JUDGE HUNT: Thank you, Mr. Pitron.
25 Now, the first matter we have to deal with is the application by
1 Mr. Brdjanin for provisional release.
2 Mr. Ackerman, the Prosecution has said that they did not wish to
3 cross-examine your witness if the evidence was limited to the statement
4 that he'd made, but we said you may bring him if you wish. Have you
5 brought him?
6 MR. ACKERMAN: He's here, Your Honour. I understood that it
7 wasn't a "may bring him if I wished" but an order from the Court that he
8 needed to be here, and so that's why he's here.
9 JUDGE HUNT: No, no. I very clearly said that he may come if he
10 wish, and if he does, he will be cross-examined if he gives evidence
11 outside his statement.
12 MR. ACKERMAN: Well, I obviously somehow misunderstood that, Your
13 Honour, and I apologise.
14 JUDGE HUNT: Let me just read it to you just so that there can be
15 no doubt about it. "I hereby order that the order on additional witness
16 statement is varied so that Milan Trbojevic" -- how does he pronounce his
18 MR. ACKERMAN: Trbojevic.
19 JUDGE HUNT: Thank you. "... is not required to attend the oral
20 hearing, but if he does attend the hearing for the purpose of giving
21 evidence in relation to the provisional release motion, he may be
22 cross-examined in relation to any evidence given which relates to subject
23 matter going beyond that contained in the witness statement."
24 MR. ACKERMAN: Well, Your Honour, he's here and I would like to
25 put him on the witness stand, since he's gone to all the trouble to get
1 here, and I will do it as briefly as I possibly can.
2 JUDGE HUNT: Very well, then. You call your witness, then,
4 MR. ACKERMAN: I'm not sure where he is, but Victims and Witnesses
5 told me that he would be here at this moment so I assume that he is.
6 Milan Trbojevic.
7 [The witness entered court]
8 JUDGE HUNT: Would you please take the solemn oath.
9 THE WITNESS: [Interpretation] Yes. I solemnly declare that I will
10 speak the truth, the whole truth, and nothing but the truth.
11 WITNESS: MILAN TRBOJEVIC
12 [Witness answered through interpreter]
13 JUDGE HUNT: Please sit down, sir.
14 THE WITNESS: [Interpretation] Thank you.
15 JUDGE HUNT: Yes, Mr. Ackerman.
16 MR. ACKERMAN: May I proceed, Your Honour?
17 JUDGE HUNT: Yes, please.
18 Examined by Mr. Ackerman:
19 Q. Good morning, sir.
20 A. Good morning.
21 Q. Could you tell the Honourable Tribunal who you are?
22 A. My name is Milan Trbojevic. I have a degree in law; I was a judge
23 for many years and a lawyer in Sarajevo. Recently, I was Minister of
24 Justice in the government of Republika Srpska until the end of March this
25 year, and now I hold the post of Advisor to the Prime Minister of
1 Republika Srpska.
2 Q. Where do you live?
3 A. In Banja Luka, in Republika Srpska.
4 Q. Do you know my client, Mr. Radoslav Brdjanin?
5 A. Yes.
6 Q. How long have you known Mr. Brdjanin?
7 A. Well, we met perhaps in 1991, in Sarajevo, when the National
8 Assembly of Bosnia-Herzegovina was convening. Before the war, we were
9 both MPs. Since then we have been seeing each other quite often, and
10 later we even worked together closely as Ministers in the government of
11 Republika Srpska. We were MPs in the Assembly of Republika Srpska until
12 the summer of 1994, when first he and then four of us MPs were dismissed
13 from that Assembly.
14 Then as citizens of Banja Luka, we would see each other. In
15 January 1996, that is to say, soon after the Dayton Peace Agreement was
16 signed, Mr. Brdjanin and I established a political party together. We
17 called it the People's Party of Republika Srpska. We wanted to join the
18 new developments in Republika Srpska, and this was not an easy thing. I
19 was excluded from this party sometime -- well, I don't know exactly -- in
20 1997 or the beginning of 1998. I'm not quite sure about that now. After
21 that we did see each other a few times in town, just like that.
22 Q. Your acquaintance with Mr. Brdjanin, could it be described as
23 something more than just a casual acquaintance, that you know him
24 reasonably well and that you've established a kind of friendship with him?
25 A. Well, this acquaintance has been there for about ten years, and I
1 think I know him quite well.
2 Q. Based upon that, I want to ask you a brief series of questions.
3 Based upon your knowledge and acquaintanceship with Mr. Brdjanin, can you
4 tell the Tribunal whether or not you believe he would harass, intimidate,
5 or otherwise interfere with any persons who are or may be witnesses for
6 the Prosecutor in the case against him, either directly or indirectly? Do
7 you believe he would or would not?
8 A. I'm quite sure that he would not. I know him as an exceptional
9 man, as a man who keeps his word. Whenever he makes a promise, whenever
10 he gives his word, whenever he says he will do something, he indeed
11 honours what he says and the obligations he takes upon himself. So I can
12 answer that question with certainty. I'm convinced that he would not.
13 Q. Based again upon your knowledge and acquaintance with
14 Mr. Brdjanin, do you believe that he would report to the Tribunal here in
15 The Hague on every occasion the Tribunal asked him to do so?
16 A. On the basis of what I have said just now, I'm sure that he
17 would. I had the opportunity of talking to him before the government of
18 Republika Srpska gave a guarantee for him, that is to say, that his
19 presence before this Court would have to be ensured even if he did not
20 respond himself. And he assured me that there was no dilemma whatsoever,
21 he would, indeed -- he'd keep his promise to the Tribunal.
22 Q. In that connection, in your discussion with him about the
23 government issuing a guarantee to this Tribunal, did you explain to him in
24 any way that he needed to understand that if the government issued such a
25 guarantee that it would absolutely enforce that guarantee?
1 A. We discussed the guarantee in detail, its terms and conditions,
2 and also the obligation that it had to be honoured.
3 Q. Based upon your knowledge and acceptance --
4 JUDGE HUNT: I'm sorry, Mr. Ackerman, it's not clear to me with
5 whom he discussed. With your client?
6 MR. ACKERMAN: I'll make that very clear.
7 JUDGE HUNT: Yes.
8 MR. ACKERMAN:
9 Q. Mr. Trbojevic, it's my understanding, and correct me if I'm wrong,
10 that on each occasion that a detainee has requested such a guarantee from
11 your government, that some representative of the government has met with
12 that detainee regarding that matter and in that process has explained to
13 the detainee that the government would intend to absolutely enforce the
14 terms of their guarantee; is that a true statement?
15 A. That is exactly the way it's been. In addition to what the
16 liaison officer discussed with all the detainees, including Mr. Brdjanin,
17 I had the opportunity of talking to him when the Prime Minister of
18 Republika Srpska visited about a month or a month and a half ago. When we
19 visited the detainees here, we talked to all, almost everybody, including
20 Mr. Brdjanin. So that is the kind of discussion that was held, in that
22 Q. I want to ask you one further question on a previous matter and
23 then I'll have another question about the guarantee process.
24 Based upon your knowledge and acquaintanceship with Mr. Brdjanin,
25 do you believe that he would report to the police or other authorities in
1 Banja Luka whenever the Court might direct that he do so?
2 A. I, indeed, believe that without any reservation.
3 Q. From what you've just told us about the issuance of guarantees by
4 the government of Republika Srpska, I gather that in your capacity as
5 Minister of Justice, that you played some role in establishing the
6 government's policy with regard to those guarantees; is that correct?
7 A. While I was Minister, in a significant measure, yes.
8 Q. It's my understanding that the government's policy with regard to
9 those guarantees is to view them not only as a representation to the
10 Tribunal but as an understanding between the government and the detainee
11 that the guarantees will be strictly and absolutely enforced and that
12 they're not issued without that understanding between the government and
13 the detainee himself; is that a fair statement?
14 A. Yes. Yes, that is the position of the Prime Minister for sure.
15 Q. Thank you, Mr. Trbojevic. That's all I have.
16 JUDGE HUNT: Ms. Korner.
17 Cross-examined by Ms. Korner:
18 Q. Mr. Trbojevic, do you know what Mr. Brdjanin is charged with?
19 A. Well, I did see the first indictment.
20 Q. So you appreciate that Mr. Brdjanin is charged with genocide,
21 amongst other offences.
22 A. I read everything that the indictment says.
23 Q. You tell us that you have no doubt that he will abide by the
24 conditions that this Tribunal may impose.
25 A. Yes.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 Q. If he failed to report to the police station, how would you know
2 about it?
3 A. Well, I'm still an official in the government of Republika Srpska
4 and I sit relatively close to the Minister of Police, and I'm even closer
5 to the Prime Minister, so I would know for sure.
6 Q. What would you do about it? What could you do about it?
7 A. Well, I could ask the Minister of Police to do his part of the
9 Q. Are you proposing to live with Mr. Brdjanin?
10 A. I don't understand. What do you mean by "with"?
11 Q. In his house.
12 A. I have a family of my own.
13 Q. So the answer is no.
14 A. Well, I don't see how I could integrate these two families now.
15 Q. So if he decided to leave the country, you would only know about
16 it if the police chief reported it to you.
17 A. Yes.
18 Q. If he attempted to get in touch with a witness, you would only
19 know about it if the witness complained to the police and the police told
21 A. Yes.
22 Q. Yes. Thank you.
23 JUDGE HUNT: Any re-examination?
24 MR. ACKERMAN: None, Your Honour. Thank you.
25 JUDGE HUNT: Thank you, sir. You may leave now.
1 THE WITNESS: [Interpretation] Thank you.
2 [The witness withdrew]
3 JUDGE HUNT: Is that all the evidence, Mr. Ackerman?
4 MR. ACKERMAN: That's it, Your Honour. Thank you.
5 JUDGE HUNT: Any evidence in reply, Ms. Korner?
6 MS. KORNER: No, Your Honour. Thank you.
7 JUDGE HUNT: Well, Mr. Ackerman, it's your motion.
8 MR. ACKERMAN: Your Honour, very largely the matters I would wish
9 to bring to the attention of the Trial Chamber I have done so in my
10 written submissions to you.
11 You have before you not only the testimony of Mr. Trbojevic, but
12 you have before you the statement of Mrs. Brdjanin that the Prosecution
13 has accepted without the necessity of cross-examination. By saying that,
14 I'm not saying the Prosecution agrees with the statement but only that
15 it's been accepted without cross-examination. You have before you the
16 personal guarantee of Mr. Brdjanin himself, and you have before you the
17 guarantee of the government of Republika Srpska that we've just heard some
18 testimony about.
19 I think it's revealing and helpful to Mr. Brdjanin's position to
20 understand the position that the government takes with regard to those
21 guarantees, and that is that they are not just representations made to the
22 Tribunal but undertakings between the government and a detainee that if
23 the detainee wants the government to issue such a guarantee, that detainee
24 must understand that it will be vigorously enforced and complied with.
25 There are really only two issues according to Rule 65 that need to
1 be established: one, that the accused will appear for trial if released
2 and, second, that he will not pose a danger to any victim, witness, or
3 other person.
4 With regard to that, let me say this: When the Plenary decided to
5 modify Rule 65 by removing "there from the requirement that the detainee
6 establish additional circumstances to justify relief," the approach to the
7 process of provisional release was rather dramatically changed, I
8 believe. And what we have done with our presentation is we have presented
9 evidence that Mr. Brdjanin will appear for trial and will not pose a
10 danger to any victim, witness, or other person.
11 The Prosecutor largely responds with a yes, but he's charged with
12 genocide and crimes against humanity. Paraphrasing an order of this
13 Chamber entered just recently, when the Plenary decided to modify Rule 65
14 by removing the exceptional circumstances language from it, the Chamber
15 was fully aware that that Rule applies to every detainee at this Tribunal
16 including those charged with genocide and crimes against humanity. The
17 Plenary did not seek to accept those particular offences from the
18 provisions regarding provisional release. And as this Chamber has held in
19 another context, a prevailing circumstance can never be an exceptional
20 circumstance, and the prevailing circumstance, when the Plenary modified
21 Rule 65, was that some detainees were charged with genocide and crimes
22 against humanity. So it seems to me that that is not an exceptional
23 circumstance the Prosecutor can rely on as a basis not to grant a
24 provisional release.
25 Finally, and just very briefly, the Prosecution has also contended
1 in one of their responses that my position regarding the nature of the
2 change in Rule 65 is largely incorrect and that it was not the intention
3 of the Plenary to remove the exceptional circumstances language in a sense
4 that would make provisional release the presumption rather than an unusual
5 situation, and I think that's exactly what the Plenary had in mind, to try
6 to bring the Rules of this Tribunal in line with other international
7 documents regarding the release of persons awaiting trial. There is
8 support for that now in the Appeals Chamber decision in the Simic case on
9 the application for provisional release where that issue was raised by the
10 Prosecution and their efforts to appeal that concept were rejected by the
11 Appeals Chamber.
12 JUDGE HUNT: That was really a very different point. What they
13 were trying to argue there was that the Rule as amended was ultra vires.
14 I think they've dropped that rather strange argument. They certainly
15 haven't repeated it in this case.
16 MR. ACKERMAN: In any event, I think it's quite clear that the
17 Plenary was trying to bring the Tribunal in line with other international
18 instruments when they made this change to the Rule. And it seems to me
19 that the situation that the Tribunal faces now under this new Rule is that
20 there is some obligation on the Prosecutor, there's a burden on the
21 Prosecutor, if you will, to show that there are exceptional circumstances
22 in a particular case that militate against provisional release, that go
23 beyond what I would describe as the prevailing circumstances in all the
24 cases. And I think the Prosecution has failed to do so, and I would
25 strongly urge this Chamber to grant our motion for provisional release.
1 And with that, I will conclude my remarks. Thank you.
2 JUDGE HUNT: Thank you.
3 Yes, Ms. Korner.
4 MS. KORNER: Your Honour, can I deal, first of all, with
5 Mr. Ackerman's final submission, that the burden is now on the Prosecution
6 to show that there are exceptional circumstances justifying the detention
7 of an accused.
8 With respect, we disagree with Mr. Ackerman's submissions on
9 this. When one looks at Rule 65, it still reads: "Provisional release,
10 once detained, an accused may not be released except upon the order of a
11 Trial Chamber." We submit that it's still the onus on the accused to show
12 why release should be ordered once the Trial Chamber has ordered his
13 detention. We accept, of course, that the phrase "exceptional
14 circumstances" have gone but the Trial Chamber still has to be satisfied,
15 we submit, by the accused that he will appear for trial and if released
16 will not pose a danger to any victim, witness, or other person.
17 Your Honour, of course we've mentioned the fact of genocide
18 because it's the most serious offence that can be charged in this
19 Tribunal. There is, therefore, a real risk because of the likely
20 sentence, if there is a conviction, that if released this accused will
21 decide that the risk is too great and not appear for trial.
22 The application is for the accused, Radoslav Brdjanin, to be
23 released back into Banja Luka in the Republika Srpska. This Tribunal has
24 no control at all over any part of Bosnia but, we submit, the least
25 control or the least influence in the Republika Srpska. This Tribunal has
1 no police force by which it can enforce the conditions of release or cause
2 an arrest to be made if those conditions are breached.
3 With the greatest of respect, the Republika Srpska, despite its
4 many assertions in writing and orally, has so far declined to cooperate in
5 any way with this Tribunal in respect of the arrest or detention of people
6 who have been indicted. And we regret to say that the guarantee provided
7 by the Republika Srpska, that should Mr. Brdjanin breach any conditions
8 they will arrest him, should be treated in the light of past events with a
9 great deal of caution.
10 Your Honour, there's a further risk, and that deals with the
11 danger to any victim, witness, or other person. Your Honours have ordered
12 that the Prosecution release the identities of the witnesses who have
13 already been disclosed to the Defence and in future, any further witnesses
14 that we wish to disclose to them unless there are good reasons which will
15 be provided for in a motion to Your Honours.
16 Your Honour, the area of Banja Luka is the area in which these
17 crimes, or part of the area in which these crimes which are alleged are
18 said to have occurred. There are witnesses or potential witnesses who
19 will be disclosed who reside within that area. If Mr. Brdjanin were to be
20 released in that area, he is free, whatever may be said by his
21 acquaintance, to take such measures as he wishes in respect of those
22 witnesses. The names which will be disclosed to him, plus the identities,
23 will be available to him.
24 We submit that the burden does lie upon Mr. Brdjanin to show that
25 it would be safe and proper to release him and that what Your Honours have
1 heard today does not satisfy that burden, and that the risk that he will
2 fail to appear for trial and/or interfere with witnesses is a real and
3 substantial one, and we invite Your Honours to dismiss this application.
4 JUDGE HUNT: Anything in reply, Mr. Ackerman?
5 MR. ACKERMAN: Very briefly, Your Honour.
6 First of all, it's a very creative reading of Rule 65(A) that it
7 somehow says that the Prosecution has no burden and the entire burden is
8 upon the Defence. 65(A) reads: "An accused may not be released except
9 upon an order of a Trial Chamber." To me what that means is that the
10 Prosecutor or the Defence lawyer or the Registrar can't order his release,
11 only the Trial Chamber can.
12 JUDGE HUNT: I think you are right. But if you look at paragraph
13 (B), it puts it a little more firmly. "The Trial Chamber has to be
14 satisfied that the accused will appear for trial and will not pose a
15 danger." That clearly puts the onus on you.
16 MR. ACKERMAN: Yes, and I think we've carried that burden. Then
17 it shifts to the Prosecution to, I think, show any exceptional
18 circumstances to the contrary. That's the way I see it. I remain
19 convinced that the Prosecution has failed to do so. All the Prosecution
20 has done is tell you that he is charged with genocide. They have told you
21 that there is a risk of flight and a risk that he will interfere with
22 witnesses. But they've simply done that in the form of Ms. Korner's
23 opinion as a totally subjective statement. There's nothing objectively
24 presented to you that could possibly lead you to the conclusion that there
25 is a danger that he will do either of those things.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 With regard to risk of flight, as you know from the documents
2 submitted, Mr. Brdjanin has a wife and two daughters who live in Banja
3 Luka. While he has been detained here, they have visited him frequently.
4 He is very close to that family. Mr. Brdjanin would not want to put
5 himself in a position by being released where he would not be able to
6 continue that relationship with his family, and his family certainly is
7 not going to uproot themselves and go live in the mountains or anything
8 like that. So I think there is largely no chance whatsoever that
9 Mr. Brdjanin is going to not simply go back to Banja Luka and continue
10 living in his government flat as he has for the last several years. His
11 wife has a job in Banja Luka. I would except Mr. Brdjanin to return to
12 work in Banja Luka and help support his family. And he really has no
13 reason not to live up to that which the Tribunal asks him to do.
14 Thank you.
15 JUDGE HUNT: Thank you very much. The Trial Chamber will reserve
16 its decision.
17 --- Whereupon the Motion Hearing adjourned at
18 11.35 a.m., to be followed by a Status Conference