Tribunal Criminal Tribunal for the Former Yugoslavia

Page 59

1 Thursday, 21 March 2002

2 [Open session]

3 [Motion Hearing]

4 --- Upon commencing at 5.41 p.m.

5 JUDGE SCHOMBURG: We have got the motion of the Office of the

6 Prosecutor and already an answer of the Defence, from the side of the

7 Defence counsel of Mr. Jokic. First of all, you're the moving party. Do

8 you want to make any oral statements?

9 MR. STOJANOVIC: [Interpretation] Your Honour, we would only like

10 to repeat in a few sentences what we already mentioned in our motion.

11 After having heard what the Prosecution had to say, we would like to

12 repeat our proposal, namely, the Defence believes that all the

13 requirements from Rule 65 of the Rules of Procedure and Evidence have been

14 met, namely that Dragan Jokic be provisionally released. We would just

15 like to note that Dragan Jokic responded to both calls by the OTP, as far

16 back as 1999 and also in April 2000. He received the indictment at his

17 workplace. He responded to the request made by the OTP. He surrendered

18 to the representative of the Tribunal. And he came to the detention unit

19 in August last year.

20 There is not a single reason for us to doubt that if you decide to

21 release him provisionally, Dragan Jokic will be a fugitive and prevent

22 proceedings against him from taking place. He does not constitute a

23 threat, either to witnesses or to victims, and there is no reason for us

24 to have any doubts regarding his personal safety either.

25 I wish to thank the Office of the Prosecutor on this occasion for

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1 not having rejected our proposal. We would like to promise that we are

2 going to meet all the requirements made and everything that the Prosecutor

3 called for in their response to our motion. We have also obtained

4 guarantees from the government of Republika Srpska and also the consent of

5 the Dutch government, so I believe that we have met the formal

6 prerequisites for the provisional release of Dragan Jokic.

7 I would like to ask Ms. Cynthia Sinatra as co-counsel to say a few

8 words about the legal practice of this Tribunal to date regarding

9 provisional release, and this will be our joint proposal as it has been so

10 far. Thank you, Your Honours.

11 MS. SINATRA: May it please the Court, Your Honours, at this point

12 we would like to re-urge, of course, the original request for provisional

13 release because in there are illuminated a lot of the personal

14 circumstances of Mr. Jokic, but Mr. Jokic will be able to describe those

15 for you in a moment. And we'd also like to thank the Prosecution. We

16 appreciate the fact that they have no objections, that they have stated on

17 the record they don't believe that he is a threat of flight, that they

18 don't believe that there is any -- that he poses any danger to any

19 witnesses or victims or any other persons, and as such, under the

20 pre-trial provisional release, those are really the only conditions that

21 need to be met. Now, I know that sometimes there is a confusion between

22 pre-trial and post-conviction provisional release. Post-conviction

23 requires an exceptional circumstance or occasion but pre-trial release

24 only requires these conditions under Rule 65.

25 I would also like to say that every request that the Prosecution

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1 made in its motion, every condition that it has placed on there, that we

2 have no objections to, that Mr. Jokic agrees with, and if it can be

3 arranged with the government of Bosnia, who was guaranteed everything,

4 that he will accept every condition and additional conditions that this

5 Court might set upon him.

6 I'd like for the -- this Trial Chamber to please refer to Exhibit

7 A and Exhibit B of the motion that the Defence filed yesterday. Of

8 course, Exhibit A is the guarantee from the government of Bosnia and

9 Herzegovina through the Republic of Srpska. They do guarantee everything

10 that the Prosecution has asked for, and if the Court adds any additional

11 conditions, then they have been working freely and completely with this

12 Tribunal since the beginning of the Tribunal and they certainly will abide

13 by any conditions that -- I'm not speaking for the government.

14 Unfortunately, they have -- we can't find the representative at the

15 moment. I believe he received your invitation but we have got our wires

16 mixed up some way.

17 I would like to also refer to -- by the way, we would like to

18 offer the guarantee of the Bosnian government and the letter from the

19 Dutch minister saying that they have no objections to his release into

20 evidence at this time, if they have not already been introduced into

21 evidence. We are offering them, Your Honour. Does the Court accept

22 them?

23 JUDGE SCHOMBURG: I think we should go into details of guarantees

24 only at a later stage when it could become necessary. I think there are

25 some other questions having priority. We will come back to this.

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1 MS. SINATRA: Okay. And Your Honour also I would like to take

2 this opportunity to discuss Dragan Jokic's provisional release as compared

3 to Sefer Halilovic who Judge O-gon Kwon was on the Chamber of that one.

4 He was released in December and he voluntarily surrendered, just as

5 Mr. Jokic did. Of course, the Court found that pre-trial detention is the

6 most restrictive sanction and I believe the European Commission on Human

7 Rights says that pre-trial detention is the exception, not the rule. His

8 trial will not start immediately, as Halilovic. He will be able to

9 support this -- with Halilovic, it was an ailing son, with Jokic he has a

10 16-year-old son with no other parent to take care of him in his home

11 town.

12 The government has guaranteed, the same guarantees that they have

13 with Mr. Halilovic for Mr. Jokic, and he's only charged -- he's charged in

14 the indictment in a joint criminal enterprise, no personal participation

15 in any of the crimes alleged, as far as the supporting material that we

16 have at the moment, and the government of Bosnia and Herzegovina has

17 always cooperated and will continue to cooperate. At this point, Your

18 Honour, I believe that Mr. Stojanovic will complete this. And if you have

19 any questions, I'm available to answer any questions that you might pose

20 for us.

21 JUDGE SCHOMBURG: First of all, one question seems to be evident.

22 You provided us with guarantees from the Republika Srpska. As you know,

23 the commitments against -- or vis-a-vis the United Nations and vis-a-vis

24 this Tribunal are only those of Bosnia-Herzegovina. Did you try to get

25 any guarantees from Bosnia-Herzegovina?

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1 MS. SINATRA: Your Honour, if I'm not mistaken - and I didn't deal

2 directly with Mr. Ivanic or the representative that Mr. Stojanovic visited

3 with - but this is a guarantee of the Republika Srpska, but it also is

4 signed through the Prime Minister of the government of Bosnia and

5 Herzegovina. The representative coming is -- that was to appear is from

6 the government of --

7 Your Honour, I'm going to defer to Mr. Stojanovic who has a lot

8 more information about that subject than I. Thank you.

9 MR. STOJANOVIC: [Interpretation] Your Honours, you have before you

10 the guarantee of the government of Republika Srpska. This is the

11 guarantee that we obtained, as was customary practice until now, with

12 regard to motions for provisional release of accused who come from the

13 territory of Republika Srpska in Bosnia-Herzegovina. I should like to

14 remind you of the following cases: Simic, Zaric, Tadic, the Samac

15 indictment.

16 The guarantee of the government of Republika Srpska contains

17 everything that the Office of the Prosecutor requested in their motion

18 when they did not express their disapproval of -- for the provisional

19 release of Dragan Jokic. We tried to compare this, and the answer that we

20 got was that practically everything that was written in the guarantee of

21 the government of Republika Srpska was also taken over by the Office of

22 the Prosecutor as a request, which, in their opinion, constitutes grounds

23 for them not to oppose provisional release.

24 I wish to reiterate that Dragan Jokic himself through his

25 behaviour, through his attitude both towards the Prosecutor and primarily

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1 towards the Tribunal, show that he is cooperative, that there is not a

2 single reason why he would not come to trials or obstruct in any way the

3 proceedings involved. The guarantee confirms that the government of

4 Republika Srpska will, precisely due to these personal characteristics of

5 his, also support this, namely that he will carry out all his

6 obligations.

7 I am ready to answer all your questions that I am in a position to

8 answer and that would be supportive of our motion for provisional

9 release. Therefore, that is our request to you, because we believe that

10 we do meet the requirements of Rule 65 of the Rules of Procedure and

11 Evidence.

12 JUDGE SCHOMBURG: Under the Rule 65 you just quoted, it is

13 necessary that the Trial Chamber is satisfied that the accused will appear

14 for trial. And as it was said in Hadzihasanovic, Alagic, Kubura, Almir,

15 and Jokic, in the former decision in another case, relevant were, first of

16 all, all the relevant circumstances. And it was said in all the five

17 decisions that, of course, there is no automatic reaction when a person

18 surrenders that then in return, there will be provisional release.

19 Coming to this point, one indicia is of course the question

20 whether or not there are strong links to a family, to house, or whatever,

21 in the country. And I read in your contribution that there are difficult

22 family solutions and financial situations. Could you please go a little

23 bit into details of this aspect.

24 MR. STOJANOVIC: [Interpretation] Your Honours, in our submissions,

25 we did not want to sound pathetic at all. We just presented the relevant

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Page 66

1 facts that support precisely what you said today. Dragan Jokic was born

2 in the area, and you can see that in the indictment. He lives there.

3 That's where his family is. He lives with his son. His son is 16 years

4 old. After he was arrested -- or rather, after he surrendered, his sister

5 started taking care of his child, since the mother had renounced her

6 parental rights. So the Social Services Institution in Zvornik appointed

7 Boric, Nada, the sister of Dragan Jokic as the guardian of the child.

8 Dragan Jokic simply has nowhere to go. That's where his family is; that's

9 where his home is; that's where his mother is; and he is simply attached

10 to Zvornik. That is where he intends to stay until the trial commences if

11 you decide to release him provisionally.

12 JUDGE SCHOMBURG: Is there still any contact with his wife?

13 MR. STOJANOVIC: [Interpretation] As for this part, I would let

14 Dragan speak about that, because we did think that he would be presenting

15 his views on this. I would just like to say that since Dragan has been

16 here, these contacts have completely been cut off. She lives in a

17 completely different town, and they have no direct contact whatsoever.

18 She doesn't have any contact with the child either, or Dragan doesn't have

19 any contact with her.

20 JUDGE SCHOMBURG: And we will come to that later. Do you have any

21 questions?

22 [Trial Chamber confers]

23 MR. STOJANOVIC: [Interpretation] Thank you, Your Honour.

24 JUDGE SCHOMBURG: All right. I would invite the Office of the

25 Prosecutor to summarise in short their contribution.

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1 MR. McCLOSKEY: Mr. President, Your Honours, good afternoon. I

2 would merely restate that the Prosecution in our dealings with Mr. Jokic

3 has no reason to believe he is a danger to others, and we have no reason

4 to believe he is a flight risk. And we have, therefore, not objected to

5 his provisional release. We do recognise that this is a decision for the

6 Chamber, as clearly pointed out in the case of -- the other case of

7 Mr. Jokic, Miodrag Jokic.

8 I am concerned that the representative of the Republika Srpska is

9 not here today. I think, as the Rule 65(B), I believe it is, makes clear,

10 that that is an element. Mr. Jovicic, I believe, has -- I have had

11 reliable contacts with him. He has always been timely and prompt and has

12 always dealt with me and the Office of the Prosecutor in a professional

13 way. So it is somewhat astounding to me that he is not here. That does

14 cause me some concern, because I think if it were left up to him, he would

15 be here. Though, that's the only problem I see regarding our response,

16 and I would stand on our response.

17 JUDGE SCHOMBURG: May I ask you, what has changed since you asked

18 for a warrant of arrest for deprivation of liberty of Mr. Jokic that you

19 now come to another conclusion?

20 MR. McCLOSKEY: When we first interviewed Mr. Jokic, he offered

21 through his counsel to turn himself in should we decide to indict him.

22 And the Office of the Prosecutor made a policy decision to give

23 him that offer, and therefore, when we sought an indictment and we

24 received an indictment, we gave that offer to him and his lawyer, and they

25 helped facilitate the self-surrender.

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1 JUDGE SCHOMBURG: But in fact, he is now, since several months,

2 here in the detention, but what is the point? I can read in the

3 contribution of the Defence counsel, at the end, such a decision would at

4 the same time be a stimulant to any potential suspect to surrender to the

5 Tribunal voluntarily with the aim of establishing the truth.

6 Is there any kind -- as you know, in the settled jurisprudence,

7 one of the points we have to find out is the question: Is there any kind

8 of cooperation, real cooperation? Can you make any contribution on this

9 question?

10 MR. McCLOSKEY: Mr. President, before going into any information

11 on the cooperation of any of the counsel -- any of the defendants in this

12 case, I would request that we go into closed session.

13 JUDGE SCHOMBURG: Then closed session, please.

14 [Closed session]

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14 [Open session]

15 JUDGE SCHOMBURG: It's just to announce for the public, to avoid

16 any kind of rumours, that nothing has changed since the last time, and

17 everybody can read in the transcript of the last hearing that there is no

18 agreement at all at this point in time.

19 Another question to the Office of the Prosecutor. It's a question

20 whether or not there is a real risk that Mr. Jokic will flee. One

21 important threshold in this connection is first of all the question, just

22 in case we would come to a sentencing stage, and you can establish the

23 case as it is now prima facie, what sentence would be envisaged in the

24 concrete case from the side of the Office of the Prosecutor?

25 MR. McCLOSKEY: Mr. President, as you can imagine, at this time,

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1 it's difficult to make any assurance on that, but I can give you my

2 thoughts -- what would be guiding me in this situation. In a situation

3 where Mr. Jokic did not acknowledge any of the facts in the indictment,

4 where he acknowledged no responsibility, and where he showed no remorse

5 and was convicted as charged of all crimes, this of course would be a very

6 serious matter and a very serious crime charged, and I cannot imagine any

7 sentence lower than the range of 30 to 40 years in prison.

8 JUDGE SCHOMBURG: Thank you for this clear answer.

9 Any other contributions from the side of the parties?

10 MS. SINATRA: Excuse me, Your Honour. I just wanted to add that

11 of course it takes our breath away to think of a 30 to 40-year sentence.

12 But as Mr. McCloskey prefaced this with, everything is if they were to

13 prove this and if they were to prove that. And of course, in this

14 Tribunal, everybody is innocent until proven guilty. And so I think

15 Mr. McCloskey was very clear that there's no guarantee that the material

16 facts will be proven or that their allegations in the indictment will be

17 proven. And it's just like us asking for a motion to dismiss, because

18 there's not a prime facie case. If the Court chose to give us that, then,

19 you know, we can proceed that way. But we would just like the Court to

20 know that we don't believe that that would happen.

21 Mr. Jokic has fulfilled every obligation under Rule 65. He has

22 shown total integrity and honour with this Court and with the

23 Prosecution. And I think Mr. Stojanovic would like to let Mr. Jokic make

24 a statement, if the Court will receive him.

25 JUDGE SCHOMBURG: Yes, of course.

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1 But first of all, I have to point out that this Trial Chamber

2 generously will protect the presumption of innocence. No doubt about

3 this. But we have to take into account, of course, as it was said in

4 former decisions, the serious -- the quality and -- of the crime.

5 So if the -- when there are -- if there are no other

6 contributions, please, the floor is yours. You know it's your right to

7 remain silent. If you speak, then everything can be used in evidence

8 against you. Once again, this admonition. But please feel free if you so

9 want to speak to the Court.

10 THE ACCUSED JOKIC: [Interpretation] Your Honour, so far I have

11 been questioned twice by the Prosecution, and I received the indictment.

12 I responded to the representatives of the Tribunal. As I said -- as my

13 Defence counsel said, I have problems, family problems. My 16-year-old

14 son is now living on his own. My sister has been appointed as his

15 guardian. On several occasions I tried to make peace with my wife, and

16 probably if I was released I would try to do so again. I think it would

17 be best for him to live with his mother. I would probably solve certain

18 other problems that I have. As far as the restrictions that you have

19 mentioned, I will adhere to all the instructions you have given me. I

20 thank the Office of the Prosecution. I thank you for having considered

21 this motion of mine. And regardless of the decision, I thank you for

22 everything. That's all I have to say.

23 JUDGE SCHOMBURG: Thank you. Any other --

24 Please be seated.

25 Any other contribution? No question at all.

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1 I think we have to think carefully on this motion. And there will

2 be handed down a decision in writing. As you will understand, especially

3 in this situation now when we don't have a representative, it -- this fact

4 should have no impact on the decision. We have possibilities, of course,

5 to contact the embassy and the government of Bosnia-Herzegovina, and we

6 will do this if necessary. But we -- we have to think carefully on this

7 issue. And therefore, you will receive as soon as possible a decision in

8 writing.

9 This session is adjourned. Thank you.

10 --- Whereupon the Motion Hearing adjourned

11 at 6.07 p.m.