Tribunal Criminal Tribunal for the Former Yugoslavia

Page 37

1 Friday, 19th December 1997

2 (3.30 pm)

3 JUDGE CASSESE: May I ask the Registrar to call the case,

4 please?

5 THE REGISTRAR: This is IT-95-16-PT, the Prosecutor against

6 Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic,

7 Vladimir Santic, Stipo Alilovic, Drago Josipovic,

8 Marinko Katava and Dragan Papic.

9 JUDGE CASSESE: Thank you. Can we have the appearances

10 please?

11 MR HARMON: Good afternoon, your Honours, my name is

12 Mark Harmon, I represent the Prosecutor's Office in this

13 proceeding.

14 JUDGE CASSESE: Thank you.

15 MR NOBILO: Good evening, Mr President, I am Anto Nobilo,

16 representing here Mr Marinko Katava.

17 JUDGE CASSESE: Thank you. We have been seized of a motion

18 filed by the Prosecutor for leave to withdraw the

19 indictment against the accused Marinko Katava. We have

20 carefully considered this motion and on behalf of my

21 colleagues, I would like to ask the Prosecutor to

22 explain the reasons behind this motion, the reasons why

23 he is asking that leave to withdraw the indictment be

24 granted by the Trial Chamber.

25 MR HARMON: Yes, your Honours. First off, this case was

Page 38

1 indicted under Rule 47, when the Prosecutor presented

2 evidence to the confirming Judge that the Prosecutor was

3 satisfied in the course of the investigations that had

4 proceeded to date that there was sufficient evidence to

5 provide reasonable grounds for believing that Mr Katava

6 had committed crimes within the jurisdiction of the

7 Tribunal.

8 Since then, there have been a number of

9 developments. The first development, your Honours, is

10 that during the course of the Blaskic case, a witness

11 who testified for the Prosecution, by the name of

12 Dr Muhamed Mujezinovic, testified that instead of being

13 at the locations described in the indictment, Mr Katava

14 was at a different location. In addition to that --

15 Mr President, your Honours, the Prosecutor has enormous

16 confidence in the testimony of Dr Mujezinovic, a

17 Prosecution witness in another case.

18 In addition to that, Defence counsel has supplied

19 the Office of the Prosecutor with a number of alibi

20 witnesses. I have been informed by the investigators in

21 this case that the Prosecution team analysing this case

22 is satisfied with those alibi witnesses, and based on

23 the alibi witnesses, in addition to the testimony of

24 Dr Mujezinovic, the Prosecutor does not believe this

25 case can be proved beyond reasonable doubt. When she

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1 came to that conclusion, your Honours, the Prosecutor

2 filed a motion to withdraw the indictment.

3 JUDGE CASSESE: Thank you. May I ask the Defence counsel

4 whether he would like to comment?

5 MR NOBILO: Mr President, we have received a statement of

6 the OTP about the withdrawal of the indictment, and the

7 OTP has been notified of that in writing. We would not

8 like to comment on the proceedings in this case, but

9 that we acknowledge the facts and we acknowledge the

10 notification that we have received from the OTP.

11 JUDGE CASSESE: Thank you. All right, so we may move to a

12 second question we wanted to raise with the Prosecutor.

13 If one reads the indictment, one can see that the

14 charges against Mr Katava were very serious.

15 In addition, you may remember that on

16 27th November 1997, Mr Katava joined the motion for

17 provisional release which had been filed by other

18 defendants and on 1st December, the Office of the

19 Prosecutor filed the response, objecting to this motion

20 for provisional release. This objection, of course,

21 also related to Marinko Katava. So we are a bit puzzled

22 by the change of attitude -- change in the position of

23 the Prosecutor, and we are wondering why it took you so

24 much time to come to the conclusion that the indictment

25 ought to be withdrawn. Are there any particular reasons

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1 for this delay? He has been in detention for two

2 months, and you had ample opportunity to revise the

3 indictment, to scrutinise the evidence which was

4 available to you and to come to a conclusion. On

5 1st December, your conclusion was that actually the

6 indictment was not to be withdrawn and you objected, as

7 I say, to the release of Marinko Katava.

8 MR HARMON: I would be glad to comment on that, your

9 Honour. First off, Marinko Katava was a fugitive from

10 justice for a considerable period of time before he went

11 into custody for a period of two months. We should not

12 lose sight of that fact. I believe that once he came

13 into custody, the Prosecutor's Office, and shortly

14 before he came into custody, the Prosecutor's Office

15 again took a hard look at the evidence in this case, it

16 reviewed it with diligence and good faith, it examined

17 the alibi witnesses and although I was not privy to the

18 filing of the motion in opposition to his provisional

19 release, the fact of the matter is, Mr President, it

20 takes time to analyse a number of alibi witnesses, it

21 takes time to review the evidence in light of the newly

22 emerging investigation that relates to a Defence that

23 has been presented to the Prosecutor's Office.

24 I can say, Judge Cassese, I would be quite

25 confident that at the time the Prosecutor's Office

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1 opposed a provisional release, it had not made a

2 decision -- clearly not come to the conclusion that the

3 alibi was a viable Defence. It was after that fact,

4 after the objection to the provisional release, and it

5 was in the ensuing period of time when discussions

6 continued, the investigators continued to discuss the

7 merits of the potential alibi, and it was when the

8 potential alibi was concluded -- it was concluded that

9 that potential alibi was viable that the Prosecutor

10 immediately filed her motion to withdraw the

11 indictment.

12 If the court is concerned that the Prosecutor was

13 aware that this alibi was in fact a viable Defence and

14 was in fact one that we would be coming before this

15 court later to withdraw the indictment, the court should

16 not concern itself with that. I am quite confident,

17 your Honours, that the Prosecutor was not aware at that

18 time on that date, when she filed an opposition to the

19 provisional release, that the conclusion had been

20 reached that Mr Katava had a viable alibi. That

21 development took place after the opposition to the

22 provisional release.

23 JUDGE CASSESE: Thank you. I wonder whether my colleagues

24 would like to say anything?

25 JUDGE MAY: Just this, Mr Harmon. When did the doctor give

Page 42

1 evidence in Blaskic?

2 MR HARMON: I do not have the date at all, your Honour.

3 Whether it was before December 1st -- I am confident it

4 was before December 1st, but there was additional

5 investigation that needed to be done, based on the

6 presentation of additional alibi witnesses. There had

7 to be consultations and discussions with the

8 investigative staff and the legal team that is

9 associated with this particular case. Dr Mujezinovic

10 gave testimony before December 1st.

11 JUDGE MAY: The date which is passed to me, Mr Harmon,

12 suggests that it was in August.

13 MR HARMON: It could well be, your Honour.

14 JUDGE CASSESE: All right. We would like now to see whether

15 we can make a ruling from the bench.

16 MR HARMON: Your Honour, may I make one additional factual

17 comment to the court, because I think the court may have

18 not a full and complete picture. After Dr Mujezinovic

19 gave his testimony, it has been our experience that

20 people in the Central Bosnia region, many of them have

21 the same names; Marinko Katava, there may be more than

22 one Marinko Katava. It has been the experience in the

23 Blaskic case, for example, that Cazim Ahmic, Mr Nobilo

24 remembers that witness who testified before this

25 Chamber. There are in fact two Cazim Ahmics who have

Page 43

1 relevant evidence to that particular case, so after

2 Dr Mujezinovic gave his testimony, the Prosecutor's

3 Office had to go back down to Central Bosnia, had to

4 contact Dr Mujezinovic, had to show Dr Mujezinovic

5 a photo of this Marinko Katava so Dr Mujezinovic could

6 confirm that this gentleman was the Marinko Katava that

7 he testified about. So that was an additional step that

8 the Prosecutor's Office took to ensure that the alibi

9 that had been furnished in the testimony of

10 Dr Mujezinovic related to the correct individual who was

11 in custody in The Hague. I thought I should bring that

12 to your Honours' attention as well.

13 JUDGE CASSESE: Thank you. I wonder whether the Defence

14 counsel would like to add anything?

15 MR NOBILO: No, Mr President, not at this point. I think

16 that my client would like to have this done as soon as

17 possible and leave here.

18 JUDGE CASSESE: (Pause). So we are now in a position to

19 give our ruling. We note that Marinko Katava was

20 indicted by the International Criminal Tribunal for the

21 former Yugoslavia on 10th November 1995, the indictment

22 being confirmed by Judge McDonald on the same date. We

23 note that Marinko Katava has been in custody since his

24 voluntary surrender on 6th October 1997, and that he

25 sought provisional release on 27th November 1997, by

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1 joining the motion for provisional release filed by

2 several of his co-accused in this matter on

3 14th November 1997.

4 We consider that on 1st December 1997 -- we take

5 note that on 1st December 1997, the Office of the

6 Prosecutor filed its response objecting to the request

7 of Marinko Katava and the other applicants for

8 provisional release on a number of grounds. We note

9 that this Trial Chamber was persuaded by the arguments

10 raised by the Prosecution and issued a decision denying

11 the request for provisional release on 15th December

12 1997.

13 We also note the motion of the Prosecutor on

14 18th December, requesting leave to withdraw the

15 indictment issued against Marinko Katava on the grounds

16 that there is insufficient basis to justify proceeding

17 with his prosecution on any of the counts with which he

18 is charged within the indictment.

19 We also note the letter submitted by the Defence

20 counsel for Marinko Katava on 19th December 1997,

21 stating that he supports the motion, and this support

22 for the motion has been repeated today, now, in court by

23 Marinko Katava's Defence counsel, Mr Nobilo. We have

24 considered the submissions made at this public hearing

25 which has been held in view of the urgency and extreme

Page 45

1 seriousness of the situation.

2 We therefore, and here comes our ruling, we expect

3 that in the future, the Prosecution will act

4 expeditiously on matters of such fundamental importance

5 as the liberty of the accused. We consider it to be in

6 the interests of justice to restore Marinko Katava's

7 right to liberty without delay.

8 For these reasons, acting under Rule 51 of the

9 Rules of Procedure and Evidence, we grant leave for the

10 indictment against Marinko Katava to be withdrawn; we

11 order the immediate release of Marinko Katava from the

12 United Nations detention unit, subject to the practical

13 arrangements to be made with the Dutch authorities. You

14 know there are quite a few practical arrangements.

15 Therefore we do not know whether his release may be

16 effected right away or whether we have to wait until

17 tomorrow morning. This is only because of practical

18 arrangements with the Dutch authorities which we have

19 tried to contact, and which have promised to come back

20 to us in the next few hours. This is our ruling.

21 I think there are no other matters, so the hearing

22 is adjourned.

23 (3.55 pm)

24 (Hearing adjourned)