1 Thursday, 25 November 2004
2 [Status Conference]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 3.03 p.m.
6 JUDGE EL MAHDI: [Interpretation] Good afternoon.
7 Mr. Registrar, can you please call the case.
8 THE REGISTRAR: Good afternoon, Your Honour. This is Case Number
9 IT-00-41-PT, the Prosecutor versus Pasko Ljubicic.
10 JUDGE EL MAHDI: [Interpretation] Thank you.
11 May I have the appearances, please, starting with the Prosecution.
12 MR. HARMON: Good afternoon, Your Honour. Counsel Mark Harmon,
13 Fergal Gaynor, and Donnica Henry-Frijlink for the Prosecutor's office.
14 JUDGE EL MAHDI: [Interpretation] Thank you very much.
15 And for the Defence.
16 MR. JONJIC: [No interpretation]
17 JUDGE EL MAHDI: [Interpretation] Thank you very much, Mr. Jonjic.
18 Now I'm turning to Mr. Ljubicic. Can you hear me in a language
19 that you understand?
20 It seems that there is a slight problem. I would like the usher
21 to provide some assistance.
22 Okay. Good afternoon, Mr. Ljubicic. Can you hear me in a
23 language that you understand?
24 THE ACCUSED: Translate. No.
25 JUDGE EL MAHDI: [Interpretation] I would like the usher to
1 intervene once again.
2 Okay. Good afternoon, Mr. Ljubicic. Can you hear me in a
3 language that you understand?
4 THE ACCUSED: [No interpretation]
5 JUDGE EL MAHDI: [Interpretation] Thank you very much. You can sit
7 Today's hearing -- is there a problem, Mr. Harhoff?
8 MR. HARHOFF: No, Your Honour. Just the answer provided by the
9 accused was not translated into English but we got it on the French
11 JUDGE EL MAHDI: [Interpretation] I'm sorry. Because I had the
12 translation in French. There seems to be a problem.
13 Okay. Very well. Thank you. If there is no problem, then we can
14 start. Let me tell you first that this -- today's hearing was set for
15 today but it was set beyond the time frame provided for by the Rules. But
16 the Judges of the Chamber and myself received confirmation, both from
17 Mr. Ljubicic and from the Prosecution that it was in the interest of
18 justice to go beyond the time frame provided by the Rules for today's
19 Status Conference. So I complied with the request from the parties
20 following the agreement expressed by Mr. Ljubicic when setting today's
21 hearing for this Status Conference.
22 I'd like to remind the parties that following the last Status
23 Conference held in this case, as the Pre-Trial Judge in this case, I had
24 come to the conclusion that the case, or rather, that the pre-trial stage
25 had been completed, and I drew up the report provided for by the Rules and
1 I sent the report to the Chamber and to the President of the Tribunal for
2 him to take the necessary steps in the best interest of justice within
3 this Tribunal. Let me explain what I'm talking about.
4 The idea is to set a date possible -- probable date for the
5 opening of the trial in this case within the framework of the work of the
6 Tribunal. This being said, first of all I want to make sure that
7 Mr. Ljubicic has no complaints regarding his health.
8 Mr. Ljubicic, would you like us to move into private session to
9 deal with that issue or are you ready to answer in open session without us
10 going into private session? You have the choice. You can decide.
11 THE ACCUSED: [Interpretation] Your Honour, it is not necessary to
12 move into a closed session as far as I and my health are concerned. My
13 health condition is good. I have no complaints regarding my conditions of
14 detention. I have no complaints about the personnel in the Detention
15 Unit. That's it. Thank you.
16 JUDGE EL MAHDI: [Interpretation] Thank you very much. I'm glad to
17 hear this.
18 Now I would like to turn to the parties to ask if anybody wants to
19 raise any issue. But before that, I would like to say a few words about a
20 motion that is still pending before the Trial Chamber. I am talking about
21 the Defence motion for provisional release. We received a response of the
22 latest reply or response from the Defence on the 8th of November, 2004.
23 In that response the Defence replies to the submissions made by the
24 Prosecution on the 1st of November. And in its submissions, the
25 Prosecution reiterates its position and states that it is against the
1 provisional release of the accused.
2 I can tell the parties that a decision will probably be taken by
3 the Trial Chamber after careful consideration of the submissions of the
4 parties. If the parties want to add anything to their previous
5 submissions, I will be glad to listen to them.
6 Does the Prosecution want to add anything to their -- to the
7 previous submissions? Mr. Harmon, would you like add anything to your
8 submissions of the 1st of November, 2004? Is there anything else you
9 would like to add or do you maintain your position?
10 MR. HARMON: We maintain our position, Your Honour. Thank you.
11 JUDGE EL MAHDI: [Interpretation] Thank you very much, Mr. Harmon.
12 Mr. Jonjic, is there anything else you would like to add to your
13 previous submissions and to what was explained by Mr. Ljubicic in an annex
14 to your reply?
15 MR. JONJIC: [Interpretation] No, Your Honour. The Defence does
16 not have anything further to add. And for reasons of judicial economy,
17 we're not going to repeat the arguments set out in our written submission.
18 However, let me correct a mistake done by Defence's translator. In the
19 statement of the 3rd of November, in the translation of that statement
20 under 2, at the very top of page 10 of the entire submission, instead of
21 "the Government of the Federation of Bosnia and Herzegovina" should read
22 "the Government of the Republic of Croatia." So it is a mistake
23 committed by the Defence. I just wanted to advise the Chamber of this
25 JUDGE EL MAHDI: [Interpretation] Okay. There's no problem. But I
1 would like you to read out yourself the text in Serbian for it to be --
2 for the transcript to reflect what you've just said.
3 So you are talking about paragraph number 2, aren't you?
4 Paragraph number 2 of the statement?
5 MR. JONJIC: [Interpretation] Yes, paragraph 2 of the statement,
6 Your Honour, which reads as follows --
7 JUDGE EL MAHDI: [Interpretation] Please read it out.
8 MR. JONJIC: [Interpretation] "The Prosecutor submits that the
9 Defence has failed to submit to warranties of the Federation of BH."
10 I wish to remind the Chamber that in their first request the
11 Defence has received the warranties of the Republic of Croatia. That same
12 government, after someone's intervention, not knowing whose intervention,
13 after an argument, withdrew their guarantees.
14 That is the original text. That is how it should have been
15 translated. However, the error was committed and that's why we had the
16 Government of the Federation of Bosnia and Herzegovina.
17 JUDGE EL MAHDI: [Interpretation] Okay. I understand. Thank you
18 very much.
19 Well, let's look at the position of the Defence. What are the
20 guarantees we are dealing -- talking about here? You said that the
21 Government of Croatia at first said -- provided guarantees but then
22 decided to withdraw these guarantees. Are you going to contact the
23 government to ask for further guarantees or new guarantees? Or do you
24 think -- or how do you think we should go about this issue? Because my
25 second question is the following, and I'm going also to turn to the
1 Prosecution for that matter. My second question is that the issue is that
2 it's absolutely essential for a government to provide guarantees when it
3 comes to a provisional release.
4 So can you please answer my first question, which is the
5 following: Do you intend to ask a government, whether the Croatian
6 government or the Government of Bosnia and Herzegovina, do you intend to
7 ask a government for guarantees?
8 MR. JONJIC: [Interpretation] Your Honour, the Defence is perfectly
9 aware of the fact that the guarantees of a government is not a
10 precondition for a provisional release, at least not according to the
11 wording of the Rules. However, the case law of this Tribunal demonstrates
12 that a motion without such guarantees does not have good chances of
13 succeeding. That is why the Defence, before they submitted their motion
14 for provisional release in the first half of 2002, which motion was
15 rejected in a decision of this Chamber on the 2nd of August, 2002, did
16 contact the government of the Republic of Croatia, which government on
17 that occasion did issue guarantees which were attached to the motion for
18 provisional release. After that, the government withdrew its guarantees,
19 which was, of course, attached in the Prosecution's response to our
21 When we now speak about the guarantees which were issued and then
22 withdrawn in our present motion, we are referring to the guarantees which
23 were first issued and then withdrawn in April and May 2002, respectively.
24 The Defence did contact the relevant governments and we received oral
25 assurances from ministers of both governments, the justice minister of the
1 government of Bosnia and Herzegovina and justice minister of the Republic
2 of Croatia, who promised that such guarantees would be issued in a written
3 form shortly.
4 The same statements and the same promises were given to
5 Mr. Ljubicic when the representatives of these governments paid him a
6 visit in the Detention Unit. However, despite several appeals from the
7 Defence, the governments did not fulfill their promise. After that,
8 Mr. Ljubicic, as you can see from the statement of the 3rd of November,
9 2004, requested me to withdraw my application, my request, because he
10 believed the behaviour of both governments to constitute an obstacle --
11 obstruction of his Defence, which has been going on for quite some time,
12 for several years, and which can be seen also from the fact that many of
13 the necessary documents have been denied to him. And that is why he had
14 to address himself to this Honourable Chamber, who then issued orders for
15 the production of documents.
16 Now, this was a brief procedural overview and you have the
17 statement of Mr. Ljubicic, I believe, in front of you. Thank you.
18 JUDGE EL MAHDI: [Interpretation] Yes, I understand very well.
19 You've already -- you've also explained that according to the case law of
20 the Tribunal, guarantees are necessary and requested. I can believe that
21 Mr. Ljubicic made the decision of not asking for guarantees, not asking
22 these governments for guarantees, but you as a Defence counsel should
23 advise and should act in the best interest of Mr. Ljubicic. And if you
24 believe that some steps must be taken in order to turn these orally --
25 oral guarantees into written and official guarantees, if you can do that,
1 I think it is your duty to do so even if Mr. Ljubicic for one reason or
2 another believes that he doesn't need to ask for these guarantees. If you
3 yourself believe that it is possible to explore this -- these avenues, I
4 then believe that it is your duty as a professional first of all to advise
5 Mr. Ljubicic on that matter, and secondly to act in his -- in the interest
6 of justice. I would even go as far as saying in the interest of justice.
7 In your opinion, would further steps be successful or do you share
8 the position of Mr. Ljubicic who says that they will never provide these
9 guarantees and I do not want these guarantees? I would like to hear what
10 you yourself as a professional think about this, as a professional
11 entrusted with the Defence of Mr. Ljubicic. I would like to know what you
13 MR. JONJIC: [Interpretation] Thank you, Your Honour. I do share
14 your view and your assessment of the need for me to act as a professional
15 counsel. And in light of that, I can state that despite -- or rather,
16 notwithstanding the request of Mr. Ljubicic to withdraw the application
17 from both governments, I got in touch with the -- these governments once
18 again and I tried to explain to them that the position of my defendant is
19 such that he wished this application to be withdrawn. That is to say, I
20 advised them of this protest of my defendant.
21 However, this remained without a reply.
22 JUDGE EL MAHDI: [Interpretation] Sorry for interrupting, but just
23 a point of detail: Do you remember when you started doing all this,
24 started explaining to the government that it was absolutely essential for
25 the government to say what it -- what was -- what its position was? It
1 was after the 3rd of November, if I'm not mistaken.
2 MR. JONJIC: [Interpretation] Your Honour, the original
3 applications were sent to the governments in April this year. They have
4 been repeated on several occasions, and my last intervention was made on
5 the same day when I received from Mr. Ljubicic by fax from the Detention
6 Unit this statement which is annexed to the documents that you have. So
7 my last attempt was after he made his statement in November 2004. Thank
9 JUDGE EL MAHDI: [Interpretation] So what are you saying? Is it on
10 the 3rd or around that date, on the 3rd of November?
11 MR. JONJIC: [Interpretation] It was on the 3rd of November for
13 JUDGE EL MAHDI: [Interpretation] And you sent that application in
14 writing? It was a written application?
15 MR. JONJIC: [Interpretation] Yes, Your Honour, as I did every
17 JUDGE EL MAHDI: [Interpretation] There is, of course, an official,
18 formal application, but I believe that there are also official contacts
19 that could speed up the entire proceedings or enable you to gain more
20 information. What is the attitude of the administration? Are they
21 reluctant or is this delay due to the administrative procedures or -- in
22 your opinion, what is the situation? Are you expecting a response within
23 two weeks or one month?
24 MR. JONJIC: [Interpretation] Your Honour, I don't think it's a
25 matter of a routine, or rather the normal delays. Because once again, I
1 think it was in July this year, in my attempt to obtain these guarantees I
2 talked to the chief of police in the Federation of Bosnia and Herzegovina,
3 whose consent is a precondition, a prerequisite, for the government to
4 issue such guarantees. And it was the chief of police who on that
5 occasion told me that as far as he was concerned there was no obstacle
6 whatsoever for such guarantees to be issued and that he had written a
7 letter to that effect to the minister of justice. My request for this
8 letter to be provided to me was refused. He explained that it was a
9 matter of internal communication between different government bodies, but
10 he said that the reference to this letter would be contained in the
11 guarantees which were to be provided to me by the government. However, as
12 I have indicated, I haven't a response to this date from the government.
13 I cannot rule out the possibility that should I perhaps try once again, I
14 might be -- I would be successful this time. However, I have good reasons
15 for being skeptical. The Defence would by all means prefer to have the
16 guarantees which would facilitate their position, but this is something
17 out of our ability.
18 JUDGE EL MAHDI: [Interpretation] If I understand correctly, you've
19 sent your application to the government of the federation. Is that it?
20 MR. JONJIC: [Interpretation] Yes, you're quite right, Your Honour.
21 Because in the motion for provisional release, the place of residence of
22 Mr. Ljubicic, in case the motion is granted, is Mostar, where his family
23 lives. And Mostar being in Bosnia and Herzegovina, or rather, in the
24 Federation of Bosnia and Herzegovina, it was necessary to apply for these
25 guarantees to the government of the federation.
1 JUDGE EL MAHDI: [Interpretation] Last question: You -- not
2 excluding the possibility of a positive response possibly, if necessary
3 steps are taken in that direction. I'd like to explore all avenues open
4 to us and try to find out everything that will help the Chamber to rule
5 within the framework of the case law. You mentioned the case law
6 yourself, and according to the case law, a number of prerequisites are
7 set. So even if there's the slightest chance of succeeding, I think it's
8 worth the effort, it's worth trying. I don't know if you're -- you share
9 my point of view.
10 MR. JONJIC: [Interpretation] Your Honour, I understand what you're
11 trying to say and I do share your view. However, even after on the 3rd of
12 November, 2004, Mr. Ljubicic gave me his statement, I did not withdraw my
13 application for guarantees which had been sent to the government. So this
14 application is still pending. There has been no decision on the
15 application. I can perhaps try once again to obtain such guarantees. And
16 if the Chamber can wait with a decision on the motion, I could perhaps try
17 once again to obtain the guarantees from the government and provide the
18 Chamber with the guarantees as soon as possible. Thank you.
19 JUDGE EL MAHDI: [Interpretation] I think it's a step that is
20 necessary in order to enable the Chamber to be in the best possible
21 position to rule on that motion. And I believe that it is necessary for
22 you to make that effort. And I'm expecting you to inform the Chamber as
23 early as possible in that sense.
24 Thank you very much, Mr. Jonjic.
25 Now I'm turning to the Prosecution, to Mr. Harmon. I always enjoy
1 the way the logic -- the legal logic applied by Mr. Harmon -- legal
3 According to you, Mr. Harmon, how should one interpret Rule 65?
4 I'm talking about 65(B) and (C). According to the Rules, is it absolutely
5 necessary for the government of the country - I'm quoting Rule 65(B) -
6 "Release may be ordered by a Trial Chamber only after giving the host
7 country and the state to which the accused seeks to be released the
8 opportunity to be heard."
9 And then Rule 65(C): "The Trial Chamber may impose conditions
10 upon the release of the accused as it may determine appropriate, including
11 the execution of a bail bond and the observance of such conditions as are
12 necessary to ensure the presence of the accused for trial and the
13 protection of others."
14 Mr. Harmon, I would like to know what is your point of view about
15 this matter, notwithstanding the case law, very consistent case law, of
16 the Tribunal so far. Do you believe that it is necessary, on top of the
17 fact that we need to hear the authorities of the state where the accused
18 wants to be released, so beyond that, beyond having the state heard, is it
19 also absolutely necessary for that state to provide guarantees? Is it an
20 obligation? Is it a legal obligation? Or is it something that comes
21 under the discretion of the Tribunal?
22 MR. HARMON: Your Honour, that's a very good question and one
23 which I can provide you a more comprehensive answer when I have the
24 opportunity to research the specific question you've asked me. I don't
25 have the answer at hand. But I can say, Your Honour, a number of things.
1 I do believe that under (B) it is required that the host country
2 be given the opportunity to be heard. Furthermore, that the state, in
3 this case Bosnia and Herzegovina, be given an opportunity to be heard.
4 And further, the Court has to be satisfied that the accused will appear at
5 trial and that he will not pose any danger to any victim witness or other
7 Now, on the issue of the guarantee, there have been two guarantees
8 sought, one from Croatia. We are familiar with the history of that; that
9 has been outlined in previous pleadings, in our pleading as well. Croatia
10 was the initial country where Mr. Ljubicic sought his release. And that
11 has already been litigated and we know the status of that particular
12 guarantee. Mr. Jonjic has described a rather long effort, an arduous
13 effort to get a guarantee from Bosnia and he has been unsuccessful. That
14 seems, to me, to speak volumes. So there is no guarantee, as the record
15 currently stands, from Bosnia.
16 I think there is a very good reason why a guarantee is a critical
17 element, but not necessarily dispositive, in the Trial Chamber's
18 consideration as to whether to release somebody or not. We do not have a
19 police force in the Tribunal; we have to rely on the states to essentially
20 secure the arrest of people. A state that is not willing to guarantee or
21 make guarantees to this Tribunal makes the Prosecutor's office and a
22 decision of a Trial Chamber to release someone even more vulnerable. It
23 is more reassuring, Your Honour, when a state will say affirmatively, We
24 will make guarantees to ensure that a particular accused will appear in
25 all proceedings before this institution as required. Absent such a
1 guarantee, Your Honour, we have the prospect of losing an accused forever.
2 And as the Court well knows, there have been people who have been indicted
3 in this institution many, many, many years ago who remain fugitives.
4 That's perhaps our biggest fear in these situations.
5 Right now, Mr. Ljubicic is in custody. He's here, he's been here
6 for three years. He has asked for an expeditious trial. We support his
7 request to be tried. Our view - and I know this is not directly in
8 response to your question - our view is that we would encourage, rather
9 than a release of Mr. Ljubicic which exposes the Tribunal to the
10 possibility that Mr. Ljubicic could disappear, we support a different
11 proposition and that is to give Mr. Ljubicic his trial and to do so as
12 quickly as possible.
13 JUDGE EL MAHDI: [Interpretation] Yes, I understand perfectly what
14 you're saying. But let me submit to you a hypothesis, the following: The
15 relation between a guarantee and the obligation to cooperate. In other
16 words, if a state does not provide a formal guarantee, that state is
17 nonetheless obligated to cooperate with the Tribunal. That is to say, if
18 the Tribunal requests the -- from the local police that they lead the
19 accused or take the accused to the Tribunal, then the state in question is
20 forced -- has the obligation to comply, because it is under the obligation
21 to cooperate with the Tribunal.
22 I'm raising this issue because, as Mr. Jonjic quite rightly
23 pointed out, if we look at the case law of the Tribunal, it's what you
24 said. It's in the direction that you pointed out yourself. The Tribunal
25 doesn't have a police force, the Tribunal depends on the authorities,
1 judicial authorities and other types of authorities of other countries.
2 But I'm only raising the issue as an hypothesis, something that might be
4 In any case, we'll wait for the outcome of the applications that
5 Mr. Jonjic is going to submit. He told us so himself, he's going to
6 submit these applications to the relevant authorities of the
7 confederation. But nonetheless, for things to be as clear as possible, I
8 would like you to submit your point of view and explain to us how you see
9 the interaction of Rule 65(B) and 65(C) related to the conditions that
10 might be set, including the execution of a bail bond. This -- these two
11 paragraphs could be interpreted in a different way. That could be applied
12 to this case and maybe to other cases before the Tribunal. I'm looking
13 forward to reading your submissions, because I like reading your
14 submissions as much as I like listening to you. And I would be grateful
15 if you could find the time to draw up submissions on that particular
16 matter. Thank you very much in advance.
17 MR. HARMON: Thank you very much, Your Honour. We'll -- thank you
18 very much, Your Honour, we will submit written submission on the points
19 we've raised.
20 JUDGE EL MAHDI: [Interpretation] Thank you very much.
21 Now I'd like to give the floor to Mr. Ljubicic. I'd like to ask
22 him if he wants to address the Chamber.
23 I can see that you've prepared some sort of memo that you have in
24 front of you. You can say whatever you like. I'm all ears.
25 THE ACCUSED: [Interpretation] Your Honour, I'm not going to say
1 much and I'm probably not going to say anything new, anything that my
2 counsel or myself have not said on a previous occasion. Let me just
3 repeat once again because I think it wouldn't be amiss to hear certain
4 things several times.
5 I am perfectly aware of this one black stain that I have on my
6 name, and that is the 16th of April, 1993. No one needed police forces to
7 bring me here, police force in Croatia or Bosnia and Herzegovina. I
8 knocked on their door, I told them who I was three days after I learned
9 that the indictment had been issued by this Tribunal. No police is going
10 to be necessary for anyone, Croatia or Bosnia and Herzegovina, should I be
11 provisionally released, notwithstanding the decision of the Trial Chamber.
12 Now, I'm talking on the assumption that the motion will be granted,
13 because that stain that I have, I know that it is not as dark as some
14 people here have tried to present it.
15 JUDGE EL MAHDI: [Interpretation] Sorry for interrupting you, but
16 I'm reading the following in the transcript. "[In English] ... that I
17 have on my name, and that is the 16th of April, 1993." [Interpretation]
18 Is that the correct date?
19 THE ACCUSED: [Interpretation] Your Honour, I am charged for the
20 events that took place on that day.
21 JUDGE EL MAHDI: [Interpretation] I understand. Go ahead.
22 THE ACCUSED: [Interpretation] That is why I am saying this, that
23 is why I mentioned that date. My past can be checked, can be verified by
24 anyone else. They will never realise -- they will never find that I was a
25 criminal or that I had any problems with law. My participation in the
1 events will be finally disclosed in this trial and the facts will be
2 assessed. However, from what I was able to understand from the judgements
3 that I have read from this Tribunal, these facts cannot be reproached to
4 me. I am not going to disappear. I am -- I intend to respect every
5 decision issued by the Tribunal and I intend to abide by the orders of the
6 Tribunal and the police should I be provisionally released. I have been
7 in detention for three years and I do not know when the trial is going to
8 take place.
9 One more sentence related to the guarantees that we requested from
10 the governments of Croatia and the Federation of Bosnia and Herzegovina.
11 I have to say openly that my counsel and myself, we haven't made any
12 public announcements, any public comments. However, promises were made
13 and then promises were not kept. And this is why I said -- it is because
14 of these obstructions of my Defence and my counsel that I was offended.
15 And I said that I no longer needed any guarantees. I didn't need the
16 persons who were obstructing my Defence to issue any kind of guarantees
17 for myself. At any rate, I support what has been indicated by my counsel,
18 Mr. Jonjic. He has warned me of the necessity to provide guarantees. And
19 if they are truly important, we will try to obtain them once again. But
20 as far as I'm concerned, in my personal opinion, they do not mean a thing.
21 What I think is important is what I declare to you, Your Honour, and what
22 I say publicly before this Chamber, notwithstanding the guarantees whether
23 they will be eventually issued or not. And I commit myself to abide by
24 any order, any decision that you intend to order.
25 JUDGE EL MAHDI: [Interpretation] Thank you very much, Mr.
2 I believe that nonetheless we should proceed as Mr. Jonjic said he
3 would proceed. I think that it is in your best interest for an
4 application to be made and an application that would probably be granted,
5 application for guarantees that were promised to you before, even if it
6 was only orally. And I believe that very quickly we will hear from
7 Mr. Jonjic who will tell us what was the outcome of the application.
8 This being said, is there any other issue that the parties would
9 like to raise? The Prosecution?
10 MR. HARMON: No, Your Honour. Thank you.
11 JUDGE EL MAHDI: [In English] Thank you, Mr. Harmon.
12 [Interpretation] Mr. Jonjic, is there anything else you would like
13 to add?
14 MR. JONJIC: [Interpretation] No, Your Honour, the Defence doesn't
15 have anything to add. Thank you.
16 JUDGE EL MAHDI: [Interpretation] Thank you very much. This being
17 said, the hearing stands adjourned.
18 --- Whereupon the Status Conference adjourned
19 at 3.49 p.m.