1 Tuesday, 1 July 2003
2 [Motion Hearing]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 3.02 p.m.
6 JUDGE MAY: Let the Registrar call the case.
7 THE REGISTRAR: Yes, Your Honour. Good afternoon, Your Honours.
8 This is the case number IT-03-68-PT, the Prosecutor versus Naser Oric.
9 JUDGE MAY: May I have the appearances, please.
10 MR. WITHOPF: Good afternoon, Your Honours. For the Prosecution
11 appear Mr. Jayantha Jayasuriya on my right-hand side, trial attorney.
12 Ms. Kimberley Fleming on my left-hand side, trial support. And I,
13 Ekkehard Withopf, acting senior trial attorney.
14 MS. VIDOVIC: [Interpretation] Good afternoon, Your Honours. My
15 name is Vasvija Vidovic, and assisting Mr. John Jones, defending Mr. Naser
17 JUDGE MAY: Yes, thank you. And we have the Federation
18 representative here also, I understand. Would you like to introduce
19 yourself, please.
20 MR. HALILOVIC: [Interpretation] Your Honours, my name is Mevludin
21 Halilovic. I'm a Minister of the Interior of the government of the
22 Federation of Bosnia and Herzegovina. And Bosnia-Herzegovina has
23 been respecting the Tribunal from its founding. It has been closely
24 cooperating with the Tribunal carrying out its requests and saying that it
25 will continue to do so in future.
1 JUDGE MAY: This is the hearing of a motion for provisional
2 release by this accused. It has been fully briefed in that we have had
3 full submissions from both sides. We will hear oral submissions, but they
4 shouldn't repeat the matters which are already in the brief. We'll hear
5 from the Defence first, it being their motion.
6 MS. VIDOVIC: [Interpretation] Your Honours, following your
7 suggestion, I will not repeat the arguments that we have written down in
8 the submission in our motion for provisional release of Mr. Oric dated
9 21st of May, 2003, and our response to the Prosecution motion to our
10 response. But because of the heavy accusations that were submitted by the
11 Prosecution, I will have to raise some issues that the Prosecutor has been
12 insisting in his submissions. I will not speak a lot regarding what the
13 Prosecution said, saying that the burden of proof is on the Defence to
14 prove that --
15 THE INTERPRETER: Could the counsel please slow down considering
16 that Ms. Vidovic is reading.
17 MS. VIDOVIC: [Interpretation] Everything that I am saying in
18 response to the Prosecution motion, the Rule says that release may be
19 granted by the Trial Chamber. I am deeply convinced that the word "may"
20 indicates that the Trial Chamber may grant provisional release under
21 certain conditions which are clearly set out in the Rule. The Chamber
22 must be convinced that the accused, if released, will appear at the trial
23 and that he will not represent a danger to victims, witnesses, or any
24 other persons. The Chamber does not have any other discretionary powers
25 under this Rule.
1 In this case, the Prosecutor has gone so far as to ask that the
2 accused be kept in detention even if the Defence is able to present valid
3 arguments to show that both conditions in Rule 65(B) have been met. They
4 have asked the Trial Chamber to use its right to reject a motion for
5 provisional release. The Prosecutor quotes with approval the claim that
6 detention is needed before a trial in order to maintain the confidence of
7 the public in the fairness of the trial. Your Honours, the Tribunal is
8 applying international law and international legal standards from human
9 rights law which say that detention should be as brief as possible before
10 a trial, and that detention should be -- should be exercised when it is
11 absolutely necessary. This is not in accordance with the interpretation
12 put forward by the Prosecution. Public confidence can only be maintained
13 by a fair trial. All of us here, including the Prosecution, are here to
14 contribute to a fair trial. The Prosecutor must treat the accused fairly.
15 Your Honours, this is not what they're doing.
16 The Prosecution made it impossible for Mr. Oric to surrender
17 voluntarily to the Tribunal. Mr. Oric cooperated with the Prosecution.
18 He was interviewed as an accused on several occasions, and from parts of
19 his interview, which we have adduced, it is evident that he voluntarily
20 gave the interviews which lasted, in our estimation, about 105 hours. On
21 the 6th of April, 2001, he told the investigators that if indicted, he
22 wanted to surrender to The Hague voluntarily. The police commissioner of
23 Tuzla Mr. Divkovic, as can be seen from our annex C, made the statement
24 which shows that the accused did apply to the police asking for it to be
25 made possible to surrender voluntarily. However, SFOR was ordered to
1 arrest him by force quite unnecessarily, and it is this lack of necessity
2 that caused such public indignation and outrage. The same public that the
3 Prosecution has in mind.
4 Your Honours, Mr. Oric's surrender was accepted. It was to be
5 voluntary, so this sounds cynical. They say his surrender was voluntary,
6 but this has nothing to do with whether he would be willing to attend the
7 trial, to be at the trial after seeing the evidence --
8 JUDGE MAY: You needn't argue that point further because they have
9 conceded that he is to be treated as if he did, as I understand it.
10 MS. VIDOVIC: [Interpretation] Yes, Your Honour, they have conceded
11 voluntarily, but now they are saying that he will not appear at his trial
12 because certain circumstances could influence the government and it will
13 not be able to arrest him. Your Honours, articles have been presented
14 about public protests in Tuzla which were broadcast on CNN and other TV
15 stations and published in the press. Please look at all this carefully.
16 The contents of these reports are one thing, and the Prosecutor's
17 interpretation is quite another. They are trying to give these reports a
18 meaning they do not have. Both texts adduced by the Prosecution say that
19 several hundred mothers and wives of the victims of the terrible massacre
20 in Srebrenica in 1995 protested, and it's evident from both articles that
21 they protested not because Oric was arrested but because Karadzic and
22 Mladic have not been arrested. And these are key figures accused of the
23 genocide. One of the articles says that the key figures accused of the
24 massacres are still at large. The women of Srebrenica, after a funeral in
25 the village of Potocari, where hundreds of victims of this massacre were
1 buried, said in this article: "We demanded that Karadzic and Mladic be
2 arrested as soon as possible. Instead of this, one of our people has been
3 arrested." It is evident further from the article that the mothers of
4 Srebrenica protest on the 11th day of every month. The essence of these
5 protests is something far more serious.
6 Please bear in mind something that the Prosecution has neglected
7 to mention. The protests, when they took place in front of the UN, it was
8 Mr. Oric who himself came out to calm down the protesters. And we have
9 adduced a document showing this, which shows what his attitude is both to
10 the protests and to international justice. On this occasion, I want to
11 draw attention to some major contradictions between the evidence put
12 forward by the Prosecution and the conclusion the Prosecution draws from
13 this evidence. First of all, they say that Oric is considered a hero in
14 his environment and that the government will have serious difficulties if
15 they wish to fulfill their guarantees because of the protest campaign that
16 has been mentioned. However, in developing their arguments on the danger
17 that the accused would pose to witnesses, victims, and other persons, they
18 say, referring to Oric, the following: "People who were killed or who
19 took part in the clashes were members of his family or his subordinates."
20 Then they adduce a statement by an anonymous witness describing the
21 protests against Oric in Srebrenica. The pamphlets issued against him.
22 The evidence provided by the Prosecution compromise their own conclusions.
23 Furthermore, the conclusions drawn by the Prosecution about the importance
24 of the accused and his status as a hero in Srebrenica are incorrect, or it
25 is the witness statements that they themselves provide that are incorrect.
1 It is up to Your Honours to make the decision, the right decision on this.
2 As regards to the protest by the mothers of Srebrenica, I have
3 adduced a letter which is a guarantee that they will refrain from
4 anything that might compromise the decision made by the government to
5 fulfill all their obligations to this Tribunal. I will remind you briefly
6 once again that we have put forward a number of newspaper articles from
7 which it is evident that on the occasion of the arrest of all Bosniak
8 generals, there were always protests, including protests by the mothers of
9 Srebrenica, and Oric is no exception to this. Especially large protests
10 were held in Sanski Most when 15.000 citizens of this town protested when
11 General Alagic was arrested. Numerous citizens' associations in Bosnia
12 and Herzegovina protested but this did not hinder the government of Bosnia
13 and Herzegovina from providing guarantees that they will again arrest the
14 general, and it did not hinder them from performing all their
16 The government of Bosnia and Herzegovina, I assert, will fulfill
17 all their guarantees, and the Tribunal should have no reserves in
18 accepting these guarantees.
19 The cooperation of official Sarajevo and the Tribunal has been
20 ongoing ever since the Tribunal was founded. It has always been
21 unconditional. In November 1994, an agreement was signed with the
22 Prosecution on the handing over of evidence and accused to The Hague
23 Tribunal. The war was still going on when this happened. The government
24 of Bosnia and Herzegovina recognised the right of the Tribunal to issue
25 subpoenas and they undertook to comply with these in the Blaskic case.
1 Arrests on the orders of the Court took place immediately when Landzo and
2 Delic were arrested. They were handed over to the jurisdiction of the
3 Tribunal, as were the leading figures in the army of Bosnia and
4 Herzegovina, Hadzialijagic and Hadzihasanovic. There is no arrest warrant
5 that the government of the Federation did not execute immediately. And
6 finally, the government of the Federation of Bosnia and Herzegovina in its
7 -- in Article 8 of its constitution under the Dayton Accords is bound to
8 cooperate with the Tribunal and carry out all its orders. There is no
9 guarantee provided by the government of Bosnia and Herzegovina that will
10 not be carried out and no person that will not be handed over because of
11 public pressure. All this runs counter to the claims by the Prosecution.
12 The Prosecution claim that the accused, if released, would pose a
13 danger to victims, witnesses, or any other persons is without any
14 foundation whatsoever. The Prosecution bases their claim on the alleged
15 previous behaviour of the accused. They say that it is well known that
16 many individuals who spoke out against the activities of the accused
17 suffered serious consequences, including death under mysterious
18 circumstances. First of all, what does it mean when they say this is well
19 known? What does this mean and what does death in mysterious
20 circumstances mean? This speaks for itself. The Prosecution goes on to
21 say that the accused and his accomplices instigated a reign of terror and
22 that no one was allowed to doubt their activities.
23 Does this not run counter to the argument of the Prosecution that
24 the accused is considered a hero in his environment? In paragraphs 12,
25 13, 14, and 15 of their response, they base all this on disinformation,
1 rumour, gossip, and insinuation. The Prosecutor has completely forgotten
2 the presumption of innocence which is guaranteed in Article 21(3) of the
3 Statute. The accused is not to be considered guilty until proved guilty.
4 The main proof of the violent behaviour of the accused is found by the
5 Prosecution in a state security document entitled "Naser Oric, information
6 and indications." For lawyers, the very title "information and
7 indications" means a lot. However, in footnote number 12, the Prosecution
8 say that this document is the result of an investigation, and this was
9 submitted to the commander of the army of Bosnia and Herzegovina. This is
10 simply not true. On page 8 of this document, under "conclusions and
11 proposals," items 3 and 4, it is evident that this document is only a
12 basis for an investigation, that this is a pre-investigation document, and
13 that the investigation authorities are only to begin collecting
14 information and evidence and throwing light on these indications.
15 However, let us take a look at this document. It is replete with
16 indications and insinuation.
17 On page 3, under number 4, it says: "Oric detained some witnesses
18 who were killed under mysterious circumstances." In 5, it says that, "The
19 former SDA president and the head of the Srebrenica SMB was injured under
20 mysterious circumstances." Then the civilian protection commissioner also
21 allegedly knew of Oric's machinations. Under number 8, it says that
22 Aljukic, before the war, had a company, but this was not verified. Then
23 it says that allegedly, there were murders which were never cleared up.
24 In 19, it says: "According to unverified information, Oric has an account
25 in Paris." So everything is alleged, everything is unverified, everything
1 is not clear.
2 Yesterday, Your Honours, the Prosecution delivered to us in the
3 late afternoon two additional documents, one of which is a document of the
4 Tuzla State Security Service dated the 12th of January, 1996. First of
5 all, I wish to draw attention to the fact that the English text, which is
6 a translation from Bosnian into English, should be taken with a large
7 grain of salt. A superficial comparison of the original text and the
8 translation shows that during the translation into English, mistakes were
9 made which changed the meaning of the document considerably. On pages 3
10 and 4, items 9, 10, 11, 14, 15, and 18, when a name is mentioned, for
11 example, Begic, in the original, it says "A certain Begic, a man called
12 Begic" which in the original points to the lack of information about this
13 person. In the English text, it just says "Begic," making it appear that
14 the -- who this person is is quite clear.
15 In the translation into English, which was handed over by the
16 Prosecution, it says on page 8, it is page 5 of the Bosnian original,
17 "After the arrival in Tuzla, Oric received 500.000 deutschmarks," while
18 in the original, it says: "Oric allegedly received 500.000 deutschmarks."
19 Your Honours, that is a significant difference. Received, if we say
20 received, that has been established. But when we say allegedly received,
21 that means that somebody may have said that Oric may have received this
22 amount of money.
23 Your Honours, I do want to believe that these mistakes happened
24 because the translation of the document was rushed. The entire document
25 is replete with such mistakes, and I will have to stress another important
1 one on page 9 where it says that, according to the English text, it says:
2 "According to a certain Rifat Suljic from Polje Visnjica" while in the
3 original, it says: "According to the reactions of a certain man called
4 Rifat," when we use the word "certain," that means that he came and gave a
5 statement. He told something to someone. But if we say that it's
6 somebody's reaction, then it has a completely different, more general
7 meaning. So I would like the Prosecutor to hand over to the Trial Chamber
8 an adequate translation.
9 I want to say something about this document. The document as it
10 is, as we were given it by the Prosecutor, is about the same as the
11 document dated the 23rd of September, 1995. It is also called
12 "information or intelligence" and it's also speaking about unchecked,
13 uncorroborated information about certain murders, about intelligence given
14 by some unknown persons, and some events that are mentioned, for instance,
15 the wounding of Mr. Mustafic. It says that on the same page, that it is
16 possible that Mr. Mustafic could have been wounded by one of Naser's men,
17 Naser Oric. And it also says that rumour has it that for the same event
18 may have been caused by a man called Mrki Mandzo. Now what kind of
19 documents are these? As far as Oric himself is concerned, this document
20 such as it is, there is no way that this document says at any point that
21 Naser Oric is dangerous. Specifically, in relation to Mr. Oric, on page
22 1, this document specifically under items 8, 9, and 10 it, says allegedly
23 he may have received a certain amount of money. That certain people close
24 to him may have sold flour to him from humanitarian aid. There are other
25 things in there, other rumours, but there is nothing about things that are
1 relevant to this case.
2 Now, in this document, there is a general assessment on page 8
3 that the leaders of the 28th Division were anarchic and that in every way
4 they discredited and prevented the work of civilian authority, civilian
5 organs by force. Now this comment, Your Honours, when we look at the
6 context in reference to Mr. Oric, cannot be brought into connection with
7 Mr. Oric. Now, very briefly, I will speak about the second document that
8 was added by the Prosecutor dated 10th of March, 1997, from the same
9 source. And this document speaks about the ending on the investigation,
10 or rather, that the planned tasks have been carried out, and what is
11 proposed is the closing of the file. In fact, it says that at -- what
12 should happen, the plan action should be terminated. Your Honours,
13 naturally --
14 JUDGE ROBINSON: Can I ask, did you give a comprehensive list just
15 now of the mistakes in translation?
16 MS. VIDOVIC: [Interpretation] I believe I have. Perhaps not a
17 complete list. I said that it was a cursory analysis of the translation.
18 I didn't really have time for that, Your Honours, because I received the
19 document late afternoon yesterday. I just pointed to those mistakes that
20 changed the meaning, that altered the meaning, particularly considering
21 that the translation has been done to the detriment of my client.
22 JUDGE ROBINSON: Thank you.
23 MS. VIDOVIC: [Interpretation] Your Honours, when speaking about
24 the documents submitted by the Prosecution, Prosecutor's document, I would
25 like to say further that on the basis of such documents, the Prosecutor
1 wishes to represent Mr. Oric as being a dangerous murderer who is
2 terrorising and causing fear, and that therefore he will be dangerous for
3 victims and witnesses. Your Honours, in these documents, these documents
4 do not give any basis to the Prosecutor to state such things. There is a
5 lot in information and indication in this document, this is not a result
6 of an investigation which has been carried out, as it has been suggested
7 by the Prosecutor. In order to check this, I have carried out very
8 detailed investigations, and I have also added the statement of
9 General Jusuf Jasarevic, which is in annex 6 of our submission, which
10 sheds quite a lot of light on things. General Jasarevic is very decisive
11 in saying that it is in connection to this document there has been an
12 overall investigation that was carried out, and according to the data that
13 I have, this investigation of Mr. Oric lasted from 1995 until September
14 1998 when it was filed in the archive. And this was an overall
15 investigation, all-encompassing. And it did not confirm what has been
16 alleged in the document, and that is why criminal proceedings were never
17 instigated. The criminal proceedings was instigated against Mr. Oric or
18 any other people who were mentioned in the document.
19 From the statement given by Mr. Jasarevic we can, however, see
20 that the investigation has demonstrated there has been a rivalry and
21 conflicts between certain individuals. And as a result of that, this very
22 contradictory information reached the army intelligence service. Now,
23 Your Honours, so that we can establish the truth and to shed light on
24 these facts for the Trial Chamber, we have submitted evidence regarding
25 the interfactional conflicts in Srebrenica at the time. These
1 interfaction clashes, particularly supported by our annex number 7, which
2 is a letter of Mr. Rasim Delic to the Srebrenica citizens, and in this
3 letter, Mr. Delic speaks of his concern because of the clashes among the
4 leaders in Srebrenica. In our annex number 8, in the statement of
5 Mr. Ramiz Becirovic --
6 JUDGE MAY: Ms. Vidovic, we don't have unlimited time. We can
7 read the various materials that you have. I must ask you, in order that
8 everybody else can have time, to draw to a close, please.
9 MS. VIDOVIC: [Interpretation] Very well, Your Honour. Very well.
10 Your Honours, I am doing this because of the seriousness of the
11 accusations, because sometimes they go over what has been set out in the
12 indictment. Very briefly, I will further say that the Prosecutor
13 believes, has been trying to prove, that Mr. Oric has already contacted
14 and trying to influence certain witnesses. Mr. Oric refused any contact
15 with any potential witnesses. He's also refuted the evidence of the
16 statement given by COO2. We gave the affidavit, the statement of
17 Tursunovic where it is stated quite clearly that he's denying what Witness
18 C002 has stated, and I'm not going to go back and stress and quote this.
19 But I would like to ask the Prosecutor whether he believes his Witness
20 C002 because it is a fact that it is the Prosecutor --
21 JUDGE MAY: It's not a matter for the Prosecutor to state such
22 things. It's a matter for the Trial Chamber. Now, we're not in a
23 position to try these matters. We're going to have to deal with them on
24 the papers.
1 MS. VIDOVIC: [Interpretation] Very well. Thank you, Your Honours.
2 I can just add further that other allegations of the Prosecutor are
3 unfounded, that Mr. Oric tried to shift the responsibility and the blame
4 on the dead. This doesn't stand at all. This Prosecutor is basing this
5 on the few pages of his statement. Mr. Oric gave about 2.000 pages worth
6 of statement. And just to extract such a short part of the statement out
7 of context isn't fair. Now, it is certain that a lot of people are among
8 the dead in Srebrenica, and that is the truth, and the Prosecutor should
9 open his eyes to this.
10 Now, on the basis of the proof that the Prosecutor presented on
11 the part of the deliberate campaign of misinformation, particularly when
12 there is so much evidence presented by us which is contrary, now to do so
13 is to deny the presumption of innocence. Now, I will just raise something
14 else very briefly, and this is regarding a person has -- this is in
15 relation to a person for whom the government of BH --
16 JUDGE MAY: Yes, Mr. Withopf.
17 MR. WITHOPF: Your Honours, the Prosecution objects to
18 Mrs. Vidovic to Defence counsel continuing in the manner she does. She
19 has several times been advised by Your Honours that there is nothing about
20 repetition, there is nothing about --
21 JUDGE MAY: No, Mr. Withopf, please, it's a matter for the Trial
22 Chamber to determine how long she goes on. But would you have in mind the
23 clock, please.
24 MS. VIDOVIC: [Interpretation] Very well, Your Honours. I will
25 finish very briefly. Mr. Oric is a person for whom the government gave a
1 very full guarantee, also guaranteed by the police commissioner from
2 Tuzla, that he will appear at his trial. Certainly, as the first man of
3 the local police would not guarantee such a thing for a person who has no
4 respect of law, as he has been presented by the Prosecution. If you look
5 at our annex, and the statement of Mr. Desnica, I can just tell you
6 briefly who this is. Mr. Desnica is the vice-president of the Federation
7 of Bosnia and Herzegovina. He's a Serb, and he is the first prime
8 minister of the post-war Srebrenica government. And looking at the
9 request for guarantee of Federation of BH, he said: "I know Mr. Oric, and
10 I know what kind of man he is. And because of Srebrenica, it would be
11 good to respect this guarantee." It would be very unlikely that Mr.
12 Desnica could give such a statement in reference to such a person if he
13 didn't have -- if he wasn't sure that Mr. Oric would be respecting the
15 Now, I would like to point out another fact which I believe that
16 shows and demonstrates the unfair position towards Mr. Oric of the
17 Prosecution. Now, 42 witnesses live in Republika Srpska. There were 40
18 statements. Now, in reality, if the accused went into contact with them,
19 there is only one witness who lives in Sarajevo, and this is in -- and
20 he's a witness to general circumstances which has nothing much to do with
21 Mr. Oric. Five are protected witnesses, so -- and there were -- such
22 statements are so -- many large parts of the statements are expunged, so
23 what kind of danger would Mr. Oric present to such witnesses if he doesn't
24 have any data as to who they are? I'm absolutely certain that the
25 Prosecutor is aware of these facts that I have raised, but I believe that
1 the Prosecutor has another objective which has nothing to do with justice
2 and fair trial.
3 JUDGE MAY: You will not attribute false motives to the
4 Prosecution. Now, Mr. Halilovic, have you anything you want to add?
5 MR. HALILOVIC: [Interpretation] Your Honours, it is a great honour
6 for me to speak on behalf of the government of Bosnia-Herzegovina, and it
7 is on the basis of pursuant to the law of the Federation of
8 Bosnia-Herzegovina the government is guaranteeing that Mr. Naser Oric, if
9 he is provisionally release, he will respect the following conditions upon
10 arrival in Bosnia-Herzegovina. Within three days, he will send the
11 address to the Registrar of the Tribunal. And in case this address is
12 changed, he will inform the Registrar. To the relevant ministry, he will
13 hand over his passport, which will be either kept at the ministry or at
14 the Prosecutor's office in Sarajevo. He will not leave the territory of
15 the Tuzla canton. Once a week, he will report to the Tuzla police. He
16 will consent to having officials of the Federation verify his presence at
17 occasions unannounced visits to the accused by these officials or by a
18 person designated by the Registrar of the Tribunal. He also guarantees
19 that he will not have any contacts whatsoever or in any way interfere with
20 victims or potential witnesses or in otherwise interfere in any way with
21 the proceedings or with the administration of justice. He will not seek
22 access to documents and archives. He will not discuss his case with
23 anyone, including the media, other than his counsel and immediate members
24 of his family. He will not occupy any official position in
25 Bosnia-Herzegovina. Within three days of the start of employment, he will
1 report to the Registrar and include of the position occupied as well as
2 the name and address of the employer. He will strictly comply with any
3 requirements of the authorities of the Federation of Bosnia-Herzegovina
4 necessary to enable them to comply with their obligations under the order
5 for provisional release and the guarantees. He will return to the
6 Tribunal at such time and such date as the Trial Chamber may order. He
7 will strictly comply with any order of the Trial Chamber varying the terms
8 of or terminating the provisional release of the accused.
9 The government of the Federation of Bosnia-Herzegovina are fully
10 going to cooperate with the Tribunal in The Hague and will take over any
11 transport expenses of the accused from Schiphol airport to the place of
12 residence and back. Also, the cost of the personal security and safety of
13 the accused whilst on provisional release. Report immediately to the
14 Registrar of the Tribunal substance of any threats to the security of the
15 accused including full reports of the investigations related to such
16 threats. Facilitate at the request of the Trial Chamber of all the
17 parties all means of cooperation and communication between the parties and
18 ensuring -- and will ensure the confidentiality of any such communication.
19 They will submit a written report to the Registrar of the Tribunal every
20 month as to the presence of the accused and his compliance with the terms
21 of this order. Will immediately detain the accused should he breach any
22 of the terms and conditions of his provisional release and will report
23 immediately any such breach to the Trial Chamber.
24 I have here the authorisation of my government which enabled me to
25 read these through, and I am ready to answer any questions you may have.
1 Thank you.
2 JUDGE MAY: Thank you.
3 Yes, Mr. Withopf.
4 MR. WITHOPF: Your Honour, the Prosecution will try to answer the
5 different issues that have been addressed by the Defence in a structured
6 manner, focussing on the real factual issues. I will first very, very
7 briefly address the ICTY's jurisprudence, then we will discuss the two
8 relevant reports, the 1995 report and the 1996 report, and finally we will
9 address the government guarantee.
10 The law and the jurisprudence of the Tribunal in respect to Rule
11 65(B) is summarised as follows: "A decision regarding provisional release
12 pursuant to this Rule involves findings of fact as to whether the accused
13 will appear for trial and whether, if released, he will not pose a danger
14 to any victim, witness, or any other person." It is settled Appeals
15 Chamber jurisprudence that only after finding that the applicant met his
16 burden on those points, the Trial Chamber would exercise its discretion as
17 to whether the applicant should be granted provisional release. The
18 standard is balance of probabilities, there's even ICTY jurisprudence that
19 states that the standard should be a higher one.
20 When it comes to the second prong of Rule 65(B), the jurisprudence
21 of this Tribunal recognises an almost absolute burden of the accused to
22 show an absence of danger to others. Finally, upon exercise of the Trial
23 Chamber's discretion, an applicant may be denied provisional release even
24 if he has met his burden of proof on the two points as set out above.
25 These are the preconditions for any decision on the provisional
1 release application of the accused.
2 The Prosecution will now address the two crucial reports that in
3 the view of the Prosecution show that they are -- its indication that
4 interfere with witnesses, the first report is the 20 September, 1995,
5 report of the military security service of the 2nd Corps signed by
6 Mr. Jusuf Jasarevic, and the second report is the 12th January, 1996,
7 report of the State Security Service in Tuzla.
8 JUDGE MAY: Let's make sure that we have these. The first
9 report --
10 MR. WITHOPF: The first report --
11 JUDGE MAY: Wait a minute. Let me just find it. Which attachment
12 is it to your response?
13 MR. WITHOPF: The first report, Your Honour, is the attachment B
14 to the Prosecution's response.
15 JUDGE MAY: And this is a report of the 2nd Corps? Is that right?
16 MR. WITHOPF: That's a report of the military -- this is the
17 report of the military security service of the 2nd Corps of Tuzla.
18 JUDGE MAY: ABiH.
19 MR. WITHOPF: ABiH 2nd Corps, right, Your Honour.
20 JUDGE MAY: Yes, we have that.
21 MR. WITHOPF: And the second report is the 12th January 1996
22 report which has been filed as an annex to our yesterday's filing. This
23 report is a report of the State Security Service in Tuzla.
24 JUDGE MAY: Yes.
25 MR. WITHOPF: The Prosecution wishes to emphasise that both
12 Blank pages inserted to ensure pagination corresponds between the French and
13 English transcripts. Pages 27 to 30.
1 reports are official reports of authorities within Bosnia and Herzegovina;
2 they are not gossip, as discredited by the Defence. In respect to these
3 two reports, the Prosecution submits that in particular, the 23rd
4 September report, September 1995 report, can be used in assessing the
5 situation in the context of the provisional release application. Despite
6 the statement of Mr. Jasarevic as provided by the Defence and despite the
7 fact that the accused hasn't been charged for the following reasons:
8 There are legal reasons and there are factual reasons. In regard to the
9 assessment to be made in the context of deciding on provisional release,
10 there is no legal requirement that the information on misconduct of the
11 applicant must have resulted in a judgement against the accused. The
12 Prosecution, therefore, submits that the presumption of innocence is not
13 applicable in this context. The respective Defence arguments are
14 obviously missing the point because the matter to decide is not whether
15 the accused was convicted for the crimes as detailed in the reports; the
16 real matter is whether the information available indicates as to whether
17 the accused may pose a threat to victims, witnesses, or other persons.
18 Coming to the factual reasons, there are at least, at the very
19 least, eight factual reasons to take the 1995 report into consideration.
20 And such reasons are the following ones: Number 1, Mr. Jasarevic's
21 statement is a statement of a private person in his personal capacity. It
22 is not an official statement of a state authority. The Prosecution
23 stresses that the fact that the Defence did not provide a statement by the
24 relevant authorities of Bosnia and Herzegovina, what would have been the
25 normal cause of action, and the Prosecution raises the question why not?
1 Second issue, the Prosecution notes that the statement of Mr.
2 Jasarevic very contrary to the Defence submission is vague, it is
3 extremely vague, and not helpful in any respect. Just to illustrate this,
4 I refer to the following quote: "During the processing, it has been found
5 that in Srebrenica in some periods of the war, there are certain conflicts
6 and intolerance amongst certain individuals, and the initial information
7 and findings were contradictory." Such a statement means nothing. What
8 are "certain conflicts" and which certain individuals are concerned?
9 Number 3, the 1995 report, that shows that the authors, including
10 Mr. Jasarevic took it serious. The 1995 report went to the highest
11 authorities, namely to the commander of the general staff of the army of
12 Bosnia and Herzegovina to decide and also suggested the arrest of the
13 accused. I refer to page 10, number 6.
14 The report itself asserts and contradicts the assertions made by
15 the Defence, the report itself distinguishes between verified and
16 unverified information. I in particular refer to page 8, paragraph 19.
17 That leads to the conclusion that all allegations that are not
18 specifically identified as unverified information are to be considered as
19 verified information. The Prosecution, as number 5, also notes that
20 Mr. Jasarevic's statement tries to address the reason why the accused
21 hasn't been charged. It, however, does not address the issues relevant to
22 the provisional release application, namely, that the accused by all means
23 and obviously successfully interfered with witnesses. The Prosecution
24 also notes that Mr. Jasarevic states that the information and findings
25 were contradictory. He does not say that the allegations have been proven
1 to not be true. That means even if the Trial Chamber would accept
2 Mr. Jasarevic's statement, there would still be sufficient reason to not
3 be satisfied that the accused will not pose a danger to victims,
4 witnesses, or any other person. Furthermore, the Prosecution wishes to
5 emphasise that also the statement of Mr. Jasarevic suggests that at the
6 end of their proceedings, there was conflicting and therefore not
7 sufficient evidence to charge the accused, there is OTP evidence, namely
8 sensitive source Witness C001, which in crucial portions, I refer to the
9 killing of Nermin Rizvanovic, and the accused's involvement, corroborates
10 the allegations made against the accused.
11 Even the materials submitted by the Defence, the statement of
12 Mr. Ramiz Becirovic, and the report of Rasim Delic, confirm portions of
13 the allegations made in that 1995 report. And finally, the report of the
14 State Security Service, the 1996 report, which has been submitted
15 yesterday, contrary to the statement of Mr. Jasarevic, confirms that
16 investigations, this time initiated by a different body which obviously
17 got the very same information against the accused were conducted
18 throughout 1996. In that context, the Prosecution refers to paragraphs
19 12, 17, and 19 of the report, also and in particular, to the statement
20 made on page 8 of the 1996 report which reads as follows: "One should
21 take into consideration that the anarchy of the 28th Division leaders who
22 caused fear in leading individuals of the administration of justice and
23 members of the AGB Srebrenica creates aggravating circumstances for the
24 police force in resolving some of the cases."
25 These factual points result in the following situation: There are
1 two very comprehensive, very detailed, and official reports by two
2 different state authorities on the one hand side; and there's a very
3 vague, very vague, hardly connected, and mainly beside the point statement
4 of a private person lacking the overview and information the relevant
5 state authorities would have. What are the relevant allegations about and
6 relevant are the allegations which show that the accused would interfere
7 with victims, witnesses, and other persons. On page 3, paragraph 3, it's
8 mentioned that those individuals have committed several activities
9 following Oric's order. The 1995 report continues on page 3, paragraph 4,
10 again under the heading "information," he also forbid members of the 28th
11 Division to give any kind of statement to the 2nd Corps military security
12 service and the MUP. Therefore, out of fear, majority of combatants
13 unwillingly spoke or didn't speak at all about the observations concerning
14 Oric and his associates.
15 Paragraph 5 -- paragraph 4, sorry, on page 5, under the heading
16 indications, it's mentioned and detailed that Mr. Oric put two key
17 witnesses behind bars. The report continues describing very similar
18 situations on page 5, under paragraph 5. And it mentions that after they
19 were prevented by Oric's men from investigating the case, it is worth
20 emphasising that Oric has provided an apartment in Tuzla for the
21 aforementioned young guards in paying 100 deutschmarks for rent. And
22 finally on page 9, paragraph 1, it's again emphasised, and that's again a
23 quote: "However, most of them are afraid of possible revenge of the group
24 around Oric in case they need to testify in potential trial proceedings."
25 This information obviously in main portions speaking for itself
1 shows the following: The accused is a person, the accused is a person who
2 successfully used each and every available means from using force to using
3 bribery, to interfere with witnesses. The accused is also a person who is
4 in a position to instigate others to use such means. There is no reason
5 to believe why now and in the context of the proceedings before this
6 Tribunal, the accused would not do exactly the same, namely, to pose a
7 substantial danger to victims, witnesses, and any other person.
8 This is the submission of the Prosecution in respect to the two
9 documents. The Prosecution would like to submit a further document today.
10 And in this context, the Prosecution wishes to request closed session,
11 since this is a document that has been provided under the condition that
12 it will only be discussed in closed session, and the Prosecution considers
13 it be necessary under the interests of justice.
14 JUDGE MAY: Have you given a copy to the Defence?
15 MR. WITHOPF: Yes, the Prosecution provided a copy to the Defence.
16 It's worth to mention that the Prosecution got this document five minutes
17 prior to today's proceedings, and immediately handed over copies to the
19 JUDGE MAY: Private session.
20 [Private session]
16 [Open session]
17 MS. VIDOVIC: [Interpretation] Your Honours, I do apologise, but as
18 I, too, have a document, I would like to introduce in private session for
19 reasons of justice. Because should I present it in open session, it would
20 be detrimental to my further investigations, and it is directly connected
21 to the document just mentioned by the Prosecution. And for this reason, I
22 ask that we remain in closed session for a few minutes longer.
23 JUDGE MAY: Has the Defence got a copy of this document?
24 MS. VIDOVIC: [Interpretation] Yes, Your Honour.
25 JUDGE MAY: We'll hear you at the end and we will go into private
1 session during that and you can produce the document.
2 MS. VIDOVIC: [Interpretation] Thank you. Your Honour, yes.
3 MR. WITHOPF: The Prosecution wishes to finish its statements with
4 submissions in respect to the guarantee of the government of the
5 Federation of Bosnia-Herzegovina. Since it has been raised by the
6 Defence, the Prosecution wants to make it very clear from the outset, the
7 Prosecution appreciates the good cooperation of the government of the
8 Federation of Bosnia and Herzegovina with the Office of the Prosecutor.
9 The issue in question, however, here is not whether the government is
10 willing to comply with its undertakings; the Prosecution has no doubt that
11 the government wants to comply with its undertakings. But the issue, the
12 real issue, is whether the government is able to do so, and in that
13 respect, there's a serious, a very serious, doubt. Such a doubt that the
14 result has the result that only little and certainly not sufficient weight
15 can be attributed to the present guarantee. There are two issues
16 involved which we would like to address now, and in this context, the
17 Prosecution will have to ask a number of questions to the representative
18 of the government of the Federation.
19 JUDGE MAY: You're not going to ask him any questions now. But
20 you can make submissions.
21 MR. WITHOPF: It's settled Trial Chambers and Appeals Chamber
22 jurisprudence that a government guarantee must be determined in relation
23 to the particular circumstances which arise in a particular case. The
24 Trial Chamber may accept such a guarantee in relation to the accused A, it
25 may, however, not accept such a guarantee in relation to a different
1 accused. That means the weight to be attributed to guarantees by a
2 government depends on a great deal on the circumstances of the applicant.
3 The jurisprudence makes it meaningless, makes meaningless the
4 attempt of the Defence to argue that all accused of Bosniak origin have to
5 be treated in the very same way, which applies to the accused Halilovic,
6 Hadzihasanovic and Kubura. What applies to them does not necessarily have
7 to apply to the accused Naser Oric. The Prosecution raises the issue as
8 to whether the representative of the government of the Federation of
9 Bosnia and Herzegovina was aware of the reports that have been discussed
10 at length during the hearing, the 1995 report, the 1996 report, and it
11 raises the question whether the representatives of the government or the
12 government itself would have provided the very same guarantee if they
13 would have been aware of these two reports.
14 And the Prosecution also raises the question whether the
15 guarantee, taking into account the fact that the accused is, and that's
16 not disputed by the Defence, is considered being a war hero and has many,
17 many contacts to many third persons and has the ability to use whatever
18 means as to whether the government of the Federation of Bosnia and
19 Herzegovina, under such circumstances, is actually able to control the
20 accused and to control the provisional release conditions as it has been
21 set out by the representative of the government of the Federation. Thank
22 you very much.
23 JUDGE MAY: Ms. Vidovic or Mr. Jones, whoever wants to respond.
24 MR. JONES: Yes, thank you. May it please Your Honour, I'll be
25 replying to the Prosecution's response briefly. I would like to deal with
1 the two reports referred to by the Prosecution which, in fact, aren't
2 really by the nature of being reports but rather preliminary indications
3 as is clear from their face. But I'll come to that in a moment, I just
4 wanted to preface my remarks with a couple of general remarks in response
5 to the Prosecution. The very first remark I'd like to make is that it
6 should have become clear to Your Honours there has been extremely late
7 service of documents by the Prosecution and the report which the
8 Prosecution is now heavily relying on, 1996 the report, was, in fact, only
9 filed yesterday as Your Honours have seen, and our application, as Your
10 Honour is aware, was made on the 21st of May. The Prosecution responded
11 on the 3rd of June. We replied again on the 13th of June. There's now
12 been a hearing scheduled for two weeks and it's only just now that the
13 Prosecution is coming forward at the eleventh hour with these documents.
14 And that's something which Your Honour, I would submit, you should take
15 into account.
16 As regards the jurisprudence of this Tribunal being settled as a
17 matter of on whom the burden lies, I respectfully submit that in fact the
18 position is not nearly as clear as the Prosecution would like. In fact,
19 the jurisprudence is quite varied. There is dissenting opinion indeed by
20 Your Honour, Judge Robinson, in the Krajisnik case on the 8th of October,
21 2001, and paragraph 30 of which Your Honour says that there will be no
22 perils to the Tribunal's mandate if the burden under Rule 65 were on the
23 Prosecution not to the Defence. There's a very strongly worded dissenting
24 opinion of Judge hunt which was referred to in footnote 3 of our reply.
25 And there is the Hadzihasanovic, Alagic and Kubura decisions on
1 provisional release of 19th of December, 2001, in which the Trial Chamber
2 held that any system of per se detention was contrary to international
3 human rights norms, and that decision hasn't been overturned by the
4 Appeals Chamber. So I would submit that it's not a settled question of
5 law on whom the burden lies. I would leave it to the Trial Chamber in
6 rendering a decision in this matter to set the appropriate test.
7 Just as a general point again before addressing the Prosecution's
8 remarks, I would refer Your Honours to the Tadic judgement of the 7th of
9 May, 1997 where in a different context, admittedly, the Trial Chamber
10 stated that where, in fact, there are two conclusions which are open to be
11 drawn by the Chamber given sentences --
12 THE INTERPRETER: Could Mr. Jones slow down, please.
13 MR. JONES: My apologies. I'll slow down. Where there are two
14 conclusions which can be drawn and which are fairly even balanced, it is
15 not open to the Trial Chamber to draw the conclusion least favourable to
16 the accused. Perhaps it's less a question of a presumption of innocence,
17 but really that that the accused should always have the benefit of the
18 doubt. And essentially, in this case what we're presented with is two
19 possibilities: Either Mr. Oric is the monster that he has been made out
20 to be by the Prosecution or there is, as the documents attest, or there
21 has been a campaign of disinformation and misinformation and that that's
22 the cause of these allegations which are, in fact, baseless, and we submit
23 it's the latter, and clearly the latter, and the documents support that.
24 The point is also not whether or not the accused, Mr. Oric, has
25 been convicted of any crimes. It's not certainly a requirement that he
1 has been convicted of a crime before the Chamber can have any regard to
2 any charges. The point is that Mr. Oric is of good character, he has no
3 criminal convictions, neither do any of his alleged associates have any
4 convictions, and therefore his credibility shouldn't be prejudged. The
5 Chamber, I would submit, should approach it with an open mind and consider
6 that Mr. Oric may very well be telling the truth in his affidavit and that
7 these allegations are, as I say, without foundation.
8 Finally, I apologise for these preliminary comments, but I think
9 it's necessary just to set the context, we are also not submitting that
10 all Bosniaks should be treated the same. That's not the point. The point
11 is that in Hadzihasanovic, Mehmed Alagic, and Amir Kubura, Sefer
12 Halilovic, were all granted bail, largely based on the fact that their
13 bail was underwritten or guaranteed by a reliable and cooperative
14 government, namely the Federation of Bosnia and Herzegovina. And we would
15 submit that Mr. Oric should be treated in that same -- in the same
16 category. And the only thing which is coming between Mr. Oric and
17 provisional release are these allegations which the Prosecution have
18 raised. And so that's what we obviously have to turn our minds to.
19 And so there are these two reports which the Prosecution refers
20 to, the 1995 report and the 1996 report. Your Honours, the 1995 report,
21 as I said, is not actually a report at all. It's clearly indicated on its
22 face that it's, as my learned friend Ms. Vidovic said, it's a
23 pre-investigation, if you like. And the point about our response to that,
24 General Jasarevic's rebuttal, if you like, in which he said that those
25 indications were found to be baseless after an extensive investigation
1 involving phone tapping and other investigative techniques, his conclusion
2 was that there was nothing to pursue. There was nothing there. And the
3 point is not that General Jasarevic is a private citizen and we should
4 have sought some official rebuttal; the point is that General Jasarevic
5 was the very person who signed off on the 1995 report, so he's the very
6 person to go back to explain what the follow-up was. And his explanation
7 is there was no follow-up because there was no basis for going any further
8 for bringing criminal proceedings. The file, in other words, was closed.
9 And on the 1996 report, let me just turn to that, there also
10 there's a document, and may I just check with my learned friend whether we
11 need to go into closed session with respect to that document or not. We
12 have a document which also indicates that no criminal proceedings were
13 investigated after that investigation by that body, because as the
14 Prosecution has pointed out, this appears to have been an investigation by
15 a different body, namely, the State Security Service. And in fact, we
16 have a document from the same security service in which they, too,
17 concluded that there was nothing to -- no proceedings to institute,
18 nothing to follow up upon.
19 And then finally, Your Honours, we have a document, and this is a
20 document which we will need to go into private session, which speaks to
21 this issue of misinformation and disinformation. So if we might just pass
22 now into private session briefly and I can address you as to that.
23 [Private session]
12 Pages 43 to 44 – redacted – private session.
4 [Open session]
5 MR. JONES: Yes, Your Honour. The Prosecution has sought in
6 discussing the guarantees offered by the government of Bosnia and
7 Herzegovina to drive a wedge between what the government is willing to do
8 and what the government is able to do. Well, with respect, Your Honour, a
9 government doesn't come forward and make frivolous guarantees which it
10 doesn't consider itself to be in a position to fulfill. The government of
11 the Federation of Bosnia-Herzegovina is only giving those guarantees with
12 the knowledge that it's able to carry them out. And it's ironic that, in
13 fact, these fears of intimidation of witnesses which the Prosecution is
14 drawing attention to all allegedly stem from investigations carried out by
15 Bosnian organs; and yet, the Bosnian state, the Federation, in any event,
16 is coming here today and saying that they essentially don't have, don't
17 share those fears, that in fact it would be perfectly workable and
18 perfectly acceptable for Mr. Oric to be bailed. And the Federation of
19 Bosnia and Herzegovina is, one might say, the oldest friend of this
20 Tribunal, in that it has cooperated from the beginning, has always carried
21 out arrests of its own citizens from the beginning, has always cooperated
22 with the service of documents -- with providing documents to this Court.
23 And so, Your Honour, I would submit that the most fundamental
24 consideration possibly is the fact that the government is willing to offer
25 these guarantees which in fact belies all of the submissions the
1 Prosecution has made about these various risks and concerns which are out
3 And finally, Your Honour, actually just on the letter which was
4 produced today.
5 JUDGE ROBINSON: Please go ahead.
6 MR. JONES: Yes, thank you, Your Honours. Finally just with
7 respect to this letter produced today from (redacted), firstly, there's no
8 allegation there that --
9 MR. WITHOPF: Sorry, can we please ask for closed session.
10 MR. JONES: My apologies.
11 [Private session]
15 [Open session]
16 MR. JONES: Yes, thank you, Your Honour. In summary, then my
17 submission is that Mr. Oric is a safe bet, if you like, for provisional
18 release. You can be satisfied that if released he wouldn't pose a danger
19 to any witnesses, he wouldn't pose a danger in terms of intimidation of
20 witnesses, and would certainly not seek to flee. And unless I can assist
21 you further, those would be my submissions.
22 JUDGE MAY: I don't know if Mr. Halilovic you want to add anything
23 since some comments were made by the Prosecution.
24 MR. HALILOVIC: [Interpretation] Your Honours, the government of
25 the Federation based its written guarantee on the previous guarantee and
1 assessment of the local police headed by Commissioner Divkovic so that
2 with a reference to whether the government can provide these guarantees,
3 the government has undertaken to do so in writing and is prepared to
4 provide any further guarantees that the Trial Chamber may require.
5 JUDGE ROBINSON: Was the government aware of the two reports at
6 the time when it made -- gave the guarantee?
7 MR. HALILOVIC: [Interpretation] The government was not aware of
8 these two reports, but this does not mean that the local police did not
9 have these reports available to them.
10 JUDGE MAY: Very well. Thank you.
11 The Trial Chamber will consider this matter and give its decision
12 in due course in writing.
14 MR. WITHOPF: Your Honour, if I could just get one minute --
15 JUDGE MAY: We've heard everybody, Mr. Withopf.
16 MR. WITHOPF: I only would like to respond to the annex which has
17 been handed over immediately prior to today's oral hearing. Are we still
18 in private session?
19 JUDGE MAY: No, we're not. We should go into private session to
20 do it.
21 [Private session]
19 --- Whereupon the Motion Hearing adjourned
20 at 4.30 p.m.