Tribunal Criminal Tribunal for the Former Yugoslavia

Page 407

1 Monday, 24 June 2002

2 [Motion Hearing]

3 [The accused entered court]

4 --- Upon commencing at 11.30 a.m.

5 JUDGE MAY: Yes. Let the registrar call the case.

6 THE REGISTRAR: Good morning, Your Honours. Case number

7 IT-99-37-PT, the Prosecutor versus Nikola Sainovic and Dragoljub Ojdanic.

8 JUDGE MAY: The appearances, please.

9 MR. NICE: For the Prosecution, the Prosecutor appears, and she,

10 together with my learned friend Mr. Milbert Shin will deal with the

11 substance of the application for provisional release. I'm also here, as

12 is Ms. Romano.

13 JUDGE MAY: Yes. For the Defence, please.

14 MR. FILA: [Interpretation] Your Honours, the Defence of

15 Mr. Sainovic is represented by myself, Toma Fila, an attorney from

16 Belgrade, with my colleague Mr. Zoran Jovanovic, also an attorney from

17 Belgrade. Thank you, Your Honours.

18 THE INTERPRETER: Microphone, please.

19 JUDGE MAY: Yes.

20 MR. VISNJIC: [Interpretation] Your Honours, for the Defence of

21 General Ojdanic, Tomislav Visnjic, with my colleagues Peter Robinson and

22 Vojislav Selezan.

23 JUDGE MAY: And I understand we have the representatives of the

24 government here. If you'd introduce yourselves, please.

25 MR. SARKIC: [Interpretation] Your Honours, my name is Nebojsa

Page 408

1 Sarkic. I'm the assistant of the federal Justice Minister of the Federal

2 Republic of Yugoslavia. Thank you.

3 MR. CARIC: [Interpretation] Your Honours, my name is Slavoljub

4 Caric, [In English] Representative of the Yugoslav embassy.

5 JUDGE MAY: Thank you. I'm grateful to those who have made it

6 possible to bring this hearing forward. It was originally fixed for this

7 afternoon, but the Court had the time available, and as I say, I'm

8 grateful to all those who have assisted in bringing it forward.

9 This is the hearing of a motion for provisional release by both

10 these accused. We have an hour available in which to hear the matter this

11 morning. I would say that the Trial Chamber has had the pleadings, the

12 motions and, therefore, there's no need to repeat them. We would ask

13 counsel to be brief.

14 Yes, I think it's, Mr. Fila, for you to begin.

15 MR. FILA: [Interpretation] Mr. President, as you have so wisely

16 concluded, I won't repeat what has already been written. I will just

17 present - and they will be brief - some assertions which I consider to be

18 important.

19 First and foremost, in our legal system, and as far as I know in

20 many legal -- other legal systems, detention is not a punishment, is not

21 sentence. Detention is an exceptional measure taken to secure the

22 presence of the accused at trial. It is not obligatory and is applied

23 only in cases where the Court does not have the possibility of being

24 certain that the accused would otherwise appear before a Trial Chamber.

25 In this concrete case, as you know, two states are guaranteeing

Page 409

1 his appearance; the Federal Republic of Yugoslavia and the Republic of

2 Serbia. They guarantee that at all summons by the Court, the accused will

3 appear. So that is an argument that simply cannot be refuted. And I

4 don't understand why anybody should stay in prison and wait for his trial

5 to come up for perhaps a year and then wait for the president,

6 Mr. Milutinovic, and the preparation of his defence, when we can do this

7 in a much more elegant fashion. And I think it will be a much better

8 trial and fairer trial if we have him at our disposal at all times in

9 Belgrade.

10 I should like to also add one other point. This law on

11 cooperation with the Tribunal is being delayed, and I -- is under way, and

12 we would have people here much earlier. But I should like the Trial

13 Chamber to understand that the law on cooperation is not only a law under

14 which they have voluntarily come here, but it is a law which gives us

15 access to documents, which has not been the case so far. We now have

16 access to the archives of Yugoslavia, and this was something that the

17 Prosecution only enjoyed hitherto. We're now able to take numerous

18 documents from the archives of Yugoslavia. We shall have to consult our

19 colleagues about this, and we are able to do so. And it will be much

20 easier for me to be able to do this in my offices and Chambers in Belgrade

21 rather than at the Tribunal building itself where, as you know, our

22 possibilities are limited in terms of space.

23 By coming here, Sainovic has recognised this Tribunal. He has

24 accepted that he will hear justice from the Tribunal and expects to hear

25 what the Trial Chamber is thinking and what his role is in the affairs

Page 410

1 that are being tried in this case. And via me and in his own name, he

2 will express his condolences with respect to all the victims that existed

3 in the war regardless of their ethnicity.

4 So that we have concluded in Belgrade, us lawyers, that only this

5 law can enable a fair trial. Had we not had this law, which has already

6 been passed, we would not have been able to have a fair trial because we

7 would not have had access to documents which were hitherto confidential.

8 With this new law, all that is a thing of the past. Releasing them,

9 ensuring provisional release, even if that is for several months or a

10 year, would give courage to many people. I have been in this Tribunal for

11 a long time, and I know this would help other people coming -- to come

12 here because it would change the whole image and picture of the Tribunal,

13 and I have even written a book to that effect and on that subject. So we

14 have to assert that court on the territory of Yugoslavia, and only then

15 are we going to have everything we need.

16 And finally, let me just say this: The statement that Sainovic

17 came here because otherwise he would have been arrested is simply not

18 true. He came because the law has come into force. Many others were to

19 have been arrested, ever since 1993, but they have not turned up here

20 voluntarily either. They have not surrendered voluntarily. Some are in

21 Serbia, some are in Bosnia, and some are who knows where else.

22 The statement that he is feeling all right in prison is also not

23 true. His cholesterol levels are high and he has been receiving treatment

24 for a month already, and you can ask anybody about that. And nobody can

25 feel all right in prison. And that is the first time that I have heard of

Page 411

1 anything like this, when I read it. So nobody feels comfortable in

2 prison.

3 And his cooperation was not something that is forced. It was when

4 this law came into being that all the conditions were furnished for a fair

5 trial to be under way and for us to prepare the trial fairly, which means

6 that I will be able to have access to documents myself and not only to be

7 disclosed documents by the Prosecution, as has hitherto been the case.

8 All the accused that I have defended here and during all the trials, I

9 received documents from the Prosecution because it wasn't possible to have

10 access to them in any other way. So perhaps this is a little premature

11 for us to hold the meeting now, and I am open to any criticism that you

12 might have, but I do know that you will pay particular attention to

13 everything I have said.

14 But the provisional release of Mr. Sainovic and Mr. Ojdanic would

15 represent a great step forward, both in the affirmation of the Tribunal

16 and it would help us to hold a fair trial once you are free to conduct it.

17 Take a very trivial example, translation and interpretation, for

18 example. We have problems with translation, and in the case you are

19 trying at the moment, you have involved the faculty in Novi Sad to help

20 you out with the translations because the Tribunal can't get through them

21 all. Now we would be able to prepare all these translations in peace and

22 quiet without any nervousness, and when all this process has been

23 completed and when Mrs. Del Ponte -- the distinguished Prosecutor Mrs. Del

24 Ponte says I'm ready to go ahead, we can go ahead and not to have to run

25 after documents ourselves and get one here, another there, and so on and

Page 412

1 so forth.

2 So those are all the reasons and things that we ought need to bear

3 in mind. The efficaciousness of the Court, this would reduce costs and

4 expenditure. We cost the Tribunal a lot of money when we come here

5 without any reason to do so. You would cut the costs of our arrivals

6 here. So I don't see any serious argument in favour of having them remain

7 in detention here unless you wish to punish them. And as I said at the

8 outset, detention is not punishment.

9 So I do apologise for taking up your time, but thank you very much

10 for your attention.

11 JUDGE MAY: Thank you, Mr. Fila. Yes.

12 MR. ROBINSON: Good morning, Mr. President, members of the Trial

13 Chamber. I'm Peter Robinson, from California in the United States. I'm

14 going to apologise in advance to the interpreters; I tend to speak

15 quickly, especially when I'm nervous and I am nervous as I stand here

16 before you. This motion is incredibly important to General Ojdanic, to

17 his family, and to the Defence.

18 Your Honours, the criteria is well-known from Rule 65(B), and I'm

19 not going to repeat what is in our pleadings. The question is: Will

20 General Ojdanic appear for his trial or will he be a danger to witnesses

21 or victims? I think those questions can easily be answered by posing a

22 rhetorical question: If he was going to flee, why would he have

23 voluntarily surrendered? He would have done that already. And if he was

24 a danger to witnesses or victims, in the three years that he has known of

25 this indictment, there has not been the slightest hint of any misconduct,

Page 413

1 danger, or anything like that on the part of General Ojdanic.

2 Your Honours, I have a chart that I would like to ask the

3 assistance of the usher to be placed on the ELMO. The first one is chart

4 number 1. I'm not going to be very long with this, but I'd like to have

5 it displayed and speak briefly about the considerations that the Trial

6 Chamber will be using when considering this motion.

7 Thank you very much.

8 Your Honours, this is a weighing process. On one hand, the

9 balance of probabilities versus the other hand. And in favour of General

10 Ojdanic's motion is certainly the fact that he voluntarily surrendered.

11 He was not only -- not only did that but he was the first to do it. He

12 was a leader among the people who have been indicted to surrender once the

13 law was passed allowing for cooperation in Yugoslavia.

14 We have the guarantee of the Federal Republic of Yugoslavia, and I

15 would encourage the Trial Chamber or the Prosecutor to put any questions

16 to the representative of the Ministry of Justice who is here so that there

17 should be no doubt whatsoever that the guarantee is unequivocal, it's all

18 encompassing. If General Ojdanic violates any conditions of his release,

19 he will be arrested. You have the written guarantee. And if there's any

20 question about that or about the cooperation of the Federal Republic of

21 Yugoslavia, I'd ask that that matter be inquired of and settled here today

22 with the representative present.

23 This Trial Chamber, in the Krajisnik case, noted that the

24 cooperation or the guarantee from the Federal Republic of Yugoslavia ought

25 to be treated with caution because that government had not at that time

Page 414

1 adopted a law on cooperation with the Tribunal. Well, since then, they

2 have adopted a law. They are providing cooperation. They have made the

3 commitment to do so, and I believe that at this point their guarantee

4 should be given great weight by the Trial Chamber. And I would indicate

5 that the United States government has found that the cooperation of the

6 Federal Republic of Yugoslavia is considerable enough to warrant the

7 releasing of funds to that government. So I think you have some

8 indication already that that is a guarantee that is worth honouring by

9 this Trial Chamber.

10 But we also have not only that but the guarantee of the Republic

11 of Serbia. And that guarantee was good enough for this Trial Chamber in

12 the Plavsic case and has been good enough for the release of Admiral Jokic

13 and General Strugar by other Trial Chambers.

14 Most importantly, you have General Ojdanic's personal guarantee.

15 General Ojdanic, with 41 years of military service, if he is anything, he

16 is a man of his word. He is a man with a deep sense of duty and a deep

17 sense of respect for the law. He's determined to come here and to clear

18 his name, and he has given you his word that he will do that. And this is

19 a man who, when he gives his word, he keeps it, and so I believe that the

20 Court should give great weight to his personal guarantee.

21 But we don't only have to take his word for it because we've

22 provided you with character letters from three people who have known him

23 for more than 20 years, generals in various armies who have said that

24 there's no doubt, based on his character and their knowledge of his

25 character, that he would obey the conditions of his release.

Page 415

1 Finally, the last consideration which militates in favour of

2 provisional release is the length of detention. And this is not disputed

3 that this is going to be a long time before this case is able to be tried

4 because of the huge number of documents involved, the access to archives,

5 which is just beginning and is ongoing, and the schedule of the Trial

6 Chamber. So if there is detention pre-trial in this case, it's going to

7 be lengthy, and there seems to be no dispute about that.

8 On the other side of the ledger --

9 JUDGE ROBINSON: Do you have any estimate as to the length of

10 detention that you would consider sufficiently significant to work in

11 favour of provisional release?

12 MR. ROBINSON: Your Honour, I believe that honestly this case will

13 not be ready for trial for about two years. I think that there is

14 probably going to be an amount of documentary evidence similar to the

15 Plavsic and Krajisnik case in terms of volume, in terms of need for

16 translation, and we are dealing with records that are not yet in the

17 possession of the parties in many cases because of the Commission on

18 Cooperation in Yugoslavia just being established and the access to

19 archives coming along in a slow process. And so I believe that it's going

20 to be about two years before we would be ready for the trial in this

21 matter.

22 JUDGE ROBINSON: Thank you. We will hear more from the

23 Prosecution on that.

24 MR. ROBINSON: Yes. Now, with respect to the other side of the

25 ledger for the consideration of provisional release, the learned friends

Page 416

1 from the Prosecutor have indicated that General Ojdanic did not surrender

2 promptly and that this should be held against him. As a matter of fact,

3 of course, General Ojdanic never hid or fled. He lived openly in

4 Belgrade. He asked for an investigation of his conduct. He wrote

5 letters. He was willing at all times to have his conduct judged and

6 reviewed by the courts. He hoped that that would be the domestic courts

7 but that didn't turn out to be the case. He followed the policy and

8 direction of his government at all times and when that policy and

9 direction changed from a provision in the Yugoslavian constitution that

10 forbid extradition of its citizens to a law that encouraged their

11 surrender and compelled cooperation, he promptly surrendered at that time

12 and he has at all times been willing to subject himself to scrutiny for

13 what he has done in Kosovo.

14 I would also indicate that while he was awaiting -- after the

15 indictment, his legal representatives met with the Office of the

16 Prosecutor. He himself met with Ambassador Prosper of the United States

17 State Department and discussed the possibility of domestic prosecution

18 versus prosecution in this Tribunal. So he's at all times made himself

19 available and has shown no indication whatsoever of any flight.

20 Also, the Prosecutor indicates that President Milutinovic has not

21 been apprehended and therefore somehow the guarantee of the Federal

22 Republic of Yugoslavia should not be sufficient to the Court. They made

23 that same argument in the Court in the case of General Ademi before Trial

24 Chamber I and that argument was that since General Gotovina from Croatia

25 had not been apprehended but the guarantee of the Republic of Croatia in

Page 417

1 that case should not be honoured and considered to be valid, and that was

2 rejected by the Trial Chamber.

3 We appended in Annex 4 to our pleadings articles from the

4 President of Serbia and the Prime Minister of Serbia and the Federal

5 Republic which indicates that their position is that President Milutinovic

6 will either surrender or be arrested when his term of office expires.

7 That apparently has been satisfactory to at least the United States

8 government and is certainly nothing that General Ojdanic has control over

9 or should be saddled with.

10 The Prosecution finally indicates that their investigations of

11 others are ongoing as a potential reason why General Ojdanic should not be

12 released. Again, this is something that's true in every case. They're

13 still investigating cases from Bosnia for 1992 and if this were a

14 consideration, then no one would ever be released. The fact of the matter

15 is that General Ojdanic, by his conduct, has done absolutely nothing to

16 impede or obstruct any investigations and in fact we hope to cooperate

17 with the Prosecutor in getting access to archives, and we've committed

18 ourselves to provide reciprocal discovery to them under Rule 67(C).

19 If the usher can show my second chart, please.

20 Your Honour, this is again a weighting of the precedents of this

21 Court. The precedents with respect to provisional release is extremely

22 well developed. There have been 15 decisions after the Rule was amended

23 in December of 1999. Twelve of the 15 people have been ordered released,

24 three have been detained. There is one common denominator; all 12 on the

25 left-hand side, who have been released, voluntarily surrendered, and the

Page 418

1 three on the right-hand side, who have been detained, did not voluntarily

2 surrender.

3 So I believe it's appropriate for this Court to determine where

4 General Ojdanic fits within the precedents of this Court, and I believe --

5 JUDGE MAY: Well, Mr. Robinson, this can't be done, of course,

6 mathematically. Every case will depend upon its own circumstances.

7 MR. ROBINSON: I understand that, Your Honour, and I believe the

8 Court will be looking to the precedents to determine how the circumstances

9 of this case fit with its jurisprudence, and I believe that General

10 Ojdanic fits squarely on the side of favour of release.

11 The first three people on the left, from the Bosanski Samac case,

12 all surrendered some two years after their indictment and after the

13 indictment was known to them.

14 Mrs. Plavsic was charged with genocide and held an even higher

15 position than General Ojdanic.

16 Generals Halilovic and Hadzihasanovic also held similar positions

17 to the accused in their own government.

18 Admiral Jokic and General Strugar were also former officers of the

19 Federal Republic of Yugoslavia who were released.

20 And most recently, Dragan Jokic was released upon a guarantee of

21 the Republika Srpska government by the Appeals Chamber. And I believe

22 that the cooperation of that government has been judged to be not even as

23 good as the cooperation of the Federal Republic of Yugoslavia.

24 On the other hand, the three people who have been detained, again,

25 none of them voluntarily surrendered and all are charged with genocide,

Page 419

1 which General Ojdanic is not charged with.

2 So, Your Honours, I hope that this has been of some assistance to

3 you; to look at the jurisprudence, to look at the factors pro and con that

4 have been used and weighed in the previous cases of this Tribunal.

5 There is one factor that hasn't been discussed in any of the cases

6 but is particularly compelling in General Ojdanic's case and that is the

7 fact that General Ojdanic is innocent. He never planned, ordered,

8 committed, or otherwise aided and abetted any war crimes or crimes against

9 humanity. Now, this Court has had the unique experience of sitting for

10 over four months and hearing a trial of the same indictment of General

11 Ojdanic, and I ask you to consider whether you've heard any evidence that

12 General Ojdanic has planned, ordered, committed, or otherwise aided and

13 abetted any war crimes or crimes against humanity. In fact, the

14 Prosecution's evidence has suggested that there was a private chain of

15 command for Kosovo from which General Ojdanic and his predecessor General

16 Perisic were excluded.

17 This Trial Chamber has great powers, including the power to find

18 General Ojdanic not guilty at the conclusion of his trial. But it doesn't

19 have the power to give him back the time that would be lost if he's

20 detained while awaiting that trial.

21 JUDGE MAY: Mr. Robinson, we cannot really go into the facts at

22 this stage. All accused, or most of them who apply for provisional

23 release, will have the presumption of innocence, and of course that

24 applies in this case. But the detail is something which we can't really

25 deal with now.

Page 420

1 MR. ROBINSON: I understand that, Your Honour, and I appreciate

2 that, but I know that this Court is dealing with justice and is dealing

3 with applying international humanitarian law, and there is nothing more

4 unjust or inhumane than imprisoning an innocent man.

5 I believe that the factors in favour of General Ojdanic's motion

6 for provisional release are compelling, and I'd ask the Court to grant the

7 motion so that he can return to the family and the country that he loves.

8 Thank you.

9 JUDGE MAY: Yes. Thank you.

10 Mr. Sarkic, I don't know if there's anything you'd like to add at

11 this stage since you've come from Belgrade to be here.

12 MR. SARKIC: [Interpretation] Thank you very much, Your Honours.

13 Allow me first and foremost to express my profound respect on behalf of

14 the federal government of the Federal Republic of Yugoslavia and the

15 Federal Ministry of Justice and on my own behalf. Just a few sentences

16 because I'm not here to act as defence. I am here to act on behalf of the

17 government that has given guarantees in these specific cases.

18 Allow me to say quite briefly that the guarantees proffered by the

19 government of the Federal Republic of Yugoslavia come from the Federal

20 Government and from both federal units, in this specific case, of the

21 Republic of Serbia because the two accused are citizens of the Republic of

22 Serbia. They are based on the law, these guarantees, and therefore they

23 cannot be contested or challenged from the point of view of whether the

24 state is going to act in accordance with these guarantees or not, because

25 they are derived from the law itself.

Page 421

1 Also, I wish to say that cooperation since the adoption of the

2 law, primarily with the Office of the Prosecutor but also with the

3 Tribunal in general, has been developing in the right direction and the

4 fact that I have come here is the result of our wish to express our

5 respect for this Court and to help establish all the facts.

6 Allow me to say quite briefly a few things by way of legal

7 argument. The presumption of innocence in the Yugoslav legal system is

8 one of the dominant principles. Also, as you've already heard, detention

9 is a measure for security only when the actual site or the Court may be

10 abandoned.

11 In this case, you have my word. I have personally talked to the

12 persons who are on the list. Mr. Sainovic and Mr. Ojdanic, without any

13 dilemma whatsoever, accepted cooperation, and after the deadlines they set

14 with me personally, they surrendered voluntarily. So the voluntariness of

15 their coming here cannot be brought into question at all.

16 I don't think it is fair that in these two particular cases we

17 encumber ourselves with some perhaps some other forms of cooperation, as

18 the Office of the Prosecutor has done. For example, conditioning this by

19 the arrest of some persons who are not on Yugoslav territory at all. We

20 do not know where these persons are and we are not in a position to carry

21 out their arrests. I'm not speaking in order to act for the defence of

22 the accused, but, Your Honours, I must say to you that both Mr. Sainovic

23 and Mr. Ojdanic, regardless of whether they are guilty in this case or

24 not, which you will judge, they were honourable people. They held high

25 positions. They never had criminal records. And not in any way did they,

Page 422

1 through their behaviour, do anything that would bring into question their

2 honesty. They are family men, and they enjoy high reputations.

3 Our legal system provides for a broad spectrum of measures that

4 can be taken and that will be taken if you meet their request. These

5 measures, as mentioned in the guarantee, mean a kind of house arrest,

6 obligatory reporting, constant monitoring, and, of course, the obligation

7 of the state that in case they do not report and if there is any

8 indication that they may leave the actual site or any such thing, that the

9 state will arrest them immediately and transfer them to this Court.

10 I assure you, Your Honours, you -- we have many more needs to

11 cooperate with the Tribunal than the Tribunal has to cooperate with us.

12 This is the result of the political suffering that the people of Serbia

13 and of Montenegro, the people of Yugoslavia, have gone through in the

14 preceding period. And please help resolve this situation by your ruling

15 in this case, and please help the process develop in order to stop the

16 hatred that existed among people and let us set individual responsibility

17 for persons who are prepared to be held responsible but also, in this

18 individual case, let us act accordingly.

19 Your decision will also encourage some of the other people who are

20 on the list. I've talked to some of them, and indirectly - not directly

21 but by proxy - they also accepted their readiness to appear before this

22 Tribunal, of course pending the outcome of this decision of yours.

23 Please accept once again the assurances of my deep respect, and as

24 a long-term -- long-time Judge and lawyer, I must say that I'm honoured to

25 be here. And if you rule favourably -- and on behalf of the federal

Page 423

1 government of Yugoslavia and the Federal Ministry of Justice, I hope that

2 your ruling is going to be of that nature, and I hope that I will be in a

3 position to speak to you as a representative of the government and as a

4 colleague of yours and that I will be in a position to look you straight

5 in the eye. Thank you.

6 JUDGE MAY: Thank you, Mr. Sarkic, and thank you for coming.

7 Yes. Madam Prosecutor.

8 MS. DEL PONTE: [Interpretation] [No translation]

9 JUDGE MAY: Perhaps rhetorically, and we'll hear if he responds.

10 MS. DEL PONTE: [Interpretation] [No translation]

11 JUDGE MAY: We're not getting a translation.

12 THE INTERPRETER: Is there a translation here?

13 JUDGE MAY: Yes.

14 MS. DEL PONTE: [Interpretation] I was telling you, President, Your

15 Honours, that Mr. Sarkic asked to see me this morning, and we left each

16 other a few minutes -- about 20 minutes before the beginning of this

17 hearing, and I would like Mr. Sarkic to tell you what we discussed and

18 what he told me, because I think it could be of interest for the Trial

19 Chamber.

20 Of course, I could give a summary myself, but since Mr. Sarkic is

21 here, it would be really for him to tell the Bench what he told me.

22 JUDGE MAY: Perhaps you'd like to continue your submissions while

23 he reflects on what he would like to say.

24 MS. DEL PONTE: [Interpretation] Very well. First of all,

25 President, Your Honours, I would like to say that the motion for

Page 424

1 provisional release presented by the two accused is premature. This is a

2 little more than a month that they've been in detention, detained, and we

3 have not been able to apply Article 63 of the Rules, that is, to proceed

4 to the hearing of the accused.

5 This Article 63 is particularly important, in particular when the

6 accused surrender voluntarily and are arrested here and detained here

7 after having surrendered voluntary. The fact that it hasn't been possible

8 to hear them is one of the elements which imposed to us to request to

9 continue the arrest of the two accused.

10 A word about cooperation. First of all, voluntary cooperation of

11 the accused can be examined only when we will have been in a position to

12 hear them, to interrogate them. I have some memories about other accused

13 which have been put back in provisional -- who have been freed. All have

14 been interrogated, all have answered our questions. Mrs. Plavsic, the

15 accused Plavsic, and others also. Therefore, the policy of the OTP is

16 that provisional release is possible as long as there are no more reasons

17 to continue with the inquiry and to maintain the accused in detention. So

18 apart from the fact that surrendering voluntarily and answering all our

19 questions, also the provisions of Article 65, the fact that there is no

20 danger for witnesses and other people.

21 I would also like to say two words about cooperation of the

22 federation of Yugoslavia.

23 JUDGE ROBINSON: If I understand your submission quite clearly,

24 are you saying that if an accused is otherwise eligible for provisional

25 release he should not be released because the Prosecutor has not completed

Page 425

1 the procedure under Rule 63? Is that your submission?

2 MS. DEL PONTE: [Interpretation] What I said, simply, what was the

3 policy of the OTP, the Prosecutor's office. We oppose a provisional

4 freedom as long as it hasn't been possible to interrogate the accused and

5 apply the provisions of Article 63. Indeed, in the other cases, during

6 the motion for provisional request, we did not oppose the motion.

7 JUDGE ROBINSON: I understand what you're saying, yes.

8 MS. DEL PONTE: Okay. [Interpretation] Thank you, Your Honour.

9 Two words about the cooperation of the federation of Yugoslavia and of the

10 cooperation of the government of Serbia. Their representative has just

11 said so; there hasn't been this internal cooperation active. There is

12 practically no cooperation. The fact of having applied this law has

13 enabled a start on cooperation, and I take with shock and surprise that

14 the Defence can access the archives. And I have to tell you,

15 Mr. President and Your Honours, that the OTP has no access to those

16 archives. We have not yet been able to find a solution in order to access

17 archives and the documents which are held in those archives. This is to

18 say that we still have probably 40 to 50 motions for documents and other

19 requests for collaboration which are still pending with the office.

20 Of course, it's impossible to avoid -- of the non-arrest of

21 Milutinovic, and here I wish to refer to what has been said by Mr.

22 Robinson, by creating a parallel with the case of Gotovina. There is a

23 great difference in that Gotovina, we don't know where he is, and while

24 the government of Croatia applied itself and is still trying to localise

25 him and to arrest him, while the accused Milutinovic, which is the same

Page 426

1 active indictment of the accused, we know exactly where he is.

2 I've heard that the facts of voluntarily surrendering because

3 there has been this law, due to the fact that there has been this law, but

4 also they have received instructions from that government. And here I

5 shall quote, President and Your Honours, the representative. He said

6 instructions of the government, given by the government. And this

7 naturally makes me think about the fact that this voluntary surrender is

8 not as personal or individual or voluntary as has been said. In fact,

9 this morning the representative of the government told me that he was here

10 to request the provisional freeing of the person, but there is the fact

11 that they are acting on instructions, and there are elements to prove

12 this.

13 The fact that the government of the United States does not oppose,

14 I have to tell you first of all, the government of the United States has

15 nothing to say here. This is a procedure, a criminal procedure about

16 individuals, and if already wants to speak about the considerations made

17 by the government of the United States, we will have to say that they have

18 changed. Those declarations have changed. They are informed by us, by

19 the non-full cooperation with us, they have already changed their

20 declarations, their statements. This is not what we want to discuss here.

21 What I would like to confirm is that we oppose to this release

22 also for a question of equality of treatment for all accused which are

23 presently detained in our unit of detention. That is to say, the arrest

24 is the rule, keeping detained is the rule, even if one says that the

25 Article has been amended, maintaining the accused arrested is the rule.

Page 427

1 The two accused have waited three years to surrender and to surrender on

2 instructions of the government.

3 We are interrogating the accused. We continue our work, our

4 pre-trial work about the questioning of the accused, and we do not oppose

5 a release when there are no necessities for the inquiry, when in

6 particular the trial cannot take place in time. This is our policy. It

7 hasn't been possible for us to question them. They have just been here

8 for more or less a month. Please let us, President, Your Honours, the

9 necessary time to do our own work.

10 If you will allow me, I would ask you to give the floor now to a

11 colleague for some other elements, Mr. President. Thank you very much,

12 Mr. President, Your Honours.

13 JUDGE KWON: Since Mr. Shin is standing, I would like to ask him.

14 It's about the Rule 63 procedure. How long do you think it will take to

15 have the procedure completed from now on?

16 MR. SHIN: I'm afraid I'm not sure if I can answer that at this

17 moment.

18 MS. DEL PONTE: [Interpretation] Excuse me. It's difficult to say.

19 It's difficult to answer this question. But if you look at the example of

20 accused Plavsic, six months were necessary. Those inquiries are not

21 simple. They have many questioning sessions, hearings, and the Defence

22 counsel has to be present. We have to prepare these interviews with the

23 counsel. It does take several months indeed. I can't be more precise for

24 the moment to say exactly how much time.

25 JUDGE ROBINSON: Madam Prosecutor, since you are on your feet,

Page 428

1 could that procedure, that questioning take place while they are on

2 provisional release? Or perhaps, could I ask, why could it not take place

3 while they are on provisional release?

4 MS. DEL PONTE: [Interpretation] Your Honour, everything is

5 possible in this procedure, but you have to think that when we interview

6 the accused, we are in fact releasing our evidence. If they are at large

7 or if they are free, they have possibilities to confront evidence which we

8 communicate to the accused and there is a danger of collusion. There's

9 considerable danger.

10 As you know, in a national system, this is why you have this sort

11 of pre-trial detention, precisely so that it wouldn't be possible to

12 consult with third parties and be in a position to undo what we have been

13 doing.

14 So this -- this freedom -- of course there is all possibility to

15 sort of prevent, to hinder our inquiries. This is why this situation of

16 detention exists. It is to guarantee that the inquiry can go on without

17 any interference from the outside, without any possibility of threat, for

18 instance, or outside influence. This is the very reason of pre-trial

19 detention, even in national systems.

20 JUDGE ROBINSON: Can I ask you, if the questioning takes place

21 while they are in detention and for that reason, on the basis of your

22 hypothesis, they are not in a position to release information that you

23 have given them, if they cooperate and, following that, they are

24 provisionally released, taking into account that element of cooperation,

25 what would then prevent them from releasing that information?

Page 429

1 MS. DEL PONTE: [Interpretation] Well, you know, when this

2 information has been revealed after first statement of the accused, when

3 he will speak, it will be spontaneously, without any interference, and

4 that has a certain value. So if I do it while he is provisionally free,

5 he can prepare. That's different.

6 What I need, because I'm here, of course, to find the truth, I'm

7 not here to find evidence, my questions to the accused are posed

8 independently and the accused is supposed to answer spontaneously and

9 independently and tell us if he remembers or if he does not remember.

10 This is the essential moment of our inquiries, and you know it, Your

11 Honour.


13 MR. SHIN: Your Honours, just two points on some of the points

14 raised by Mr. Robinson. First, Mr. Robinson pointed out that the accused

15 Ojdanic lived in the open in Belgrade during this time period. The

16 Prosecution would just point out that what that fact reflects, rather, is

17 the unwillingness of the authorities of the Federal Republic of Yugoslavia

18 at that time to cooperate with the Tribunal by arresting persons who had

19 been indicted. It's no surprise, therefore, that he would have been

20 living in the open at that time and would have voluntarily surrendered

21 only when it became clear that the Yugoslav authorities would consider

22 arresting these people who had been indicted.

23 On the second point, Mr. Robinson had also pointed out that

24 Mr. Ojdanic had indicated sometime fairly recently, as indicated in our

25 pleadings, that he believed he would best be tried by domestic courts, in

Page 430

1 particular, military courts. The Prosecution would just point out that in

2 the Talic decision on provisional release, it was also found important in

3 the context of that hearing that Talic had declared prior to the

4 provisional release argument that he felt justice could only be done in

5 the case -- in his case before a military court, not even allowing for --

6 but, however -- sorry, however, allowing for the possibility of an

7 international military court trying him.

8 The Prosecution merely notes here that Mr. Ojdanic does not even

9 allow for the possibility of international justice. Thank you.

10 JUDGE MAY: Thank you. Yes. We'll hear response. Time is a bit

11 limited, Mr. Fila, but of course.

12 MR. FILA: [Interpretation] Your Honours --

13 MS. DEL PONTE: [Interpretation] Yes, President, Your Honours. I

14 would like to summarise what has been said by the representative of the

15 government this morning, because I think that -- if he doesn't say it

16 himself, I'm going to try and summarise it myself. I think it's important

17 that the Bench should know what he told me this morning.

18 JUDGE MAY: Mr. Sarkic, is there something you want to say about

19 this?

20 MR. SARKIC: [Interpretation], Your Honours, I would first of all

21 like to respond to the question that was put to me by Madam Prosecutor.

22 May I?

23 JUDGE MAY: Yes.

24 MR. SARKIC: Thank you. [Interpretation] As you know, first and

25 foremost, it was agreed to have this hearing at 2.15. I arrived this

Page 431

1 morning, and yesterday, not aware of this change of schedule, I asked the

2 Office of the Prosecution to meet with Mrs. Del Ponte or somebody else

3 from the OTP. The reason was to continue the regular contacts that we

4 have by way of cooperation, and also I wanted to extend my personal

5 request to her that she should not be too loud, so to speak, that she

6 should not insist on her reasoning against our request for provisional

7 release. And if a favourable decision is reached on these two requests

8 for provisional release, this would greatly encourage the national

9 interests in my country, and this would directly affect the acceleration

10 of cooperation with regard to future surrenders or, to put it in better

11 terms, further cooperation with regard to other forms.

12 When the Prosecutor said that cooperation has been poor, I would

13 like to say that now over 50 per cent of the requests that the OTP

14 addressed to us were responded to favourably and that literally all the

15 requests that were sent to the Federal Ministry of Justice are being taken

16 care of now. So there's not a single one that was put aside.

17 As for Mr. Milutinovic, I think that he really should not affect

18 this case in any way because it is known that the attitude of the

19 authorities of the Republic of Serbia is that when his term of office

20 expires this autumn, he will be handed over to the Tribunal. It will

21 either be voluntary or it would be in some other way, even by way of

22 compulsion.

23 The Prosecutor is using double standards. When she speaks of

24 General Gotovina, she says that the Croatian authorities assured her and

25 the Tribunal that they were looking for him. And as regards certain

Page 432

1 persons from the territory of the Federal Republic of Yugoslavia, we say

2 that they are not in the territory of the Federal Republic of Yugoslavia,

3 she says that yes, these persons are in the territory of the Federal

4 Republic of Yugoslavia. And we have given guarantees that these persons

5 from the list are not on our territory, or rather, that we cannot have

6 them apprehended. As for the persons that we did manage to apprehend,

7 they were immediately handed over to the Tribunal. So I completely abide

8 by what I had already said to you, that both General Ojdanic and

9 Mr. Sainovic surrendered not when they had the danger of arrest looming

10 over them but when the subject matter of cooperating with the Tribunal was

11 regulated by law. And these were not any instructions by the federal

12 government, this was simply an agreement that was reached on the

13 implementation of a law. Thank you.

14 JUDGE MAY: Yes. I should make it plain that if there have been

15 discussions between the government and the Prosecutor, they aren't going

16 to affect the decision of this Trial Chamber, which is totally independent

17 of any discussions of that sort.

18 Now, Madam Prosecutor, time is limited. If you want to add a few

19 words, of course you may.

20 MS. DEL PONTE: [Interpretation] Yes, thank you, President, Your

21 Honours. I would like to confirm what has just been said by summarising

22 because the representative has spoken of lack of enthusiasm to cooperation

23 with us. If there is no provisional release of the two accused, I would

24 like, naturally, to simply add there is not only the question of the

25 access to the documents, there's also the question of the cooperation

Page 433

1 which is total when it is a matter about the inquiry about KLA. We

2 received 27.000 pages. Where we have difficulties, of course, is for the

3 inquiries concerning suspects, Serbian suspects. But what it is

4 absolutely unacceptable, we have had -- we have received six voluntary

5 surrenders, people who surrendered on the instructions of the government,

6 pushed to surrender, but we never had one arrest except one which was a

7 medium level perpetrator who we have had for a long time. But the

8 military, the high responsible military who are here, Pandurevic and other

9 names, and we've got Vladic. We know exactly, and everybody knows here,

10 and I said so to the representative of Yugoslavia that he also -- that

11 Mladic is in Serbia, and everybody knows. So these arrests don't take

12 place.

13 Mr. President, we must finish with these procedures. We have to

14 have these trials. Don't let them tell us that they are cooperating with

15 us, Mr. President. This is not so pertinent with the provisional release,

16 I agree, but one has to be able to appreciate what are these declarations

17 of guarantees, statements of guarantee? Those are guarantees which are

18 political where something is done simply because political advantage is

19 retrieved from it. And this is what happened in Serbia; if we don't have

20 this advantage, we won't do anything. So the provisional release of the

21 two accused is, for us, a political act. They need it politically but it

22 has nothing to do with what we are discussing now here.

23 Here we're discussing a procedure. We are discussing a criminal

24 trial which should go on properly. Milutinovic is going to be here

25 because he has to have his trial with the two others, but the release is

Page 434

1 not acceptable because it is premature now. It's possible if Mr. Ojdanic

2 and Sainovic declare, finally, that they agree to be interrogated, to be

3 questioned, then we may discuss.

4 Thank you, Mr. President.

5 JUDGE ROBINSON: Speaking for myself, the question of the degree

6 of cooperation between the government and the Tribunal is important. The

7 representative said that his government has acceded to over 50 per cent of

8 the requests from your office and that the others are in the process of

9 being considered. What do you say to that?

10 MS. DEL PONTE: [Interpretation] I do not have this information,

11 Your Honours. What I do know, because I'm dealing essentially with

12 motions which are still pending so I heard about this this morning by the

13 representative, but I can't answer you now, Your Honours, because I did

14 not do this calculation. What I can tell you is all the motions which

15 have been made on the KLA inquiry, there are many because this inquiry

16 should really be finished with an active indictment because here crimes

17 have also been committed, here we have also full cooperation and we get

18 everything fairly quickly. But I can't tell you exactly what the

19 statistic which has been talked about --

20 JUDGE ROBINSON: I'm quite interested in that, because one has to

21 view cooperation as a whole. I mean, not looking at specific cases which

22 have not been resolved. I think you have to look at it as a whole, have a

23 composite view and come to a conclusion as to whether there is or is not

24 cooperation, whether there is or is not a genuine effort to cooperate.

25 MS. DEL PONTE: [Interpretation] Yes, I agree very much with you,

Page 435

1 Your Honour, but as I was saying, of course, we have a cooperation for

2 certain suspects, for certain ethnic groups, and there is no cooperation

3 when you have Serbian suspects, and that has to be apprised. We would be

4 extremely happy to have a total cooperation on all our inquiries, and we

5 are ready to hear them if they have specific problems. Sometimes

6 technical objective problems may arise. But here one sees very clear, in

7 particular in the case of the military of Serbia, that there is no

8 cooperation at all. There again, one can't give a meaningful statistic

9 even if you can confirm it. You have to see what sort of cooperation is

10 at stake. If not, that's just a confirmation of this ethnical difference

11 according to whether the suspects are Serbian, Albanian, or -- one has to

12 see that the question of the government of Yugoslavia will cooperate with

13 us on all our requests.

14 JUDGE MAY: Time is now limited. Madam Prosecutor, I think we

15 need to get back to this particular -- these particular applications. I

16 think we've heard your argument. Unless there's anything you want to add.

17 MS. DEL PONTE: [Interpretation] Mr. President, this is all I

18 wanted to say.

19 JUDGE MAY: Mr. Sarkic, I see that you want to say something. We

20 can't, of course, allow this to be turned into a debate, but since

21 something has been said about the level of cooperation and my colleague

22 has asked a question about it, you can reply, if you would, within two

23 minutes so that we can hear Defence counsel too.

24 MR. SARKIC: [Interpretation] Your Honour, you have my word that

25 those percentages, not in the perceptual sense but in the substance of it,

Page 436

1 only several months after the law was enforced, have surpassed 50 per cent

2 and that all the conditions and requirements in the coming period will be

3 processed and dealt with. It's a question of days and weeks.

4 Madam Prosecutor said one of those requirements, of which there

5 are several hundred, that 200 addresses of witnesses are being sought. It

6 is difficult to get through that process. It's not a question of whether

7 we want to or not. We do want to, absolutely, but we just haven't had

8 time to respond to all of them. As to arrests of persons who are not on

9 our own territory, that assertion that Mladic or somebody else is

10 concerned that he was perhaps in Yugoslavia and we have to hand him over,

11 this is a statement that has not been backed up by any evidence.

12 If we ascertained that any one of these people were on our

13 territory, they would be arrested that very same moment. So please

14 understand that I am a representative of the government. I'm an

15 honourable man, and I wouldn't say anything to this Court that was not the

16 truth. And I'm very surprised that the Prosecutor does not know the great

17 degree of cooperation that exists when the representative of her office,

18 the OTP, Mr. Del Miko [phoen], in Belgrade, quite literally every day is

19 in my office for an hour or two and we are going through these requests.

20 So it is very surprising to me that she is not aware of this high level of

21 cooperation between ourselves and the Prosecution.

22 Thank you.

23 JUDGE MAY: Mr. Fila.

24 MR. FILA: [Interpretation] I'll be very quick, Mr. President. As

25 far as the remark made with respect to Mladic, Karadzic, and the others, I

Page 437

1 really don't see the cause and effect between that and Milo Sainovic [as

2 interpreted], with Mladic, Karadzic and all the rest. Where is the cause

3 and effect? We are discussing provisional release about one person and

4 not The Hague, the Prosecution, and who wants to cooperate in what way.

5 Now, as to Rule 63, we can make it incumbent upon ourselves that

6 we shall talk in Belgrade, hold discussions in Belgrade rather than here

7 and that's no problem. So I don't see why we should hold these

8 discussions in prison, in the detention centre. The same possibility is

9 for getting documents there and here. I'll be present there and here, so

10 these interviews can be conducted there as well.

11 JUDGE MAY: It could. I merely mentioned this as a possibility

12 and don't indicate any view thereby but when we come to consider it, it

13 may be possible to make it a condition of provisional release that the

14 accused make themselves available for interview, interrogation, and if

15 they were not to do so, they would be in breach, of course, of the order.

16 MR. FILA: [Interpretation] Yes. You have our complete

17 acquiescence on that point.

18 Second, please let us see what we mean by Rule 63. It should be

19 stated loud and clear that the accused is duty-bound to tell the truth and

20 not to say what Madam Del Ponte and her associates want to hear, because

21 if he says something that they don't want to hear, it appears that it is

22 not the truth. So it is the Court, the Trial Chamber, that is here to

23 ascertain and determine the truth, because if it was up to me, all the --

24 my defendants would have been released by now.

25 Now, one other point. Mr. Sainovic addressed a letter to

Page 438

1 government, and Mr. Sarkic has that letter. He wrote it in writing, and

2 he said that he would voluntarily respond to all calls from the Tribunal.

3 So he wasn't forced to do so. He was duty-bound to do so in writing

4 himself. So we looked into the ways and means of doing this.

5 And so that argument put forward does not hold water. They were

6 not forced, nor did he follow instructions from the government. It was

7 just the technical points

8 May I mention one more thing? Many witnesses that I wanted to

9 interview - the investigating judge, Danica Marinkovic, who was in Racak,

10 for example; you're doing that Tribunal, you know what I'm talking about -

11 when I wanted to talk to her, an investigator from the Tribunal had

12 already been sitting there and interviewing her, so they are able to

13 interview whoever they wish throughout Yugoslavia with the help of the

14 Ministry of Justice.

15 In the military court, I sought for documents and I was told that

16 the whole bound files have already been handed over. So all the documents

17 of the military court were already handed over. So cooperation does

18 exist. But what I don't understand is if the representative of the

19 government and Djindjic does not want to send Milutinovic here until his

20 time of office expires, which is in fact the month of October, why then

21 should Nikola Sainovic bear the brunt of the consequences of that? I

22 don't understand the logics of that.

23 Let's understand ourselves once more. By virtue of Yugoslav -- we

24 are in all the World Wars and Swiss law as well -- detention is nowhere a

25 punishment, seen as being punishment, because the person is presumed

Page 439

1 innocent. So how could you punish somebody whom you have not found to be

2 guilty? So what Madam Del Ponte is telling us in simple terms now is

3 that she is not satisfied with the level of cooperation with Mladic,

4 Karadzic, the associates of bin Laden, and so on, but I don't think that

5 any of us who are at liberty should suffer these consequences but that

6 what she is saying is that Mr. Sainovic should be, and his women and

7 children, until the level of cooperation has been raised to the level that

8 is found to be satisfactory by Madam Prosecutor Del Ponte. I don't think

9 that is fair, because you have the ram and the Bible when all the sins

10 have been purified with one sacrificial lamb, which is what we learnt in

11 Bible lessons.

12 So let me say again that concrete cooperation does exist. While

13 they held a position, a high position, they could perhaps wield influence

14 on some witnesses, but how can they do so at home when they have a

15 security van in front of us?

16 And let me assure you one more thing, Mr. President; those

17 guarantees are in place. They are functioning. You have regular reports

18 from our consulate as to Mrs. Biljana Plavsic and Jokic and it is not true

19 that they all of them cooperated with Admiral Jokic. Look at the decision

20 with General Strugar. The same thing took place. It was only said that

21 they would cooperate in Belgrade. And General Strugar is to cooperate

22 with Mr. Somers [phoen] in Podgorica, as I've been told, and in Belgrade

23 as well. So it is not true that by virtue of Rule 63 they were

24 interviewed and questioned by Madam Prosecutor, first of all, all the

25 generals, the Croats and the Muslims. None of them have been questioned

Page 440

1 and interviewed. I would like her to show me a list of who she held

2 interviews with. Perhaps Mrs. Plavsic did but that's not true either. So

3 not all of them were subject to the application of Rule 63, question of

4 accused. And I can assure you that Mrs. Del Ponte will be able to conduct

5 interviews and questioning and you can put that down as a condition for

6 provisional

7 release, that she will be able to do so in my offices or wherever she sees

8 fit. Thank you.

9 JUDGE MAY: Yes, Mr. Robinson. Five minutes.

10 MR. ROBINSON: Your Honour, I think I can do it in about two

11 minutes.

12 Your Honour I would like to speak briefly about cooperation by

13 government and then cooperation of the accused. Regardless of this whole

14 political dispute between the Prosecutor and the Federal Republic of

15 Yugoslavia, you have the guarantee of the Republic of Serbia which has

16 been accepted already three times by Trial Chambers in this Court, and

17 their cooperation has only gotten better since those decisions.

18 The Appeals Chamber just recently, within the last month, found

19 that Republika Srpska's guarantee was adequate to assure the release of

20 the defendant Dragan Jokic, and the Republika Srpska's cooperation

21 certainly has not risen to the level of the Republic of Serbia or the

22 federal Republic of Yugoslavia. So you have adequate guarantees from the

23 governments in place.

24 With respect to cooperation in Article 63 or Rule 63 of the Rules,

25 I think the Court already understands that this can be done while on

Page 441

1 provisional release, and General Ojdanic has no objection to that. But

2 he's already begun his cooperation with the Prosecutor and the Court even

3 in the very small parts of this case that have already commenced. When he

4 sought access to the transcripts of the Milosevic case, he indicated that

5 he was doing so in the hope that he could agree to testimony given at the

6 Milosevic case could be used at his trial without the witnesses coming

7 back, and that's an objective that he's going to continue to seek. We

8 have agreed to reciprocal discovery and offered to cooperate with the

9 Prosecutor and committed ourselves in writing to do that, to disclose

10 everything under Rule 67 that we're required to do that. And within that

11 process, we've given the Prosecutor a ten-page letter in which we

12 detailed, outlined the Defence and what was material to the Defence so

13 that they could provide us with disclosure.

14 General Ojdanic accepts the jurisdiction of this Court. He's not

15 here because his government pushed him. He's here because he's an

16 honourable man. He preferred to have Prosecution take place in domestic

17 courts, which is allowed under our Rules, but when that was not possible

18 under the law passed by the government, he promptly surrendered and

19 courageously surrendered before this Court.

20 As the Court has said in its opinion on provisional release,

21 actions speak louder than words. General Ojdanic has shown by his actions

22 that he can be trusted, and he should be given provisional release. Thank

23 you Your Honour.

24 JUDGE MAY: Thank you. We will consider this application and we

25 will give our decision in writing in due course. We will adjourn now for

Page 442

1 the next hearing.

2 --- Whereupon the Motion Hearing adjourned

3 at 12.43 p.m.