1 Thursday, 9th December, 1999
2 [Closed session]
3 [The accused entered court]
4 [The witness entered court]
5 --- Upon commencing at 9.33 a.m.
13 pages 11520 to 11640 redacted – in closed session
13 page 11641 redacted – in closed session
14 [Open session]
15 MR. NICE: In fact, both motions were filed
16 confidentially, I note, from the stamps on the top of
17 them. I don't know what the form is normally for this
18 kind of application. We're neutral.
19 JUDGE MAY: I don't think it's in any way
20 confidential unless there is some particular reason why
21 it should be, but could I just say this to the parties
22 before we embark on this exercise, that the Trial
23 Chamber has got these arguments which seem to us to be
24 exhaustive, and, therefore, deal, if you would, with
25 matters which are new and not go over the same ground
1 again, if you please.
2 Yes, Mr. Stein.
3 MR. STEIN: Thank you very much, sir. I
4 believe our application was actually forecast by
5 Justice McDonald's address to the U.N. Security
6 Council, announcing her views, at least, about the
7 provisional release Rule which applies to these
8 hearings, and then of course as soon as the Rule was
9 changed we made our application.
10 The authority behind the Rule is set out in
11 the Kordic Defence application filed in February,
12 February 8, 1999. I won't, except by reference, point
13 you to there, because the only thing I want to say
14 which is not said in my papers is that their current
15 provisional release Rule brings in to line this court
16 with the international covenant on civil and political
17 rights, Section 9, Article 9, and the European
18 Convention, Article 5 and 6.
19 In that regard, I only want to say something
20 theoretical and something practical. We talk at great
21 length about the presumption of innocence, which have
22 course Your Honours have thought about, but in this
23 real world, we have already been three-quarters, if not
24 80 per cent through the Prosecution's evidence, and of
25 course, there is lots of evidence out there which my
1 colleagues would say points not only to our client's
2 guilt but eviscerates the presumption. To that I say,
3 you have only heard part of the evidence. As you know,
4 the Defence case has yet to be put on, and frankly, and
5 I do not want to turn this into a closing argument, the
6 evidence in this subtle and circumstantial case is
7 still just that. We're down to cousin, commissar, and
8 comment thereon. And the Prosecution has had too well
9 a dig and that's all I'll say on the state of the
11 My colleague's objection really goes to who
12 has the burden. It's a lawyer's argument. Who has --
13 now that the Rule has been changed, is it the Defence
14 burden or the Prosecution burden to show we come within
15 the ambit of the Rule? I suggest, given the fact that
16 the presumption of innocence exists under Article 21,
17 it does remain with the Prosecution to prove that
18 detention is necessary for the presumption of innocence
19 attends throughout this process and until Your Honours,
20 in the unlikely event, and we'll try to persuade you
21 not to find our client guilty.
22 The Prosecution's argument, if read to its
23 logical extreme, would mean that there will be no
24 provisional release under any circumstances before this
25 Court. I don't believe that's what the rule meant. Of
1 course, I'm standing here arguing to the Chair of the
2 Rules Committee as to what a Rule they've been involved
3 with means. I always find that most ironic. But on
4 the face of it, it seems to us that the Court now has
5 within its power the ability to release an accused,
6 particularly one who has surrendered himself, who has
7 been of good behaviour all his life, who if he should
8 for some reason decide not to come back to these
9 proceedings whose trial will proceed without him.
10 These are all conditions laid out by the new
11 Rule. It presumes a strict and rigorous application to
12 the individual cases before the Tribunal and this
13 Chamber, and under any just reading, my client comes
14 within that. The father of three; prominent member of
15 a society in utter turmoil; no criminal conduct;
16 perfect guest, if you will, at the detention centre, as
17 he should be. He's a politician. He's a lovely guy.
18 Moreover, we suggest in the pleading and I'll
19 rely on it, various means at the Court's disposal to
20 ensure that Mr. Kordic will return. Sureties, contacts
21 with the Zagreb police, et cetera. My colleagues on
22 the other side would have you theoretically believe
23 that he will do all manner of evil things. He will
24 intimidate witness, et cetera, to which we say,
25 "nonsense." He hasn't done it yet; he won't do it
1 now. And if that happens, it will be reported and
2 there can be an additional issue raised by the
4 So I don't want to get into a contest, as
5 does the Prosecutor, on burdens and who has the
6 burdens. I suggest that there has been a sea, s-e-a,
7 change in the Rule. It's a good change. It's one in
8 which I will concede the world is looking at and
9 watching, because the process of this Tribunal, of
10 course, is comment for the world, and the manner in
11 which individuals appear initially and are dealt with,
12 whether they are confined or not, has been the subject
13 of much debate.
14 This is an opportunity to implement the Rule,
15 to allow Mr. Kordic who now lives in Croatia to remain
16 there and come back when is necessary. He is not
17 living in Bosnia; he will not return to Bosnia, which
18 is, again, set out in our papers and contemplated by
19 the Rule.
20 That's all I have to say. Thank you very
22 JUDGE ROBINSON: Mr. Stein, we would, of
23 course, have to take into account that the application
24 is made during the course of the trial. We did grant
25 bail to the accused Cerkez for a very limited period,
1 but the period that would be involved here would be
2 much more prolonged. I think you will have to consider
3 whether it would not be unusual to grant bail to a
4 person charged with these kinds of offences during the
5 course of trial.
6 MR. STEIN: Your Honour, I would concede the
7 unusual nature, but the unusual nature is because of
8 the Rule change.
9 I would also suggest to the Court that while
10 we propose that Mr. Kordic be at his liberty throughout
11 the entirety of the trial, one of the options I
12 suggest, albeit obliquely, is that he, during the time
13 that the Court is not in session, be released, but when
14 the Court is in session, he be in The Hague, either at
15 his liberty or alternatively to return to the detention
16 centre. Then, of course, if the Court is out during
17 the course of the summer without a judgement, he would
18 again remain at his liberty. That's an alternative.
19 But to address directly Your Honour's
20 observation that this is unusual, of course it is; this
21 is a unique and unusual opportunity for us all, and we
22 have a Rule change, and we're taking full advantage of
23 that change. Now, it is of course --
24 JUDGE ROBINSON: The Rule change would not
25 facilitate the granting of bail, of provisional release
1 to an accused during trial for the kind of period that
2 is being sought here. Nothing in the Rule change would
3 facilitate that, in my view, and I think one has to be
4 clear about the purpose of the change in the Rule. I
5 am not unfamiliar with the whole subject.
6 I think you are correct that it brings the
7 provision into conformity with general international
8 law as reflected in the major international human
9 rights treaties, but it doesn't mean that release now
10 becomes the norm. The International Covenant
11 specifically says that detention shall not be the
12 general rule, and it may very well be that this is the
13 effect of the change. But detention not being the
14 general rule doesn't mean that release becomes the
16 We still have to consider an application for
17 provisional release on the basis of the facts relating
18 to the specific case, each case has to be considered on
19 its own merits, and the Chamber still has to be
20 satisfied as to the three or four elements which are
21 still remaining in Rule 65(B). We still have to be
22 satisfied as to those. You may want to consider
23 whether it may not be more difficult for us to be
24 satisfied as to those matters when the application is
25 made, firstly, during the time currency of the trial
1 and, secondly, with regard to charges of the nature
2 that we are dealing with here.
3 MR. STEIN: Your Honour, I agree a hundred
4 per cent. As to the nature of the charges and the
5 gravity, let me suggest a personal observation.
6 In my career thus far, there have been
7 clients of mine accused of murder, bank robbery,
8 substantial drug transactions, all of which would put
9 them in gaol for life, who have been released on their
10 own recognisance, come to court, and been tried.
11 Fortunately, many were acquitted, but sometimes I
13 The experience, I think, throughout the world
14 has been in countries in which individuals even charged
15 with serious, serious violations do arrive on the
16 courthouse step as proposed. It's also been the custom
17 often that individuals even convicted who are going off
18 to prison can self-report, because people understand
19 that there are consequences for their failures to do
20 so. The biggest consequence, one might imagine, from
21 Mr. Kordic's perspective is if he failed to appear
22 after being released, regardless of the presumption of
23 innocence, in the face of his non-presence, it would be
24 a very difficult trial, indeed.
25 So while I recognise that we are, indeed,
1 looking at a mountain and asking to climb up it, I'd
2 ask Your Honour to consider that.
3 Secondly, there are additional sureties that
4 the Rule contemplates, money, cash bail, cash sureties,
5 et cetera, to help in that process. There are
6 reporting requirements. This is, of course, all new
7 and not the norm thus far. I agree that we cannot
8 immediately say, based on this Rule change, that
9 non-detention is the norm, although parenthetically I'd
10 also like to say that detention shouldn't be
11 necessarily the norm either. I'd like to think there's
12 an even playing field.
13 I hope I've answered your question.
14 JUDGE ROBINSON: Yes.
15 MR. STEIN: Thank you very much.
16 MR. KOVACIC: Your Honour, if I may add a
17 couple of words, [Interpretation] and if I may speak in
18 Croatian to be sure that I do it right.
19 First of all, I should like to avoid any
20 repetition, because I agree with the arguments
21 proffered by my learned colleague, Mr. Stein, and I
22 would support all the arguments that he submitted and I
23 would associate myself to them.
24 I should just like to make two or three very
25 brief points, and they are the following:
1 Actually, it is my submission that there
2 isn't a single fact or element on the basis of which,
3 at this stage, one could infer or assume that the
4 defendant would run away or, rather, that he wouldn't
5 reappear in court if he were to be allowed to defend
6 himself at liberty. Therefore, we need to have certain
7 facts to rely on, and I believe there are no such
8 indications, and the behaviour of my client so far
9 seems to support that.
10 Let me just remind you that my client
11 surrendered voluntarily with a very clear aim in mind,
12 I beg the Chamber to bear that in mind, and that is
13 that he didn't want to spend his whole life being
14 subject to some sort of arrest warrant. He simply
15 wanted to come to court to be convicted or acquitted.
16 That surrender was sincerely voluntarily, and thanks to
17 the understanding of the Court, he was released home to
18 visit his father, and that was an occasion when he was
19 able to confirm that what I am saying is true.
20 Similarly, there is also no indication, at
21 least if the time is limited, that he might effect the
22 safety of witnesses or victims, and that is why we
23 ourselves have suggested that the client be released to
24 his own place of residence and his movement be limited,
25 and in view of the distance -- I think there's no need
1 to go into that, the borders and frontiers that have to
2 be crossed -- the area where my client lives is an area
3 where it is virtually impossible to expect that any
4 victim or witness in this case would be residing.
5 Of course, a question that arises is the
6 question of guarantees on the part of the accused as to
7 the reliability of his return. In that connection, I
8 should like to say that this is actually a technical
9 problem. If the Court believes, in principle, that the
10 accused might be released because they are satisfied,
11 generally speaking, then, of course, certain guarantees
12 are required. The Cerkez Defence is of the opinion
13 that one should not a priori address ourselves, in this
14 case, to the Croatian government, to set in motion
15 machinery to procure some kind of a letter of
16 guarantee, which might be written well or badly.
17 It is our submission that if the Court finds
18 that there are grounds for that, that the Court
19 determines what kind of guarantees are objectively
20 necessary from the state. Of course, the Court may
21 also require guarantees which the accused would have to
22 provide in person, and of course we would provide
24 So the question is just what should come
25 first. This is a technical matter which is to be
1 decided but only once the Court decides, in principle,
2 that the accused could be provisionally released.
3 Since we went through the documents rather
4 hastily, I should like to say that the Cerkez Defence
5 did not join itself to the Kordic Defence with an
6 alternative that when the Court is not having hearings,
7 the defendant should be in Croatia and that when the
8 Court is sitting, that he should be here in The Hague
9 for one simple reason of principle; that is, that more
10 or less in all the criminal proceedings in the world,
11 the accused is either in detention during hearings or
12 he is at liberty. Therefore, it is my view that that
13 kind of compromise, at liberty when the Court is not
14 sitting and in detention when it is, I, as a lawyer,
15 would not subscribe to that.
16 I think that we need to establish whether
17 there are reasons for detention, in which case he
18 should be in detention, and I think that every so often
19 the circumstances should be reviewed and another
20 decision made whether detention should be continued or
21 terminated. But for reasons of principle, I feel that
22 such an alternative is difficult to justify.
23 I would not like to take any more of your
24 time. Of course, if Your Honours have any questions, I
25 should be glad to answer them.
1 JUDGE BENNOUNA: [Interpretation] Mr. Kovacic,
2 I have a question. I'm not sure that I followed you
3 quite well. I pay tribute to your honesty and
4 sincerity in what you have just said regarding the
5 general practice in all jurisdictions in the world
6 concerning provisional release and detention.
7 If I understood you well, either it is
8 assessed that a person should be at liberty or in
9 detention but that one could not go back and forth; is
10 that what you were saying?
11 MR. KOVACIC: [Interpretation] Yes, Your
12 Honour, that is what I said, but it means that if, in
13 the course of the proceedings, it is established that
14 there are no longer any reasons for the accused to be
15 in detention -- and most jurisdictions, at least those
16 that I have studied, have regulations prescribing
17 this -- if it is established that there is no more
18 reasons for detention, then he is released, but not
19 linking that liberty to whether there are hearings or
20 not. That is my point.
21 JUDGE BENNOUNA: [Interpretation] A second
22 point -- thank you for clearing up that point.
23 How would you reconcile that with the need
24 for the accused to be present during his trial?
25 Because the accused must be present. If he is
1 provisionally released during the trial, then he would
2 no longer be present. How can you reconcile those two
3 things? How do you envisage that? How can that go
4 hand in hand with the necessity of the accused to be in
5 attendance during his trial?
6 MR. KOVACIC: [Interpretation] I think that
7 that is easily resolved when his counsel knows that the
8 hearing is beginning on such and such a date, and when
9 his counsel informs him that a hearing is due to be
10 held on such and such a date, on that date he will
11 appear in court.
12 The question then is, of course, whether
13 additional collateral requirements are needed. In our
14 Croatian law, a wide spectrum of measures are envisaged
15 ranging from the mildest measure until the detention of
16 the accused during hearings, because, in my submission,
17 detention during criminal proceedings is merely a
18 measure to ensure the presence of the accused in the
19 course of the criminal proceedings, nothing more than
20 that. I'm sure we can all agree on that.
21 So if his presence can be ensured by applying
22 milder measures, then those milder measures should be
23 applied, of course, at the same time, making sure that
24 we do not infringe upon any other protected rights, for
25 instance, in this case, in our case, one that we hold
1 in high esteem, and that is the possibility of
2 influencing or affecting the safety of witnesses and
4 Again, for practical reasons, I do not see
5 any particular problem because my client is living in a
6 place which is apropos in another state and which never
7 was a place where the people affected in this case and
8 who were, unfortunately, victims and who are mostly
9 witnesses don't come there. There is statistically
10 very little chance of him seeing any of them there.
11 JUDGE BENNOUNA: [Interpretation] Thank you,
12 Mr. Kovacic. I also have a question to Mr. Stein.
13 Again, to elucidate matters and certain
14 aspects of this provisional liberty within the
15 framework of the amended Rule, you presented as an
16 argument the presumption of innocence.
17 MR. STEIN: Yes, sir.
18 JUDGE BENNOUNA: [Interpretation] The
19 presumption of innocence. I don't see quite well what
20 is the connection between the presumption of innocence
21 and the question we are discussing. Does that mean
22 that somebody who is in detention is no longer presumed
23 innocent? In my opinion, even if he is in detention,
24 he is always presumed innocent, and even if he is
25 provisionally released, he is still presumed innocent.
1 So I don't see where these two overlap, the presumption
2 of innocence and provisional liberty.
3 MR. STEIN: I think it's a matter of
4 perspective. From my client's perspective, although he
5 knows he's presumed innocent, the fact that he's in the
6 dock and goes back to the prison, while he knows
7 presumptively he's innocent, realistically, it seems
8 like he's already been convicted. So it's a matter of
10 We have in all our systems, particularly in
11 ours, of course, ingrained the presumption of
12 innocence -- it is intended throughout the hearings,
13 and I'm sure that's the Rule that Your Honours apply --
14 but the look of innocence, the feel of innocence,
15 doesn't come with handcuffs, or the transportation,
16 although by the very nice people in the security
17 forces, the transportation to and from the courthouse
18 handcuffed, shackled, and with protective gear on, and
19 that's the most real answer I can give you.
20 JUDGE BENNOUNA: [Interpretation] Thank you.
21 So it's not a question of Rules. It's rather a matter
22 of feeling, the feeling of innocence, as you put it.
23 [In English] It's a question of the psychology of the
24 person concerned, his feelings, and so on. That's the
1 MR. STEIN: Yes, sir, and that's the answer I
2 gave, although I must add, if I may, that in terms of
3 the world and the onlookers and the people who read
4 about our process throughout the world, they don't, I
5 think, have the understanding that lawyers, all of us,
6 do relative to these concepts and the real meaning.
7 Yes, we've thought about liberty and freedom and those
8 kinds of things for a long time. I think the general
9 populous may have a different view.
10 So when someone is brought to court in
11 shackles and made to stay, even though he's presumed
12 innocent, there is a perception issue there as well.
13 JUDGE BENNOUNA: It's a question of
15 [Interpretation] It's a question of
16 perception, as you said, because in my understanding,
17 the question of the presumption of innocence has to do,
18 basically, as you know, with the application of the
19 Rules concerning evidence. One is presumed innocent
20 until proven guilty beyond any reasonable doubt. That
21 is the point. This is a question that affects the
22 problem of evidence. But now I understand you. Thank
24 MR. STEIN: Thank you.
25 JUDGE MAY: Mr. Nice, we've got a very full
1 skeleton, if I can so describe it, which we've had the
2 chance to read. Is there anything you want to add to
4 MR. NICE: I should, I think, just deal with
5 a few of the Defence points.
6 I find myself in a somewhat difficult
7 position because the duty of the Court to take these
8 applications, of course, absolutely seriously and our
9 inability to make any assumptions as to the outcome
10 means that, in my judgement, I am really duty-bound to
11 advance to today a topic that was going to arise in any
12 event but not until next year, and a topic in respect
13 of which I am just -- literally just -- able today to
14 start to deal, and that is the proximity of the state
15 of Croatia to and its involvement in Kordic's Defence.
16 I have to deal with that both because of the
17 degree to which each of these applications for bail is
18 dependent on proper, responsible, and independent
19 involvement as a friend of this Court by the state of
20 Croatia, and also because of what it shows or can show
21 as the risks of freedom being granted to Kordic or to
22 Cerkez by way of provisional release.
23 This problem has been the subject, of course,
24 of rumour and, to some limited degree, newspaper
25 publication, but things have gone further. It may be
1 prudent, before I explain what I understand the
2 position to be, and perhaps in private session, it may
3 be prudent for the Defence to be given an opportunity
4 to explain what is the involvement of the state of
5 Croatia in Kordic's Defence. It's up to them.
6 JUDGE MAY: I'm not sure how helpful this is
7 going to be. I mean, the argument which you want to
8 put forward is that the state of Croatia being close,
9 is this the argument, to the Defence, you would submit;
10 therefore, we can place less reliance on it in terms of
11 returning these two or assisting in the provisional
12 release of these two. Is that the argument?
13 MR. NICE: Yes, but it's much stronger than
15 [Trial Chamber confers]
16 JUDGE MAY: We'll hear the matter explored,
17 but can you do so shortly, please, Mr. Nice, having
18 regard to the time. Is it a matter that should be
19 dealt with in closed session?
20 MR. NICE: When I come to it. It doesn't
21 come at the top of our opposition but it's an important
22 element. When I come to it, we should go into private
24 JUDGE MAY: It's ten to 4.00.
25 MR. NICE: Yes. Let me deal with the matters
1 supplementary to those already covered in our skeleton
2 in this way: I'm not going to argue about the
3 evidence. We made it quite plain that we were opening
4 a case that was sufficient without detailed pieces of
5 evidence pointing to either defendant, plenty of that
6 evidence has now been available, more is forecast.
7 There was no voluntary surrender. These men
8 were living at liberty in Croatia, to the knowledge of
9 the Croatian state, and they were surrendered by dint
10 of international pressure of an economic nature at a
11 very high level.
12 There is no real prospect of a trial in
13 absentia if one defendant decided not to return.
14 Although we used that as a technique for the expected
15 short absence of Cerkez to ensure that the trial time
16 was not wasted, if a defendant simply absents himself,
17 the prospects of his having lawyers to represent him
18 thereafter is minimal or non-existent -- apologies to
19 the interpreters -- and the Rule 61 provisions do not
20 cover, by their terminology, that possible situation.
21 The Chamber will know, from how I've
22 conducted this case and the things that have been said,
23 that even with the defendants in custody there have
24 been a large number of witnesses, to some degree a
25 growing number of witnesses unavailable to us through
1 expressions of fear in most cases. This is not 10,
2 it's not 20, it's up in the 40s and 50s and 60s of
3 witnesses overall, although not all of them, basing
4 their refusal on fear.
5 I've made the point that these defendants
6 were supported by the state in the sense that they were
7 living -- so far as Kordic was concerned, living in a
8 state-owned flat at the time of his arrest.
9 Witnesses or at least a witness, and I'm sure
10 other witnesses if I think about it, speak of not only
11 their anxiety but the very much heightened anxieties
12 that they and others known to them would have if these
13 defendants were at liberty. And the Chamber has to
14 have in mind that the area with which you are dealing
15 with is, by some European standards, village in scale,
16 village in intimacy, where people, potential witnesses,
17 are speaking of people they knew, with all the
18 attendant difficulties.
19 Can I now turn to the position about the
20 state of Croatia. Maybe we should go into private
22 [Private session]
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16 [Open session]
17 JUDGE BENNOUNA: I think it's not necessary
18 to go through this question of burden and so on. We
19 have now the argumentation from both sides.
20 MR. NICE: Yes.
21 JUDGE BENNOUNA: It's complete. If you have
22 any other argumentation, it will be okay. Otherwise --
23 MR. NICE: Of course. Simply to say that, of
24 course, in each case the Defence marginally
25 misrepresent our position. We never limited ourselves
1 to command and control. We've always said there was
2 direct involvement to be proved inferentially, and in
3 each case there is the direct revelation of involvement
4 in particular criminal acts of very great severity.
5 That's all we need to say in addition to our printed
7 JUDGE MAY: Mr. Stein, if there are matters
8 that you could deal with in open session, do so. You
9 do not have to respond to all matters. It's entirely
10 up to you what you --
11 MR. STEIN: Two very quick points. One, as
12 to any alleged threats made by Mr. Kordic, I say to the
13 Prosecution, put up or shut up. In other words, if
14 there's proof at our client's door that there lies some
15 perversion of the process, prove it, bring it forward.
16 All we have is innuendo. That's my first point.
17 My second and last point is that
18 Mr. Naumovski, myself, and Mr. Sayers represent one
19 client: Dario Kordic.
20 MR. KOVACIC: Your Honours, I will also be
21 very, very brief. Just one point. My dear colleague
22 Mr. Nice mentioned an article from the Croatian press
23 sometime in the summer, if I'm not wrong, because there
24 are a couple of articles. I guess that he is talking
25 about a statement of one of the ministers in the
1 Croatian government. It was not the position of either
2 the Croatian government or other ministers. It was
3 highly criticised later on publicly. And I don't know
4 what is true, because we are talking about articles in
5 the press. And if it is that article -- "if" because I
6 haven't seen it and there were many of them -- I guess
7 that was one where there was discussion about
8 extraditing Generals of the Croatian army related to
9 the certain military actions within Croatia, and after
10 the war we are dealing with in middle Bosnia. So it
11 has nothing to do with this.
12 Thank you, Your Honour.
13 JUDGE MAY: Very well. We'll consider these
15 MR. STEIN: Your Honour, I would be remiss on
16 this last time before us if I don't, on behalf of
17 Mr. Kordic, the Kordic Defence, Mr. Cerkez, give you
18 all, the bench, the Registry, colleagues, and the
19 security people, the best of wishes for the coming
20 millennium and the blessings of health and good fortune
21 to us all.
22 JUDGE MAY: Thank you, Mr. Stein. The
23 compliments are returned.
24 We will adjourn now until the 10th of
25 January, which will be in the next millennium.
1 --- Whereupon the hearing adjourned
2 at 4.07 p.m., to be reconvened on
3 Monday, the 10th day of January, 2000,
4 at 9.30 a.m.