1 Tuesday, 17 September 2002

2 [Open session]

3 --- Upon commencing at 2.18 p.m.

4 [The accused entered court]

5 [The accused Talic not present]

6 JUDGE AGIUS: Yes. Madam Registrar, could you call the case,

7 please.

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

9 IT-99-36-T, the Prosecutor versus Radoslav Brdjanin and Momir Talic.

10 JUDGE AGIUS: Mr. Brdjanin, good afternoon to you. Can you hear

11 me in a language that you can understand?

12 THE ACCUSED BRDJANIN: [Interpretation] Good afternoon, Your

13 Honours. I can hear you and understand you.

14 JUDGE AGIUS: Okay. I thank you. You may sit down.

15 Appearances for the Prosecution.

16 MS. KORNER: Your Honour, Joanna Korner, Anna Richterova, Julian

17 Nicholls, and Ann Sutherland, assisted by Denise Gustin, case manager.

18 Good afternoon, Your Honours.

19 JUDGE AGIUS: Good afternoon to you.

20 Appearances for Radoslav Brdjanin.

21 MR. ACKERMAN: Your Honour, I'm John Ackerman with Milan Trbojevic

22 and Marela Jevtovic for Mr. Brdjanin.

23 And the LiveNote is not working on either of our systems here.

24 JUDGE AGIUS: It wasn't working on mine either, but when I pressed

25 "Video," it started work.

1 MR. ACKERMAN: Oh, I see. Okay. Maybe that will do it.

2 JUDGE AGIUS: If you have further problems, let me know,

3 Mr. Ackerman.

4 MR. ACKERMAN: It's working on the monitor but not on the small --

5 JUDGE AGIUS: On the small one I think you have to make sure that

6 you are connected. The system is definitely on. Maybe you're not

7 connected.

8 MR. ACKERMAN: I'll try to reconnect.

9 JUDGE AGIUS: Yes.

10 MR. ACKERMAN: No.

11 JUDGE AGIUS: Is the laptop -- Madam Chuqing, is the laptop on the

12 front desk working?

13 MR. ACKERMAN: This one is working.

14 JUDGE AGIUS: This is working.

15 MR. ACKERMAN: These are not.

16 MR. ZECEVIC: And ours are not working, Your Honour.

17 THE REGISTRAR: I think I'll call in the technician.

18 JUDGE AGIUS: Yes, please.

19 MS. KORNER: Well, Your Honour, everyone has got the main screen

20 working. But whether the others are working or not perhaps is --

21 JUDGE AGIUS: That is not completely correct, Ms. Korner, because

22 I do watch what is happening in the courtroom, and many a time I have seen

23 Mr. Ackerman blocking and then copying or mark --

24 MS. KORNER: I'm sure he is, Your Honour. But that -- that may be

25 right, but it's not vital for this hearing to continue.

1 JUDGE AGIUS: Let him say whether it's vital for him or not.

2 MR. ACKERMAN: Your Honour, I think because this one is working --

3 the only reason that we would need it today, I would think, is to be able

4 to download a transcript at the close of today's -- and as long as that's

5 working, we can do it from that one.

6 JUDGE AGIUS: All right.

7 MR. ACKERMAN: So it's probably okay.

8 JUDGE AGIUS: So we will proceed.

9 Appearances for General Talic.

10 MR. ZECEVIC: Good afternoon, Your Honours. Slobodan Zecevic and

11 Natasha Ivanovic-Fauveau for General Talic.

12 JUDGE AGIUS: Yes. I thank you.

13 For the record, the Trial Chamber notices that General Talic is

14 not present. And for the record also, I'm going to read out a waiver that

15 the Chamber has been provided with signed by General Momir Talic and dated

16 today, on the 17th of September. I'm going to read it in English, and

17 this is what it states:

18 "I, Momir Talic, am willingly signing this waiver which is being

19 presented to me. I am aware of my right to consult my lawyer in this

20 matter. I have not been coerced or forced to sign this. I waive my right

21 to be present at the court proceedings on Tuesday, 17 September 2002.

22 Signed, The Hague, 17 September, Momir Talic."

23 So that's for the record.

24 Before we start, are there any preliminaries that you would like

25 to discuss?

1 MS. KORNER: Well, Your Honour, only one -- well, they're related

2 matters. First of all, we're in open session.

3 JUDGE AGIUS: Yes.

4 MS. KORNER: And Your Honour, I suggest that in the light of the

5 Defence application to lift the confidentiality and indeed in respect of

6 some reporting that has taken place, which I wish to raise with Your

7 Honour at the end of the hearing, because it is a disgrace that it is --

8 what was purported to be said in closed session was published in the

9 newspaper.

10 But Your Honour, it seems to me that unless there's an objection

11 from either Defence counsel - and I think there probably won't be - that

12 the proceedings should continue in open session.

13 JUDGE AGIUS: In fact -- Mr. Zecevic, yes.

14 MR. ZECEVIC: We don't have any objection, Your Honour, to that.

15 JUDGE AGIUS: And I suppose you don't either, Mr. Ackerman?

16 MR. ACKERMAN: No.

17 JUDGE AGIUS: In fact, I was going to propose to you today, as

18 precisely a first step, before we embark on the debate on the provisional

19 release, that we will remain throughout in open session. At this point in

20 time, having already dealt with the details of General Talic's present

21 state of health in closed session, there is no further reason why we

22 should remain in closed session.

23 And let's take certain preliminary items on today's sort of agenda

24 one by one. There is a motion which you've just referred to, Ms. Korner,

25 a motion by the Defence team for General Talic asking this Trial Chamber

1 to lift the confidentiality that it had already decided upon, relating to

2 the previous proceedings on general -- on the motion for provisional

3 release, which hasn't been debated as of yet, but on what was debated here

4 in closed session on General Talic's health situation, condition, as well

5 as what followed afterwards; in other words, the Prosecution motion for an

6 adjournment of the proceedings till today. Do you maintain your

7 position? Do you maintain your motion for the lifting of the

8 confidentiality veil?

9 MR. ZECEVIC: Yes, Your Honours.

10 JUDGE AGIUS: Is there any objection on the part of the

11 Prosecution?

12 MS. KORNER: To the contrary, Your Honour. And I think it ought

13 to be made clear, because there's been a lot of complaints from the

14 Defence side about the Prosecution request for closed session. All of the

15 closed session hearings, the confidentiality of the motions were at the

16 request of the Defence, for what obviously then are understandable

17 reasons. Your Honour, we clearly don't oppose that.

18 Your Honour, we filed our response to the Defence motion for

19 seeking provisional release confidentiality because at that stage there

20 had been no order lifting it.

21 JUDGE AGIUS: Exactly. And now, this is what I'm coming to. As a

22 logical consequence, the motion -- or rather, your response to the motion

23 for the provisional release, which you filed confidentially and which

24 was handed to us earlier on today at about half past 12.00, need no longer

25 or cannot logically remain confidential.

1 MS. KORNER: Well, no, Your Honour, because at that stage the

2 motion for provisional release was still confidential, so we had to reply

3 confidentially. We have absolutely no objection to the lifting of the

4 confidentiality.

5 JUDGE AGIUS: Okay. So the first decision that we are taking,

6 Madam Registrar - and this is an oral decision - is that the motion for

7 provisional release filed by General Talic - and I'm sure you will find

8 the date - you'll spare me having to give you the date myself - the

9 Prosecution's response to that motion, which was filed today, and the

10 proceedings on General Talic's motion, including the proceedings in the

11 course of which evidence was heard on General Talic's state -- present

12 state of health, will no longer remain confidential, even though those

13 proceedings were held in closed session. That's the first decision that

14 is being taken.

15 The second matter that I would like to have you discuss and which

16 should engage us in not more than a few minutes is a request or a motion

17 that has been filed in French by the Defence team for General Talic in

18 which -- or by means of which this Chamber is being requested to give ear

19 ad wit in a room and hear with the representative of the Federal Republic

20 of Yugoslavia relative to the motion that is before this Chamber for the

21 provisional release of General Talic.

22 Is there any objection on the part of the Prosecution for

23 admitting in the courtroom a representative of the Federal Republic of

24 Yugoslavia and hearing -- receiving his testimony, if necessary?

25 MS. KORNER: None at all, Your Honour.

1 JUDGE AGIUS: So that is, therefore, the decision -- the second

2 decision that this Chamber is taking. In other words, the motion by

3 General Talic dated yesterday, 16th September, namely, "Requete aux fins

4 d'admission d'un temoin," is being accepted and we will tell you when to

5 admit the representative of the Federal Republic of Yugoslavia.

6 The third point I wanted to clarify is actually a direct question

7 to Mr. Zecevic. I would imagine that you were -- that you received the

8 Prosecution's response more or less about the same time that we did. Did

9 you have time -- enough time to read it and consider it? Are you prepared

10 to make submissions on it, or would you like some kind of postponement?

11 MR. ZECEVIC: No postponement, Your Honour. Thank you for

12 asking. But we are ready to give submissions on this.

13 JUDGE AGIUS: Okay.

14 MS. KORNER: Your Honour, I should add that we had a meeting this

15 morning, and I spoke to Madam Fauveau yesterday, so I gave the general

16 gist of what our attitude was going to be in advance.

17 JUDGE AGIUS: All right. So at this point in time I think the

18 way I would suggest to you to proceed is rather than asking Mr. Zecevic to

19 explain the rationale, the basis for his motion for provisional release of

20 General Talic, I would turn on to you on the basis of the response that

21 you have filed today and ask you to elaborate, Ms. Korner, and then

22 obviously I will give the floor to Mr. Zecevic and --

23 MS. KORNER: Your Honour, I think it would help if Your Honour

24 would -- would say in what way you wanted us to elaborate. We've set our

25 position, we thought, fairly clearly -- we hoped fairly clearly.

1 JUDGE AGIUS: Well, I think very simply put, there is a part in

2 your response which I would require elaboration upon. And this is where

3 you say: "The Pre-Trial --" paragraph number 4, last sentence: "The

4 Pre-Trial Chamber's rationale for ordering the detention of Talic before

5 and during the trial has not evaporated simply because his health has

6 deteriorated." Correct. The Chamber would agree completely with that

7 affirmation.

8 Then you move on to paragraph 5: "The public perception of such a

9 provisional release could be extremely damaging to the institutional

10 authority of the Prosecutor and her ability to conduct investigations in

11 the territory of the former Yugoslavia and the subsequent trials in The

12 Hague. Victims and other witnesses who have agreed to cooperate with the

13 Prosecution will not have a favourable view of the provisional release of

14 Talic whatever the circumstances. On the contrary, in the context of

15 their own suffering they will not understand the humanitarian motivation

16 behind such a release. The Prosecutor therefore proposes an alternative

17 strategy."

18 And according to you this strategy "accommodates the need for

19 Talic to be transferred to the FRY, to receive whatever treatment he may

20 wish or require, but also recognises the fact that Talic is an accused

21 under arrest in an ongoing trial who prima facie is responsible for the

22 death and suffering of thousands of Muslims," et cetera.

23 How -- then you propose that Talic remains in detention, however

24 not in the detention unit here in The Hague, but will remain in

25 detention in Belgrade, in the hospital where he will receive treatment,

1 irrespective of whether he's receiving treatment at the time or not,

2 because we have heard from the doctors that if he receives chemotherapy,

3 for example, usually you -- you go for chemotherapy, you stay two hours in

4 the hospital, and you're out. And you are expecting this Trial Chamber to

5 place an order on the authorities in the Federal Republic of Yugoslavia,

6 particularly the hospital -- the military hospital in that capital,

7 ensuring that they will substitute for all intensive purposes the role of

8 the United Nations Detention Unit here in The Hague for the purposes of

9 the detention of accused Talic and stay there for as long as Mr. Talic --

10 General Talic requires treatment or independently of treatment, as long as

11 he is still unfit to return to this Tribunal or to be in detention in --

12 here in The Hague. How would that change the perception of the persons,

13 the victims in particular, and witnesses, because for all intents and

14 purposes General Talic will not be here in The Hague.

15 MS. KORNER: No.

16 JUDGE AGIUS: We still have an ongoing trial, but he is going to

17 be in a hospital in -- call it detention, call it whatever you like, but

18 how is the public perception going to change?

19 MS. KORNER: First can I just add one thing: Clearly all of this

20 would be dependent on the agreement of the Federal Republic of

21 Yugoslavia. We have been in contact -- not the gentleman who's here

22 today. I don't know what his status is nor indeed his name.

23 JUDGE AGIUS: I doubt if he knows about this.

24 MS. KORNER: But a Mr. -- A Mr. Djeric, who holds a position in

25 the Ministry of Foreign Affairs, and I've informed Defence counsel of

1 their response. In principle the Federal Republic sees no problem, but

2 they need to take a government decision, which cannot be taken until the

3 government meets, which will -- and he estimates that it would be on

4 Thursday that we would get the response. But I need to tell Your Honours

5 that because clearly Your Honours could make such orders as you wished

6 if -- and if the Federal Republic was not content, then we couldn't

7 carry -- Your Honours couldn't carry them out.

8 Your Honour asks how would the public perception change. Your

9 Honour, if the man -- if the accused is given provisional release, he is

10 effectively a free man to do as he wishes subject to the restrictions on

11 movement that Your Honours may apply. Your Honour, he's a free man at a

12 time when a trial charging him with genocide and other major breaches of

13 international humanitarian law is well underway and evidence has been

14 called, we would submit, that shows his involvement in those crimes. The

15 general public, those in Bosnia, in the former territories of what was

16 then Yugoslavia, who were the victims of these crimes would not

17 understand, we submit, why a man was not being kept under arrest at a time

18 when he should be being tried, his medical condition notwithstanding.

19 Now, the terms on which the Prosecutor would agree to, as it were,

20 a transfer out of the jurisdiction of this Court are those which

21 effectively mean not only is this man still under detention of a sort,

22 even though it's in a place where he can receive medical treatment, but

23 the terms are such that should the time come that he is fit to attend

24 trial and fit to remain in the detention unit here, then he will be

25 brought back to this Court and the trial will be completed.

1 Now, Your Honour, those are what we consider -- we may be wrong,

2 but we think not. As an office, this office has dealt with the victims of

3 crimes for now a considerable number of years, and we do submit that those

4 who were the victims in this case -- and may I make it absolutely clear

5 that each of the cases which the -- or many of the cases, I should say,

6 which this office prosecutes have different victims from different

7 ethnicities. In this particular case, it happens to be the Muslims -- the

8 Muslim population and the Croat population of Bosnia. In other cases it

9 has been Serbs; in other cases it has been Croats, and so on and so

10 forth. But it is our submission that the public is entitled to know that

11 people charged with these offences are not effectively, because of the

12 state of health, however sympathetic one is to a man in this position, but

13 because of his state of health is effectively not being given carte

14 blanche to walk the streets of either Banja Luka or Belgrade.

15 Now, this is particularly important in respect of Banja Luka.

16 Your Honour, this trial in any showing will be an ongoing trial, whether

17 it goes on at the moment against General Talic or only against

18 Mr. Brdjanin, is a matter which Your Honours will have to decide upon when

19 we've dealt with this. But the presence, for example, of General Talic

20 walking the streets - because as Your Honour says, quite rightly, the

21 hospital treatment may not take up the whole time - is not conducive to

22 the persuasion for witnesses to attend this court and give evidence.

23 The perception -- Your Honour once asked me about -- in relation

24 to protective measures for witnesses that -- what the particular area was

25 like in terms of threat. And the difficulty is it may objectively not be

1 a high threat risk to somebody testifying, but subjectively to the person

2 who's going to testify the presence of other ethnicities is a problem. It

3 does cause fear and does make it less likely for witnesses to attend. So

4 therefore, Your Honours, our submission on this is that effectively we are

5 seeking to assist in the humanitarian aid to General Talic -- in other

6 words, that should he be enabled to receive that treatment in his own

7 country so that he can be dealt with in a language that he understands.

8 We could have - and Your Honour, I make this absolutely clear - we could

9 have objected and said, "No, there's more than adequate -- in fact, as we

10 heard the other the day, top specialists working in this country. It is

11 our application that he should remain within the confines of the

12 Netherlands, have such treatment as was suggested by one of the doctors as

13 an outpatient, and be returned to the detention unit." But we do have

14 sympathy for the plight that General Talic now finds himself in, and so we

15 are now prepared to say that he should be allowed to return to Yugoslavia

16 but under terms that will mean that should he recover sufficiently to be

17 enabled for his trial to continue at that stage, he will be returned.

18 So Your Honour, I hope that deals with the matters that Your

19 Honour --

20 JUDGE AGIUS: As I take it, you had two options: keeping him here

21 in the detention unit receiving hospitalisation treatment or whatever is

22 required, but remaining in detention here at the detention unit.

23 MS. KORNER: Absolutely.

24 JUDGE AGIUS: And the same picture, same story but back in

25 Yugoslavia.

1 MS. KORNER: Your Honour, that's right.

2 JUDGE AGIUS: And you opted for that.

3 MS. KORNER: We opted for that because, as I say, we have sympathy

4 for the plight that the general finds himself in. But at the same time we

5 have to look at our duty to those whom we represent in all these trials,

6 and that is the victims of these crimes.

7 JUDGE AGIUS: Yes. Okay. Thank you.

8 Mr. Zecevic, could you enlighten this Chamber on the position

9 of -- your position with regard to Ms. Korner's -- or the Prosecution's

10 proposition.

11 MR. ZECEVIC: Gladly, Your Honours. First of all, it is the -- it

12 is our -- if we understood correctly the OTP, it appears that the Office

13 of the Prosecutor is having a wrong perception of what we are asking by

14 this motion. What we are asking by this motion is not that the

15 General Talic would be freed altogether but would be provisionally

16 released. According to the jurisprudence of this Tribunal, it is

17 understandable that the accused is released -- provisionally released

18 under very strict conditions and the conditions which the Trial Chamber

19 deems appropriate from -- from case to case. So it does go without

20 saying, if I may say so, that the -- that the accused is expected to be

21 brought to the Tribunal on the order of the same Trial Chamber that

22 provisionally released him. That is why the guarantees are usually taken

23 in this Tribunal for the accused.

24 As to the -- as to the response, Your Honours, with all due

25 respect the Defence of General Talic does consider this response a

1 yes-and-no response. First of all, the Prosecutor -- the Prosecution is

2 on one hand opposing the motion for provisional release and at the same

3 time declares to be in favour of the treatment of the accused to be

4 conducted in a military medical academy in Belgrade. The motion for

5 provisional release was filed mainly and only because of the medical --

6 status of medical health of our client. That was the reason behind why

7 the motion for provisional release at this time was filed. So it is our

8 understanding that the Prosecution is not opposing the fact, which it even

9 clearly states in the response, that it doesn't oppose the fact that

10 General Talic is very seriously ill and that he does require therapy and

11 medical treatment. The only thing which in fact the Prosecution is

12 opposing are the conditions of this -- of this provisional release.

13 It is therefore our -- our position is that the Rule 54 cannot be

14 applicable in this case. The jurisprudence of this Tribunal in the

15 previous cases and more -- and even in one almost similar case of General

16 Djukic has been very clear that the provisions of Rule 65 has been and in

17 fact has been -- has been applied. And General Djukic was provisionally

18 released on humanitarian basis only because of the nature of his serious

19 illness.

20 The Prosecution response has quite a bit of factual things which I

21 would not like to bother the Trial Chamber at this time because the Trial

22 Chamber heard the testimony of the witnesses and therefore can decide what

23 is -- what the witnesses really said before this Trial Chamber. But I

24 would like to comment on two things: The Prosecution response and Your

25 Honours -- Your Honour have just read that -- and commenting on the public

1 interest --

2 JUDGE AGIUS: One -- let me interrupt you for a moment.

3 MR. ZECEVIC: Yes.

4 JUDGE AGIUS: I think at this point in time we can admit the

5 representative of the FRY, because we will obviously need to ask him some

6 questions, and we will also need to hear what he has to say.

7 [Trial Chamber confers]

8 JUDGE AGIUS: Wait, Mr. Zecevic, until he comes in, because more

9 or less I can anticipate what you're going to deal with now and I think

10 he -- it's better if --

11 MR. ZECEVIC: Yes, I understand.

12 JUDGE AGIUS: It's better if he is in the courtroom to hear what

13 you have to say.

14 Basically what I would like you to address, both of you, is the

15 reality of the situation, and the reality of the situation, point number

16 one, is that General Talic may or may not be today fit or unfit to stand

17 trial or to remain at the detention centre. That is very important to

18 start with. But what is more important is what we referred to towards the

19 end of the last sitting that we had, the last hearing. And precisely, if

20 General Talic were to be kept here in The Hague, would it be possible --

21 would it be compatible with his fundamental rights, those applicable and

22 relevant fundamental rights to keep him in the detention, proceed with the

23 trial, and give him all the medical attention that he requires within the

24 medical prognosis scenario that we were given by the three doctors. The

25 detention medical unit officer, and the two consultants -- the two experts

1 that we heard. Combine everything together, and more or less you have

2 a pretty clear scenario, although it varies to some degree and in certain

3 details.

4 The reality of the situation is that I am informed, at least, that

5 there is no way you can keep one of the detainees here in The Hague and

6 guarantee a medical treatment and hospitalisation, if necessary, for a

7 long period of time. That is out of the questions. I have checked up on

8 it, and I have been told that there is an agreement -- an informed

9 agreement, not even a written agreement, between the Tribunal and the

10 Dutch authorities, ensuring that any detainee who requires treatment will

11 receive it. But we're talking on a short-haul affair and not something

12 that can go on indefinitely. That has not been specifically addressed so

13 far between the two -- between the Tribunal and the Dutch government. And

14 I think we -- we have to call a spade a spade and this is where we have to

15 start from.

16 The situation may be tenable, may be one which we could deal with

17 now, without any major problems, without any major aggravation and without

18 in any way prejudicing or harming the rights of General Talic, but today

19 is today and tomorrow things may change. And if things change tomorrow,

20 the situation may become untenable. Now, it's true what the Prosecution

21 says in its motion -- in your motion that the situation is not very

22 clear. You don't know what to expect. The situation can remain status

23 quo, as it is now, for -- for months, or it could change and deteriorate

24 very rapidly. And I think I see a lot of wisdom in the approach that the

25 Prosecution has taken in not adopting a radical opposition to your request

1 for provisional release. I think it is something that we have to

2 acknowledge, that the Prosecution has -- does realise the different

3 combinations and permutations that are involved apart from the

4 humanitarian aspect.

5 The only other problem that I see is -- is the following: The

6 Rules do authorise this Tribunal to detain an accused person either in the

7 facilities here in The Hague or facilities offered by another country or

8 available in another country. In fact, it says that "In exceptional

9 circumstances, the accused may be held in facilities outside of the host

10 country." So the request that the Prosecution is making -- or the

11 proposition -- sorry if I am using the word "request" -- the proposition

12 of the Prosecution definitely is one which is contemplated which falls

13 under the general umbrella of the Rule that I have just been reading

14 from.

15 What I want from you, Mr. Zecevic, is more or less an answer to

16 the same question that I posed to the Prosecution: What difference do you

17 see between an order providing for the provisional release of your client

18 accompanied with facilitating all that is required or may become necessary

19 for his medical treatment and with the usual guarantees and an order along

20 the lines being proposed by the Prosecution which will give him the

21 opportunity to be in his own country, to be with his family, to receive

22 all the necessary treatment, and which would also offer the guarantees

23 that we would normally require, in the case of a provisional release in

24 case his return to this Tribunal, is necessitated. What difference do you

25 see?

1 MR. ZECEVIC: Your Honours, if that would be the case, I would --

2 it is my assumption that Your Honours do not see any difference and

3 neither do I.

4 JUDGE AGIUS: No, no, no. I didn't say that. I asked -- I put

5 the question to Ms. Korner.

6 MR. ZECEVIC: Yes.

7 JUDGE AGIUS: Wanting to know why she opted for one, rather than

8 the other. And I'm putting the same question to you: Why you are

9 opposing Ms. Korner's proposition and standing by your request?

10 MR. ZECEVIC: First of all, Your Honours, we are -- we filed the

11 motion for provisional released base on Rule 65, which we think is the

12 only rule which does deal with the -- with the actual provisional

13 release. What Your Honours have just read is -- is Rule 64, if I -- if I

14 correctly know the Rules, but -- and I believe I do. And the motion, the

15 motion of the Prosecutor, was not filed under Rule 64 or not -- or the

16 Rule 64 was invoked, but Rule 54 was invoked in this particular -- in this

17 particular case.

18 Why we are opposing is that from the Prosecutor's response, we

19 cannot see the actual -- the actual way how the Prosecutor does think this

20 is achievable at all, because it involves so many different authorities

21 that has to be consulted with and it, be all means, takes time, and the

22 time is the only thing, as I emphasised so many times -- the time is the

23 only thing that we don't have unfortunately, because of the serious

24 situation of the medical health of my client.

25 JUDGE AGIUS: Let me stop you here.

1 MR. ZECEVIC: Yes.

2 JUDGE AGIUS: That is not correct, because if your client requires

3 treatment here in The Hague, which he have it within the minute, within

4 the hour, any treatment. And I don't think the treatment in this country

5 will be any less than the treatment he would receive in Belgrade.

6 MR. ZECEVIC: Yes, Your Honours. But Your Honours stated yourself

7 that it has been brought to our attention that the treatment cannot be

8 conducted within the premises of the UNDU and if the treatment would start

9 now, then the treatment will have to finish here as well.

10 JUDGE AGIUS: No. That's not correct. There are two kinds of

11 interventions that he can be subjected to. One is the intervention which

12 would glue his pleura to the thorax. That is a simple intervention which

13 is almost ambulatory. I mean, it's -- he will go in the morning and come

14 out of the hospital the same day. And the other one is chemotherapy, and

15 that can be started straight away and can be continued in Belgrade or

16 in -- wherever later on, without any prejudice to his health, ensuring

17 that he will be able to travel when the doctors will certify that there is

18 absolutely no danger for him to travel.

19 MR. ZECEVIC: With all due --

20 JUDGE AGIUS: So what I'm referring to is not a medical treatment

21 in the detention unit but medical treatment in a proper hospital here in

22 The Hague, which I can more or less guarantee to you, if necessary.

23 MR. ZECEVIC: With all due respect, Your Honours, the first

24 intervention that you mentioned is just to help General Talic's condition

25 that -- that the fluid does not happen in this enormous quantity as it

1 does in his lungs. And the actual -- the only treatment which is -- which

2 was suggested by the doctors is the chemotherapy, actually.

3 If I have correctly understood the chief medical officer of the

4 UNDU and the warden of the UNDU, they have -- they have expressed their

5 gravest reserves about the possibility of the treatment be conducted in

6 the hospital of -- in Netherlands because of the security reasons, because

7 of the reluctance of the hospital to accept such a patient and so on.

8 But in any case, I would not like to go into an area which --

9 which is not my -- my area, so to speak, because it is appropriate for the

10 medical staff or medical doctors to address to that.

11 JUDGE AGIUS: But Mr. Zecevic.

12 MR. ZECEVIC: Yes.

13 JUDGE AGIUS: You've still not answered my question. Granted for

14 the time being --

15 MR. ZECEVIC: Yes.

16 JUDGE AGIUS: -- that what you have just said so far, based on

17 what others have said, is correct, 100 per cent, namely that there is no

18 way that you can more or less guarantee General Talic his rights, plus

19 medical treatment, plus everything here in The Hague in the present

20 conditions -- given also what we have been told by the consultants at

21 least and also by the medical doctor that a few days here and a few days

22 here are not going to make a difference at all for the time being, because

23 the situation has not deteriorated to the extent where we have to act

24 within the hour -- why should the only option open to us, available, be

25 that of provisional release to the exclusion of the option that is being

1 proposed or offered by the Prosecution? This is what I would like you to

2 convince us.

3 MR. ZECEVIC: Your Honours, we have based, as I said just prior to

4 this -- we have based our motion on the Rule 65, which gives a possibility

5 of provisional release to be granted to the accused. The jurisprudence of

6 this Tribunal has recognised only this rule for the provisional release of

7 the accused, so as to speak, Rule 65. There has never been a case, to my

8 knowledge, whether other rule, such as 52, has been -- has been used for

9 these purposes. That is why we have based our submission on the 65, and

10 we don't -- what I am about to address is that we don't really see the

11 difference between the 65 -- the difference between our motion and the

12 actual standing of the Prosecutor, because the Prosecutor is actually and

13 only addressing to the conditions of the provisional release.

14 JUDGE AGIUS: In other words, you --

15 MR. ZECEVIC: That is our understanding.

16 JUDGE AGIUS: You're saying that to all effects and purposes,

17 except of law, what the Prosecution is proposing is a provisional release,

18 which, however, is not a provisional release.

19 MR. ZECEVIC: That is exactly our opinion. That is why I said

20 this is a yes-and-no response, Your Honours.

21 JUDGE AGIUS: In other words, you're maintaining that it's sort of

22 a save-face proposition on the part of the Prosecution.

23 MR. ZECEVIC: I'm not suggest anything, Your Honours. I'm just

24 giving my opinion on the response which I received, as you know, two hours

25 before.

1 JUDGE AGIUS: Yeah. That's why I asked you whether you wanted

2 more time --

3 MR. ZECEVIC: Yes. But I am perfectly capable to give submissions

4 on that, if you allow me, Your Honours.

5 JUDGE AGIUS: Yes. Of course, I will.

6 MR. ZECEVIC: Earlier I wanted to give two comments on this

7 response filed by the Prosecutor. The first comment is about the issue of

8 the public perception. The Defence is wondering whether the public --

9 their interest and the perception even of the Office of the Prosecutor is

10 that the -- this, the same office, is bound by the provisions of

11 international convent of civil and political rights and European

12 convention of protection of human rights and fundamental freedom.

13 Ms. Korner was just -- was just addressing the issue where our

14 client has been charged with very serious crimes. At the same time before

15 this Tribunal, Ms. Plavsic was charged with genocide and released, and in

16 fact now is on provisional release, and that -- and it did not destroy the

17 public perception of the Prosecution at all. That is why in such a case

18 where we have a very serious situation, medical situation, we really

19 cannot give credit for the -- for the statement that the public perception

20 would in any way be inflicted by the provisional release of our client.

21 Also, the Prosecutor in its response is claiming that there is a

22 prima facie responsibility.

23 JUDGE AGIUS: Forget that. Jump to the next submission.

24 MR. ZECEVIC: Yes. I understand, Your Honours, that was exactly

25 my opinion as well.

1 Your Honours, the jurisprudence of this Tribunal has been cited in

2 our motion for provisional release, and that is the most similar case is

3 that of General Djukic from back in 1996. The Trial Chamber in that

4 decision from 24th of April, 1996 found that "the accused Djukic suffered

5 from the incurable disease and that it is in the terminal phase. Further,

6 the Trial Chamber found that the very serious state of medical health of

7 General Djukic is incompatible with any kind of detention and that the

8 palliative care which is necessary requires a different environment."

9 Ultimately, the Trial Chamber decided and granted the motion for

10 provisional release for humanitarian reasons only and authorised his

11 immediate return from Netherlands to that the accused could rejoin his

12 family. This decision, in our opinion, is in complete accordance with the

13 numerous provisions of international humanitarian law, such as the basis

14 principles for the treatment of prisoners, standard minimum rules for

15 treatment of prisoners, universal convention of humanitarian rights,

16 American, European, and African convention and ultimately the Rules of

17 ICTY from 1999.

18 In the Prosecutor versus Hadzihasanovic, Alagic and Kubura, the

19 Trial Chamber II granted provisional release on 19th of December, 2001 and

20 reasoned "That Rule 65 of the Rules of Procedure and Evidence must be read

21 in the light of the international convention on civil and political rights

22 and European convention for the protection of humanitarian rights and

23 fundamental freedoms."

24 Further, the Trial Chamber held that "It must interpret Rule 65

25 with regard to the factual basis of a single case and with respect to the

1 concrete situation of the individual human being and not in abstracto.

2 Further the Trial Chamber stressed that the procedural measures should not

3 be capricious or obsessive and that if it's sufficient to use more lenient

4 measure, it must be applied.

5 The position of the Defence is that the Rule 65 gives the

6 opportunity to the Trial Chamber to order provisional release of the

7 accused based on two basic requirements: The requirements in short - I

8 will not bother the Trial Chamber with that - is that the Trial Chamber is

9 satisfied that the accused will reappear on the request of the Trial

10 Chamber and second, that the accused does not pose danger to victims,

11 witnesses, or any third person. Also, the opportunity to be heard is given

12 to the host country and state which the accused seeks to be released. The

13 host country already informed this Trial Chamber that it doesn't oppose

14 the release, so as well Republika Srpska has already filed a guarantee

15 with the Tribunal in form, recognised the jurisprudence of this Tribunal,

16 and the representative of the Federal Republic of Yugoslavia is here with

17 us now and will testify in -- concerning the readiness of FRY to issue and

18 fulfil the guarantee and accordingly ensure the Trial Chamber that the

19 accused will reappear on request of the Trial Chamber.

20 As for the victims and witnesses, the Defence points out that the

21 witnesses and victims from the municipality of Banja Luka --

22 THE INTERPRETER: Can counsel please show down. Thank you.

23 JUDGE AGIUS: Slow down a little bit.

24 MR. ZECEVIC: Sorry.

25 JUDGE AGIUS: Because you are creating difficulties for the

1 interpreters.

2 MR. ZECEVIC: And that the Defence acknowledge no witness or

3 victims are residing in Belgrade, Yugoslavia.

4 Moreover the state of health of our client does not in any way

5 permit him to engage in anything but the therapy and medical treatment of

6 his illness at this moment.

7 The Rule 65 does give the Trial Chamber a power to impose any

8 condition it may deem appropriate for the case. So in this respect,

9 the -- the Defence, being seized by the -- by the urgency and the need of

10 our client to undergo therapy as soon as practically possible, does not

11 have any suggestion as to which conditions should be or should not be

12 imposed. And therefore, we will accept any condition within, of course,

13 the jurisprudence of this Tribunal and which would -- which would

14 ensure that our client does get what we are seeking to have.

15 Your Honours, in this particular case we have heard experts --

16 three experts, one of them being a chief medical officer of the UNDU, and

17 two other leading specialists, oncologists, who were summoned and appeared

18 before this Trial Chamber to verify the diagnosis of the medical officer

19 of UNDU, which they eventually did. Both oncologists concluded after

20 reviewing the medical records, and one of them performing physical

21 examination and biopsy and subsequently received the results from the

22 tissue that the nature of illness is serious and that it is inoperable and

23 incurable and that the health of our client will deteriorate rather fast.

24 They both also suggested chemotherapy as the only medical treatment which

25 might prolong the life of the accused. The warden informed the Trial

1 Chamber of the impossibility of ensuring the chemotherapy treatment or

2 proper medical care within the UNDU and Dutch hospital may not be a

3 solution because of the security reasons. The chief medical officer of

4 the UNDU within the scope of his duty and responsibilities, in accordance

5 with the Rule 33 of the Rules of Detention of this Tribunal, declared the

6 accused unfit for trial and not fit to remain in detention. His fitness

7 was basically the issue that the medical officer and the two specialists

8 disagreed upon. But with all due respect to the specialist oncologists,

9 they can be, and are experts for diagnosis of the illness and not for the

10 detention and whether a person is fit to remain in detention or fit to

11 stand trial, because as one of them pointed out rightly, none of his

12 patients under treatment does come from any kind of detention facility.

13 So their knowledge in this respect is rather limited, contrary to

14 that of the chief medical officer of the UNDU. Whether the accused can

15 stand trial for another week does not seem to be in our minds at all

16 important, given the fact that according to what we know at this point, it

17 would be about all that he can stand. It doesn't change anything with

18 respect to the dynamics of this trial, but significantly reduces the

19 changes of immediate therapy and possible prolongation of life for a

20 couple of months, to which any human being must be entitled.

21 There is no doubt, Your Honours, that our client has to start

22 therapy immediately. The right to adequate medical care is one of the

23 fundamental human rights and our client has been deprived of his

24 fundamental human right. Eight days has already lapsed since we became

25 aware of the medical condition of our client, and every additional day

1 directly diminishes the chance of any positive effect of the therapy.

2 THE INTERPRETER: Could counsel slow down, please.

3 JUDGE AGIUS: Slow down, please.

4 MR. ZECEVIC: The overall condition of -- I will, sorry.

5 And not only that, but his overall condition at this moment leaves

6 the option of different possible therapies to choose, since undoubtedly

7 his health will deteriorate, the options will be fewer and fewer.

8 The Prosecution, as stated in their response, is satisfied that

9 General Talic is suffering from inoperable and incurable disease. Also,

10 the Prosecution recognises the problems with the treatment therapy to be

11 administered while in custody here at the UNDU. And so in fact the

12 Prosecution recognises the relevant facts to the decision of this Tribunal

13 concerning our motion for provisional release, yet it still opposes the

14 motion.

15 The Defence from the -- from the old stated reasons just right

16 now, in the reasons stated in our motion, respectfully request that the

17 motion for provisional release be granted. Thank you.

18 JUDGE AGIUS: Before I give the floor again to Ms. Korner, may I

19 just rebut the suggestion that you have made that by postponing or

20 adjourning the hearing for today, this Chamber has violated the rights --

21 the fundamental rights of your client. May I refer to the last statement

22 made by the medical officer of the detention unit when faced with a direct

23 question "Would another week, would a few days, even more than another

24 week of this -- General Talic staying in detention in any way harm his

25 health?" The answer was, " No." This was the same person who had stated

1 categorically in a medical certificate that he was unfit to remain in the

2 detention unit. And may I also remind you, sir, that the -- one of the

3 experts that were brought here, and this Trial Chamber even suggested that

4 we should tell General Talic to go and play tennis. This is how far we

5 have prejudiced General Talic's health.

6 Yes, Mr. Zecevic.

7 MR. ZECEVIC: Your Honours, I did not in any way say that this

8 Trial Chamber has violated --

9 JUDGE AGIUS: We can -- we can check -- go straight --

10 MR. ZECEVIC: I said that --

11 JUDGE AGIUS: We can go straight to the part --

12 MR. ZECEVIC: I said that for eight days he has been deprived of

13 his fundamental right, Your Honours.

14 JUDGE AGIUS: All right. Ms. Korner.

15 MS. KORNER: Your Honour, I -- there are just two matters that I

16 want to come back on that were said, leaving aside the question of Dr.

17 Dr. Valke, as opposed to the two eminent specialists, that is Your Honour

18 heard from.

19 The first is this: Effectively what Mr. Zecevic is arguing is

20 that because this kind of application has not been dealt with before,

21 other than under Rule 65, it's therefore contrary to the Rules. Your

22 Honours have in fact drawn our attention to Rule 64, which regrettably we

23 failed to mention in the motion, but in any event it's absolutely clear

24 that Your Honours have power to make such orders as Your Honours think

25 fit. And the whole point is the Prosecution is opposing provisional

1 release under Rule 65. What it's asking for is an order for the remand of

2 General Talic at a place outside the detention unit in The Hague.

3 Your Honours, I don't know what -- whether the quoting from the

4 authorities has been selective or not. I don't know whether Your Honours

5 were provided with a list of authorities. We weren't. I can say that in

6 respect of General Djukic, the situation was very different. General

7 Djukic had been charged on an indictment. General Djukic -- the trial

8 had not started. I -- can I put it this way: I'm disappointed that Your

9 Honours do not consider the fact that evidence has been called, we would

10 submit, implicating General Talic in offences, unrebutted but raising a

11 prima facie case for him is irrelevant. Because that's one of the major

12 differences. No evidence had been called in General Djukic's case.

13 JUDGE AGIUS: That's both ways. It cuts both ways. Because if

14 you are correct, then you don't have to worry much -- or at least as much

15 as you would have had to worry had the trial not even started as yet.

16 If it is -- if you are correct in your submission that this is an

17 ongoing trial, in the course of which prima facie evidence has already

18 been provided, to pin General Talic against the indictment, then you

19 should worry less than if the trial were just about to start tomorrow and

20 we are releasing General Talic before you present your first witness.

21 MS. KORNER: I'm afraid that -- Your Honour, it may be that

22 it's -- I'm not quite following that. The reason that we've -- I've

23 raised -- we've raised this is because it's a case where the general

24 public has heard evidence -- and General Talic has heard evidence. And in

25 the event -- and this is one of the real difficulties, as we discussed

1 last week, the prognosis is uncertain now, it may be that chemotherapy can

2 alleviate General Talic's symptoms to such an extent that he is able to

3 resume the trial.

4 JUDGE AGIUS: You also -- I'm sorry to rebut in again like this,

5 but you also have the last document that was presented to us by Dr. Baas,

6 namely that his final prognosis is that General Talic won't make it

7 beyond -- beyond a year. That's his final prognosis. So --

8 MS. KORNER: Well, Your Honour --

9 JUDGE AGIUS: We all know that this trial will not be in a year's

10 time.

11 MS. KORNER: Your Honour, that was a slight -- it is possible

12 theoretically, of course -- depending on -- there are a number of

13 available options still to discuss -- to conclude this trial against

14 General Talic within a couple of months by radically cutting down the

15 evidence that we intended to call, theoretically. All of that is

16 possible. And of course I know what Dr. Baas said. But as against that,

17 he said the percentage of people surviving longer is smaller, but the

18 other doctor, Dr. Van --

19 JUDGE AGIUS: Meerbeek.

20 MS. KORNER: -- said that 40 per cent of people survive two years

21 long. That's the real difficulty. But Your Honour what we're saying --

22 JUDGE AGIUS: What's certain is the situation will not become any

23 better as we go along, but it become definitely worse. It will

24 deteriorate. And there will come a point in time, for sure, irrespective

25 of what we will decide now -- but given the course, the normal course of

1 expectations in such a disease, where definitely there will be no options

2 but one. So should we wait until that moment, or should we apply the

3 humanitarian basis rule that was applied in Djukic, given that in Djukic

4 the situation was far advanced, more advanced that it is now, because if

5 you read Djukic well, most important -- there are two basic points made in

6 that judgement. One is that the decision is reached solely on

7 humanitarian grounds; and secondly, that that person was unfit at that

8 time to stand trial.

9 We have declaration by two experts that that person at the present

10 moment is fit to stand trial, but also that the situation will get worse.

11 So this is what I would like you to address at -- whenever it's convenient

12 to you, Ms. Korner.

13 MS. KORNER: But Your Honour, I'm addressing this. But Your

14 Honour, all this -- that's the real major problem. The situation will get

15 worse eventually. I mean, effectively as I think somebody said -- Dr.

16 Valke said, General Talic has effectively received a sentence of death.

17 But the question is: How long?

18 Now, Your Honour, the problem with all of this is that

19 General Talic can receive treatment. That treatment, the chemotherapy,

20 may give him extra time to live. That time that he has to live is

21 uncertain. It could be anything theoretically up to five years. Your

22 Honour, in those circumstances the Prosecution are saying, in terms we

23 have started a trial against this man of genocide. This man -- we say, we

24 submit, that is our case, is guilty of genocide and we are in the process

25 of calling evidence to show that.

1 We understand the situation as it now stands. He is -- okay,

2 temporarily he may be fit but he needs treatment and we accept that. But

3 we are saying, fine, he receives that treatment but still in detention.

4 If the prognosis gets no better, his health does not increase, and we will

5 know that from medical treatment, very well. That's one matter. But if

6 it does, then we say it is proper and fit that this man should be tried

7 for those crimes. It is not right that the deaths of thousands of people

8 should be allowed to go, as it were, untried, unaired, and that is the

9 reason, Your Honour. We're here to represent the interests of the

10 victims, of justice. This is what the mandate of this Tribunal is.

11 Now, having said all that, Your Honour, what we are now saying at

12 this stage in time: We don't know what's going to happen. What we do

13 know is that at present he needs treatment. We are prepared on behalf of

14 the Prosecution to accede to the request that it be treatment given to him

15 in his own country, taking the former Yugoslavia now as a whole, because

16 we would certainly submit that Banja Luka is thoroughly inappropriate for

17 him to be going back to. And we are prepared that that treatment should

18 be given to him in a Belgrade hospital subject to the consent of the

19 Federal Republic of Yugoslavia.

20 JUDGE AGIUS: Okay. So my last -- one moment, Madam Fauveau. I

21 will come back to you very soon.

22 I'll face you with a very direct question. I fully understand

23 your preoccupation with the public perception, particularly with regard to

24 victims and witnesses. I don't want you to misunderstand me or to even

25 think for a moment that that is your concern but it's not our concern. It

1 is definitely our concern as well. What I would like you to explain to me

2 is this, how victims and witnesses related to this particular case and

3 other cases that may be pending before this Tribunal and which may come to

4 this Tribunal later on, will be happier if they knew that General Talic,

5 instead of being guarded in a detention unit here in The Hague by UN

6 guards and supervised by a UN commandant is being held in a military

7 hospital in Belgrade supervised by, I suppose, someone from Belgrade and

8 guarded by, I suppose, someone from Belgrade. Do you honestly believe

9 that victims and witnesses will feel more at ease with such a situation

10 rather than if they knew that he is on provisional release with whoever

11 has an interest to keep an open eye, to make sure that the conditions are

12 being fulfilled, are indeed being fulfilled?

13 MS. KORNER: Your Honour, if we didn't feel that, we wouldn't have

14 done this.

15 JUDGE AGIUS: So you feel --

16 MS. KORNER: We would have -- we would have agreed to provisional

17 release other than obviously, as I say, Banja Luka being thoroughly

18 inappropriate, but the terms of provisional release to Belgrade. It is

19 our belief as an office -- and may I say this -- as Your Honours know, is

20 part of the reason we asked for the adjournment was so we could discuss it

21 with the Prosecutor herself. It is the belief of the Prosecutor herself

22 that this does make a difference.

23 JUDGE AGIUS: Madam Fauveau.

24 MS. FAUVEAU-IVANOVIC: [Interpretation] Mr. President, I shall

25 refrain from repeating anything that my colleague has already said. But

1 there is something, on the other hand, which I would like to add. It is

2 true that it's a week today -- it's exactly a week that the two experts

3 have said that General Talic may perhaps be capable of standing trial.

4 One of them said for one week and the other one said "certainly for one

5 week," and "for two weeks it was questionable." At this very point in

6 time we have no certainty that General Talic is capable of coming here to

7 stand trial, but we are certain that he is not capable, because the doctor

8 of the detention unit said that General Talic was not fit to stand trial.

9 It is true that he said that he may remain in the detention unit for

10 another couple of days, but that's not the same thing. To be in the

11 detention unit and to stand trial here, standing trial meaning having

12 all the mental capacity to be able to follow the proceedings and to be

13 able to participate in his defence.

14 I think there are two things in this case that are important: The

15 first is that General Talic should receive, as quickly as possible, the

16 appropriate medical treatment. And I will not dwell on this, because my

17 colleague has already covered that issue at length. I would also say that

18 the problem regarding his ability to stand trial is linked to his being in

19 the detention unit, because after all what is the aim of detention? The

20 only aim is to ensure the presence of the accused at trial, and he is not

21 capable of attending. Why detain him, then? That is the question I am

22 addressing to Madam Korner and also to you. What is the purpose of

23 detention in this situation when one is sure that he will not see the end

24 of these proceedings, he will not be there to witness them.

25 JUDGE AGIUS: Yes, Ms. Korner.

1 MS. KORNER: Well, Your Honour, I think I'm being -- the answer,

2 we're not seeking to detain him at the detention unit, but we're seeking

3 to ensure that until such time as there is a clearer picture of what the

4 situation is, he is in detention, even though that detention be in a

5 hospital in Belgrade.

6 JUDGE AGIUS: Yes. Now, for the time being -- and Mr. Ackerman, I

7 haven't asked you whether you have any submissions. I suppose you don't.

8 Sir, I'm addressing you now. The Chamber would like to thank you,

9 first of all, for taking an interest and also for coming over to assist

10 these -- this particular debate also because General Talic is seeking

11 permission from this Tribunal, apart from to be provisionally released but

12 also to receive treatment -- medical treatment in your country, in

13 Belgrade particularly. And therefore, according to the Rules we also must

14 hear what you have to say.

15 Your government has provided us with a -- what I would call a

16 provisionally letter of intent -- provisional letter of intent of

17 guarantees, which I am sure you are aware of. And just for the record, it

18 is a letter of intent which is not conclusive but which, in more than one

19 way, lets -- puts the Tribunal, the Chamber in a position which it could

20 expect a full document containing the guarantees that we would normally

21 require from the country where the accused is returned to.

22 To put you into the picture, because I'm not quite sure whether

23 you are aware of the entire picture: The latest -- or the most recent

24 development in the request that has been made by motion by General Talic

25 for his provisional release is that the Prosecutor is opposing the

1 provisional release, as we understand it, in law, but is proposing as an

2 alternative that General Talic will be flown to the military hospital in

3 Belgrade and -- where he will receive medical treatment, all the medical

4 treatment that that hospital can offer him and which he would like to

5 receive, and that for all intensive purposes of law, particularly the

6 Rules governing this Tribunal which relate to detention on remand, the

7 authorities in Belgrade step into the shoes effectively, of the detention

8 unit here in The Hague, the detention unit of this Tribunal, the United

9 Nations Detention Unit, and take it upon themselves to detain -- not only

10 to cure, but only to detain as long as necessary General Talic in the

11 military hospital, providing the usual service of detention; in other

12 words, supervision and guards. This apart from the normal, usual

13 guarantees that we would request from the Federal Republic of Yugoslavia

14 or from Republika Srpska or from Bosnia and Herzegovina, whichever, which

15 more or less are the same guarantees that one would have in -- in

16 provisional release. But there is something also beyond these guarantees,

17 and that is the Prosecution -- were you aware of this -- of all, this by

18 the way?

19 MR. CARIC: Thank you, Your Honour, distinguished member of the

20 Court. Let me introduce myself in the beginning. My name is Slavoljub

21 Caric and I am the counsellor of the embassy of the Federal Republic of

22 Yugoslavia.

23 JUDGE AGIUS: You may remain seated. Thank you.

24 MR. CARIC: Thank you. And I am an official representative of FRY

25 in this case, in this hearing.

1 Thank you for your compliments to our government and thank you for

2 your presentation of developments in this case. I am aware of the letter

3 of Mr. Sarkic, Deputy Minister of Justice of the Federal Republic of

4 Yugoslavia, and so I can only add something as explanation. Let me read

5 that in Serbian language.

6 [Interpretation] Your Honours, in connection with the request of

7 the accused for provisional release, allow me to inform you that the

8 Federal Ministry of Justice of the Federal Republic of Yugoslavia has

9 proposed to the federal government that it issue guarantees for the

10 provisional release of General Talic. Practice shows that in all previous

11 cases, the federal government has adopted such suggestions for technical

12 reasons and the absence of a large number of ministers and member of the

13 government, the federal government was not in a position to hold its

14 regular session and to pass a formal decision on this matter. We expect

15 the federal government to review the issue and make a decision at its

16 first next session, which has been scheduled for Thursday, the 19th of

17 September, 2002.

18 I should like to underline that in previous cases when this

19 Tribunal issued a ruling on the provisional release of the accused, such

20 as Biljana Plavsic, Miodrag Jokic, and Momcilo Gruban, the competent

21 Yugoslav authorities were prepared to take upon themselves the following

22 obligations: To take over the accused from the Dutch authorities at

23 Schiphol airport, on a date and time determined by the Tribunal and to

24 escort him on his journey to Yugoslavia; to escort the accused from

25 Belgrade to Schiphol airport and to surrender him to the Dutch authorities

1 at a time determined by the Tribunal; the accused will report to the

2 police station on a daily basis and the Tribunal will be informed about

3 this in writing, including any absence -- possible absence of the accused

4 if this should occur; also, immediately inform the Tribunal should the

5 accused make an attempt to escape.

6 Your Honours, that would be as much as I have to say at this point

7 in time, following the instructions given to me by my government.

8 JUDGE AGIUS: I thank you, sir. I will continue with giving you

9 more details as to the counterproposition or the proposition of the

10 Prosecution, because this goes well beyond the usual guarantees --

11 MS. KORNER: Your Honour, I don't think this gentleman can deal

12 with it.

13 JUDGE AGIUS: But I think he needs to be informed. And what I was

14 going to suggest is that we give him a copy of your response which he will

15 transmit to capitol and then he should be in a position to inform us,

16 because we need to know.

17 MS. KORNER: Yes.

18 JUDGE AGIUS: There is no way we can proceed on your

19 proposition --

20 MS. KORNER: No. Absolutely, Your Honour. But I think as I said,

21 there have been direct dealings with a gentleman named Mr. Djeric -- which

22 I think this gentleman --

23 JUDGE AGIUS: That's the gentleman who sent us the letter on

24 behalf of the Yugoslav government.

25 MS. KORNER: Oh, is it?

1 JUDGE AGIUS: Yes.

2 MS. KORNER: All right -- I thought it was Djeric. But he gave us

3 the information already that this gentleman has just passed on to you,

4 namely that until the government meets on Thursday morning, there can be

5 no decision one way or the other. And he has all the -- the conditions,

6 which are listed in our response, are those that we've transmitted with

7 the request to know whether the Federal Republic of Yugoslavia would be

8 able to fulfil those conditions. So that's -- that's the situation, Your

9 Honour, rather than -- but certainly we can give him a copy of the

10 motion.

11 JUDGE AGIUS: Yes. I think we ought to proceed along those

12 lines.

13 What I suggest we do: It's quarter to 4.00 now. I propose to

14 have a break, because I think we have give the interpreters a very hard

15 time this last hour and a half. We will resume in 30 minutes.

16 In the meantime, Madam Registrar, I entrust you with giving a copy

17 of the Prosecution's response to the councillor of the embassy. And

18 please have a look at it, because basically we would require to know, when

19 possible, specific -- I mean, a specific response -- the specific response

20 to the -- of your government to the conditions attached to the proposition

21 of the Prosecution, independent of the guarantees that are normally

22 attached to a normal, ordinary provisional release order. Okay? The two

23 are different. Some elements are common to both; some elements are

24 pertinent only to what is being proposed by the Prosecution. And we would

25 obviously need to know, because you -- a decision would obviously be based

1 on the information that will be forthcoming, apart from other issues.

2 We will resume in 30 minutes' time. I thank you.

3 And as soon as you -- we resume, the gentleman will be brought in

4 the courtroom again.

5 Mr. Brdjanin, if he wants to remain here -- you are free to

6 remain. If you would like to go back to the detention unit, you're free

7 to go there. I mean, it's -- it's up to you. All right? Discuss it with

8 your lawyer, and -- thank you.

9 --- Recess taken at 3.47 p.m.

10 --- On resuming at 4.34 p.m.

11 JUDGE AGIUS: Please be seated.

12 Yes, the representative of the Federal Republic of Yugoslavia.

13 MS. KORNER: Your Honour, may I just -- I double-checked on the

14 name of the gentleman, and as I thought, it is in fact a Vladimir Djeric.

15 JUDGE AGIUS: Oh, I see.

16 MS. KORNER: D-j-e-r-i-c, with whom the Office of the Prosecutor

17 has been dealing.

18 JUDGE AGIUS: You spoke with -- okay.

19 MS. KORNER: And he's the adviser to the Federal Minister for

20 Foreign Affairs and president to the National Council for cooperation with

21 the ICTY.

22 JUDGE AGIUS: Okay. So that's good to know.

23 So as I was trying to explain to you, the purpose for handing you

24 the -- that particular document, that is, the Prosecution's response to

25 the motion for provisional release, was not to, in any way, procure any

1 kind of comment from you. Certainly not. It's just to let you have the

2 document which would spare me having to explain one point after the other

3 to you, for eventual transmission by your embassy to your capitol. So you

4 have the document, and more or less now on the basis of that document you

5 know what to transmit to your government in Belgrade.

6 So basically, sir, at the end of the day when the Yugoslav

7 government would have had opportunity to meet what -- and decide, what we

8 would require, is a decision that would cover the two possibilities; in

9 other words, the possibility of a transfer to Belgrade under the terms and

10 conditions outlined by the Prosecution in their response, in other words,

11 for all intents and purposes one of detention under the Rules of this

12 Tribunal but effectively administered by the authorities in Belgrade.

13 Alternatively, the usual conditions that are attached to a provisional

14 release, with which your government is familiar, because as you explained

15 earlier on, there have been instances in the past where provisional

16 release was ordered -- granted by this Tribunal against the guarantees or

17 with the guarantees of the government of the Federal Republic of

18 Yugoslavia. So that is the position.

19 If you have further comments, of course, you are free to -- to

20 make them. I would invite you to -- if not, I would invite you to remain

21 seated to follow the rest of the debate until it is of interest to you.

22 Should you like, at any moment, to leave because the debate turns into

23 matters that are of no further interest to you, then obviously you just

24 ask me and you would be able to leave the courtroom.

25 MR. CARIC: Thank you, Your Honour, for your explanation and for

1 obtaining me with provisional response to motion for provisional release

2 of General Talic.

3 I would like to clarify something. I have strictly instructions

4 of my government to propose conditions, as I explained during my speech.

5 That's the same what Mr. Djeric promised. Mr. Djeric is a council of

6 Federal Ministry of Foreign Affairs of Federal Republic of Yugoslavia. It

7 is a different person than me, but our attitudes are the same. So nothing

8 more and nothing less of -- yes. And I can only aware [As interpreted]

9 distinguished Trial Chamber and you, Your Honour, that the competent

10 Yugoslav authorities will consider all proposed conditions very precisely

11 and carefully from top to bottom, and as soon as possible let you know

12 what is acceptable for our side. Obviously the government of Federal

13 Republic of Yugoslavia bear in mind urgency and all the aspects of this

14 case because I consider myself, it requires no minute [As interpreted] of

15 sifting complicated facts.

16 Thank you for your understanding and attention.

17 JUDGE AGIUS: I thank you, sir.

18 Now, I think this first part of the debate we can consider to be

19 concluded. Are there any further submissions that you'd like to make with

20 regard to the case proper, because there are three possible decisions that

21 this Chamber could take. One is to turn down, to reject outright, the

22 motion for provisional release. The second is to accept the motion for

23 provisional release. The third is to accept the counterproposal or the

24 proposal of the Prosecution. I see no options, except maybe a fourth

25 option, which could be a combination of both, the last two options that I

1 mentioned.

2 Given any of these three situations -- let's start from situation

3 number one: Outright rejection of the motion for provisional release. I

4 need hardly elaborate on this. In my mind, I see a plethora of

5 consequences that there could be relative to the presence of accused Talic

6 in the courtroom or his absence. That's number one. How -- if this --

7 the continuation of his detention in the unit is accompanied, as it would

8 definitely be should we reject the motion for provisional release, with

9 medical treatment -- we have already heard the testimony of the three

10 medical doctors that have testified here, and they all agree that --

11 particularly with regard to chemotherapy there will, even if --

12 irrespective of the number of cycles that this would undertake, that there

13 is a period during which General Talic would not be able to be present

14 here. And of course the reality of the situation, that the medical

15 condition of General Talic will only get worse and certainly will not get

16 any better. So that is the first one.

17 The second option, should we decide to grant provisional release.

18 Then of course we have a situation whereby General Talic is returned to

19 his country. Usually you would have included according to the case law of

20 this Tribunal, the practice of this Tribunal, one of the conditions that

21 has normally been attached to an order for provisional release is the

22 undertaking by the accused to waive his right to be present while he or

23 she is provisionally released. In this present case you will, of course,

24 realise immediately that the situation is different because we have a

25 person who is suffering from the -- who is in the terminal phase of a

1 serious illness which may, from time to time, bring about a situation

2 whereby he would not be in a position to waive his right to be present in

3 this Tribunal. And this is also another problem that we may have. In

4 other words, I'm making it very clear that any suggestion that

5 General Talic can now, on the 17th of September, 2002, guarantee that he

6 is from now onwards waiving his right to be present, irrevocably and

7 unconditionally, is something that legally this Chamber is not prepared to

8 accept, because the situation may change medically from time to time. And

9 even not medically. It could change from time to time. That's the second

10 option.

11 The third option: If General Talic is returned to Belgrade, where

12 he remains in detention, we still have more or less the same problem that

13 I have just referred to a minute ago, namely his waiver to be present for

14 the hearings -- or for the sittings, but also other considerations that

15 may be relative to his continued presence in this Tribunal.

16 On top of all this, there is the reality of medical picture that

17 we have. We all know that none of the three prognoses that we have had

18 are good. The prognoses are slightly different, but they are bad. So

19 that is bound to have an effect on the future of this trial. And I wonder

20 if in relation to what this Chamber has to decide next -- in the immediate

21 future, you have anything to submit also with regard to all this. I'm

22 sure that you have given this -- these matters a lot of -- a lot of

23 thought, because they are not something that you would not expect.

24 Yes, Ms. Korner.

25 MS. KORNER: Well, Your Honour, Your Honour has just expressed a

1 position. Until Your Honour has ruled on that, it's very difficult to say

2 what course we would invite Your Honours to take, because of course we can

3 suggest a course. But if Your Honours were, for example, to reject the --

4 outright, which is an option that Your Honours have referred to, the

5 request for provisional release or the Prosecution's suggestion of

6 detention elsewhere than the UN Detention Unit, that would be one matter;

7 releasing him would be another; and the Prosecution's solution, a third.

8 So Your Honour, I take it from what Your Honour has said and what we've

9 heard from the gentleman from the Federal Republic of Yugoslavia, nothing

10 can happen until Thursday, because Your Honour has got no guarantees

11 either one way or the other from the Federal Republic of Yugoslavia.

12 JUDGE AGIUS: At the present moment we don't have guarantees. We

13 have guarantees from Republika Srpska.

14 MS. KORNER: Yes. Well, Your Honour, we've -- as I said --

15 JUDGE AGIUS: But that is a part of the chain, but not the

16 entire.

17 MS. KORNER: No. Well, Your Honour, may I make it absolutely

18 clear, because I haven't really addressed Your Honour on it -- because in

19 fact, although it was argued in the -- suggested in the motion, it's not

20 been pursued today. We would strongly resist any kind of removal from The

21 Hague that took General Talic to Banja Luka. We haven't gone into the

22 reasons why, but I'm sure that Your Honour would anticipate them. The

23 only, if you like, concession that we're making is that a transfer from

24 the detention unit should be to Belgrade.

25 Now, Your Honour, if Your Honour wants me to address you on that

1 before we go any further, I will.

2 JUDGE AGIUS: I would if I were you.

3 MS. KORNER: Well, Your Honour, to send General Talic back to

4 Banja Luka, where there are still witnesses to come, if not in Banja Luka

5 itself, certainly from the surrounding areas, Your Honour, we would

6 suggest would be wholly detrimental to the progress of this trial, which

7 on any showing will be continuing against Mr. Brdjanin. Your Honour is

8 aware because Your Honours had to deal, from time to time, with the

9 problems we've had with witnesses coming to the Court and with the

10 applications that we make for protective measures and indeed having seen

11 quite recently a report as to the situation in the various municipalities,

12 then we would be submitting very strongly that to send General Talic back

13 to Banja Luka with all the freedom of movement that that entails within

14 Banja Luka and elsewhere would be to present a problem to this Tribunal in

15 the hearing of further evidence, and we may add there's no real reason why

16 he should go to Banja Luka other than Belgrade, because the -- the need

17 for this is treatment, and treatment in his own language. His family can

18 visit him -- can stay in Belgrade, for all we know. It's a matter -- I

19 understand it's some four hours' journey from Banja Luka.

20 Your Honour, I had no idea that Your Honours had the slightest

21 intention of releasing him back to Banja Luka.

22 JUDGE AGIUS: We haven't ruled out any option.

23 MS. KORNER: Well, Your Honour, in that case, we do -- we would

24 strongly urge Your Honours not to do that.

25 JUDGE AGIUS: If you see, if you read -- I'm sure you have, but

1 the motion for provisional release refers to Belgrade military hospital,

2 as I understand it, as something that may be and will be needed by

3 General Talic and which he -- and that's because he -- his preference for

4 medical treatment is precisely the military medical academy in Belgrade.

5 MS. KORNER: Well, Your Honour, may I read Your Honour -- I hadn't

6 appreciated, Your Honour, that -- Your Honour, there was the slightest

7 reason for releasing him to Banja Luka.

8 "The defendant shall remain within the confines of the

9 municipality of Banja Luka except for occasional visits for tests, medical

10 treatment, and therapy, as may be required by the medical doctors to the

11 military medical academy in Belgrade, which is the only specialised

12 institution in the territory of Bosnia and Herzegovina and the Federal

13 Republic of Yugoslavia to cope with illnesses of this kind and the place

14 where the defendant can receive the satisfactory medical care."

15 Now, Your Honours, the Prosecution's concession is made on the

16 basis of the need for treatment and not for any other reason at all.

17 JUDGE AGIUS: This is why in the very beginning of today's

18 sitting, because I had this in the back of my mind all the time -- this is

19 why I stated categorically that for a moment it was difficult for me to

20 envisage a situation whereby General Talic is admitted to the military

21 hospital in Belgrade to receive treatment and remains there for weeks and

22 months on end, because this -- people like him, in his same condition,

23 will go for hospital for one hour, two hours, three hours, and go back

24 home. And then it's only at the very end that they are hospitalised,

25 given morphine or whatever, and given all the palliative treatment that is

1 required at the very end, at the very terminal stages of the disease

2 that's when hospitalisation is continued.

3 MS. KORNER: Well, Your Honour didn't make it clear, may I say

4 with respect that you had this paragraph in the back of your mind.

5 JUDGE AGIUS: It's -- I have everything in the back of my mind,

6 because this is the very first paragraph contained in -- in the conclusive

7 part of the motion for provisional release.

8 MS. KORNER: Your Honour --

9 JUDGE AGIUS: How can I not have it?

10 MS. KORNER: All right. But can I make this clear: Your Honour

11 asked about that, but actually asked why the Prosecution -- what the

12 public perception had to do with it. Your Honour didn't actually -- Your

13 Honour mentioned in passing this, and then asked me about the public

14 perception -- sorry, perception. And that's what I was dealing with.

15 But Your Honour, Your Honour will see that what we're saying is --

16 the hospital. But if the hospital can't keep him or he's not going to

17 be -- then there should be some kind of house arrest in Belgrade. In

18 other words, we're talking about detention. And I believe that this is

19 not just a hospital. There's also a military academy attached, though I'm

20 not a hundred per cent certain. But Your Honour, certainly -- to allow --

21 we would resist strongly and do resist strongly that he be allowed to go

22 back to Banja Luka.

23 JUDGE AGIUS: And how does that fit in the whole humanitarian

24 discourse? If General Talic -- if the doctors were to come here today and

25 go a step further, beyond what they told us last week, say his condition

1 has deteriorated considerably. We did not anticipate this, but it has

2 happened.

3 MS. KORNER: Then Your Honour, the simple answer --

4 JUDGE AGIUS: How -- how would you expect us to deal with

5 General Talic any different than how -- than what this -- the Tribunal

6 decided in the Djukic case?

7 MS. KORNER: Your Honour, the simple answer: If that happens,

8 then an application can be made to Your Honours to rescind, revoke, vary

9 the terms of the order in some way. But at the moment, Your Honour,

10 that's the whole point. That's why we've taken this position. Nothing is

11 clear.

12 And in general -- may I repeat, Your Honour, General Djukic was an

13 entirely different situation, as indeed are all the other cases where --

14 which were mentioned for provisional release only; that is, Gruban,

15 Plavsic, the rest. No trial has begun in those cases. This is a very

16 different situation. A trial began in January of this year.

17 But Your Honour, if the situation deteriorates, it will take 24

18 hours to have an application made to Your Honours for a variation in the

19 order.

20 JUDGE AGIUS: And he goes to Banja Luka?

21 MS. KORNER: Your Honour, that's -- that's a different matter. We

22 would have to hear what the terms are.

23 But Your Honour, we're not talking about --

24 JUDGE AGIUS: But would you object --

25 MS. KORNER: Your Honour, I can't --

1 JUDGE AGIUS: -- To his return to Banja Luka at that point in

2 time?

3 MS. KORNER: I cannot say, and nor at this stage should Your

4 Honours with respect be considering it. What will be the situation if his

5 condition suddenly deteriorates? We're talking about what is the

6 situation now. And the situation now that this man has incurable cancer.

7 But the length of time that he will live is uncertain. The condition of

8 this man at the moment is contrary to what Dr. Valke told Your Honours.

9 Good. He is apparently in pretty good physical condition. He is able, in

10 fact, to remain in detention at the moment. He is fit to stand trial.

11 But we do not wish to stand in his way -- humanitarian way that he should

12 receive treatment that will prolong his life. And this is -- but this is

13 what we're dealing with at the moment. Nothing else, Your Honours. Not

14 what if; not what may; but what is the situation today.

15 JUDGE AGIUS: It goes beyond that. Because you have the reality

16 of the situation.

17 MS. KORNER: This --

18 JUDGE AGIUS: If we had the uncertainty of a situation, we

19 could -- we were talking of possible years to come until the situation

20 really crystallizes, then I would -- I would understand what you're

21 saying. But in spite of the few uncertainties that have been highlighted,

22 there is a big certainty and that is that you have cancer, you have a

23 metastasis. For the time being it's limited to where it is limited. It

24 is incurable. It is inoperable. And chemotherapy can lengthen or prolong

25 life by maybe three months. This is -- this is the prognosis that we

1 had. So it's not going to cure the patient, but it's going to prolong --

2 if it does, because people respond differently.

3 MS. KORNER: Your Honour, with respect, is making the point that

4 I'm trying to make at this stage. Your Honour is dealing with today and

5 now, not what is going to happen in the future.

6 Your Honour, at the moment the urgent thing is -- and I accept

7 entirely what's been said on his behalf -- that he begin such course of

8 treatment that he's prepared to undertake. We do not know actually

9 whether or not General Talic wishes to undertake chemotherapy. That's

10 entirely, as we said in our motion, his choice. But with respect, Your

11 Honours aren't dealing with what if, what may, when, how, but what is the

12 situation today.

13 The situation today -- I can tell Your Honour this -- is if he's

14 released on provisional release to go back to Banja Luka in -- at the

15 moment for a man in his condition, a healthy condition, able to walk,

16 talk, play tennis, do whatever he wants to, Your Honour, that's a very

17 different matter from a man who's on his death bed. We're not talking

18 about a man who is on his death bed.

19 JUDGE AGIUS: Okay. Mr. Zecevic, do you have anything to add?

20 MR. ZECEVIC: Yes, Your Honours.

21 JUDGE AGIUS: With regard to what Ms. Korner has stated and also

22 what --

23 MR. ZECEVIC: Yes, very shortly, Your Honours.

24 First of all, I would like to point out that Rule 65(B) says that

25 the -- the release may be ordered if the Trial Chamber is satisfied that

1 the accused, if released, will not pose a danger to any victim, witness,

2 or other person."

3 So in my mind, the Prosecution's submission should have been

4 whether General Talic's release does pose a danger or not. And that is

5 about everything which I would like to say on this subject.

6 For -- for the further submissions, what my learned colleague has

7 made, I'm -- I'm really in vain, are we supposed to wait -- if I correctly

8 understood, we are supposed to wait that the -- the medical condition of

9 our client deteriorates further, or that it appears that he's on a death

10 bed before we can decide on his motion for provisional release. I have

11 already given our submission to that question and would not like to repeat

12 myself again.

13 For the purposes of this -- of this situation with Banja Luka and

14 Belgrade, the Defence can -- and would like to ask for a leave to amend

15 the motion where we would add the municipality of Belgrade, because one of

16 the Talic's son is living, actually, in Belgrade, and therefore we can --

17 we can assume that he can stay in the -- in his flat in the municipality

18 of Belgrade for the purposes of -- while undergoing the -- the therapy.

19 JUDGE AGIUS: Substitute one for the other?

20 MR. ZECEVIC: No. But add "Belgrade," because we would not like

21 to -- to substitute the Banja Luka.

22 JUDGE AGIUS: But either/or.

23 MR. ZECEVIC: Yes, Your Honours. Either/or, yes.

24 JUDGE AGIUS: Do you want to formalise it, or shall we take it

25 as --

1 MR. ZECEVIC: Well, if you -- if you permit us to do it orally --

2 JUDGE AGIUS: Yes, okay.

3 MR. ZECEVIC: Well, for the record, then -- then we should -- we

4 should modify under "relief requested," (A)(i) --

5 Just bear with me, Your Honours, for one moment.

6 JUDGE AGIUS: What -- the way I see -- I see it, without making a

7 suggestion as such, is as -- as an alternative, the defendant shall remain

8 within the confines of the -- would it be municipality of Belgrade or --

9 MR. ZECEVIC: Yes, municipality of Belgrade.

10 JUDGE AGIUS: The municipality of Belgrade.

11 MR. ZECEVIC: Yes.

12 JUDGE AGIUS: Where he would receive the necessary treatment at

13 the military --

14 MR. ZECEVIC: Yes.

15 JUDGE AGIUS: -- et cetera. But making it clear that if that is

16 the option that is -- is chosen, it would not mean that he is free to go

17 at any time to Banja Luka without first obtaining the authorisation of the

18 Court, of the Tribunal.

19 MR. ZECEVIC: It is --

20 JUDGE AGIUS: In other words, it has to be made -- in other words,

21 I would give you time to formulate it in writing, because this is not

22 something --

23 MR. ZECEVIC: Yes, yes.

24 JUDGE AGIUS: -- That --

25 MR. ZECEVIC: I think we should do that.

1 JUDGE AGIUS: I think it is better.

2 MR. ZECEVIC: Yes.

3 JUDGE AGIUS: Because I would also give -- I would also need to

4 give the Prosecution to respond to that. I mean, the Prosecution has got

5 an idea now of what you may be suggesting as an alternative. And if you

6 feel like -- if you think you can make any submission on that, you're free

7 to do so now or alternatively you can wait for the written amendment and

8 then you can make the submission afterwards.

9 MS. KORNER: Your Honour, I don't think it makes any difference to

10 our suggestion. Your Honour, we're saying that this effectively should be

11 a form of detention in one form or another. The Defence are saying no, it

12 should be provisional release. We're saying -- and whether the detention

13 is such that he remains in detention at his son's flat, which we were

14 unaware of, or whatever.

15 JUDGE AGIUS: I'm unaware of it too. But it has the advantage,

16 first of all, of possibly eliminating the Banja Luka part of it, and that

17 would put at least -- at least the -- lessen the preoccupations of the

18 Prosecution, which are quite understandable. That's number one.

19 And secondly, in the course of your submissions you did mention at

20 a certain point in time if detention in the military hospital was not

21 possible for a prolonged -- a continuous, uninterrupted, that one could

22 possibly think of a house arrest or something along those lines. And this

23 is why my -- my mind is actually running at this point in time, trying to

24 fit in what Mr. Zecevic has come up with -- with what you had stated.

25 MS. KORNER: Your Honour, yes. I mean, what we're talking

1 about -- I mean, clearly, realistically, if this hospital is the only

2 specialist hospital and he doesn't require to stay there, then there must

3 be somewhere else. But that's -- these are the discussions that have been

4 going on between our office and Mr. Djeric.

5 But Your Honour, if -- what we're talking about at the moment,

6 until the matter has become clarified after he's had the treatment, is

7 detention. And if it's detention in the hospital, plus he is to remain

8 within the confines of his son's flat in Belgrade, then that would content

9 us.

10 JUDGE AGIUS: Sir, again, this is an addition that you will have

11 to make in the report that your embassy will send to capitol; in other

12 words, if this -- I'm not telling you that this Trial Chamber will come to

13 that conclusion, but for argument's sake, if we came to the conclusion to

14 release General Talic, on condition that he stays under sort of a house

15 arrest in Belgrade, free to attend for medical treatment in the military

16 medical academy in Belgrade, that would still entail a measure of

17 responsibility, supervision, by the authorities in Belgrade. See, in any

18 country -- in Belgrade you have an ordinary person who is put under house

19 arrest, it needs to be monitored, it needs to be supervised. So that is a

20 measure of responsibility and accountability that would fall on the

21 government in Belgrade. So the government in Belgrade would need to be

22 prepared to guarantee that before we can even think of proceeding along

23 those lines.

24 Shall we -- is there anything else anyone would like to --

25 Yes, Mr. Ackerman.

1 MR. ACKERMAN: Your Honour, there are -- there are three

2 paragraphs under paragraph 7 of the Prosecutor's response.

3 JUDGE AGIUS: Wait a moment until I get the response. Yes.

4 MR. ACKERMAN: G, H, and I.

5 JUDGE AGIUS: Yes.

6 MR. ACKERMAN: Which I have some concern about, as counsel for

7 Mr. Brdjanin. I'm going to assume that General Talic is going back to the

8 former Yugoslavia somewhere, and I'm going to assume that one of the

9 things that will happen which should happen and -- must happen, I would

10 suggest, with regard to a person who is dying is that he have an

11 opportunity to see his dearest friends, his closest friends, his old

12 friends, and they have an opportunity to see him. I don't want to face a

13 situation at some point in my trial where the Prosecutor says that a

14 witness that I am proposing to bring here cannot testify because he spoke

15 with General Talic immediately before his death in violation of paragraph

16 H of these conditions. It may very well be that there are a number of

17 people in that category who will wind up coming here as witnesses for

18 Mr. Brdjanin. I can't see any basis, for particularly H and I of that

19 paragraph and certainly if he's not here, he can't have any contact with

20 his co-accused who is here.

21 JUDGE AGIUS: With whom he can have contact.

22 MR. ACKERMAN: I'm sorry?

23 JUDGE AGIUS: With whom he can have contact now.

24 MR. ACKERMAN: Yes, right. And frequently. So I just don't -- I

25 don't see the basis for those. They don't seem to have anything to do

1 with securing Mr. Talic's situation in Belgrade or wherever.

2 JUDGE AGIUS: You're very clever, Mr. Ackerman.

3 MS. KORNER: I'm sorry, Your Honour. I think Mr. Ackerman better

4 go and read the motion put in on behalf of General Talic by his own

5 counsel, because that repeats "relief requested," paragraphs 4, 5, and 6.

6 MR. ACKERMAN: Well, I -- I don't care who put them in. I'm just

7 telling you that they might impact upon Brdjanin's case. I don't care if

8 they're recommended by Talic's counsel or the Prosecution.

9 JUDGE AGIUS: Anyway --

10 MS. KORNER: No, Your Honour.

11 THE INTERPRETER: Microphone, please.

12 MS. KORNER: That's the very -- I'm sorry, that's -- well, our

13 concern is the greatest, that there's a trial going on. He's a party to

14 the trial. He's free, walking the streets of Banja Luka. There are

15 witnesses there. There are witnesses to come. Contact with his

16 co-accused. Thank you very much. Your Honour, those are one of the major

17 concerns which I haven't expressed yet but Mr. Ackerman has brought them

18 up. And I didn't want to mention them because at the moment we're

19 proceeding on a humanitarian basis.

20 JUDGE AGIUS: Yes, exactly.

21 Any further comments, submissions on this particular matter that

22 you've just referred to, Mr. Ackerman, Madam -- and Ms. Korner?

23 Obviously, I mean -- the conditions -- first of all, there haven't been

24 many orders of provisional release by this Tribunal. There have been

25 some, and the conditions have varied from case to case. There are some

1 which are pretty standard and common to all the orders of provisional

2 release. Definitely Ms. Korner has scored a point in the fact that this

3 is an ongoing trial and during which you may have already

4 indicated who you intend -- or some persons that you intend to call as

5 witnesses. So the accused General Talic is aware of the name, of the

6 identity of those persons.

7 Can I invite you to make submissions on this point.

8 MR. ACKERMAN: Your Honour, that is not the case. And I certainly

9 have -- I understand the Prosecution's position, and I have no objection

10 to an order that would prohibit him from having any contact whatsoever

11 with any one who he knows will be a witness for the Prosecution. But I

12 think that's an entirely different matter. And that's not a problem, and

13 I don't object to that. I'm only concerned that I don't want at some

14 point down the road to have an objection to a witness that I want to call

15 on the grounds that -- that he spoke to General Talic right before his

16 death.

17 JUDGE AGIUS: Let's take them one by one. Talic shall not have

18 any contact with the other co-accused. Now, this, I think, is pretty much

19 something not to worry about. It's one condition which is understandable

20 and I don't think it should create or pose any problems as far as we are

21 concerned.

22 Talic shall not have any contact whatsoever nor in any way

23 interfere with any person who may testify at this trial. Why should Talic

24 be allowed to interfere with any person who may testify at his trial?

25 MR. ACKERMAN: He should never be allowed to interfere with anyone

1 who will testify at his trial.

2 JUDGE AGIUS: Okay.

3 MR. ACKERMAN: The question is: What trial is it going to be?

4 JUDGE AGIUS: His trial, we are saying. Because it doesn't say

5 "Brdjanin's trial." It says "his trial."

6 MR. ACKERMAN: If it's a joint trial, is it his trial or not.

7 JUDGE AGIUS: It's a joint trial. But that stands to be seen,

8 Mr. Ackerman.

9 MR. ACKERMAN: Okay.

10 JUDGE AGIUS: I think you and I wear glasses for a reason, to see

11 further than our nose.

12 MR. ACKERMAN: That's true.

13 JUDGE AGIUS: Good.

14 So last one: "Talic shall not discuss his case with anyone other

15 than his counsel." I mean, does it really worry you? Okay. So -- shall

16 we bring -- do you have any further submissions? If not --

17 MS. KORNER: Your Honour, I had a slightly worried note from

18 behind. But as I understand it, Your Honour was saying it could have been

19 read a different way, that the "no contact with his co-accused" was

20 self-evidently one that you would impose.

21 JUDGE AGIUS: It's obvious.

22 MS. KORNER: Yes.

23 JUDGE AGIUS: I mean, it's --

24 MS. KORNER: No. It's all right. Don't worry. I just had a very

25 concerned -- from the background. Otherwise, no, Your Honour, I have no

1 further submissions to make on this.

2 Your Honour, I'm come back to when I --

3 JUDGE AGIUS: If we give provision until release or whatever.

4 MS. KORNER: Yes.

5 JUDGE AGIUS: Because we may not --

6 MS. KORNER: Your Honour, all that I'm asking, when we started it

7 off it was whether Your Honours intend to give a ruling in advance of any

8 kind of guarantees from the Federal Republic of Yugoslavia or not?

9 JUDGE AGIUS: We would have -- I mean, until 12.30, Ms. Korner, we

10 had absolutely no idea of what your reaction, your response would be.

11 Your response posed -- you may sit down. Your response posed a particular

12 problem in the sense that we knew that there would be a representative of

13 the Federal Republic of Yugoslavia here present in court. In a situation

14 where we had a document which made it clear that no guarantees of any sort

15 would be forthcoming before, I would imagine, parliament sits later on

16 this week, and not knowing at the time and before we started the sitting

17 and had the gentleman sitting where he's sitting now, whether he was aware

18 of the contents of your response, because he would still have -- be

19 required to report to his ambassador, first, and then send whatever they

20 usually send to capitol, and then wait for -- wait for that. But we have

21 two options now: We have the first option of accepting outright the

22 motion for provisional release, and that could be accepted with the

23 proviso that would -- we would require all these guarantees and release

24 would be effective once those guarantees are forthcoming. But what you

25 propose entails a different decision. I mean -- and we -- we think it

1 would be extremely out of place to decide, yes, house arrest or yes,

2 detention in the military academy hospital of -- in Belgrade before we

3 even know -- you can't decide these things and say "if they are

4 accepted -- the conditions are accepted, then he is released." I don't

5 know. If you think that we could live with that, I think by tomorrow we

6 should be in a position to reach a decision. But everything would depend

7 on if and when and but. I mean, it's ...

8 MS. KORNER: Your Honour, I -- I perfectly understand that.

9 That's why I was -- I mean, may I apologise for the fact that you only

10 received it at 12.30. I don't think I'm going to quibble over a half an

11 hour or whatever when it was actually handed over. But as we said to you,

12 the reason -- one of the reasons that we asked for the adjournment was the

13 Prosecutor didn't return to this country until yesterday, and we then had

14 to formulate what were her instructions to us. So that's -- that's the

15 reason -- I'm sorry that it was delayed until this morning.

16 Your Honours, as to the progress of the trial, I mean, again there

17 are effectively two options: One is that the trial continues in

18 General Talic's absence with his waiver, which we understand from

19 Mr. Zecevic will be forthcoming. But the problems that Your Honour has

20 already alluded to are huge.

21 If Your Honour is wanting me to make a decision on our position on

22 the options, then I will need to ask Your Honours to rise, because I do

23 need to consult further with the Prosecutor.

24 JUDGE AGIUS: The problem, Ms. Korner, is that -- that will be a

25 further stage, and I am sure that you will all approach it in the most

1 adequate and in the -- in the most reasonable way. The thing is this,

2 that even -- even if Mr. Zecevic were to stand up now and say

3 General Talic's son is prepared to accept his father in his home, under

4 house arrest conditions, et cetera, I still -- I still want to know

5 what -- what kind of guarantees would be forthcoming from the Federal

6 Republic, because I have -- I have in my career handed down several house

7 arrest orders but in conditions where I know precisely how the regime is

8 going to operate.

9 MS. KORNER: Your Honour, I'm sorry, yes, I appreciate that. I'm

10 just putting before Your Honour the possibilities of what happens next.

11 The second option is that the trial against General Talic is

12 severed; it becomes a separate trial, and the trial continues against

13 Mr. Brdjanin alone. Now, Your Honour, can I make it absolutely clear, if

14 that is what Your Honours decide will happen --

15 JUDGE AGIUS: We could decide that ourselves without --

16 MS. KORNER: Exactly.

17 JUDGE AGIUS: -- Without you requesting it.

18 MS. KORNER: Exactly. This is Your Honours' decision as to how

19 the trial proceeds from here on in.

20 I want to make it absolutely clear, and I imagine that

21 Mr. Ackerman would do the same, but we will be asking for time to --

22 because we will have to look at the picture of the case --

23 JUDGE AGIUS: It's obvious.

24 MS. KORNER: -- In a different way.

25 JUDGE AGIUS: It's obvious. And you will have as much time as you

1 require, because we still have a good number of municipalities, one of

2 which is huge, and --

3 MS. KORNER: Well, Your Honour, there are all sorts of

4 administrative matters which I'm not sure if Your Honour wants to deal

5 with them today. For example, firstly -- well, if it goes on against

6 Mr. Brdjanin alone, Your Honour said we can have as much time as we like.

7 Our request would be for a week, as of the end of this week.

8 JUDGE AGIUS: When I said "as much time as you like" I didn't mean

9 a month.

10 MS. KORNER: No. But then we'd be asking because of the loss of

11 time to continue during the week that Your Honours have set aside as a --

12 as a break. And Your Honour, may have made other plans. I have no doubt

13 Mr. Ackerman will tell you that he has made other plans.

14 So that effectively means a two-week break. The next question

15 is: How long will Your Honours be giving us to conduct this case? Are

16 we going to be given a time limit?

17 JUDGE AGIUS: We will -- if we come to that stage, Ms. Korner, if

18 there is a separation of the two accused, one case being put in deep

19 freeze, the other one continuing, we are fully aware that you need time to

20 sit down and have -- have a -- you have to re-draw your strategy, your

21 evidence, everything.

22 MS. KORNER: That's right.

23 JUDGE AGIUS: That is quite understandable. That is quite

24 understandable. And it's easier said than done because the way of the --

25 of the way that the indictment is conceived. I've thought about this over

1 the weekend myself, having a look at the indictment, and I realised that

2 if you come to that, your task is by no means any easier than it is now,

3 and you definitely require time. It's an exercise that can be done as we

4 go along as well because it's an exercise that can be done based on

5 municipality after municipality. So it's -- it's a huge exercise but it

6 can be fazed out over a period of time.

7 I don't see any -- any further options particularly because they

8 are very -- the options would be very limited -- if we decide one way or

9 another -- even if we decide not to -- not to grant provisional release,

10 you're going to face this.

11 MS. KORNER: Well, in slightly different form, but ...

12 JUDGE AGIUS: Yeah, okay, in a slightly different -- and also

13 maybe if not next week, if not next month, it will be the month after.

14 And if not the month after, the month after. When it may be more

15 difficult for you to re-draw your lines and your strategy and -- and aim

16 your guns. You know, I mean, it's -- it's not going to be easy.

17 MS. KORNER: Well, Your Honour, no. I mean, I think -- well, as I

18 say, we're -- the real question is now when Your Honours want to make the

19 decision and will that be Thursday -- or Thursday afternoon, once the

20 Federal Republic has decided on --

21 JUDGE AGIUS: Ms. Korner, we could make -- we could take a

22 decision tomorrow morning if we wanted to. Even this evening, if we

23 decided to stay here as long as is necessary. But the thing is that

24 the -- the real uncertainties that we should be talking about is we have a

25 responsibility first towards this -- the -- towards the whole institution,

1 secondly -- although this is in the hierarchical -- what I am saying --

2 secondly, to the humanitarian rights of the accused; and thirdly, to make

3 sure that whatever we decide can be effectively monitored, can be

4 effectively guaranteed. So when I say so, I do not mean to say that even

5 we doubt for a single minute the guarantees of the Federal Republic of

6 Yugoslavia, but we are not in a position now to know whether the Federal

7 Republic of Yugoslavia is prepared to give those guarantees. This is the

8 only problem that we have, because if -- if not, we would have given down

9 a decision saying one thing or another and then having possibly -- because

10 let's say that we say, "Okay, we go for the option that you gave that, you

11 proposed, detention, pure detention in the military hospital in Belgrade,"

12 then on Friday we get a communication from the government of Yugoslavia

13 saying "no way. We are not prepared to undertake -- undertake that."

14 So --

15 MS. KORNER: Well, Your Honour, I understand --

16 JUDGE AGIUS: We would have committed ourselves to an extent

17 already.

18 MS. KORNER: Absolutely.

19 JUDGE AGIUS: And then what is the option?

20 MS. KORNER: No. Well, Your Honour, I understand that.

21 JUDGE AGIUS: Send him to Banja Luka?

22 MS. KORNER: Well, your, that's what I mean. So Your Honour,

23 therefore, realistically Your Honours cannot make a final decision on this

24 until Thursday.

25 JUDGE AGIUS: Unless I have -- or rather, unless we have an

1 indication from your embassy that there is at least one kind of likely

2 response from your government. There is already an indication that there

3 shouldn't be any major problems, if we are talking of the normal

4 guarantees attached to a provisional release order. And that, you could

5 confirm today, even though your parliament has not met as of yet. Perhaps

6 you could go a step further and communicate your report obviously to

7 capitol and come back to us by means of a note verbale or a formal

8 communication, at least equivalent to a letter of intent, giving us an

9 indication that the Yugoslav government would not probably find any

10 objection, say, for example, to detention in the military -- or house

11 arrest, supervision. And also we need to know that the military hospital

12 in Belgrade is prepared to give General -- I mean, I would take it for

13 granted, but we also need to have that kind of indication too. I mean,

14 that should not present, I would imagine, any major problem.

15 But if you are in a position to give us an indication, then we

16 should be in a position perhaps to anticipate whatever decision we need to

17 take and not postpone it until the Yugoslav government has met and

18 decided, and then obviously we would -- we would see what the situation is

19 after that.

20 MR. CARIC: Yes, Your Honour. It is no doubt that the government

21 planned to issue guarantees for Mr. Talic for provisional release of

22 Mr. Talic. It is no doubt concerning that. But only doubt is concerning

23 the conditions of that guarantee. And I -- I can promise you I will let

24 you -- let you know as soon as possible when I receive any sign from

25 Belgrade about that -- those conditions. This is only -- what can I say

1 in this moment.

2 JUDGE AGIUS: Okay. I think that is a diplomat's answer which, in

3 the circumstances, I am prepared to take. And I wouldn't expect you to go

4 beyond -- beyond that. You have been extremely reasonable with this

5 Tribunal, which would like to show its appreciation to you and to your

6 government.

7 The last thing that -- given the situation as it has developed I

8 would like to address, is that it's obvious that we could reach a decision

9 in any of the three ways that I mentioned earlier, either tomorrow or the

10 day after or the day after. In the meantime, we have a duty to ensure

11 that General Talic is not suffering any prejudice to his health, even if

12 he remains -- even if we are talking of a day of detention in the unit

13 here. So what I am going to do is to order the Registrar to communicate

14 with the commandant of the detention unit, who, with the help and/or

15 advice of the medical officer of the unit will approach General Talic and

16 establish whether it is his desire to start undergoing any treatment --

17 any kind of treatment here in The Hague, pending the decision of this

18 Chamber on the motion for provisional -- on his motion for provisional

19 release. Treatment of any kind will be commenced and given to General

20 Talic in any case, should the medical officer of the unit -- of the

21 detention unit deem it necessary. It should commence outright. Okay?

22 Immediately. The same provision applies if the other intervention that

23 reference is made to -- has been made to by Dr. Valke and the two

24 consultants, has now become necessary as a result of the lapse of a week

25 since they gave testimony. In other words, what I am saying,

1 Madam Chuqing, in case you are asked to explain, is that we had an

2 indication that pleural effusion is already recurring, and this may

3 require two kinds of treatment: Either the extraction of the fluid or the

4 surgical intervention that was mentioned, that is, the gluing of the

5 pleura with the thorax. If either of the two have become necessary, then

6 the Tribunal, the Chamber is drawing the attention of whoever is

7 responsible for the detention unit to have this treatment given to

8 General Talic without any delay.

9 We will not be sitting tomorrow, obviously. However, if anything

10 arises between now and tomorrow which would require us to sit and discuss,

11 please let us know. We will be at your disposal.

12 Yes, Mr. Ackerman.

13 MR. ACKERMAN: Your Honour, Ms. Korner raised the issue briefly

14 about what might happen with the trial, and I don't want my silence to

15 foreclose me from speaking to you a little bit about that. So I'll just

16 mention some of the thoughts I've had as quickly as I can right now.

17 I think Your Honour had a moment last week when you understood the

18 profound effect that this might have on the continuation of this trial,

19 and I want to just give you some things to think about in that regard. A

20 little over two years ago we sat together with the lawyers for

21 General Talic and agreed to divide the responsibilities regarding

22 preparation of this case. That meant that I took no responsibility for

23 any of the military aspects of the case. We have not read or paid any

24 attention to speak of to all of the military documents that are in this

25 case, which is probably more than half of the documents that exist. We

1 have not conducted any investigation regarding the military aspects of

2 this case. We have not contacted or arranged for any witnesses regarding

3 the military aspects of this case. I am told by Madam Fauveau that in her

4 considered judgement I'm a year away from being prepared to handle that

5 part of this case. I can't imagine that we would want to delay this case

6 for a year. But I do have a need to get some significant work done to be

7 prepared to handle that part of this case. You will notice that as this

8 case has gone forward, there are certain witnesses that have been

9 basically my responsibility and certain witnesses that have been basically

10 the responsibility of General Talic's team, and that has something to do

11 with the original agreement that we made regarding our responsibilities in

12 that regard.

13 I'm not at liberty to tell you in open court the other things I'm

14 exploring, but it may be that there is a solution that would permit this

15 case to go forward without any delay beyond that which the Prosecutor has

16 suggested, and that will involve a number of things, including

17 negotiations with the Office of the Registrar. If that can be done, then

18 there should be no significant problem. If it cannot, then I suggest to

19 you that there really is a significant problem. And what I can tell you

20 today is that I am working on that, and we are all working on that. But a

21 great deal depends on what Your Honours do with regard to General Talic,

22 as to what -- which way we might jump with regard to that and what might

23 work best for the Chamber.

24 JUDGE AGIUS: As I understand you, let's imagine for a moment that

25 there is a separation of the two accused. If I am reading you well, it's

1 importing an element from the back bench to the front bench. Do I read

2 you well?

3 MR. ACKERMAN: That -- that could be a possibility, Your Honour.

4 That's one of the things that we might --

5 JUDGE AGIUS: All right.

6 MR. ACKERMAN: -- Be able to do.

7 JUDGE AGIUS: So let's call it a day. I can assure you,

8 Mr. Ackerman, that your problems are my problems, and I have more than --

9 more problems than you have thought of.

10 MS. KORNER: Your Honour, I -- may I then, leaving aside

11 Mr. Ackerman's in terrorem suggestions for the moment -- I do want to

12 raise very briefly, because it will have to be adjourned to another time,

13 clearly. And that's the question of the report that appeared --

14 JUDGE AGIUS: Oh, yes.

15 MS. KORNER: -- In a publication which I have never heard of

16 before called Dani. We saw it through the Internet.

17 Your Honours will recall that the Defence for General Talic for

18 obvious reasons were at the stage when this arose very clear that this was

19 to be confidential and therefore any sessions should be in closed session,

20 and we supported them for the same reasons. The report that appeared on

21 Friday, which was taken off the Internet, which Your Honours have copies

22 of and which I provided to Defence counsel, not only stated in terms, in

23 the public that the -- that General Talic had lung cancer, which was

24 discovered accidentally -- and it's clear that this -- there was detail

25 obtained -- medical staff diagnosed liquid in the lungs. It turned out to

1 be metastasis cancer. And according to one of Dani's sources, Dutch

2 doctors gave Talic two more months to live.

3 Now, Your Honour, what concerns us the most is this: Closed

4 session is held so that witnesses who have genuine fears for their safety

5 and security -- and the Chamber has seen the information -- and it doesn't

6 always apply. Quite you have been it applies to Defence witnesses as

7 well -- give evidence in closed session on the basis that they are

8 protected from any of that being revealed to the public.

9 The report went on to state this: "According to what Dani found

10 out at the session held on Wednesday, the future was discussed.

11 Prosecution would like to continue with the trial in absence. Defence

12 agreed to that; however, they do not want to accept Talic's general

13 authorisation." And then it goes on to deal with matters, and it's stated

14 that this was in closed session: "One of the things that caused the

15 most heat in the discussion was Talic's voyage route to Belgrade." Now,

16 Your Honour, the rest is complete unparalleled invented rubbish. But

17 Your Honour, it purports to be a report of what went on in closed

18 session. In any event, it's clear that a lot of published that was held

19 in closed session.

20 Your Honours, I'm inviting Your Honours to have this reporter

21 appear before Your Honours to explain why this report was published, why

22 it purported to give evidence of what was said in closed session.

23 JUDGE AGIUS: Any observations, remarks, submissions?

24 Mr. Zecevic.

25 MR. ZECEVIC: Your Honours, we -- we have been informed by -- of

1 this just this -- or just this morning, when Ms. Korner gave us the copy

2 of that. I mean, we are amazed, as Ms. Korner is, because it was us who

3 actually insisted on the closed session because the information in that

4 regard has -- is confidential material, because it deals with the -- with

5 the medical health of our client.

6 Anyhow, we have -- we have been informed that during the press

7 conference there has been a question posed to Mr. Landsdale, as a board

8 parole [sic] of the Tribunal, concerning the same issues, and that is what

9 led us to file the motion to leave the confidentiality, because it is

10 obvious that somehow the information has come to the press of the -- what

11 was said in the closed session. Thank you.

12 JUDGE AGIUS: And that's very distressing.

13 MR. ZECEVIC: It is. Believe me, Your Honours. It's much more

14 distressing to us, concerning the -- the actual situation.

15 JUDGE AGIUS: That's very distressing, because -- we are in open

16 session now, and I am pleased that we are in open session because I can

17 make a declaration. The only reason why we had a closed session was to

18 enable us to find out the true details of the accused's present state of

19 health, diagnosis and prognosis. At that stage we were committed to

20 guarantee his privacy. Beyond that, I made it clear to all of you that it

21 was our responsibility, having surpassed that stage, to go in open

22 session, because this is -- becomes then something that is public domain

23 and necessary to guarantee transparency of these proceedings.

24 But what appeared in that paper -- I mean, it's -- me too, it's

25 the first time I'm hearing about this publication. I never heard about it

1 before -- is distressing, because it's not a repetition or a fabrication,

2 an elaboration of what was said in the course of the press conference

3 given by Mr. Landsdale. It goes beyond that. There is a part which is

4 true, a part which is speculation, part which is, I would imagine,

5 imagination. I don't know. But it is not fair, because if we can't

6 guarantee that what is confidential and in closed session remains

7 confidential and in closed session, then we have a problem. Then we have

8 a problem.

9 Yes, Ms. Korner, the -- your verbal request will be acted upon by

10 this Tribunal, and the registrar is entrusted with providing this Chamber

11 with the details of who needs to be summoned to appear before this

12 Tribunal. When I say "entrusted," you can communicate --

13 MS. KORNER: Your Honour, I don't know the name of the reporter.

14 It may be that the Defence are able to -- I'm told he's been attending

15 this trial regularly, but I have no idea who he is, and I'm told he isn't

16 here today, which doesn't surprise me.

17 JUDGE AGIUS: But he wasn't here on Friday -- or on Wednesday,

18 when we met.

19 MS. KORNER: He certainly wasn't in court. No, Your Honour.

20 JUDGE AGIUS: Yes.

21 MR. ZECEVIC: Your Honours, we don't know even -- even the

22 newspaper, less -- and the reporter, of course, we don't know.

23 JUDGE AGIUS: All right. But perhaps you can find out, because

24 obviously I cannot summon ghosts.

25 MR. ACKERMAN: Your Honour, I can give you some information.

1 JUDGE AGIUS: Yes. That's very good, Mr. Ackerman.

2 MR. ACKERMAN: I believe -- I believe it was on Wednesday night

3 that -- that I learned that there was a almost full report on Banja Luka

4 Radio about this whole thing, that everyone in Banja Luka had become aware

5 of it by Wednesday night. And my conclusion, which may or may not be

6 right, was that that information must have come out of the detention

7 centre. I don't know.

8 JUDGE AGIUS: Even your client is not depicted very nicely in that

9 report.

10 MR. ACKERMAN: I'm sorry.

11 JUDGE AGIUS: Even your client is not depicted very nicely in that

12 report.

13 MR. ACKERMAN: I didn't look at it.

14 JUDGE AGIUS: The reference to him is not nice at all.

15 MR. ACKERMAN: Oh, yes, I did see that. It's not nice. I agree

16 with you.

17 JUDGE AGIUS: I don't like these things. I don't like these

18 things.

19 MR. ACKERMAN: None of us do, Your Honour.

20 JUDGE AGIUS: Anyway, we will be at your disposal tomorrow, if

21 needs be.

22 Councillor, if you are in a position to provide us with a decision

23 tomorrow, pending a final decision on Thursday, please let us know,

24 because we possibly -- you would put us in a position where we could act

25 tomorrow. Thank you.

1 --- Whereupon the hearing adjourned

2 at 5.53 p.m., to be reconvened on Thursday,

3 the 19th day of September, 2002, at 9.00 a.m.

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