Tribunal Criminal Tribunal for the Former Yugoslavia

Page 87

1 Tuesday, 28 August 2001

2 [Motion Hearing]

3 [Open session]

4 --- Upon commencing at 2.33 p.m.

5 JUDGE MAY: Let the Registrar call the case.

6 THE REGISTRAR: Good afternoon. Case number IT-00-39 & 40-PT, the

7 Prosecutor versus Momcilo Krajisnik and Biljana Plavsic.

8 JUDGE MAY: May we have the appearances.

9 MR. HARMON: Good afternoon, Mr. President; good afternoon, Your

10 Honours. My name is Mark Harmon. Present with me is Mr. Fergal Gaynor.

11 MR. BRASHICH: Good afternoon, Your Honours. Deyan Brashich,

12 along with Goran Neskovic for the Krajisnik defence.

13 THE INTERPRETER: Counsel Brashich's microphone was not on.

14 JUDGE MAY: This is the hearing of a motion which has been put

15 forward on behalf of the accused Mr. Krajisnik, that he be granted

16 provisional release to attend a memorial service for his late father on

17 the 8th of September in Pale.

18 We've had full written pleadings on this issue on behalf of the

19 accused and the Prosecutor. We also have a number of guarantees and

20 undertakings on behalf of the accused, his own, one from Mr. Brashich, one

21 from the Government of Republika Srpska, and another from the local

22 security centre.

23 There is no need to repeat any of those submissions - we've read

24 all that - but we'll hear other submissions.

25 There is one matter which I would raise and it's this: that there

Page 88

1 is precedent to which neither of you have referred in the Tribunal for an

2 accused who is in detention being allowed provisional release in these

3 circumstances. To our knowledge, there are two cases in which that has

4 been done, one I think to see a very ill parent and another one to attend

5 a parent's funeral. So this would not be the first time that -- if we

6 were to allow this submission, not the first time it had been done, but

7 you should be aware of that.

8 MR. BRASHICH: May I be heard, Your Honour?

9 JUDGE MAY: Yes, Mr. Brashich.

10 MR. BRASHICH: I'm aware of the precedence, Your Honour. If I

11 did not cite them, I apologise. The only other submission I would like to

12 make on behalf of the Krajisnik defence is that momentarily will arrive by

13 fax a subsequent guarantee by the Republika of Srpska specifically

14 tailored for this provisional release to attend a memorial service. I'd

15 asked other Defence counsel to give me a heads up when it arrives, and we

16 would like to file it thereafter. But I would like to make an assurance

17 that this specific guarantee for this specific purpose will be here in

18 minutes. And finally, I stand by my offer of surety, Your Honour.

19 JUDGE MAY: Thank you, Mr. Brashich. Just help us with this:

20 What precisely would you ask us to order? How long would you have in mind

21 to ask that the accused be provisionally released?

22 MR. BRASHICH: Your Honour, the way that I have scheduled it,

23 should this Court grant leave, would be that he would leave in the

24 morning, arrive noon or thereabouts, late in the afternoon, go to the

25 Parastos and then go and venerate at his father's grave and that he would

Page 89

1 return the next day. So it would be a 72 hour to -- or perhaps depending

2 on which way flights are, shortly shorter -- shortly longer period, and I

3 would be with him at all times.

4 JUDGE MAY: Where is it proposed that the night would be spent?

5 MR. BRASHICH: In Pale itself, Your Honour, in his home. The

6 distance the airport and Pale is approximately 15 kilometres, 20

7 kilometres at the most.

8 JUDGE MAY: I ask these questions because I want to make sure that

9 we have the application in mind. It is, of course, not -- it hasn't, of

10 course, been considered.

11 MR. BRASHICH: I'm mindful of that, Your Honour.

12 JUDGE MAY: Thank you.

13 JUDGE ROBINSON: Mr. Brashich, would he be able to return the same

14 day?

15 MR. BRASHICH: I don't believe it is possible, Your Honour,

16 because of the flight schedules. There is no direct flight to Sarajevo,

17 so you would have to leave at, say, 8.00 in the morning. You would have a

18 two-hour delay in Vienna. I do have proposed flight tickets, but if he

19 left in the morning, he would get there late in the afternoon. If he

20 would go via Belgrade, the earliest flight for Belgrade is at 10.30 in the

21 morning, which arrives at 2.00, because it goes via Brussels. Then if he

22 would arrive in Belgrade at 2.10, the drive from Belgrade to Pale, which I

23 have myself have driven, Your Honour, is approximately four good hours,

24 five good hours.

25 JUDGE ROBINSON: So it's inevitable that he spend the night.

Page 90

1 MR. BRASHICH: Yes, Your Honour.

2 JUDGE ROBINSON: And you're giving your personal assurances you

3 will be with him?

4 MR. BRASHICH: Yes, Your Honour.

5 JUDGE ROBINSON: You're a man of many parts, Mr. Brashich. I

6 didn't know you had that qualification.

7 MR. BRASHICH: In 1980 I was on the Kavaja case and I was a -- put

8 myself up as hostage with 237 people. I can do that for my client here,

9 Your Honour.

10 JUDGE ROBINSON: I see. Very well.

11 JUDGE MAY: Yes, Mr. Harmon.

12 MR. HARMON: Good afternoon, Your Honours. First let me say it's

13 difficult for me to comment on a guarantee that has not yet arrived in

14 this Chamber and I have not seen, so I need to reserve my remarks on the

15 quality of the guarantee that is forthcoming. However, having said that,

16 I draw Your Honours' attention to the hearing that was held in this

17 Chamber before Judge Robinson on the provisional release for Talic, and in

18 that hearing that was held, I believe, on the 2nd of February of this

19 year, a representative of the Republika Srpska came to testify before

20 Judge Hunt and the Chamber. And in a decision that was rendered, I

21 believe, on the 28th of March by that particular Trial Chamber, Trial

22 Chamber II, the Trial Chamber said very clearly that it preferred, and I

23 quote, it preferred to wait to see whether that government demonstrates by

24 its actions that it will arrest persons indicted by the Tribunal who are

25 within the territory of the Republika Srpska.

Page 91

1 Now, that hearing was held on the 2nd of February of this year,

2 and in the intervening approximately seven months that have taken place

3 from that hearing to the present date, there have been no arrests made on

4 the territory of the Republika Srpska. And in that case, it is our

5 submission, Your Honours, that the Republika Srpska's inactions speak

6 louder than any words that they will tender to this Honourable Trial

7 Chamber written on a piece of paper. Such guarantees cannot and should

8 not be relied upon. Should the accused abscond, I'm sure he will have

9 great peace of mind in what is now the sanctuary of the Republika Srpska,

10 where no indictees are arrested and brought by the authorities of the

11 Republika Srpska back to this Tribunal.

12 I also think Your Honours should take notice of the fact that the

13 defendant in this only pleadings has said, and I quote, "A factor to be

14 considered in the motion for provisional release is the accused's respect

15 for the ICTY and its organs as an institution."

16 Now, we have seen, first of all, a reflection of what the accused

17 thinks of this institution in his pleading that was filed in the

18 application contesting jurisdiction, and in that application which is

19 dated the 8th of June, 2000, at paragraphs 9 and 15, the accused

20 indicated, very clearly in a pleading, that he authorised his present

21 counsel to file with this Chamber that the ICTY is neither independent nor

22 impartial.

23 Now, that pleading that he now takes issue with is supported -- by

24 that attitude, is supported by previous statements of this accused. In

25 1996, when General Djukic was arrested and indicted, this accused is

Page 92

1 quoted as saying, "Djukic and Krsmanovic were logistics officers and took

2 part in the war, like everyone else in it. This is a farce of a court,

3 and they should not allow themselves to do such things in such a way."

4 Later, this same accused stated, in a meeting with Elizabeth Wren,

5 who was the UN representative, "Krajisnik complained that the trials in

6 The Hague have been politicised, with charges of ethnic cleansing and

7 massacres unfairly slanted against Serbs."

8 Later, in 1998, this accused, upon the arrest of -- the wrongful

9 arrest of the Vukovic brothers, said that, "This is yet another instance

10 of The Hague Tribunal and SFOR being compromised." He also said that this

11 was "an additional reason for Serbs not to trust The Hague Tribunal's

12 objectivity and usefulness." And then we see finally the culmination of

13 that in the pleading that I referred to where presumably he gave

14 instructions to his present counsel to file, where the gratuitous

15 submission is made to this Court, not having anything to do with

16 jurisdiction, but where he says, very clearly and very explicitly, that

17 this Tribunal is neither independent nor impartial.

18 So I think, Your Honours, I must agree with Mr. Brashich when he

19 filed his amended submission to this Chamber. This Trial Chamber should

20 consider as a factor of -- on his provisional release his respect or his

21 lack thereof for this very institution.

22 Now, obviously if this accused does abscond, there is little

23 likelihood of his being rearrested. There is no guarantee, as I said,

24 that is worth the paper it's printed on. The failure to represent

25 notorious offenders who remain in the Republika Srpska is a fact that

Page 93

1 cannot be disputed before this Trial Chamber.


3 MR. HARMON: Yes, Your Honour.

4 JUDGE ROBINSON: Are you saying that to make a legal argument that

5 the Tribunal is not independent and not impartial is an indication of lack

6 of respect?

7 MR. HARMON: Judge Robinson -- I'm sorry, Your Honour.

8 JUDGE ROBINSON: I'm asking if you're saying that to make a legal

9 argument that the Tribunal lacks independence and lacks jurisdiction is an

10 indication of lack of respect for the Tribunal.

11 MR. HARMON: I am saying that in this particular case,

12 Judge Robinson. I am saying that because the argument for -- on

13 jurisdiction, whether this Tribunal has jurisdiction, doesn't have

14 anything to do with whether this Tribunal is, as he says, "neither

15 independent nor impartial." And I say that you have to read what is in

16 his pleading, in paragraphs 9 and 15, along with his other statements

17 where there has been a very clear attitude toward this Tribunal, including

18 calling this Tribunal a farce. He could have made his jurisdictional

19 argument on strictly legal grounds. The additional grounds that he has

20 submitted here are unnecessary for purposes of his jurisdictional

21 argument.

22 JUDGE ROBINSON: Yes. Continue.

23 MR. HARMON: I'm sorry. Yes.

24 Now, the last ground, I think that there are two additional

25 factors I think the Court should take into consideration. In the

Page 94

1 pleading, and perhaps this is what counsel has referred to, there is a

2 reference to a guarantee that was numbered 1647/00, where the present

3 government of Prime Minister Ivanic apparently adopts a previous

4 guarantee, but we have never seen nor has there ever been filed with this

5 Trial Chamber a document 1647/00. So it's difficult for us to see what

6 the present government is saying it is adopting when we haven't seen the

7 document that allegedly is and represents that particular document.

8 The last submission I'd make to Your Honours is Parastos, from the

9 information that I have received, is a memorial service that does not

10 require and does not need to be celebrated in the Republika Srpska. It is

11 a service, according to the people I have asked who are of the Serb

12 Orthodox faith, a service that can be celebrated anywhere in the world.

13 It can be celebrated in The Hague for people who have -- who are of the

14 Orthodox faith whose relatives have passed away in other parts of the

15 world. Now, the Defence has never asserted in its motion that Parastos

16 must be celebrated in the Republika Srpska.

17 JUDGE ROBINSON: Presumably when it's celebrated, it's celebrated

18 not only for the benefit of the son. Were it to be celebrated in The

19 Hague, would that not entail inconvenience of travel by the relatives in

20 the other country to come to The Hague?

21 MR. HARMON: Of course it would. Of course it would. There's no

22 question about that. But the convenience of the relatives travelling from

23 the Republika Srpska to here should be a factor but should not be the

24 predominant factor. We have a person here who is accused of genocide and

25 other serious crimes. I think that there are opportunities within the

Page 95

1 Detention Unit to have a priest from the Serb Orthodox faith go into the

2 Detention Unit and celebration of Parastos could be celebrated there. We

3 have no objection to that. But we think it is a greater inconvenience if

4 this accused absconds after having been arrested, brought to this

5 Tribunal, and we have been preparing for this trial. That would be a

6 greater inconvenience than the inconvenience of not having the ability --

7 or having relatives come to The Hague.

8 I think it's a balancing test, and I think clearly the risks in

9 this case of failure to show up, when the service can be held in The

10 Hague, far outweighs the release and any argument that can be made in

11 support of a release for this particular ceremony.

12 JUDGE MAY: The issue for us is whether, aside from what the

13 accused may have said in the past or may have said in his pleading, the

14 issue is this: that normally, of course, an accused should be able to

15 attend the memorial service of a parent, and in many countries, that would

16 happen. But the issue here is whether if that were to happen, whether the

17 accused - whether the Trial Chamber can be satisfied that the accused

18 would reappear and that's the issue which we have to decide.

19 MR. HARMON: Your Honour, there are alternatives. If there are

20 certain relatives who wish to attend the service with the accused in The

21 Hague, we have no objection to their attending the service.

22 The issue for somebody who is charged with these very serious

23 crimes, in releasing him to a sanctuary where people who are indicted and

24 are known to remain on that territory have not been arrested is a colossal

25 risk and one that I don't think needs to be taken by this Trial Chamber

Page 96

1 under the circumstances.

2 JUDGE MAY: That's what we've got to determine.

3 MR. HARMON: I understand, Your Honour. Thank you.

4 JUDGE MAY: Yes, Mr. Brashich.

5 MR. BRASHICH: Your Honour, I am a member of the bar of this

6 Court, and I take exception that an accused is being called into question

7 as to pleadings which have been prepared and filed by counsel. I was not

8 counsel at the particular time, but I think a fair interpretation is that

9 counsel should have the ability to file and plead documents if in, they

10 believe, in good faith.

11 I do not stand behind the pleading, but I can understand it, and I

12 don't think that the client should be penalised for that.

13 JUDGE MAY: I suspect we may agree with you on that.

14 MR. BRASHICH: Thank you, Your Honour.

15 JUDGE MAY: So there's no need to trouble. The issue which I

16 raised seems to me to be the crucial one.

17 MR. BRASHICH: Your Honour, there is precedent, as you have

18 mentioned, that people have had this opportunity to either visit a dying

19 parent or to attend a funeral. Unfortunately, because of the

20 circumstances the funeral has gone and passed. I tried to get

21 Mr. Krajisnik to the funeral; I failed. I'm trying again to give him the

22 chance to go to a Parastos and to visit the grave.

23 Mr. Harmon is totally correct that a Parastos can be celebrated

24 anywhere in the world. However, there is a tradition that there is a

25 meeting at the grave site seven days after death, and then the very first

Page 97

1 Parastos, which occurs roughly 40 days - and I'm Serbian Orthodox, Your

2 Honour - is probably the most important Parastos because it is immediately

3 after the death. Once that passes, we then go on on a yearly Parastos,

4 which Mr. Harmon is totally correct, could be celebrated anywhere in the

5 world, and many members of families hold Parastos in Australia, in Serbia,

6 anywhere they find themselves. However, this first one is of great

7 importance.

8 The only other thing, Your Honour, and this is just as an aside

9 and I'm probably beating a dead horse, but opinions, I think, are

10 guaranteed perhaps not by the First Amendment from where I come, but the

11 conventions, and that was an opinion stated by Mr. Krajisnik. Would we

12 not have somebody speak freely? I don't think not. So we press again.

13 And I'm sorry, Mr. Harmon. I did not receive the guarantee. The

14 sessions of government had been cancelled, and I'm still hoping that

15 before we close that I would receive the guarantee, but I expected it

16 within 10 or 15 minutes. Thank you Your Honour.

17 [Trial Chamber confers]

18 JUDGE MAY: Mr. Brashich, you've sent out for the guarantee, have

19 you?

20 MR. BRASHICH: Yes, Your Honour.

21 JUDGE MAY: Well, we need to obviously consider this matter.

22 We'll rise for half an hour.

23 MR. BRASHICH: Thank you, Your Honour.

24 JUDGE MAY: If the guarantee comes and when it comes, if you would

25 pass it through.

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Page 99

1 MR. BRASHICH: To Ms. Featherstone, yes, Your Honour.

2 JUDGE MAY: And we'll see it there. We'll sit again in half an

3 hour.

4 MR. BRASHICH: It's here Your Honour. It's here, Your Honour.

5 JUDGE MAY: Yes. If you'd like to sit down.

6 MR. BRASHICH: Your Honour, it is in the Serbian language, and

7 it's in Cyrillic, and it's signed by Mr. Mladen Ivanic. And if I can ask

8 the usher to hand it to the Court. And I guess since we are in open

9 hearing, this should be marked as a Defendant's exhibit or the Court's

10 exhibit, Your Honour.

11 JUDGE MAY: I don't think for the moment we need trouble about

12 that, but what we do need is to get it translated.

13 MR. BRASHICH: Should we stand for half an hour, Your Honour?

14 JUDGE MAY: Just one moment.

15 [Trial Chamber and legal officer confer]

16 JUDGE MAY: Have it put on the ELMO.

17 THE INTERPRETER: Your Honours, may we ask somebody to read it

18 aloud so that we can follow that.

19 JUDGE MAY: I wonder if the interpreters could help us with this,

20 or if somebody could.

21 MR. BRASHICH: I certainly will try, Your Honour.

22 JUDGE MAY: Could you read it out to them --

23 MR. BRASHICH: Yes, Your Honour.

24 JUDGE MAY: -- and then it will be interpreted. Yes.

25 MR. BRASHICH: My Cyrillic is slightly rusty. May I beg leave to

Page 100

1 have Mr. Neskovic read it?

2 THE INTERPRETER: Could we also have it on the ELMO, please.

3 JUDGE MAY: We've only got one copy. That's our problem. The

4 interpreters are asking for it on the ELMO. I think -- let's try,

5 Mr. Neskovic -- can you read it from the screen, if it's put on the

6 screen?

7 MR. NESKOVIC: [Interpretation] Yes, of course I can, Your Honour.

8 Republic of Bosnia-Herzegovina, Republika Srpska, reference number

9 03/1-473/01, Banja Luka, today's date, 27th of August, 2001 [as

10 interpreted]. The International Criminal Tribunal for the Former

11 Yugoslavia, Trial Chamber III, The Hague. Statement of the Prime Minister

12 of Republika Srpska.

13 "The Government of Republika Srpska, in the case of Mr. Momcilo

14 Krajisnik, tried at the International Criminal Tribunal for the Former

15 Yugoslavia under number IT-00-39 & 40-PT has issued the guarantee --"

16 JUDGE MAY: Not too quickly.

17 MR. NESKOVIC: [Interpretation] "-- guarantee, conclusion, and

18 special guarantees to have Mr. Momcilo Krajisnik provisionally released.

19 I, the Prime Minister, Dr. Mladen Ivanic, state hereby that I will

20 personally, or that a member of the government authorised by me, if

21 necessary, will come to testify at a public hearing before the

22 International Tribunal if such a hearing is called in relation to the

23 provisional release of Mr. Momcilo Krajisnik. Yours truly, Prime Minister

24 Mladen Ivanic."

25 MR. BRASHICH: Your Honour, an additional portion of the guarantee

Page 101

1 has also arrived and has been handed to me by one of the guards.


3 MR. NESKOVIC: [Interpretation] Bosnia and Herzegovina, Republika

4 Srpska, reference number 03/1-474/01, Banja Luka, 27th of August, 2001.

5 International Criminal Tribunal for the Former Yugoslavia, Trial Chamber

6 III, The Hague. The special guarantee of the Government of Republika

7 Srpska.

8 "In addition to the guarantee of the Government of Republika

9 Srpska issued on the 1st of November, 2000, and the conclusion of the

10 Government of Republika Srpska adopted on the 30th of January, 2001. In

11 relation" - this is not quite clear - "in relation to Mr. Momcilo -- in

12 the case against Mr. Momcilo Krajisnik conducted before the International

13 Criminal Tribunal for the Former Yugoslavia, case number 00/39 & 40-PT,

14 the Government of Republika Srpska issues the following special guarantee:

15 respectfully proposing that the above named be provisionally released for

16 the limited purpose, which is to visit the grave of his father of the 8th

17 of September, 2001, and thereby undertakes that it will comply with all

18 the orders and conditions of the Trial Chamber, so that Mr. Momcilo

19 Krajisnik would be kept under control by the relevant authorities of

20 Republika Srpska and returned to the International Tribunal on the day and

21 at the time as set by the Trial Chamber.

22 "This guarantee includes as follows:

23 1. The accused Momcilo Krajisnik will be taken over from the

24 Dutch authorities at the airport Schiphol on the day and at the time set

25 by the Trial Chamber.

Page 102

1 2. The accused will be escorted during his travel to

2 Bosnia-Herzegovina.

3 3. The accused will not go outside the boundaries of the

4 municipality of Serb Sarajevo-Pale.

5 4. The accused will be kept under permanent around-the-clock

6 custody of the police of Republika Srpska.

7 MR. NESKOVIC: [Interpretation] Could you turn the page, please.

8 5. The accused will hand over his passport to the international

9 police force in Sarajevo or the Office of the Prosecutor in Sarajevo or

10 the Public Security Station in Serb Sarajevo-Pale.

11 6. The accused will daily report to the ITPF that is, the

12 international police forces, and the local police in Serb Sarajevo-Pale.

13 7. The Public Security Centre in Serb Sarajevo will keep a file

14 and submit a written report to the International Tribunal confirming the

15 presence and compliance of the accused on a daily basis. The Public

16 Security Centre of the Serb Sarajevo," and this is not legible, but "will

17 submit," I suppose, "to the ITPF, the information on the presence of the

18 accused.

19 9. The Public Security Centre in Serb Sarajevo will immediately

20 notify the International Tribunal on the absence of the accused.

21 10. The accused will be arrested without delay if he attempts an

22 escape or violates any one of the conditions of his provisional release,

23 and the International Tribunal will be presently notified about it so that

24 everything could be prepared for his return to the International Tribunal.

25 11. The accused will be escorted from Bosnia-Herzegovina back to

Page 103

1 the Schiphol airport and turned over to the Dutch authorities at the

2 Schiphol airport at a date and time set by the Trial Chamber.

3 12. The accused will be taken over from the Dutch authorities,

4 escorted en route from the Schiphol airport to Bosnia-Herzegovina and

5 back, and turned over to the Dutch authorities at the Schiphol airport,

6 Mr. Trivun Jovicic, representative of Bosnia-Herzegovina with the

7 International Tribunal.

8 Respectfully, the Prime Minister Mladen Ivanic."

9 JUDGE MAY: Thank you, Mr. Neskovic.

10 Yes, that can be entered with the Court papers.

11 Mr. Brashich, is there anything you want to say about it?

12 MR. BRASHICH: No, Your Honour.

13 JUDGE MAY: Mr. Harmon.

14 MR. HARMON: Mr. President, I would like to see a full translation

15 of this document. Parts of that document apparently are illegible and I

16 need to examine that document.

17 Second of all, there are no particular conditions that are

18 articulated in respect of such things as: There will be no contact with

19 witnesses, there will be no contact with co-accused.

20 Thirdly, I would like to suggest that if the Court is considering

21 such a release, that one of the conditions the Court imposes is that

22 somebody from the Tribunal security accompany Mr. Krajisnik and be with

23 him 24 hours a day in order to assure that there is no such contact with

24 witnesses and co-accused and other persons who could affect the course of

25 this trial.

Page 104

1 Those are some of the thoughts that I have. Again, I have not had

2 time to see a translation of this document, nor have I had the opportunity

3 to discuss this document with anybody in my staff, and I think it is

4 highly unusual for the Prosecutor's office to be put in a position to

5 see --

6 JUDGE MAY: It's an emergency, Mr. Harmon. We've got to deal with

7 it.

8 MR. HARMON: I understand. I understand, Judge May, and I'm

9 asking --

10 JUDGE MAY: We cannot allow this sort of procedure to hold us up.

11 If you think there is a problem and think you need more time, you will

12 have it, but meanwhile we are anxious to get on with things and that's why

13 we've adopted this procedure.

14 MR. HARMON: I understand it's an emergency and I intend no

15 disrespect. What I asked for is the opportunity, briefly, to see this

16 document and to discuss it with members of my staff.

17 JUDGE MAY: If that's your application, we'll think about it.

18 [Trial Chamber confers]

19 JUDGE MAY: We'll consider this matter. We'll sit again in half

20 an hour.

21 --- Recess taken at 3.13 p.m.

22 --- On resuming at 3.50 p.m.

23 JUDGE ROBINSON: Mr. Harmon, I just wanted to point out at the

24 outset that I was not a member of Trial Chamber II in the Talic case, as

25 you mentioned. I wanted to have that corrected for the record.

Page 105

1 MR. HARMON: I didn't intend to include you in the composition of

2 that Bench, Judge Robinson. Thank you.

3 JUDGE MAY: The Trial Chamber starts with this proposition: that

4 there are strong humanitarian reasons behind this application, and the

5 Trial Chamber, in its deliberations and consideration of this motion, has

6 those reasons very much in mind. The Trial Chamber has also had in mind

7 the guarantees which have been given in this case, namely, those from

8 Mr. Brashich and the Government of Republika Srpska. The Trial Chamber

9 also has in mind the two previous cases in which provisional release was

10 granted in roughly similar circumstances.

11 Nonetheless, by a majority of two to one, Judge Robinson

12 dissenting, the Trial Chamber has decided to reject this motion.

13 Under Rule 65, the Chamber must be satisfied that if released, an

14 accused would appear for trial, and the jurisprudence of the Tribunal

15 shows that the burden of satisfying the Chamber is on the accused. The

16 Chamber, the majority of the Chamber, in this case is not so satisfied.

17 In relation to the guarantee given by the government, the Trial

18 Chamber notes, as the Prosecution point out, that the government has not

19 arrested anyone and, therefore, the Chamber considers that the guarantee

20 does not have the force which it would have done had it done so.

21 Therefore, were the accused to be provisionally released, the Chamber

22 cannot with confidence, the majority, I should say, cannot with confidence

23 say that the prospect of his arrest is likely.

24 In the earlier cases in which provisional release was granted, the

25 accused in both cases had surrendered voluntarily, and their cases, it

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Page 107

1 should be noted, were not as serious and as complex as the present case.

2 In this case, this accused did not surrender voluntarily. He was

3 arrested, and his case is a grave one.

4 Given the seriousness of this case, the Trial Chamber, the

5 majority of the Trial Chamber, is therefore not satisfied that he would

6 return and appear for trial if he were released.

7 For those reasons, the application is dismissed.

8 The Court will rise.

9 --- Whereupon the Motion Hearing adjourned

10 at 3.56 p.m.