Tribunal Criminal Tribunal for the Former Yugoslavia

Page 159

1 Tuesday, 11 May 2004

2 [Motion Hearing]

3 [Open session]

4 --- Upon commencing at 3.04 p.m.

5 JUDGE ROBINSON: I'm sorry for the slight delay, but as you can

6 see, we have to deal with the residue from another case. Before we turn

7 to you, Mr. Knoops, could we have a short discussion on some scheduling

8 matters. This afternoon, we have -- Mr. Knoops will make his opening

9 submission on behalf of Mr. Stanisic. Then there's Dr. Tarabar for the

10 Defence; and for the Prosecution, Dr. Smalc.

11 MR. GROOME: Yes, Your Honour.

12 JUDGE ROBINSON: Now, I understand that Dr. Offermans is not

13 available for Thursday. In any event, as it has turned out, Thursday is

14 not a good day. Dr. Boomgaard.

15 MR. GROOME: Yes, Your Honour. He arrives back in the country and

16 would be available all day the 25th, but not before that.

17 JUDGE ROBINSON: He had initially indicated the 19th, scheduled

18 for the 19th.

19 MR. GROOME: I understand that, Your Honour.

20 JUDGE ROBINSON: I look on that with disfavour.

21 MR. GROOME: I apologise.

22 JUDGE ROBINSON: We can't go beyond the 25th. We shouldn't. So

23 I'm setting the 25th for Dr. Offermans and Dr. Boomgaard. That's a

24 Tuesday, in the afternoon.

25 MR. GROOME: Yes, Your Honour.

Page 160

1 JUDGE ROBINSON: So it's on to you now, Mr. Knoops, to make your

2 opening submission.

3 MR. KNOOPS: Thank you, Your Honours. May I first please

4 introduce to the Honourable Trial Chamber my learned friend Mr. Wayne

5 Jordash. He is just appointed as co-counsel in this case and this will be

6 his first appearance in this case.

7 JUDGE ROBINSON: Well, we are glad to have you, Mr. Jordash.

8 MR. KNOOPS: Your Honours, first of all, we thank you for giving

9 the accused the opportunity to address you at this oral hearing. The

10 Defence will address several topics to further elaborate on the motion for

11 provisional release and the reply motion. We'll first address the

12 presumption of innocence, in view of the Prosecutor's anticipation of a

13 life sentence. Secondly, the principle of a fair trial and the principle

14 of effective participation in combination with fitness to stand trial.

15 And we will close with the issue of the guarantees. And we will

16 incorporate also several remarks made by the OTP investigators.

17 Mr. President, the presumption of innocence, as set out in Article

18 21, section 3 of the Statute of your Honourable Court not only applies

19 from the moment a person is formally charged, thereby becoming an accused,

20 but it also applies during pre-trial investigations. It is also envisaged

21 the notion that the investigating authorities must also investigate in

22 favour of the suspect. I'll point you to the recent textbook of Antonio

23 Cassese at page 390, International Criminal Law.

24 One of the consequences of this principle is that a defendant has

25 the right to be held innocent until proven guilty and accordingly, should

Page 161

1 be granted fair chance to defend himself. Now, the question is: Is Mr.

2 Stanisic to be considered according to the allegations which suggest he is

3 a war criminal, or is he to be judged for the purpose of this bail

4 application according to the evidence that suggests that, in the first

5 place, he was ejected from the hospital by the regime in April 2000 due to

6 his opposition to the Kosovo policy. See also Exhibit 22 of the motion.

7 (Redacted)

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11 Three --

12 MR. GROOME: Your Honour, may I just point out we are in open

13 session. I believe Mr. Knoops had asked for Rule 70 protection on that

14 particular --

15 MR. KNOOPS: Yes.

16 MR. GROOME: We are actually in open session.

17 MR. KNOOPS: According to my schedule it was the whole afternoon

18 in private session.

19 JUDGE KWON: You didn't ask for it, so we are in open session.

20 JUDGE ROBINSON: This is a matter then that should be taken in

21 private session. We'll go into private session.

22 MR. KNOOPS: Excuse me, Your Honour.

23 JUDGE ROBINSON: And the portion that you just mentioned will be

24 redacted.

25 [Private session]

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5 --- Whereupon the hearing adjourned at 6.56 p.m.

6 to be reconvened on Tuesday, the 25th day of

7 May 2004, at 3 p.m.

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