1 Wednesday, 12 December 2001
2 [Open session]
3 [Motion Hearing]
4 --- Upon commencing at 3.06 p.m.
5 JUDGE SCHOMBURG: May the accused be brought in.
6 [The accused entered court]
7 JUDGE SCHOMBURG: Please be seated. Good afternoon, everybody.
8 Please call the case.
9 THE REGISTRAR: Yes, Your Honour. This is the case number
10 IT-01-47-PT, the Prosecutor versus Hadzihasanovic, Alagic, and Kubura.
11 JUDGE SCHOMBURG: Thank you very much.
12 First of all, I have to apologise for all inconveniences caused by
13 the unfortunate delay at the start of this case. There were some
14 misunderstandings evidently, but fortunately now we are all here together.
15 As to the fact that the participants are confronted with a new
16 Bench, I should like to introduce ourselves. Firstly, I feel obliged to
17 give the reasons for the changes of the Bench. On the 14th of March, the
18 Plenary of the United Nations entrusted 14 Judges, with an absolute
19 majority, to start or continue their work as permanent Judges on the basis
20 of a fresh mandate as from November 17th, 2001. Under this new mandate,
21 the President confirmed, according to the Rules, the assignment of this
22 case to Trial Chamber II. The three Judges on the Bench have been
23 assigned the permanent Judges of Trial Chamber II.
24 Trial Chamber II confirmed that Judge Mumba be -- or stay
25 Pre-Trial Judge in this case. The new permanent Judges are, to my left,
1 Judge Agius, and myself. My name is SCHOMBURG. I hope it will not be too
2 difficult for all of you to pronounce these new names, but also to live
3 with this newly composed Bench.
4 Let me take the opportunity to invite all of you, although having
5 different interests by nature, to work together in a spirit of mutual
6 trust as a basis for good cooperation. Having said this, may I have the
7 appearances from the Prosecution, please.
8 MR. WITHOPF: Good afternoon, Your Honours. Good afternoon,
9 counsel. For the Prosecution appear Madam Jocelyne Bodson, senior trial
10 attorney; Ms. Cynthia Fairweather, legal officer; and myself, Ekkehard
11 Withopf, OTP trial attorney.
12 JUDGE SCHOMBURG: Thank you. May I have the appearances of the
13 Defence. First, the ones acting on behalf of Mr. Hadzihasanovic.
14 MS. RESIDOVIC: [Interpretation] Good afternoon, Your Honours. My
15 name is Edina Residovic, attorney from Sarajevo, and Defence counsel for
16 General Enver Hadzihasanovic. Thank you.
17 MS. VIDOVIC: [Interpretation] Good afternoon, Your Honours. My
18 name is Vasvija Vidovic. I'm an attorney from Sarajevo. And together
19 with John Jones, we are Defence counsel for General Mehmed Alagic.
20 MR. IBRISIMOVIC: [Interpretation] Good afternoon, Your Honours.
21 My name is Ibrisimovic, of Sarajevo. And together with Mr. Dixon, we
22 represent the Defence counsel for Amir Kubura.
23 JUDGE SCHOMBURG: Thank you. As this is the first joint hearing,
24 I would like to identify the accused as well, apologising already today
25 for any mispronunciation of their names. Please correct me, if
2 Mr. Hadzihasanovic, would you please raise.
3 [The accused Hadzihasanovic stands up]
4 JUDGE SCHOMBURG: Thank you.
5 Mr. Alagic.
6 [The accused Alagic stands up]
7 JUDGE SCHOMBURG: Thank you.
8 Mr. Kubura.
9 [The accused Kubura stands up]
10 JUDGE SCHOMBURG: Thank you.
11 Mr. Hadzihasanovic, Mr. Alagic, and Mr. Kubura, this is your
12 procedure: You are not the objects of this procedure; you are the
13 subjects. I'll say you are always on demand and in the framework of the
14 Rules. You have the right to address the Chamber directly. It is, of
15 course, your right to remain silent. It is, however, my duty to inform
16 you that, having this human right in mind, to warn you that each testimony
17 or statement given by you can be used as evidence against you. Did you
18 understand this?
19 THE ACCUSED HADZIHASANOVIC: [Interpretation] Yes.
20 THE ACCUSED ALAGIC: [Interpretation] Yes.
21 THE ACCUSED KUBURA: [Interpretation] Yes.
22 JUDGE SCHOMBURG: And additionally, I feel obliged to inform you: On
23 this other side, if this were a coin, not only given the case, it would
24 come somewhere to sentencing, it is settled practice in criminal courts
25 all over the world that any cooperation bringing us closer to the truth will
1 militate in your individual favour. This is, of course, true too when it
2 comes to the decision on provisional release.
3 I may draw your attention, for example, to the decision of
4 Mr. Krajisnik’s motion on provisional release, paragraph 21. Therefore,
5 with the professional advice of your learned Defence counsels, you
6 individually will have to find the avenue suiting and balancing your
7 interests best.
8 Turning now to the representatives of Bosnia-Herzegovina, may I
9 ask for your name, please.
10 THE INTERPRETER: Microphone, please. Microphone.
11 MR. DZIHANOVIC: [Interpretation] Thank you very much. Your
12 Honours, my name is Shabaz Dzihanovic, the Deputy Federal Justice
13 Minister, authorised representative of the government of the Federation of
14 Bosnia-Herzegovina, on behalf of the government of -- Bosnia-Herzegovina
15 government to come here before the Tribunal. And I have been asked to
16 attend this meeting, and here I am. Thank you.
17 MR. LIMOV: [Interpretation] Your Honours, my name is Tomislav
18 Limov, the Deputy Internal Affairs Minister of the Federation of
19 Bosnia-Herzegovina and the authorised representative of the government of
20 the Federation at today's court proceedings. Thank you.
21 JUDGE SCHOMBURG: Thank you. And I want to emphasise --
22 THE INTERPRETER: Microphone, Your Honour, please.
23 JUDGE SCHOMBURG: I have to emphasise that the Trial Chamber is
24 extremely grateful for your appearance on very short notice and
25 appreciates your willingness to cooperate with the ICTY on the basis of
1 your commitments to the United Nations.
2 We have got a lot of motions, attachments to motions, and so on.
3 Please regard it as granted that the three Judges have read these papers
4 very carefully and know about the contents. Therefore, I will ask you to
5 refrain from once again bringing up these issues which have already been
6 addressed. And the Trial Chamber today is seized only with the motions on
7 provisional release, Rule 65; therefore, please, all parties refrain from
8 bringing up any other additional issues.
9 Of course the main issue is the application of Rule 65. Let us
10 come to the core issues of this Article right now. And please be sure,
11 both parties, that the members of this Chamber have not yet made up their
12 minds. We're open to your submissions.
13 In order to give some structure in the deliberations, I would like
14 to give a kind of systematic approach and invite you to follow this:
15 First of all, the question of the factual basis of voluntary surrender is
16 a core issue. This was challenged by the Office of the Prosecutor. And
17 here I want both parties to be very concrete.
18 Is it more or less simplified extradition, or in this case,
19 simplified surrender as we know it from international law - for example,
20 Article 66 of the Schengen agreement - or is it additionally a voluntary
21 arrest to that extent that it was not necessary to use any force but the
22 persons coming on their own wish to the Detention Unit. I would like to
23 hear some facts on this issue.
24 Then, of course, we have to address the principle of
25 proportionality. Of course, any procedural measure has to be
1 proportional. A measure is in public international law proportional only
2 when suitable, necessary, and its degree and scope stands in reasonable
3 relationship to the envisaged target. Procedural measure shall never be
4 capricious or excessive. If it is sufficient to use a milder measure,
5 this measure has to be applied.
6 This means, in concrete terms, we shouldn't touch the question
7 whether or not detention is suitable but already attach the second step:
8 Is it necessary that the three accused stay in The Hague, or do we really
9 have sufficient guarantees that, first of all, they will, on order of the
10 Tribunal, come to The Hague immediately, guarantees both from the accused
11 and from the government of Bosnia-Herzegovina? Here we have to go into
12 some details. And what are the necessary or what would be the necessary
13 measures for protecting the evidence in whole?
14 Only in case we are not satisfied here, the proportionality, in a
15 narrow sense, becomes a question to be answered, and there we would have
16 to hear your submissions what would be in favour and what would be in --
17 contrary to the decision expected by the Defence.
18 Therefore, I should invite parties, first of all, to stress issues
19 of guarantees. It is in the interest of this Trial Chamber to exhaust all
20 possible measures being less intrusive than ongoing detention in The
21 Hague, and I invite especially the Defence counsels to give their
22 submissions in this respect.
23 Some issues could be, for example - I only touch more or the less
24 in seriousness of these points-what about bail bonds?What about house arrest?
25 And with a view to avoid any danger to any evidence, how can it be granted
1 that the accused do not have any possibility detrimental to the interests
2 of justice, for example, by having access to official documents already or
3 not yet identified as probative evidence in this case?
4 In order to have a tight time schedule, we have prepared a short
5 agenda. We'll ask the Defence counsel, if necessary, each team to
6 self-restraint to 15 minutes each; the representative of
7 Bosnia-Herzegovina, 15 minutes; the Office of the Prosecutor, 30 minutes;
8 the Defence counsel in reply, 5 minutes each; and at the -- not the end of
9 the day but in the end of this first period, hear the accused, because
10 without any doubt, they have the right to address the Trial Chamber
11 themselves for approximately 10 minutes each. And I may add, of course,
12 nobody needs to exhaust the time granted.
13 Finally, I have to point out, also with a special view to our
14 friends from Bosnia-Herzegovina, that it is to the discretion of all
15 participants at any point in time to request for having a hearing in
16 closed session, but of course, closed session has to be the exception, not
17 the rule. Therefore, the Trial Chamber invites for any carefully reasoned
19 The very last point: We have a lot of documents filed
20 confidentially. To facilitate our work, I would say if there are no
21 objections by the parties, the Trial Chamber will treat all motions
22 received until now on the issue of provisional release, save attachments
23 because they are containing matters of privacy, as no longer being
25 Office of the Prosecutor, agree?
1 MR. WITHOPF: We have no objections, Your Honours.
2 JUDGE SCHOMBURG: Thank you.
3 Defence agrees?
4 MS. RESIDOVIC: [Interpretation] Yes, Your Honour.
5 JUDGE SCHOMBURG: Thank you. So it's ordered that from now on,
6 all motions received on the issue of provisional release are no longer
7 treated as confidential ones.
8 May we come now to the agenda as scheduled. May I ask the Defence
9 team to start. I would say start in alphabetical order, the Defence
10 counsel of Mr. Alagic first. Thank you.
11 MS. VIDOVIC: [Interpretation] Your Honours, with full respect for
12 your time, I won't go into an extensive explanation of the facts which
13 have already been set out in our motions and submissions. I shall try and
14 be as brief as possible and put forward my views that all the conditions
15 under Rule 65 have been fulfilled for the decision to be reached that
16 Mr. Alagic be accorded provisional release, for him to be able to be at
17 liberty. We have provided sufficient proof.
18 On the other hand, I do not consider that the Prosecution has put
19 forward a single valid reason for which the Trial Chamber would not
20 acquiesce to our request. I shall start out from your suggestion, and let
21 us take into consideration first the circumstances of the voluntary
22 surrender of the accused to the Tribunal, because the Prosecution
23 challenges the fact that it was indeed a voluntary surrender on the part
24 of the accused.
25 We have studied with great care all the circumstances surrounding
1 the surrender, and in the submission and in the response by the Prosecutor
2 to our request that a letter exists by the Deputy Prosecutor, Mr. Graham
3 Blewitt, sent to Dr. Lagumdzija, the presiding officer of the Council of
4 Bosnia-Herzegovina - this is to be found in annex 2 of the Prosecution
5 response - and it stems from that that the government was not told that
6 our clients, or rather, the accused, can surrender voluntarily. All they
7 were given was an eight-day time limit for the arrest to be conducted.
8 And this fact probably led the government to believe, erroneously, that it
9 was necessary for them to be arrested. In that way, my client was left
10 without the possibility of surrendering voluntarily, and this emanated
11 from Rifat Culjevic's statement, which represents attachment 8 of our
12 submission, who very clearly stated -- because he was the individual who
13 reached General Alagic first when he was to be sent to The Hague, and it
14 emerges from that, quite clearly, that General Alagic knew that he had to
15 contact the Supreme Court of Bosnia-Herzegovina to go to The Hague, said
16 he was sorry that he had not been informed a different way and thus have
17 been able to surrender voluntarily.
18 Furthermore, from an additional official note by the judge of the
19 Supreme Court, Mr. Vlado Adamovic, we can see that Alagic contacted him
20 with a written statement in which he requests that he be surrendered
21 voluntarily. He says that he does not wish to be arrested and sent to the
22 International Tribunal in that way. The Supreme Court of
23 Bosnia-Herzegovina accepted that, and he stopped extraditional arrest and
24 sent General Alagic as somebody who was voluntarily surrendering to The
25 Hague Tribunal.
1 The separate question is how the arrest was conducted by the
2 Prosecutor of The Hague Tribunal, and my client had absolutely no
3 possibilities of wielding any influence on that.
4 Let me just comment briefly the following fact, the fact that is
5 set forward by the Prosecutor in this response. The Prosecutor says that
6 it is understood that a voluntary arrest by a person - voluntary
7 surrender, I'm sorry - is if there was no threat towards that person, or
8 coercion and duress, that he would be arrested. Now, if the Prosecutor
9 views matters in this light, then there is not a single person who has
10 been accused by the Tribunal who would voluntarily surrender under those
11 circumstances, because each indictment is accompanied by an arrest
12 warrant, and if a warrant of that kind exists, and if it is -- if the
13 person involved is told of this, then this is pressure, this is coercion,
14 the very knowledge of that existence of that arrest warrant. I therefore
15 do not consider that the position of the Prosecution in that respect is
17 Without dwelling on that question any more, let me move on to the
18 guarantees given by the government. I do not think I need read the
19 conclusions and specific points in the government decision that we attach
20 as addendum 14, enclosure 14 in our response to the Prosecution and the
21 Prosecution's position. As listed, the government enumerates all the
22 measures which it can take upon itself and issued written guarantees along
23 those lines. The government will respect all the warrants issued by the
24 Tribunal in order to ensure the presence of the accused and in order to
25 adhere and fulfil all the other conditions in order to respect the
1 decisions of this Court.
2 I should particularly like to emphasise that the cooperation of
3 the government of Bosnia-Herzegovina, and in this case as well, should be
4 set aside from cooperation of all the other governments with the Tribunal
5 in The Hague. What I want to say is that from the very inception of The
6 Hague Tribunal, that is, since 1994, the government of the
7 Bosnia-Herzegovina Federation, which at that time was the Republic of
8 Bosnia-Herzegovina and later on the Federation, has always cooperated in
9 full with the Tribunal. It has always shown full respect for every
10 request made by the Tribunal, or as early on as the end of 1995 and the
11 beginning of 1996, it arrested persons who were on its territory following
12 orders and warrants by this Tribunal. It allowed the Prosecutor access,
13 unhampered access, to all archives, as well as to those of the president
14 of the presidency of Bosnia-Herzegovina. So there is no reason to doubt
15 the absolute goodwill of the government of Bosnia-Herzegovina to act in
16 accordance with all your orders and warrants, if they are sent. And in
17 that respect, the government is quite different to other governments.
18 Mr. Alagic, in addition to this, himself made a statement under
19 oath and guaranteed that he would appear before this Tribunal, and
20 expressed his readiness to take on and accept all the guarantees issued by
21 the government. Let me also add that Mr. Alagic is a man of advanced
22 age. His health has been seriously impaired; and we show this with the
23 attachments to our submission. He has an apartment in Sanski Most, and
24 nothing more. Even if he would like to go somewhere, he has nowhere to
25 go. He just has his good name, the good name that he wishes to defend.
1 And his name means something in Bosanska Krajina, and that's all he has
2 left to him, his name and his face, and that's what he wishes to defend
3 here in The Hague.
4 So he is an individual whose guarantees can be found to be
5 acceptable, and I'm sure that the Tribunal can accept them too. He has
6 also given guarantees that he would not be a danger to witnesses or
7 victims if he is provisionally released.
8 All I want to say is that if my client is provisionally released,
9 he will be living in Sanski Most, which is Bosanska Krajina, in a region
10 of Bosnia-Herzegovina which is quite a long way off from Central Bosnia,
11 which is where the crimes, in fact, took place. His sojourn in Bosanska
12 Krajina cannot in any way disturb the victims or potential witnesses. His
13 movements have briefly been restricted in Bosnia-Herzegovina. That is to
14 say, Mr. Alagic, in his appeals proceedings with the Supreme Court of
15 Bosnia-Herzegovina, with respect to another criminal offence, the result
16 of that was that his travelling papers have been confiscated, so even if
17 he wanted to leave the territory, he would not be able to do so.
18 Therefore, having set out all these reasons, I consider that
19 General Alagic, even if he wanted to, did not have the possibility of
20 leaving the territory, and this makes his guarantee even more firm and
21 more acceptable.
22 Let me also make one final remark with respect to the
23 Prosecution's stand; namely, the Prosecution, in their response to our
24 motion for provisional release, adopted the attitude that Mr. Alagic, in
25 view of his political position - and he was the mayor of Sanski
1 Most - wielded great influence and could influence witnesses, and one
2 could thereby conclude that he could come by official documents more
3 easily, documents which could be linked to this case. All I want to say
4 is that in Bosnia-Herzegovina, a little more than a year ago elections
5 were held and that the party, whose member General Alagic was, lost the
6 elections. That political party wields no more political influence in
7 Bosnia-Herzegovina, and therefore this argument on the part of the
8 Prosecution really cannot stand. Even if he did have an influence, his
9 influence could only be limited and restricted to the region of Sanski
10 Most, which is the area that he was the town mayor in, and the broader
11 area of Bosanska Krajina.
12 Let me now dwell for a brief moment on the fact that the
13 Prosecution considers that Alagic has been accused of serious crimes,
14 charged with serious crimes. I consider that he has not been -- or
15 rather, the fact is that he has not been charged with genocide, the crime
16 of genocide, or crimes against humanity. He has not been charged of
17 ordering, aiding, or abetting a criminal offence to take place. He has
18 been charged for omissions and failure to punish the perpetrators, which
19 is, relatively speaking, the lowest level of responsibility in cases tried
20 before this Tribunal. If --
21 JUDGE SCHOMBURG: [Previous translation continues] ... but may I
22 just interrupt you? Of course, we have read all the contributions on
23 these more or less theoretical issues. May I ask a concrete question as
24 regards the matter you mentioned before, that his passport was withdrawn?
25 And we find this in an attachment of your motion dated the 10th of
1 October, 2001, saying that his passport was confiscated October 1999 by
2 the police administration of Sanski Most and based on the report from the
3 municipal court of Sanski Most. Can you please indicate the underlying
4 reasons for this fact that has happened in 1999.
5 MS. VIDOVIC: [Interpretation] Yes. Criminal proceedings are under
6 way against General Alagic because of the criminal offence of abuse of
7 official position and authority, and it was in that connection that his
8 passport was seized from him as a guarantee that he would continue to
9 reside in Bosnia-Herzegovina.
10 JUDGE SCHOMBURG: Do I understand correctly that these proceedings
11 are still pending? And what would you add, from your point of view, about
12 the priority given to ICTY in these cases?
13 MS. VIDOVIC: [Interpretation] In such cases, yes, priority is
14 given to the Tribunal, though the proceedings are still ongoing.
15 [Trial Chamber confers]
16 JUDGE SCHOMBURG: Okay. We have to go into these details and
17 another attachment, and I'm of course grateful that you can draw our
18 attention to this. The diplomatic passport has expired and is temporarily
19 revoked. This has been done also in 1997 already. Can you give me
20 additional information on the circumstances?
21 MS. VIDOVIC: [Interpretation] You are referring to the case that
22 is being tried in Bosnia-Herzegovina. General Alagic, in the period, I
23 think, between 1995 and 1996 - I'm not quite sure regarding these
24 dates - he was the town mayor of Sanski Most. In connection with the
25 duties he performed, an investigation was carried out and a first-instance
1 judgement was passed, finding him guilty of abuse of official position.
2 JUDGE SCHOMBURG: May I ask you to go on? What is the further
3 development in this case? Was there a sentencing, and was there an
5 MS. VIDOVIC: [Interpretation] Yes. The first-instance sentence
6 was four years of imprisonment. Then an appeal was lodged. And we expect
7 the Appeals Chamber to be sitting shortly to consider the appeal.
8 JUDGE SCHOMBURG: So this would be a judgement in absentia?
9 MS. VIDOVIC: [Interpretation] No, it was not as a judgement in
10 absentia. The initial judgement was passed while General Alagic was at
11 liberty, and our law on criminal procedure allows for the possibility of a
12 second-instance judgement being passed in the absence of the accused and
13 only in the presence of his Defence counsel.
14 JUDGE SCHOMBURG: Do you have, at this point in time, any more
15 concrete submissions on the actual situation of your client? For example,
16 when it comes to the question of, let's say, house arrest or bail bond,
17 what is your view here? And can you please explain a little bit the
18 concrete family situation of your client as of today? You've already told
19 us he will be available at a certain address. Can you explain a little
20 bit where this will be? Is it a house? Is it an apartment? Has he lived
21 there for a period of time?
22 MS. VIDOVIC: [Interpretation] It is an apartment that
23 General Alagic has been living in for some time with his wife and his
24 adopted son, who is a student at the Faculty of Economics in Sarajevo. He
25 is duty-bound to make a living for his family. He was about to retire
1 when he was extradited to The Hague Tribunal. So he would continue to
2 live in the apartment with his family, and I think that he would accept
3 any ruling that would imply that he had to stay in his apartment under
4 house arrest. He doesn't have the funds to pay for any kind of bail
6 JUDGE SCHOMBURG: Thank you very much.
7 And now, please, Defence counsel for Mr. Hadzihasanovic.
8 MS. RESIDOVIC: [Interpretation] Thank you, Your Honour. Like my
9 learned friend Ms. Vidovic, I will follow the instructions you gave us
10 regarding additional arguments to those presented in our motion for
11 provisional release which we filed on the 16th of November and the
12 response of Defence counsel for Hadzihasanovic to the Prosecutor's
13 response of the 11th of December.
14 We have also provided the Court, in addition to our response, with
15 a large number of documents. And I will not be commenting on those
17 What I would like to begin with is to refer to your observation,
18 Your Honour, that we need to bear in mind proportionality, that is, to see
19 in each particular case the need for adequate measures which would
20 guarantee to the Court the conditions under Rule 65, and that is, that
21 would guarantee that my client, General Hadzihasanovic, would respond to
22 any call by the Trial Chamber; and secondly, should he be provisionally
23 released, he would not be a threat to victims, witnesses, or to any other
25 I believe that this Court, in its rulings - and also this applies,
1 I presume, to this Trial Chamber - proceeds on the internationally
2 recognised rights of the accused that the Statute of the Tribunal contains
3 and which was submitted to the United Nations. Therefore, in our written
4 motion, we have said that detention prior to trial should be exceptional
5 and that the Court should give the opportunity to the accused to present
6 arguments, to persuade this Court that his provisional release and liberty
7 will not hamper the administration of justice.
8 With respect to your first request for additional arguments, then
9 we need to say that this first condition can be corroborated by
10 General Hadzihasanovic's attitude towards this Tribunal and his appearance
11 here. It is our position that General Hadzihasanovic surrendered
12 voluntarily the moment he learnt for the first time from the competent
13 authorities that there was an indictment issued by this Tribunal against
14 him. The Prosecutor, as you know, has the opposite opinion.
15 My learned friend Ms. Vidovic has described the way in which
16 General Alagic learnt about the existence of the indictment. In the file,
17 we find a statement by Gljiva Jasmin, an authorised official of the
18 Ministry of Internal Affairs, who on behalf of that institution was
19 assigned the task of informing General Hadzihasanovic of a decision on
20 extradition arrest and to hand him that same decision. From that
21 statement issued by the person who, on the 2nd of August, 1992, wearing
22 civilian clothes and not as a policeman, approached General Hadzihasanovic
23 -- and you see from that statement that immediately the response of
24 General Hadzihasanovic was that there was no need for him to be informed
25 about it by the police, that he had always up to now responded to any call
1 by the Tribunal, and if anyone had given him a chance of one hour or one
2 day, he would have come to The Hague himself. This is a fact which I feel
3 the Court should appreciate.
4 It can also be seen from that statement that after treating those
5 persons who conveyed to him the fact about the indictment, surrendered to
6 extradition arrest. Therefore, this statement and other indisputable
7 facts disprove the position of the Prosecution that
8 General Hadzihasanovic, after being placed in extradition arrest, it was
9 only on the 3rd of August that he expressed his will to surrender
10 voluntarily. That will was clearly and unequivocally stated on the 2nd of
11 August to the authorities of Bosnia-Herzegovina.
12 I must also point out, as has my colleague Ms. Vidovic, that the
13 letter of the Deputy Prosecutor did not give the government of the
14 Federation a chance to come to The Hague, because the government was told
15 simply to arrest and surrender the accused, and if it fails to do so
16 within a time period of eight days, then the SFOR would do so.
17 Perhaps it is not quite appropriate for me to say this here in
18 court, Your Honours, but I will say it nevertheless. The day my client
19 appeared in court for the first time, I conveyed this fact to the
20 Prosecutor, Madam Carla Del Ponte: It is my opinion that a State that
21 cooperates so well with the Tribunal, as does my client, deserves to be
22 given the chance to come alone without being escorted by any other body.
23 I also wish to point out that the Supreme Court realised that it
24 was a mistake and that the people wanted to come voluntarily, they were
25 released. And in fact, they came to the airport accompanied only by their
1 attorneys and surrendered themselves to representatives of the
2 International Tribunal. Those are the facts.
3 Why should the Federation government be trusted that they will
4 carry out all instructions and that the facts are as they stand in my
5 written motion and in my oral submissions is not something I need not
6 repeat? I think my colleague Ms. Vidovic has already placed sufficient
7 emphasis on that. But I think that we should have absolute trust in the
8 guarantees provided by my client, General Hadzihasanovic, because he's a
9 person who, ever since 1996, when many people refused to recognise the
10 Tribunal, and never mind to cooperate with it, he cooperated on a number
11 of occasions and gave two statements. Though he was hurt badly in a
12 traffic accident, he responded and came to this court to testify in the
13 Blaskic case. Then again upon the request of the Prosecution, he came to
14 testify in the Krstic case. Therefore, a man who expressed his position
15 towards the Tribunal in that way could not express his voluntariness in
16 any other way but when he was told about the indictment at the front
17 door. That is why when evaluating whether the surrender was on a
18 voluntary basis, you should take into consideration these facts and
20 In assessing the value of the guarantees, I would ask you to
21 consider all the arguments contained in our written submissions, but I
22 also would appeal to you to bear in mind that the European Court for Human
23 Rights, in the case Letellier against France, determined that when the
24 only reason for continued detention is the fear that the accused will
25 escape and avoid appearing at trial, he should be temporarily released if
1 he's able to provide adequate guarantees.
2 The guarantees for my client have been provided by the government
3 of the Federation of Bosnia-Herzegovina, which due to all acts it has
4 undertaken in the past and not its promises, should be trusted. My
5 colleague Ms. Vidovic mentioned the arrest in 1996 in which I was Defence
6 counsel. Conditions for investigations in Bosnia-Herzegovina, the
7 documentation given to this Tribunal, the subpoenaing of generals to
8 testify here, all these are facts and arguments which are not dead letter
9 on paper but reflect the real attitude of the government of the
10 Federation, which guarantee that my client will also appear in court when
12 There is also the guarantee of my client himself, and for the
13 reasons already given, I think should be trusted. But his family, his
14 wife and children, have also offered their own guarantees under oath. It
15 is not an easy matter to send one's father and husband to trial, but they
16 said that at any time, they would support his appearance in court.
17 There is the question of possible additional guarantees. In the
18 enclosures provided, we have said that General Hadzihasanovic is retired
19 and that his pension amounts to 533 German marks. With such funds,
20 without additional effort, he and his family can hardly survive, never
21 mind travelling outside the borders of the country. And this also shows
22 that he cannot provide any monetary guarantees. He has an apartment of 78
23 square metres in Sarajevo in which he has been residing with his family
24 members for years. He has not left that apartment for years, nor does he
25 intend to. I think that this also is an argument that should convince you
1 that those guarantees are sufficient and that they confirm and speak in
2 favour of our motion for provisional release and not to apply stricter
3 measures towards my client than would be required for a fair treatment of
4 any individual.
5 Finally, you also said that we might provide some additional
6 elements. Regarding house arrest, I can tell you that I have not
7 discussed it with my client, but an apartment with four family members
8 living in it is probably a place in which my client could stay, and he
9 would not oppose it, but I don't think that would be necessary.
10 As for the second condition, for which we have already provided
11 arguments, that is, whether my client will wield any influence on victims
12 and witnesses and be a danger to anyone, this Tribunal has a developed
13 jurisdiction in this area. The suggestions of the Prosecutor that only a
14 possibility is sufficient, that is not proper. The Court requires
15 concrete possibilities to be established of influencing witnesses. My
16 colleague Ms. Vidovic has already spoken about this, but let me just add
17 that the witnesses whose statements have been taken and whose statements
18 we have received, together with the indictment, can be divided into two
19 groups: those who are victims and who make no mention of General
20 Hadzihasanovic and don't know him, so I don't see how the General could
21 have any influence over them. The others are officials in various parts
22 of the world. He has no possibility of exerting any influence on them,
23 and even if he did have, these are people of such integrity that they
24 cannot be influenced. Thirdly, he lives in Sarajevo, which is quite a
25 distance from Central Bosnia, and the position of this Court in the
1 Brdjanin case is that even a visit to the scene of the crime cannot in
2 itself be a reason to infer that he would be a threat to the witnesses.
3 Finally, I wish to say that provisional release, in addition to
4 guaranteeing the rights of my client, in accordance with international
5 regulations, it also makes for a more adequate trial and great economies
6 for this Tribunal. Every trip here by me and others for Status
7 Conferences would not be necessary, and time would contribute to an
8 expeditious and fair trial.
9 Your Honour, I feel that all these facts presented provide a
10 sufficient basis for you to be able to grant our request for provisional
11 release. Thank you.
12 JUDGE SCHOMBURG: Just one additional question: Is there any
13 trial pending in Bosnia-Herzegovina?
14 MS. RESIDOVIC: [Interpretation] No. My client was never convicted
15 of any act, nor are there any proceedings against him ongoing.
16 JUDGE SCHOMBURG: I, to a certain extent, of course, agree with
17 your view that the question of infringement of interests of victims and
18 witnesses has to be a concrete, not an abstract one, but please let us
19 know what can be guarantees that your client will not have access to
20 documents, as a retired general, detrimental to the interests of justice.
21 MS. RESIDOVIC: [Interpretation] First of all, Your Honour, you
22 have already said that my client is a retired general, and even if a
23 general, once retired, access is difficult.
24 Secondly, you have probably learnt from the case file that the
25 Sarajevo collection and the entire archives of Bosnia-Herzegovina were at
1 the disposal of the Prosecutor. Therefore, I don't see that there is any
2 single document that my client could have without that document already
3 being served on us to prepare for defence. Also, his word that he would
4 not even make an attempt to get hold of any such documents, and the
5 measures of the government, which would not allow any such access, in my
6 view, are additional guarantees.
7 JUDGE SCHOMBURG: Could it be part of a written guarantee?
8 MS. RESIDOVIC: [Interpretation] My client can provide additional
9 written guarantees that we will not try to obtain access to any documents
10 that might have a bearing on this case except those which he may review
11 together with me in preparation of his defence.
12 JUDGE SCHOMBURG: Thank you for this clear answer.
13 And another question: We know it, of course, that your client has
14 cooperated in an, I would say, excellent way with the Office of the
15 Prosecutor. What about his attitude in the future on the question of
16 cooperation, taking into account that he is now in a totally different
17 situation, having to defend himself?
18 MS. RESIDOVIC: [Interpretation] Your Honour, we have informed the
19 Prosecution in writing that at this point in time, my client does not wish
20 to make a statement to the Prosecution. How the preparation of the
21 Defence will run, as his Defence counsel, at this point in time, I cannot
22 say. It would be premature.
23 JUDGE SCHOMBURG: Thank you very much for your contribution.
24 May I now ask the representatives of Bosnia-Herzegovina --
25 [Trial Chamber confers]
1 JUDGE SCHOMBURG: Yes. As scheduled, we should go on - I beg your
2 pardon - with Defence counsel, please.
3 MR. IBRISIMOVIC: [Interpretation] Your Honours, the Defence of
4 Mr. Kubura stands by the application it made for provisional release and
5 the proposals put forward in that application. The basic question which
6 arises at this time is whether the accused Mr. Kubura surrendered
7 voluntarily to the Tribunal or not. According to the Prosecution,
8 Mr. Kubura was arrested by the Bosnia-Herzegovinian authorities, and after
9 that, in keeping with the rules and regulations, he was transported and
10 handed over to the Tribunal.
11 However, the Defence of Mr. Kubura cannot agree with this position
12 as put forward by the Prosecution. All the acts undertaken by Mr. Kubura
13 from the time he learnt that there were proceedings against him before
14 this Tribunal indicate that he wished -- that it was his wish to surrender
15 voluntarily in order to come before this Tribunal and be tried. It is
16 important to mention the fact that Mr. Kubura interrupted his holiday. He
17 was in the neighbouring state of Croatia at the time, on holiday there,
18 and at the invitation of the BH authorities, he returned to the country
19 forthwith. There he was told of the situation, that is to say, that there
20 were proceedings against him at this Tribunal, and he was given a document
21 to that effect by the Supreme Court of Bosnia-Herzegovina. After that, he
22 was placed in extraditional arrest, and the following day he made a
23 voluntary statement saying that he was voluntarily surrendering and
24 wished, of his own free will, to travel to The Hague.
25 Let me mention one point in this regard. In no way was Mr. Kubura
1 offered the possibility, either by the BH authorities or by The Hague
2 Tribunal, of expressing freely and voluntarily his attitude with respect
3 to surrender to the Tribunal. Namely, he was arrested according to the
4 domicile regulations and the Criminal Code of the government of
5 Bosnia-Herzegovina which regulates -- they are Articles 62 to 69 of that
6 code. That is to say, that when detention was prescribed according to the
7 Law on Criminal Procedure of Bosnia-Herzegovina, the defence -- that is to
8 say, defence becomes obligatory for Mr. Kubura; not only for Mr. Kubura,
9 but for each and every individual deprived of liberty. Those rights were
10 not read out to Mr. Kubura. He was not able to have contact with
11 attorneys of his own choice, or ex officio at all, who would indicate to
12 him the possibility and the existence and the chance that he surrender
13 voluntarily to this Tribunal for trial. Those elementary rights were
15 When he first had contacts with his attorneys and when they
16 expressed these rights to him, Mr. Kubura said that he wished to travel to
17 The Hague voluntarily. He confirmed that statement of his in front of the
18 Supreme Judge of the Supreme Court of the Federation, Mr. Adamovic, and we
19 attached that letter in our application.
20 Therefore, the conclusion is that Mr. Kubura voluntarily
21 demonstrated that he wanted to go to The Hague. None of his actions
22 indicate that in any way whatsoever he was obstructing either the
23 instructions of the BH authorities or the Office of the Prosecution.
24 Therefore, viewing the statements attached to the application and those
25 from the representatives of the Internal Affairs Ministry of the
1 Federation of Bosnia-Herzegovina, we can confirm and assert that it was a
2 case of voluntary surrender and that the Prosecution's position is
3 completely unfounded.
4 The Prosecution pleads that he was arrested twice. If he was
5 arrested by the BH authorities and if the proceedings were interrupted,
6 then there was absolutely no reason for him to be arrested again by The
7 Hague Tribunal. All that had to be done was to have given him -- set out
8 the opportunity of him going to The Hague, and that is quite clear.
9 I should particularly like to express one more point, and that is
10 that any omissions on the part of the BH government, in the sense of
11 indicating to Mr. Kubura the possibility of surrendering voluntarily,
12 cannot make Mr. Kubura's position aggravated, because he did not have the
13 possibility of expressing his own will. As soon as he did have this
14 opportunity, he showed quite clearly that he wanted, without the pressure
15 of being arrested, or any other coercion or under duress of any kind, to
16 appear voluntarily before this Tribunal and attend the trial. Therefore,
17 it is the position of the Defence that we propose to the Trial Chamber
18 that as Mr. Kubura surrendered voluntarily to The Hague, this ought to be
19 accepted, and not the viewpoint of the Prosecution as presented.
20 As far as the measures that the government has proposed in the
21 case that Mr. Kubura be provisionally released, the Defence is not in a
22 situation to comment as to whether the government will stand by their
23 promises and guarantees or not. We have the representatives of the
24 government. But the Defence team, like Mr. Kubura himself, who signed his
25 own statement, are of the opinion that Mr. Kubura will respect all the
1 measures set forth by the government should he be provisionally released,
2 as well as all the instructions of the Tribunal in that regard.
3 I do not want to repeat what my learned colleagues Ms. Residovic
4 and Ms. Vidovic have already said, the attitude of the Bosnian government
5 towards this Tribunal and its cooperation from the very start. I think
6 that the measures that have been proposed will be abided by the
7 government, and if the government acted properly during Mr. Kubura's
8 arrest, then there is no reason to believe that they will not stand by all
9 the guarantees that they have issued.
10 As far as the family situation of Mr. Kubura, you have all the
11 documents relative to that. You can see that the situation is very
12 precarious as far as his family is concerned. He is a father of three
13 minor children. Their ages range from 5, 10, and 11. His wife is
14 unemployed. He doesn't even have an apartment and has not solved his
15 residential problems. So his detention in The Hague would make that
16 situation even more grave and bring his family into a highly precarious
18 As to the possibility of wielding any influence on victims and
19 witnesses, a point that has been raised in these proceedings, I agree with
20 the attitude presented by Ms. Residovic and say that we must look at this
21 aspect realistically. His behaviour and conduct so far when he was
22 present in the region does not indicate that he wished to enter into
23 contact with witnesses in any way. So until we don't have a realistic
24 danger of this, I do not think that remarks of this kind stand. I think
25 they are unfounded. And the Tribunal and the Prosecution has an open
1 telephone line to all -- for all witnesses and victims in any cases tried
2 before this Tribunal, and if any realistic danger did exist, then there
3 are government measures and Tribunal measures that are highly effective
4 and efficient to arrest any attempts of that kind and sanction conduct of
5 that kind.
6 And for every accused, as for Mr. Kubura as well, there is a trial
7 period. So in order to assess a realistic danger, we must look at this
8 trial period. And the accused will show by -- will show by way of his
9 conduct what this will be. And he has already stated that he is willing
10 to recognise all the decisions of this Tribunal and the government
11 measures expressed in the guarantees that they issued. Thank you.
12 JUDGE SCHOMBURG: I thank you. Also the same question in the
13 direction of your client. Is there any trial or any prosecution pending
14 against your client?
15 MR. IBRISIMOVIC: [Interpretation] Your Honour, my client has never
16 had any proceedings brought against him in Bosnia-Herzegovina. This is
17 the -- these are the first proceedings against my client.
18 JUDGE SCHOMBURG: The actual housing situation, of course, should
19 never be detrimental to the question of whether provisional release will
20 be granted or not, but we should know what will be the address, in future,
21 of your client. You pointed out in your motions that -- he can't
22 stay any longer in the former apartment but seeks for a new one. Is this
23 already settled?
24 MR. IBRISIMOVIC: [Interpretation] For the moment, there is a
25 temporary solution and a new address. And I think we mentioned that new
1 address in the attachment, but if not, I can send it on to the Tribunal.
2 But he has still not been able to buy up this flat.
3 JUDGE SCHOMBURG: And also additionally, what would be your
4 position as regards house arrest and what would be the position that there
5 is a certain guarantee given that your client, knowing now about the
6 indictment, will have no improper access to documents detrimental to the
7 interest of justice?
8 MR. IBRISIMOVIC: [Interpretation] My client will make a statement
9 to the effect that he will not have access to any documents which might be
10 harmful to the interests of justice and the conducting of this trial. He
11 is an office of the army of Bosnia-Herzegovina. He has been suspended,
12 and he does not have any access, not only to archives but even to go to
13 his job should he be provisionally released.
14 JUDGE SCHOMBURG: Thank you, Defence. Now, I believe, really the
15 time is ripe that I may ask the representatives of Bosnia-Herzegovina.
16 Please come here a little bit closer to us that we can hear your direct
17 comments, acting as friends of this Tribunal.
18 Who wants to take the floor first, please? I understand
19 Mr. Limov.
20 MR. DZIHANOVIC: [Interpretation] Mr. Dzihanovic. Your Honours,
21 may I, with respect to the case of Mr. Alagic and General Hadzihasanovic
22 and Colonel Kubura, as representative of the government of
23 Bosnia-Herzegovina state the following, and the Deputy of the Federal
24 Justice Minister as well: You yourselves have become convinced that
25 the -- that cooperation between the government of Bosnia-Herzegovina and
1 the Tribunal in The Hague has always been exemplary and that both the
2 governments have shown this by virtue of their conduct, both previously
3 and in this particular case.
4 What the government of Bosnia-Herzegovina was to do, and the
5 government of the Federation of Bosnia-Herzegovina and the Supreme Court
6 of Bosnia-Herzegovina, everything was done without a single dilemma. We
7 never asked ourselves whether it should be done or not. We went ahead and
8 did it in order to enable this case to be brought to trial before The
9 Hague Tribunal.
10 Furthermore, upon the request of the Defence counsel of
11 General Hadzihasanovic, Alagic, and Colonel Kubura, the government of the
12 Federation, on the 8th of October, 2001, reached a conclusion and decision
13 that in keeping with the principles of cooperation with The Hague Tribunal
14 that it would respond to every invitation and request on the part of The
15 Hague Tribunal and respond to all the demands made of the government of
17 In this concrete case, the government of Bosnia-Herzegovina
18 expressed its readiness to respond to the invitation from the Trial
19 Chamber in order to make a statement before the Tribunal with respect to
20 guarantees on respect of the conditions set by the International Tribunal
21 for persons accused of war crimes in the former Yugoslavia, and we have
22 three accused before us.
23 On the 6th of December, 2001, the Defence of these accused once
24 again appealed to the government of Bosnia-Herzegovina for it to issue
25 detailed measures which the government of the Federation of
1 Bosnia-Herzegovina would undertake or which it would be ready to
2 undertake, and they consist in the following - these measures refer to all
3 three accused persons.
4 At a meeting of the government of the Federation of
5 Bosnia-Herzegovina, held on the 10th of December, 2001, it was decided to
6 undertake the following: First, the government of the Federation of
7 Bosnia-Herzegovina, in case of the decision to be taken for the
8 provisional release of the persons, guarantees are issued for each of the
9 stipulated persons. It will ensure that the representatives of the
10 Bosnian government and the Federal Justice Ministry and Federal Internal
11 Affairs Ministry will accompany the individual to Sarajevo if they are
12 provisionally released, and they will ensure that they come back to the
13 Tribunal for trial and will supply escorts to the airport and transfer
14 these individuals to The Hague authorities, as stipulated by the Court.
15 Second, during the sojourn of the accused on the territory of
16 Bosnia-Herzegovina, the federal organs and cantonal organs will undertake
17 the following measures and activities: They will ensure that during the
18 trial or proceedings, the accused Mehmed Alagic, the accused Enver
19 Hadzihasanovic, and the accused Amir Kubura should stay on the territory
20 of the Federation of Bosnia-Herzegovina, and once they reach Sarajevo,
21 that they will hand over their travel documents and passports to the
22 international department in Sarajevo; that they will report to the local
23 police station in their place of domicile once a week; that the Federal
24 Ministry of the Interior, in cooperation with the Cantonal Internal
25 Affairs Ministry in Sarajevo and in the Sanski canton and the other
1 cantons where the accused are domiciled, in cooperation with the IPTF,
2 undertake operative and tactical measures and activities to control the
3 sojourn of the provisionally released accused to defend themselves while
4 at liberty and that if any attempt be made to escape which the accused --
5 that the organs under point 6, the competent organs and authorities of
6 Internal Affairs would undertake the detention of these persons. We also
7 undertake that the named persons will be domiciled at the address they
8 have given to the Tribunal. If there are any changes, the Tribunal will
9 be informed thereof.
10 We shall also undertake to guarantee that they will not contact
11 any witnesses or victims, that we will ensure that they will not talk to
12 the media about their indictments, and that the accused persons will
13 respond to every instruction issued by this Tribunal.
14 The government of the Federation of Bosnia-Herzegovina will take
15 it upon itself to send out reports at least once a month to the Tribunal
16 stating that the individuals are abiding by the conditions set out here.
17 The government of the Federation of Bosnia-Herzegovina takes on the
18 obligation of reporting to the Trial Chamber as to whether the accused
19 have violated any of their obligations or whether they are adhering to
20 those obligations.
21 So much from me for the moment. I'm at your disposal for any
22 further questions you may wish to ask me. Thank you.
23 JUDGE SCHOMBURG: Thank you very much.
24 Additional comments from the side of your colleague.
25 MR. LIMOV: [Interpretation] Your Honour, thank you for giving me
1 the floor. I shall add a few words to what my colleague Dzihanovic said
2 with respect to the police, because it is clear from the measures listed
3 that the police have special responsibilities to implement these
4 above-mentioned measures should the Tribunal rule to provisionally release
5 the accused. I, of course, will not repeat the measures listed, but I
6 wish to say that upon the instructions of the Prime Minister of the
7 Federation yesterday, I had a working meeting with Ministers of the
8 cantons, the Sanski, Dojbojski, and Sarajevski cantons, and at that
9 meeting we specified their obligations pursuant to the guarantees provided
10 by the government of the Federation of Bosnia-Herzegovina.
11 Should the Tribunal decide to grant provisional release for
12 Generals Hadzihasanovic and Alagic, as well as Colonel Kubura, the Federal
13 MUP, Ministry of the Interior, is capable of implementing all these
14 measures as well as any other instructions from the Tribunal within the
15 framework of its terms of reference. Thank you.
16 JUDGE SCHOMBURG: Thank you very much. The first point to be
17 addressed is, of course, in case the Trial Chamber could -- would come to
18 the solution of granting provisional release but expecting more
19 restrictive measures and guarantees, would the government of
20 Bosnia-Herzegovina be ready to execute orders, for example, a more
21 restrictive approach saying they have to stay in their town, be it
22 Sarajevo, be it another town? Or additionally, even when it would come to
23 house arrest, would this be feasible?
24 MR. LIMOV: [Interpretation] That would be feasible, and the
25 government of Bosnia-Herzegovina and the appropriate ministries would
1 implement any orders from the Trial Chamber.
2 JUDGE SCHOMBURG: And I take it as granted that you would be ready
3 and prepared to give this in writing to the Tribunal.
4 MR. LIMOV: [Interpretation] Yes.
5 JUDGE SCHOMBURG: Thank you.
6 I want to address to the representative of the Ministry of Justice
7 a very crucial question. We are aware of the fact that a trial is pending
8 against one of the accused here in the ICTY. What is your position on the
9 relationship between both pending trials, and can you tell us a little bit
10 more about the allegations in this case?
11 MR. DZIHANOVIC: [Interpretation] As far as the proceedings in
12 domestic courts that was referred to during the statements by Defence
13 counsel, the authorities of the Federation of Bosnia-Herzegovina and the
14 judiciary will give priority to the proceedings in this Tribunal.
15 As regards the specific content of the charges, I must admit that
16 I am not informed in detail about those charges, as the Ministry of
17 Justice, according to the principle of division of competencies, has no
18 authority over the activities of the courts as independent bodies. But if
19 necessary, the competent court could provide information to this Trial
20 Chamber regarding the specifics of that case.
21 JUDGE SCHOMBURG: Unfortunately, when it comes to,
22 possible guarantees, we have to be very precise. I take it as granted
23 that it is also your view that it would be the responsibility of the State
24 of Bosnia-Herzegovina to enforce the orders of ICTY, and --
25 the ICTY, of course, is not interested in internal affairs, especially
1 when it comes to the responsibility of cantons.
2 In addition, there are only a very few points, but they have to be
3 addressed. What about the costs for the transport to Bosnia-Herzegovina
4 and back to The Hague? Is the government of Bosnia-Herzegovina ready to
5 grant that they take these costs?
6 MR. DZIHANOVIC: [Interpretation] As regards expenditures linked to
7 this and other similar cases, that is a question for which we do not have
8 a solution in the State of Bosnia-Herzegovina, but in this specific case,
9 should the Trial Chamber grant provisional release for these accused, then
10 we will have to find a solution.
11 JUDGE SCHOMBURG: What would be the time frame needed to provide
12 the Court with an additional guarantee to this point?
13 MR. DZIHANOVIC: [Interpretation] These guarantees that you have
14 mentioned and which may be missing with respect to certain details, we can
15 commit ourselves to provide those comments within a few days in accordance
16 with the Court's request.
17 JUDGE SCHOMBURG: I see there are no other questions right now. I
18 thank you very much for coming here, and I would ask you, just in case
19 there will be new questions, we would highly appreciate if you could stay
20 until the end of this hearing. Thank you.
21 MR. DZIHANOVIC: [Interpretation] Thank you.
22 This hearing will be adjourned now for 20 minutes, so that will
23 mean we start again 10 minutes to 5.00. Thank you.
24 --- Recess taken at 4.32 p.m.
25 --- On resuming at 4.56 p.m.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 JUDGE SCHOMBURG: May the hearing on provisional release be
3 I was told that the representative of Bosnia-Herzegovina wants to
4 take the floor for another minute. Is that right?
5 MR. DZIHANOVIC: [Interpretation] Yes, Your Honour, I would like to
6 speak, with your permission, Your Honour.
7 JUDGE SCHOMBURG: Would you please repeat, because the accused
8 hadn't been present.
9 MR. DZIHANOVIC: [Interpretation] I would request, on behalf of the
10 government of the Federation of Bosnia-Herzegovina, to be allowed to say a
11 few more words.
12 JUDGE SCHOMBURG: Please.
13 MR. DZIHANOVIC: [Interpretation] Thank you, Your Honour. Allow me
14 just to add by saying, in answer to your question as to the resources that
15 would be provided to cover the costs of travel for the accused should they
16 be provisionally released, I have had contact by telephone with the Prime
17 Minister of the government of the Federation of Bosnia-Herzegovina, and
18 his response was that I am free to state that the government of the
19 Federation will provide a way of financing the travel of the accused for
20 every hearing here at the Tribunal at any time. Thank you.
21 JUDGE SCHOMBURG: Thank you for this additional clarification.
22 Now we turn to the Office of the Prosecutor. And you know the
23 arguments of the Defence counsel now, and the Trial Chamber really would
24 invite you to address, first of all, the question of whether or not we can
25 speak of voluntary arrest, and especially what you have expected the
1 accused to do more than they have done in the concrete case; and the
2 question, of course, of additional measures: Would they be sufficient for
3 you to have the guarantee, from your point of view, that the accused will
4 appear for standing trial? And the last point, of course, is: Could you
5 please give the Trial Chamber a little bit more information on the
6 severeness of the crime from your point of view? I want to add that it
7 goes without saying that the arguments of the Defence stating that a
8 case - I quote, "it's only a case of 7(3)" - has no merits because we have
9 to look into the concrete law, and a case of 7(3) may be even more severe
10 crime than the one under 7(1). So we shouldn't waste our time with this
11 issue, but please, as pointed out by the Defence, also the Trial Chamber
12 would be interested to hear something more in detail what it's about in
13 this case. Thank you.
14 MS. BODSON: [Interpretation] Mr. President, I have just been
15 entrusted with this case. I give the floor, therefore, to Mr. Withopf.
16 If necessary, I will make some additional remarks after that.
17 MR. WITHOPF: Your Honours, following your advice, I will focus on
18 the crucial issues only. Simultaneously, I will put forward additional
19 information as requested, and I will also respond to issues raised by the
21 Rule 65 details two requirements for provisional release. The
22 Trial Chamber must be satisfied of both: that the accused will appear for
23 trial and that the accused will not pose a danger to any victim, witness,
24 or other person. But even if these requirements are met, that does not
25 mean that provisional release has automatically to be granted. There is
1 no automatism. Rule 65, accordingly, explicitly says "may be granted,"
2 "Provisional release may be granted," meaning the Trial Chamber has the
3 discretion to refuse the order notwithstanding the applicant has
4 established the two matters. That's an issue the Defence, for obvious
5 reasons, did not consider too much. Therefore, I will, in particular,
6 expand on these issues.
7 Coming to the first and main issue, the issue whether it is
8 ensured that the accused will appear for trial and whether it has been a
9 voluntary surrender or whether it has been an arrest, I will cover this
10 matter with regard to all of the accused, Hadzihasanovic, Alagic, and
11 Kubura, together, since it's the opinion of the Prosecution that the
12 situation with regard to all three of the accused is a very, very similar
14 With regard to the voluntary surrender, I want to stress that only
15 the situation before the accused, before all of the three accused were put
16 in extraditional arrest is of relevance; everything that happened
17 afterwards is not. A voluntary surrender is, per definition, excluded
18 after an arrest.
19 I come to the affidavits of Mr. Kljucka, Mr. Culjevic, and
20 Mr. Faik, and I actually want to quote. The first one is the one of Gljva
21 Jasmin, and he tells the story that he, together with two more authorised
22 officers, served General Hadzihasanovic with the decision of the Supreme
23 Court on extraditional arrest. We have the same situation with regard to
24 Alagic and with regard to the accused Kubura. The first impression is as
25 if he would have returned from the Croatian coast from his annual leave
1 knowing that he has been indicted. But if you read the affidavit related
2 to him, the affidavit by Lusija Faik, it becomes obvious that on the
3 Croatian coast, he was never told that an indictment has been issued.
4 This individual, Mr. Lusija Faik, says in his affidavit: "Amir Kubura
5 immediately said that there was no problem, that that should have been
6 said to him straight away so he could have taken his family, as his wife
7 and three minor children stayed at the coast in Croatia."
8 I think, based on this information, there's only one conclusion
9 possible. It hasn't been a voluntary surrender. It has been - and I
10 would call it - an arrest without resistance.
11 With regard to Kubura, it's quite normal that he, as a serving
12 soldier, responded to the call of his commanding officer and that he
13 reported back. Also with regard to him, there is not a very different
14 situation as compared to his two co-accused.
15 The fact that all of the three accused in the course of the local
16 Bosnian extradition proceedings waived their rights is not of any
17 relevance. As a matter of fact, the accused were already imprisoned when
18 they did so, and this fact is actually reflected in the official press
19 release of the Federation of Bosnia-Herzegovinian government. In
20 addition, the head of the Sarajevo field office of the ICTY, Mr. Jan van
21 Hecke, corroborated on Thursday, the 2nd of August, 2001, that the three
22 accused had been arrested - and I quote, the word "arrested" - at their
23 homes at approximately 0700 hours that morning, following an operation of
24 the Ministry of Interior.
25 Secondly, there's a legal consideration in this regard. Rule 58
1 of the Rules says the obligation as laid down in the ICTY Statute prevail
2 over any national law on extradition. The reference to the national
3 jurisdiction made by the Defence and made by the accused is therefore not
4 really helpful. As a consequence, the Prosecution remains and maintains
5 its position. It hasn't been a voluntary surrender. It has been an
6 arrest without resistance.
7 I'm turning now to the issue of the guarantees. The Prosecutor
8 appreciates the guarantees as provided by the government of the Federation
9 of Bosnia and Herzegovina. As they were detailed today, the Prosecution
10 considers them as also being relevant in practice and sufficient in
11 practice. However, the Prosecution wants to draw the attention of the
12 Trial Chamber to the fact that the Bosnian authorities tried to implement
13 the national extradition proceedings contrary to Rule 58 of the Rules of
14 Procedure and Evidence. As a result, there are still some doubts on the
15 value of these guarantees.
16 The Prosecution's overall assessment with regard to the first
17 matter as provided in Rule 65(B) is, therefore, there is no voluntary
18 surrender and some doubts remain with respect to the guarantees provided.
19 I am now turning to the second matter as provided in Rule 65(B),
20 outlining that the accused will not pose a danger to any victim, to any
21 witness, or other person. The Prosecution concedes that there are no
22 instances of concrete intimidation related to the accused. However, the
23 following incidents should be kept in mind: When the accused were
24 arrested and taken to The Hague, the Bosnian authorities made public
25 comments that they would do all they could do to help the accused. Such
1 public statements made by senior Bosnian officials was immediately, very
2 immediately, interpreted by the Prosecution witnesses as a threat against
3 them. And furthermore, the accused were in command of the Mujahedin, and
4 it is well known that there are still many of them living in Bosnia and
5 Herzegovina, particularly in the area of Central Bosnia. It would be no
6 surprise if these Mujahedin would be willing to help out their former
8 Just for illustration, I want to provide the Trial Chamber with a
9 few instances that happened within the last years. And I want to stress
10 again these instances are not related to the accused; however, they
11 illustrate the situation down in Central Bosnia.
12 On 25th August 1998, a nail bomb was placed outside the front door
13 of Ivo Mirzo [phoen]. Jovo Mirzo [phoen] is a Prosecution witness in this
14 case. He's an outspoken member of the Croat community in Bugojno, and he
15 is a prominent local HDZ politician. Four or five local Muslims were
16 eventually charged with the attack, and at least one received a
17 substantial prison sentence.
18 Another incident --
19 JUDGE SCHOMBURG: I beg your pardon. Before you go on with such
20 examples, could you show the Trial Chamber the link between these
21 occasions and these crimes committed and the accused in this case?
22 MR. WITHOPF: These illustrations that I'm about to give to the
23 Trial Chamber should show the situation in Central Bosnia as such and what
24 could happen. And I repeat myself: We cannot prove there is a link to
25 the accused, and I stay away from such an allegation. However - and I
1 will expand on this issue later on - it seems to be of quite an
3 MR. JONES: Your Honour. Your Honour, may we ask why the
4 Prosecution hasn't raised these very specific objections at any time in
5 the past? We wrote to the Prosecution some time ago to inquire as to
6 whether they had any specific objections to provisional release. Again,
7 we filed our applications for provisional release calling on the
8 Prosecution to let us know if they had any specific particularised
9 allegations. We've had absolutely nothing until now about these grounds
10 for refusing provisional release, and I think it's quite unacceptable that
11 we should be ambushed with whatever the Prosecution is going to outline
12 now as to threats to witnesses and whatnot of which we have been given no
14 [Trial Chamber confers]
15 JUDGE SCHOMBURG: The Trial Chamber finds that the -- the Office
16 of the Prosecutor should concentrate on those issues being -- yes, the
17 central points of this hearing and not to confuse us with new additional
18 elements and information where we can't see the relevance for the decision
19 to be taken today.
20 MR. WITHOPF: I appreciate your comments, and we therefore turn to
21 different issues.
22 With regard to the accused Alagic, I want to mention his criminal
23 background, even if it's only the abuse of an official position, but it
24 shows that he has some background.
25 The Prosecution's assessment with regard to the second matter,
1 therefore, is as follows: Although so far no incident of intimidation has
2 been proven, there's a high potential regarding further intimidation.
3 I'm now turning to the issues that fall within the discretion of
4 the Trial Chamber. First of all, and that -- actually, in the context of
5 the previous issue, the effect of a provisional release on the situation
6 in Central Bosnia. It can be anticipated that a provisional release would
7 have a negative impact on the relations of Muslims and Croats in Central
8 Bosnia, and such a provisional release, if granted, would have a very
9 negative impact on the willingness of witnesses to testify. The
10 Prosecution may face serious problems with Prosecution witnesses and
11 potential Prosecution witnesses. For the witnesses, from their view,
12 provisional release, if granted, would make the case look weak, and such a
13 situation could have a serious impact on the willingness of the witnesses
14 to testify or to give a witness statement.
15 The third issue, with regard to proportionality. The accused so
16 far spent only four months in custody. They were transferred to The Hague
17 in the beginning of August. A trial date is envisaged for April 2002.
18 Compared to other accused of the Tribunal whose trial dates were much
19 later, the accused in the present case did not spend substantial time in
20 prison. The Prosecution submits that similar situations should be treated
22 I'm turning to the fourth point with regard to the discretionary
23 issues, the matter of cooperation, as it has also been stressed by the
24 Trial Chamber. It's a matter of fact that the accused cooperated with the
25 Tribunal as court witnesses: Hadzihasanovic and Kubura in the Blaskic
1 case; the accused Hadzihasanovic, furthermore, in the Krstic case, and/or
2 gave witness statements. But I need to stress that in all instances, they
3 were heard as witnesses against their former enemies and, as such, they
4 were obviously and apparently willing to cooperate.
5 The accused Hadzihasanovic and accused Kubura were called as
6 witnesses in the Blaskic case. During their testimony, they had to answer
7 questions of the Defence with regard to some crimes that form part of the
8 indictment against them. They either denied that crimes had happened or
9 their knowledge about such crimes. The Prosecution considers such a
10 cooperation as limited. Furthermore, since they have been arrested, all
11 three of the accused exercise their right to remain silent. There is no
12 further cooperation any more.
13 With regard to the family hardship, the Prosecution maintains its
14 position as laid out in the response. I do not want to be repetitive. I
15 only want to mention that it's interesting -- it's interesting enough that
16 the accused Hadzihasanovic has not shown that he had engaged in additional
17 jobs before he was arrested and that the accused Kubura does not make any
18 statement whether he still gets a salary from the Bosnian government.
19 With regard to the health condition, in the opinion of the
20 Prosecution, this is only a relevant factor with regard to the accused
21 Alagic. The medical examination has been ordered. I understand that the
22 medical examination has not yet been carried out. Therefore, the
23 Prosecution's final position depends on the result of such a medical
25 This leads to the conclusion that the Prosecution maintains its
1 request that the motions of Hadzihasanovic and Kubura be denied.
2 Concerning the accused Alagic, the Prosecution's position will depend on
3 the result of his medical examination.
4 With regard -- or in the event that the Trial Chamber thinks about
5 to grant provisional release, the Prosecution wants to have imposed
6 certain conditions on the accused as follows: A guarantee that a
7 designated official of the Federation of Bosnia and Herzegovina shall take
8 custody of the accused from the Dutch authorities at Schipol airport at a
9 date and time to be determined by the Trial Chamber; furthermore, that
10 they accompany the accused for the duration of their travel to the
11 Federation of Bosnia and Herzegovina, and that they accompany the accused
12 back from Bosnia and Herzegovina to Schipol airport and deliver the
13 accused back to the Dutch authorities at a date and time to be determined
14 by this Trial Chamber; in addition, that the local police will ensure that
15 the accused report to the police station each day, maintain a log and
16 file, and file a monthly written report confirming the accused's
17 compliance, and immediately report the failure to attend by the accused to
18 the Tribunal; in addition, detain the accused immediately should they
19 attempt to escape or breach any of the terms of their provisional release
20 and advise the Tribunal so that arrangements for his transfer back to the
21 Tribunal can be made; in addition, that whilst on provision release, the
22 accused shall remain within the confines of the Federation of Bosnia and
23 Herzegovina; furthermore, that whilst on provision release, the accused
24 shall surrender their passports to the International Police Task Force,
25 IPTF, or the field Office of the Prosecutor in Sarajevo; in addition, that
1 whilst on provisional release, the accused shall report --
2 THE INTERPRETER: Could counsel slow down, please.
3 MR. WITHOPF: I will do so. Furthermore, that the accused shall
4 report each day to the local police; in addition, that whilst on
5 provisional release, the accused shall consent to have the IPTF check with
6 the local police about its presence and to the making of occasional
7 unannounced visits to the accused; in addition, that whilst on provisional
8 release, the accused shall undertake not to have any contact whatsoever
9 nor in any way interfere with any person who may testify at their trial;
10 in addition, that while on provisional release, the accused indicate not
11 to speak to the media or make any public statement; and finally, that the
12 accused shall undertake to comply strictly with any order of this Trial
13 Chamber varying the terms of or terminating their provisional release.
14 Thank you.
15 JUDGE SCHOMBURG: Thank you. Of course, the answer to the
16 question whether a case is ripe for provisional release or not is a very
17 individual one, and we have to take into account the individual situation
18 of each human being. I appreciate very much that we learnt from the
19 Defence counsel in a very honest approach about the problems with the
20 passport and the trial pending in Bosnia.
21 Could the Office of the Prosecutor please provide the Trial
22 Chamber with her view on the relationship of this case, of this ongoing
23 trial in Bosnia? Do you have any further information on the underlying
24 factual basis? And in addition, what is your point of view, what is the
25 impact on the question of provisional release given the case the trial
1 goes on? From the point of view of the Prosecutor, can the question of
2 non bis in idem arise? And additionally, what would be the situation if
3 this imprisonment would be upheld and Mr. Alagic would have to serve
4 imprisonment in Bosnia-Herzegovina? Thank you.
5 MR. WITHOPF: To answer the questions, first, we don't have any
6 other concrete information on the local -- with regard to the local
7 proceedings. However, it's obviously a case alleging that Mr. Alagic
8 abused his power in an official position. Therefore, the Prosecution
9 thinks that the question of non bis in idem will not arise.
10 And with regard to the third question, the Prosecution is of the
11 opinion that the international proceedings supersede over the national
13 JUDGE SCHOMBURG: Thank you. I take it as given there is no
14 more -- any other --
15 MS. BODSON: [Interpretation] No, Mr. President. No further
16 remarks. Thank you.
17 JUDGE SCHOMBURG: We turn once again to the Defence counsel. Yes,
19 MS. RESIDOVIC: [Interpretation] Thank you, Your Honours. I shall
20 be very brief and respond to the points made by the Prosecutor.
21 First of all, the Prosecutor reproached the government of
22 Bosnia-Herzegovina to the effect that the statements of officials were not
23 in conformity with Rule 58, and I wish to draw attention to the fact that
24 Rule 58 has to do with the obligations of the cooperation of states
25 according to Article 29 of the Statute, whereby states are obliged to
1 cooperate with the International Tribunal. The Prosecutor and all of us
2 know that the Tribunal consists of Trial Chambers, the Prosecution and the
3 Defence. Therefore, statements by officials of Bosnia-Herzegovina are
4 precisely in line with the behaviour required by Article 29 of the
5 Statute, so that I think this observation cannot be accepted.
6 I repeat that the position of the Prosecution, in spite of all the
7 arguments given by us that the clients apparently voluntarily surrendered
8 after they were arrested, is not in accordance with the facts, because
9 they gave their first statements on the 2nd, prior to the arrest, and two
10 of us three counsels came voluntarily to representatives of the
11 International Tribunal, to whom our client surrendered without any
13 Thank you, Your Honour, for drawing the attention of the
14 Prosecution not to introduce into these proceedings elements and facts
15 that are not relevant to this case.
16 Another point I wish to make is the attempt by the Prosecution to
17 call in question the full cooperation of my client with the Tribunal and
18 the Prosecution. I think that it is not in accordance with the Rules and
19 the Statute of this Tribunal, because my client -- and there is ample
20 evidence about that, and his statements have been provided as supporting
21 material with the indictment, are relevant to this case, and I think that
22 the Trial Chamber cannot accept any interpretation at the expense of the
23 accused if the accused is resorting to his rights under Article 21.
24 Therefore, this cannot be adversely interpreted or taken as prejudicial to
25 the client. The guarantees proposed by the Prosecution, I think, are
1 already contained in the guarantees given by the government, and there's
2 no dispute that my client will accept those terms.
3 As for the seriousness of the charges, I would like to draw the
4 attention of the Court to the European Court of Rights in the case ^ Jacob
5 against Bulgaria, that the Court ruled that the seriousness of charges
6 cannot justify extended pre-trial detention. So even if they were such
7 charges per se, they could not be an argument that the Prosecution can
8 rely on.
9 Finally, in connection with the possibility of influencing
10 witnesses and victims, I should like to draw your attention to the ruling
11 regarding the motion for provisional release in the Brdjanin/Talic case
12 last year, whereby the Tribunal developed its own jurisdiction and
13 explicitly stated that the fact that the accused may be released to the
14 area where the crimes were allegedly committed in itself does not show
15 that he will bring pressure to bear on victims and witnesses and be a
16 threat to them. Furthermore, the very possibility that provisional
17 release may jeopardise the readiness of witnesses to testify does not
18 represent a threat according to the provisions of Rule 65.
19 Those are my additional arguments. I would just like to add, Your
20 Honours, that we have prepared a statement, which my client is ready to
21 sign and hand over to you today, in which he says that he is ready to
22 carry out all the conditions ordered by the Court and is also ready to
23 accept measures that this Trial Chamber might pass regarding restriction
24 of movement. So would you allow my client to sign this statement so we
25 can attach it to the other documents already filed? Thank you.
1 MR. JONES: Your Honour, I'm speaking on behalf of General Alagic.
2 THE INTERPRETER: Microphone, counsel.
3 MR. JONES: May it please Your Honour. I'm speaking on behalf of
4 General Alagic. I'll just make a few brief points, but of necessity, the
5 points I'll make will be a bit longer than I had planned, given that there
6 were a number of issues which we heard from the Prosecution which have
7 never been raised before. So this is the first time that we've had an
8 opportunity to respond.
9 The first point concerning voluntary surrender, I note that the
10 Prosecution didn't, in fact, answer the question which you posed, which
11 was, in essence, what more could the accused have done, given the
12 circumstances that they were arrested and they were willing to surrender
13 at the Tribunal. In effect, the Prosecution's letter to the Bosnian
14 authorities left no scope whatsoever for a voluntary surrender, and
15 therefore it's a bit rich for the Prosecution to say that the accused
16 didn't voluntarily surrender and therefore that's the reason for refusing
17 provisional release, when their very own actions deprive the accused of
18 that possibility.
19 But what's also interesting is that the Prosecution raised the
20 point that the Federation of Bosnia and Herzegovina started to implement
21 extradition proceedings, and it seemed that the suggestion was that this
22 casts a doubt on whether the authorities of the Federation of Bosnia and
23 Herzegovina would be able to effectively arrest the accused and transfer
24 them to The Hague. But in fact, what's interesting about that assertion
25 is that, in effect, that recognises that the accused waiving any
1 procedures which they could have raised in Bosnia to object to extradition
2 in fact did facilitate their delivery here. They were delivered here,
3 they were delivered here speedily, and the Prosecution in effect concedes
4 with that statement that it was made easier by the accused. So even they,
5 even in circumstances where the accused were deprived of the right to
6 voluntary surrender, in fact, they did all they could, and the Prosecution
7 must admit that actually was effective.
8 Secondly, the Prosecution drew attention to the fact that the
9 accused, or General Alagic, is now no longer being cooperative. But in
10 fact, the Prosecution is wishing to interview Mr. Alagic at this stage,
11 after he's been indicted, for the purpose of this investigation in this
12 trial, in essence, wishing to interview him, I imagine, in order to obtain
13 incriminating statements from him. In no system in the world would it
14 be - at least, not in my system - would one imagine the Prosecution
15 continuing to obtain evidence from the accused after he had already been
16 indicted. So I submit that in the circumstances, it's really unreasonable
17 to hold against General Alagic the fact that he's no longer cooperating,
18 i.e., no longer admitting to be interviewed by the Prosecution.
19 JUDGE SCHOMBURG: May I ask you, Counsel: Of course you're right,
20 but isn't it true, having the right to remain silent in mind, that there
21 can also be a cooperation or cooperative attitude of an accused in a
22 certain case? And what is the expression or the position of your client
23 in this concrete case?
24 MR. JONES: Your Honour, if the Prosecution were wishing to
25 interview General Alagic in relation to other cases, that would be one
1 matter. There's been no indication of that. That obviously would be one
2 situation in which General Alagic might be in a position to aid the
3 Prosecution without jeopardising his own privilege against
4 self-incrimination. Secondly, there's the possibility of immunised
5 testimony. If the Prosecution had offered to allow General Alagic to be
6 interviewed by their office, but subject to the condition that nothing
7 that he could -- nothing that he said would be used against him in this
8 trial, then again that would provide scope for General Alagic continuing
9 to cooperate with the Prosecution. Neither of those possibilities have
10 been mooted by the Prosecutor. If they are, then we can take it from
12 JUDGE SCHOMBURG: Probably you are aware that the underlying
13 reason for my questions is, of course, that the Trial Chamber has to find
14 out: Are there any reasons distinguishing this case from the case of
15 Madam Plavsic? And as you know, in both cases, there was a point made:
16 voluntary surrender, and, in addition, cooperation with the Office of the
17 Prosecutor in the future. I never would ask your client if he doesn't
18 want to cooperate, but I want to have your attitude, your approach to this
19 question in this present moment of time.
20 MR. JONES: One matter in relation to that which I wish to
21 address, Your Honour, is the fact that there is a danger here that if
22 cooperation of the accused is to become a sine qua non of the Prosecution
23 not objecting to their provisional release, then there's very dangerous
24 scope there for pressure to be applied to an accused to make him give
25 statements which he perhaps is not inclined to do. There is that danger,
1 which is a matter I was going to come to later.
2 But the effect on witnesses in Central Bosnia has been mentioned
3 of the provisional release. Well, that's exactly the same situation that
4 General Sefer Halilovic is in, and in that case the Prosecution is not
5 objecting, as far as I understand it, to his provisional release, and as
6 we know, Sefer Halilovic is cooperating with the Tribunal, with the
7 Prosecution. Now, as I said, that creates dangerous scope for the
8 Prosecution, in effect, saying, "Cooperate with us or we'll ensure that
9 you remain in custody for a long time before your trial starts." And I
10 think the Chamber should be very astute to ensure that that sort of
11 pressure isn't applied.
12 If I can move on to the mention of the Mujahedin. The Prosecution
13 began to suggest that since there are cases that the accused controlled
14 the Mujahedin, that in effect there are hoards of Mujahedin out there who
15 are willing to go and intimidate witnesses or interfere with evidence.
16 Now, first of all, I would say General Alagic is presumed innocent
17 at this point. It's not to presume that the charges which the Prosecution
18 have laid in the indictment are irrefutably true. And in any event, the
19 Prosecution's case is not that General Alagic ordered the Mujahedin to do
20 anything. It's that he failed to prevent them from doing anything. So in
21 any event, even that suggestion contradicts the Prosecution's own case in
22 the indictment.
23 Finally, Your Honour, I think that would be my replies to what the
24 Prosecution said. I did want to just put into context all of what you've
25 heard today. Obviously, the Chamber has heard a great deal of discussion
1 on this matter, and I won't go through all the various factors again. But
2 Your Honour referred earlier to the question of proportionality. I would
3 submit that it is disproportionate to keep the accused in custody in
4 circumstances where there are much less Draconian methods to ensure that
5 the accused do appear for trial. A curfew is a possibility, an order that
6 the accused be at his residence after a certain hour, at which point the
7 authorities can check that he's there, and by various means, or house
8 arrest. As indeed the Prosecution recognised towards the end of their
9 speech, there are other methods available.
10 Finally, I would just like to put in context the test, in essence,
11 which you have to apply. It's long been said at this Tribunal that the
12 Tribunal is at a disadvantage and that it doesn't have its own police
13 force and therefore it has to rely on national authorities. And
14 generally, where one has been dealing with Republika Srpska and initially
15 Croatia, it is true that there were not willing authorities on the ground
16 willing to execute warrants. In this case, I think it's abundantly clear
17 that the Bosnian authorities are fully willing to cooperate. So in
18 effect, one has an effective police force on the ground.
19 In effect, that means that the rationale for treating detention as
20 the rule and provisional release as exceptional disappears, and at that
21 moment I would submit it's simply a question of considering the arguments
22 of both parties and not considering that there's a substantial burden on
23 the Defence which is very onerous for the Defence to discharge. It's
24 simply a question of whether you are satisfied that the accused will
25 appear for trial. And I would submit that even the Prosecution -- can
1 they, hand on heart, say with all these conditions imposed, they genuinely
2 fear that the accused will not appear for trial or will interfere with
3 witnesses? I submit that they can't and that you can be satisfied, with
4 the curfew or the house arrest, that the accused certainly will reappear.
5 We also have an additional undertaking which General Alagic has
6 signed with respect to his willingness to abide by any restrictions on his
7 movement and not to interfere with any documents.
8 And unless I can assist you any further, those would be my
10 JUDGE SCHOMBURG: We would appreciate to have this in writing
11 too. It facilitates our deliberations. One question only remaining, just
12 to be quite clear on this issue. It was submitted by the Office of the
13 Prosecutor, quoting an affidavit, that the return from Croatia was not a
14 voluntary one. Could you please address this question once more? Thank
16 MR. JONES: It's a question for Mr. Kubura, I believe. Yes.
17 JUDGE SCHOMBURG: I believe Mr. Kubura's Defence counsel will
18 start now.
19 MR. DIXON: Yes, Your Honours. On behalf of Mr. Kubura, that was
20 the first matter that I wished to deal with, which is whether or not he
21 knew about the indictment when he was in Croatia. In his affidavit, he
22 makes quite clear that when he was contacted while on an annual leave in
23 Croatia, that he was told about the indictment. He didn't have a copy of
24 the indictment at that stage, but he knew of the indictment issued by the
25 Tribunal in general terms, and that is why he returned from Croatia to
1 Sarajevo, in order to sort this matter out. He didn't bring his family
2 back, because he didn't want his family to be there while this matter was
3 to be dealt with, and he was going to make arrangements for his family to
4 return later.
5 The reason why, in the affidavit of Mr. Lusija, that it
6 states - and I'm looking at the affidavit now, which is in enclosure 1 of
7 our reply - that Mr. Kubura said that "You should have told me this
8 straight away" is that he's referring to the order of the Supreme Court.
9 He's referring to the order of the Supreme Court. He didn't know that the
10 Supreme Court had issued an order for his extradition. This came as a
11 surprise to him. And that's why in the affidavit you get the comment
12 later on that he felt somewhat aggrieved by the situation, because he had
13 said all along, "If there's ever an indictment, I would go to The Hague.
14 There's no problem. I will surrender myself. So why did you therefore
15 have to take this procedure of going through the national courts and
16 getting an extradition order for my detention?" And that's the reason why
17 he said, "Well, you should have told me about this straight away, because
18 if I knew that, if I knew I was going to be arrested right now, as you're
19 telling me, well, then I would have brought my family back." He was under
20 the impression that there would be some time after the indictment was
21 issued for him to make arrangements, to sort out matters with the Bosnian
22 government, with his family, and then to be transferred to The Hague, and
23 that is, we would submit, indicative of his state of mind at the time,
24 that he did wish to surrender voluntarily. He did not think that there
25 would be any need for an arrest of this kind.
1 Your Honour, just a few further matters. The first, in relation
2 to his arrest, we would submit that the Prosecution's arguments that it
3 wasn't voluntary because he was already detained under this extradition
4 order before he decided to hand himself over is really a matter of
5 splitting hairs. It's very artificial. Mr. Kubura came back from Croatia
6 because of the indictment, and he intended to surrender and he was
7 arrested because he wanted to be transferred to The Hague. That was the
8 whole purpose of this exercise. There's no other reason why he would have
9 surrendered if it wasn't because of the indictment in The Hague. So that
10 argument, we submit, has got no merit.
11 I also wish to underline that it is significant that the
12 Prosecutor has accepted that the government's guarantees are sufficient
13 and that they are sufficient in practice as well. I think - and I might
14 be wrong here - that this is probably the first case ever where the
15 Prosecution has accepted guarantees from a government with regard to the
16 release of an accused. I think that is very significant to bear in mind
17 for this case.
18 In addition, a number of smaller matters. The Prosecution has
19 raised that it might make the case look weaker or sour relations between
20 Croats and Muslims if these accused were released. We submit that those
21 are considerations that form no part of such an application. In fact, in
22 many jurisdictions, if the case is weak, that is a reason why the
23 defendants should be released, because of the strength, or lack thereof,
24 of evidence against the accused.
25 Secondly, in respect of willingness to testify, that has been held
1 already to not be a consideration either, that witnesses might now not be
2 willing. It's a matter that can't be accurately determined anyway. It's
3 a general statement.
4 Thirdly, the trial date that was mentioned of April 2002, that's
5 incorrect. There's no trial date been fixed in this matter yet. The
6 matter is open. The parties are endeavouring, as is Mr. Kubura, to ensure
7 that the trial starts as soon as possible. And the aim is to try and
8 start it next year, but there's no fixed date yet. So if provisionally
9 released, there would be, we say, a substantial time that they would be
10 out of custody before the trial commences.
11 Then on the point made by the Prosecutor that Mr. Kubura didn't
12 cooperate fully when he came to the Tribunal for the Blaskic case, if the
13 you consider that testimony, you will note that he answered many questions
14 in respect of the matters in hand in that case, and others, about what was
15 occurring. He was full and frank there, and fully cooperated both in
16 travelling to The Hague and also answering questions and returning.
17 And then finally, there was a question raised about his salary,
18 whether he's still receiving a salary from the Bosnian government. If
19 Your Honours look at our reply, it's quite clear that he's no longer
20 receiving any income from the Bosnian government. As a result of the
21 indictment, he no longer holds an official position in the Bosnian army,
22 and that is the reason why there are financial difficulties being
23 experienced now with his family, and it's because of those hardships that
24 he has indicated if he was able to return, he could obtain employment and
25 once again become the breadwinner of his family.
1 Your Honours, those are my submissions. My final point would be
2 that in the circumstances of Mr. Kubura returning from Croatia back to
3 Bosnia as a result of this indictment, that it is a very unique situation
4 for him to have done that, and it certainly provided opportunities at the
5 time for him to abscond if he ever had that idea, but he came back. It's
6 very unique. Once again, I cannot think of a situation where that has
7 occurred in exactly the same way before.
8 Those are our submissions, Your Honour.
9 JUDGE SCHOMBURG: Thank you. In addition, I would invite the
10 Office of the Prosecutor, in a way of rebuttal, to address the question
11 raised by the Trial Chamber. What is, from your point of view, the
12 distinguishing factor, the distinguishing facts justifying a different
13 treatment in the case of Madam Plavsic and the case we have to decide on
15 MR. WITHOPF: Your Honour, before I'm going to answer this
16 particular question, I want to make a few additional observations.
17 The Prosecution strongly opposes to introduce the case against
18 Halilovic in these proceedings. The case against Halilovic, the accused
19 Halilovic, is a very different one, not only with regard to cooperation
20 but also with regard to other issues that are of relevance for the issue
21 of granting provisional release.
22 Secondly, the explanation that was given by Mr. Kubura's Defence
23 with regard to the affidavit, it's not necessarily convincing. For me,
24 it's still surprising that Mr. Kubura did not take his family with him
25 home to Sarajevo --
1 JUDGE SCHOMBURG: I believe you have made this point.
2 MR. WITHOPF: I will come to the distinguishing factors. I mean,
3 there are a few distinguishing factors. One of them, of course, is the
4 age of the accused in the other case and in this case. And there's also a
5 distinguishing factor insofar as Mrs. Plavsic has cooperated with the
6 Tribunal. That's very different from the situation to our accused.
7 But therefore, before I come to an end, I want to request an
8 additional guarantee. The Prosecution requests that if provisional
9 release will be granted, that there will be no contact of the accused with
10 each other. Thank you very much.
11 JUDGE SCHOMBURG: Thank you. In order to have a fair trial, you
12 should have the possibility to address. Please, one sentence only.
13 MR. DIXON: Yes. Your Honour, I apologise. This was a matter
14 that I left out in my initial submission, that is, that there is also a
15 declaration by Mr. Kubura, to be signed by him, indicating, as was
16 specifically raised by Your Honours, that he will not try to gain access
17 to any documents if provisionally released and that he will comply with
18 any measure regarding restrictions in his movement within a town or area
19 as has been proposed.
20 JUDGE SCHOMBURG: Thank you. Any other comments from the side of
21 Defence? I don't see any.
22 Then we invite the accused, if they want to give a statement. And
23 this is, of course, a statement of the accused applying Rule 84 bis
24 correspondingly. That will say it's not a kind of witness statement but
25 the right of the accused to address the Trial Chamber directly.
1 Mr. Kubura, do you want to address the Court?
2 THE ACCUSED KUBURA: [Interpretation] Yes.
3 JUDGE SCHOMBURG: Then please rise and come to -- could you please
4 come here and take the place where normally is the place of the witness.
5 Thank you.
6 THE ACCUSED KUBURA: [Interpretation] Your Honours, I should like
7 to put forward certain elements with respect to my request for provisional
8 release. What I have to say is the following: First of all, in viewing
9 the entire area of the former Yugoslavia, starting with the Republic of
10 Croatia via the Federation of Bosnia-Herzegovina and Republika Srpska, the
11 Republic of Serbia, the Federal Republic of Yugoslavia, we can quite
12 certainly say and we agree that the government of Bosnia-Herzegovina has
13 had exemplary cooperation with the Tribunal so far, and an indication of
14 this and proof of this is that there is not a single person or not the
15 territory of Bosnia-Herzegovina against whom an indictment has been raised
16 by this Tribunal without that individual giving himself up voluntarily to
17 the Tribunal or being held in custody, which is not the case with the
18 other areas and territories of the former Yugoslavia.
19 The representatives of the government in this case and on this
20 occasion, Deputy Minister for the Interior and Deputy Justice Minister,
21 amongst other things, in the presentation they made a moment ago stressed
22 these elements and facts.
23 Furthermore, they also emphasised that we gave ourselves up
24 voluntarily to The Hague Tribunal. And I will speak in my own personal
25 name. On that occasion, they, as the regular representatives of the
1 government, stressed through their briefing that we surrendered
2 voluntarily. In addition to saying that the government of the Federation
3 of Bosnia and Herzegovina has had excellent cooperation with the Tribunal
4 thus far and in addition to the report they tendered a moment ago, I see
5 no reason for not believing those two individuals and their government,
6 the government they represent. Otherwise, this would be undermining the
7 government if we compare it to other governments that have not hitherto
8 fulfilled their obligations towards this court and Tribunal.
9 In concrete terms, when it comes to my own particular case and me
10 personally, on the 2nd of August this year, I was at the seaside with my
11 wife and three children. In the morning, at 10.05, I was called by my
12 commander and asked to come to the headquarters to report to him there.
13 Let me emphasise that I was holidaying by the sea in Croatia, which is
14 another state. I had a passport, as did my wife and my children.
15 On the basis of a telephone conversation which lasted 10 to 15
16 minutes, I was able to assess and size up the situation. But in view of
17 the communication lines, I was not able to talk about that concrete case.
18 So that is -- it was my personal assessment and appraisal of the
20 I decided to return immediately and to go back to Sarajevo, and I
21 told my wife that she should stay where she was with the children and that
22 I would let her know in due course and tell her whether I would come and
23 fetch her or whether I would send somebody to fetch her.
24 I reached Sarajevo at about 1620 hours. I had a change of
25 clothing and went to my headquarters to report to my commander. I told
1 him that I wished to be allowed to go to Den Haag to defend myself and
2 prove my innocence. I called my relative up and told him to go and fetch
3 my family by car, and that's what he did that afternoon and in the course
4 of the night, and he accomplished that by the morning.
5 I went to my apartment, took the basic essentials, and went to the
6 Ministry of the Interior, which means that I never had any contact with
7 the police nor was I detained or taken into custody, nor did I have
8 handcuffs on me or anything of the kind.
9 I think that it was between 1900 and 2000 hours when I entered the
10 Ministry of the Interior and remained there until the following morning.
11 On the following morning, I signed a statement in the Ministry of Justice,
12 stating that I wished to be provided transport to The Hague. So that was
13 then the 3rd of August.
14 On that morning, my wife and children were also brought to the
15 Justice Ministry, and I spent half an hour with them in a room in the
16 Ministry. I said goodbye to them and started out for The Hague.
17 Let me mention that in the meantime, while I have been here, my
18 family was moved out of the apartment that we were living in. My family
19 is now in another apartment. And actually, I don't know where they are
20 living because I never went to that apartment. I know the street they
21 live in and the number of the house and that they are in Sarajevo. My
22 wife is unemployed.
23 Now with respect to my testimony in the Blaskic trial. I was
24 invited by the Prosecution -- I was not invited either by the Prosecution
25 or the Defence. I was invited by the Trial Chamber, and at that time -
1 and it was 1999 - I could have agreed to come to testify or not agreed at
2 the invitation of the Trial Chamber. The fact that I acquiesced proves
3 that I cooperated with the Tribunal at that time. I agreed to come, and I
4 came and testified. Now, this act on my part demonstrated my willingness
5 to cooperate with the Tribunal.
6 Let me also mention that so far, I have never been convicted of
7 any criminal offence nor have any proceedings been brought against me.
8 Your Honours, I have been informed in detail with Article 65 of
9 the rules and regulations, so that if I am provisionally released, I
10 hereby state that I will abide by the provisions of Rule 65 in its
11 entirety and that I will adhere to any decision you see fit to make, as
12 well as the guarantees that have been provided by the government of the
13 Federation of Bosnia-Herzegovina.
14 That is what I wanted to say, Your Honours. If you have any
15 questions, I shall be willing to answer them.
16 JUDGE SCHOMBURG: Thank you. Please be seated at your place once
18 We now turn to Mr. Hadzihasanovic. Would you please come.
19 THE ACCUSED HADZIHASANOVIC: [Interpretation] Your Honours, thank
20 you for giving me this opportunity to say a few words, and I will not take
22 I should like to begin by saying that I cannot avoid being
23 disappointed and hurt why I wasn't given an honourable legal summons to
24 come to the Tribunal, even if it were in the form of an indictment. I was
25 one of the few people who, with the Prosecution, at the end of 1996 and
1 1997, cooperated not only from -- not only regarding the 3rd Corps zone of
2 responsibility but whole of Bosnia-Herzegovina. Should such a need arise
3 again in the future, I will be ready to cooperate. I will make no further
4 comments about that. I consider myself to be here on an absolutely
5 voluntary basis.
6 Secondly, I wish to defend my honour and my freedom, and I wish to
7 struggle for my family. I have a wife who is unemployed and two children
8 who are students. Both are on the first year of the university. My
9 daughter is studying law; my son, economics. They need me at this stage
10 of their studies. I would like them to be good students. And I wish to
11 solemnly declare here that I will appear in court at each hearing.
12 Secondly, I declare that I will not represent a threat, nor will I
13 bear any kind of influence on victims and witnesses. I also declare that
14 I will implement all other additional orders made by this Trial Chamber
15 and respect all the guarantees given here by the government of the
16 Federation of Bosnia-Herzegovina. Thank you.
17 JUDGE SCHOMBURG: Thank you very much. Please be seated. We now
18 turn to Mr. Alagic, please.
19 THE ACCUSED ALAGIC: [Interpretation] Your Honours, I would like to
20 thank you for giving me the opportunity of saying a few words here before
21 you. I should also like to take advantage of this opportunity to greet
22 the representatives of the Prosecution and also the representatives of the
23 government from the country from which I come, from the Federation of
25 Having listened to the reasons put forward and the problems that
1 might arise if I were to be provisionally released, I do not think they
2 can be upheld. My name is Alagic, my father's name is Redzo, and my first
3 name is Mehmed. I have always cooperated with the representatives of the
4 investigators of the Tribunal and the Prosecution, not only by giving
5 certain statement but also by assessing in the field towards the detection
6 and discovery of certain things in certain regions, and mass graves.
7 As somebody who has gone through the war, I have had the
8 opportunity -- and I could have had the opportunity of perhaps leaving my
9 own country. Mr. President, President of this Trial Chamber, the only
10 country I know is the State of Bosnia-Herzegovina. That is my country.
11 It is now a Federation, and my place of residence is there in the
12 municipality of Sanski Most. The address is Kljucka, number 42. I am
13 somebody who has been demobilised, but I have not been pensioned off
14 immediately after the war, which means that I do not have the possibility,
15 nor would I access documents of any kind. That can only be done with
16 people who have specific authority and permission to do so.
17 At the time in the past, the time for which the members of the
18 Prosecution have accused me of having committed certain crimes during that
19 period of time, I think that this Trial Chamber and this Tribunal will
20 be -- bring in the correct decision with respect to those crimes and
21 whether I committed them or not. Despite the difficult times, I am
22 somebody who by my conduct and behaviour always endeavoured within the
23 frameworks of my competencies in terms of reference to solve the questions
24 and problems which five or six years after the war have become a
25 cornerstone and stumbling-block. I always value sincerity.
1 People who have made statements are also my good friends. They
2 are my colleagues, my fellow soldiers, who were -- who had undertaken
3 various missions in those regions. So I was not somebody who could have
4 committed anything of that kind.
5 The case which is being tried before this Tribunal and the case
6 that I have -- that legal proceedings have been undertaken against me is
7 that I overstepped my authorisation with respect to the budget and the
8 resources within the budget, and part of the testimony so far has showed
9 that the damages amount to 1.250 German marks. And the Court, in the
10 first instance, did not recognise the decisions about the rebalance of the
11 budget during that period.
12 I do not want to discuss the decisions. I think that they are
13 still the subject of similar proceedings, whether the rebalance of the
14 budget will be adopted or not, and the Ministers can bear this out. I
15 considered, at the time, that by adopting a decision to rebalance the
16 budget, that the decision had been made on the use of those funds and
18 As to some additional questions with regard to expert reports, the
19 cantonal court, which is a court of the first instance, did not accept all
20 these reasons, and I lodged an appeal to the Supreme Court of the
21 Federation with respect to the Court's ruling. Neither at that time nor
22 otherwise - although some people might have arrived at the wrong
23 conclusion - not even then was any pressure exerted on potential witnesses
24 at that time. I am by nature a man who would never even envisage exerting
25 pressure on anybody. The truth must be shown to be the truth by the
2 Now, whether there was voluntary surrender or, as the Prosecution
3 stated, that it was an arrest without coercion, the gentlemen from the
4 government were also able to call me up on the phone. They could have
5 called me to come to Sarajevo from Sanski Most without sending a car or a
6 driver or anybody else to fetch me. I would have come of my own free
7 will. Your Honours of the Trial Chamber, I should like to have come as a
8 citizen of the State of Bosnia-Herzegovina by plane. I should like to
9 have come directly to The Hague and not to have been transferred from one
10 base in Bosnia-Herzegovina by a military transport plane to The Hague
12 I can also state that I have nothing to fear, nor any restraints,
13 because it is truly an honour and privilege to stand here before this
14 Tribunal and Trial Chamber and to have the truth presented here and
15 proved, the truth and only the truth.
16 In one of the cases that was tried by this Tribunal in The Hague,
17 I was invited to come to The Hague, and I came. I spent several days in
18 The Hague, and I think that I made a statement on that occasion. But the
19 questions that were asked me on that occasion were not quite clear to me
20 so that I was not able to give any relevant information in that regard.
21 I stand at your disposal. I am willing to accept every decision
22 and ruling that you might make, all the measures that you might prescribe,
23 and regardless of everything else, I am ready and willing to come here to
24 The Hague, to the Tribunal, to this Court. May I just say that the only
25 thing that could prevent me would be my death, because I am a living
1 being, a human being, and that too can happen.
2 JUDGE SCHOMBURG: Thank you.
3 THE ACCUSED ALAGIC: [Interpretation] If you have any questions, I
4 shall be happy to reply.
5 [Trial Chamber confers]
6 JUDGE SCHOMBURG: As you may have seen, we discussed the further
7 proceedings, and we decided that the case is not ripe for a decision
8 today. We have to discuss some issues in depth, and therefore we will
9 finalise this day. Let's call it a day now and start again tomorrow, 3.00
10 in the afternoon. Are there any obstacles from the parties as regards
11 this point in time?
12 MR. WITHOPF: Not from the side of the Prosecution.
13 JUDGE SCHOMBURG: I can't see any objections, so we meet again
14 tomorrow, 3.00.
15 --- Whereupon the Motion Hearing adjourned at
16 6.17 p.m., to be reconvened on Thursday, the 13th
17 day of December, 2001, at 3.00 p.m.