Tribunal Criminal Tribunal for the Former Yugoslavia

Page 29

1 Thursday, 1 April 2004

2 [Motion Hearing]

3 [Open session]

4 --- Upon commencing at 2.35 p.m.

5 [The accused entered court]

6 JUDGE AGIUS: Yes, good afternoon. Madam Registrar, could you

7 call the case, please.

8 THE REGISTRAR: Yes, Your Honour. Good afternoon, Your Honours.

9 This is the case number IT-03-73-PT, the Prosecutor versus Ivan Cermak and

10 Mladen Markac.

11 JUDGE AGIUS: Good afternoon, to you, General Cermak. Can you

12 follow the proceedings in a language that you can understand?

13 THE ACCUSED CERMAK: [Interpretation] Yes, I can.

14 JUDGE AGIUS: I thank you. And General Markac, same question to

15 you. Can you follow the proceedings in a language that you can

16 understand?

17 THE ACCUSED MARKAC: [Interpretation] Yes.

18 JUDGE AGIUS: If at any time, interpretation in your own language

19 is not reaching you well, please draw my attention immediately. Thank

20 you.

21 Appearances for the Prosecution.

22 MR. IERACE: Good afternoon, Your Honours. My name is Mark

23 Ierace. I appear together with the Prosecutor, and also trial counsel

24 Laurie Sartorio. Our case manager is Lakshmie Walpita.

25 JUDGE AGIUS: I thank you. And good afternoon to you all.

Page 30

1 Appearances for General Cermak.

2 MR. PRODANOVIC: [Interpretation] Good afternoon, Your Honours.

3 THE INTERPRETER: Microphone for the Defence counsel, please.

4 MR. PRODANOVIC: [Interpretation] Good afternoon, Your Honours. I

5 am Cedo Prodanovic, lawyer from Zagreb. I represent Mr. Ivan Cermak. My

6 co-counsel is Mrs. Jadranka Slokovic, also a lawyer from Zagreb.

7 JUDGE AGIUS: I thank you and good afternoon to you.

8 MR. SEPAROVIC: [Interpretation] Good afternoon, Your Honours. I'm

9 Miroslav Separovic, a lawyer from Zagreb. And together with me is lawyer

10 Goran Mikulicic representing General Markac.

11 JUDGE AGIUS: I thank you. And good afternoon to you, too.

12 So the purpose of today's sitting is to deal with or hear

13 submissions on the motion for provisional release which each one of the

14 two accused filed on the 12th of March 2004.

15 The respective motions were accompanied by a general affidavit

16 from the accused, from each of the accused respectively, and a letter from

17 the Government of Croatia providing guarantees for the observance of any

18 orders that the Chamber may wish to impose if it decides to grant

19 provisional release.

20 On the 25th of March 2004, the Prosecution filed its response to

21 the two motions and in each case, signified -- in each case it opposed the

22 request for provisional release. Provisional release is governed by Rule

23 65 of the Rules of Evidence and Procedure. There is also an abundant

24 jurisprudence, case law, on the matter. And perhaps we can take it up

25 from there and just mention some of the more important aspects that are

Page 31

1 very pertinent to a sitting like today's.

2 You are all aware that before a decision on provisional release

3 can be taken by the Trial Chamber, both the host country and the state to

4 which the accused seeks to be released have to be heard. The host

5 country, you will notice, is not present here today, but that's according

6 to procedure. We have already notified the host country that is -- there

7 are these two motions pending, and we will await the response from the

8 Government of the Netherlands which has been invited to provide their

9 comments in writing.

10 Usually - this is just to inform the two accused more than anyone

11 else - the standard reaction that one would expect from the host country

12 is not to express itself on the substance of the request, or your request

13 for provisional release. They won't go into the merits of that but

14 usually they would indicate their wish or request that any release would

15 lead to the transfer of the accused to the country to which they seek to

16 be released, and usually there is no objection on the part of the

17 Government of the Netherlands that once provisional release is granted the

18 accused remain here in the Netherlands released. That's just for the

19 information of the accused in particular.

20 Since, as I stated, we also hear submissions that the government

21 of the state to which the accused seeks to be released - in this case, the

22 Government of Croatia - I'm pleased to note today here in the courtroom

23 the presence of Her Excellency, the Croatian Minister of Justice Madam

24 Vesna Skare-Ozbolt, and also of the Assistant Minister of Justice,

25 Mr. Jaksa Muljacic. I thank you for having taken the trouble to come here

Page 32

1 in this courtroom to assist the Trial Chamber in its deliberations. I

2 also notice, or at least the demand -- I want to make sure that the demand

3 of the embassy of the Republic of Croatia to have Mr. Mladen Bajic, the

4 Attorney-General of the Republic of Croatia, and also of His Excellency

5 the Ambassador of Croatia to the Netherlands, Mr. Frane Krnic, has been

6 met with and they are in a position to follow the proceedings from the

7 gallery where they should be seated.

8 Having said that, I think there is one point I would like to make:

9 The purpose of today's sitting is not to go through the contents of the

10 motions and repeat the submissions contained therein, but to make sure if

11 there are any further submissions to be made by the parties. Same applies

12 to the Prosecution. It's not our desire that we have a repetition of the

13 reasons why you are opposing the motion. Of course, your response will be

14 related to the submissions that the counsel for the two accused will make

15 here in open Court.

16 Excellency, you will also be given the floor so that we hear what

17 is the point of view of the Government of Croatia.

18 I would start with counsel for General Cermak. And I suggest that

19 you try and restrict your submissions to not more than 10 minutes. If you

20 need more than 10 minutes, please let us know, and we will see what extra

21 time to grant you. Go ahead.

22 MR. PRODANOVIC: [Interpretation] Thank you, Your Honour. I

23 believe that the time that you have given me will be sufficient for me to

24 explain why we have submitted the motion for the provisional release of

25 General Cermak until the beginning of trial.

Page 33

1 The Defence of Mr. Cermak believes that the conditions have been

2 met pursuant to Rule 65, and that the Trial Chamber may rest assured that

3 General Cermak will appear before the Trial Chamber at any moment. In

4 case he is refused [as interpreted] provisional release, he is not going

5 to pose any danger, either for the victims or the witnesses or any other

6 person involved. In our submission, that is, in our motion, we have

7 explained the grounds on which we base this opinion. And only shortly I'm

8 going to say that Mr. Cermak has been in contact with the OTP for six

9 years now, that the first interview that he had was in March 1998. The

10 interview lasted over a period of several days. The first interview was

11 not attended by his Defence counsel. Up to the year 2000, he had two

12 other interviews, and he has also given his written statement about the

13 charges that were alleged against him during the investigation. This is

14 obviously the proof of his willingness to cooperate with the Tribunal, and

15 he also helped the OTP to establish facts about the Operation Storm and

16 other events. At the same time, he voluntarily surrendered 132 documents

17 that he had in his possession, the documents which were relevant for this

18 case, and I am convinced that the OTP has been largely assisted by these

19 documents to establish facts.

20 In our submission, we have underlined, and we would like to repeat

21 it, that General Cermak, since the year 1995 to the present day in his

22 public appearances has very often condemned crimes which were committed

23 both in Operation Storm as well as all the other crimes perpetrated on the

24 territory of the Republic of Croatia, and he has also advocated

25 cooperation with the Tribunal as the only place which has the authority to

Page 34

1 deal with the responsibility of such -- for such crimes. From our point

2 of view, it is absolutely certain that Mr. Cermak has shown a very

3 benevolent attitude with regard to all the obligations from the fact

4 arising that he was indicted already in 1998.

5 The guarantee of the Croatian government is part of our

6 submission. This guarantee is addressed to myself. However, it is

7 obvious that it is actually addressed to the Tribunal and that the

8 Croatian State absolutely guarantees the Tribunal and this Trial Chamber

9 that they will comply with all of their obligations with regard to

10 Mr. Cermak. Mr. Cermak is going to appear before this Trial Chamber at

11 any moment. Therefore, we would like to reject the argument put forth by

12 the Prosecution, and the argument being that the guarantee is addressed to

13 the Defence counsel rather than to the Trial Chamber. It is obvious that

14 this guarantee is actually addressed to the Trial Chamber, or in general

15 terms to the Tribunal.

16 In addition to that, Mr. Cermak has also made an affidavit under

17 the oath that he would respond to the summons by the Court and that he

18 will not pose any threat to either victims or witnesses or any other

19 persons, in case he is released provisionally. And nota bene, he has

20 already had a number of occasions since 1995 onwards to pose a threat.

21 This has especially been the case during the past six years since he has

22 been aware of the charges against him. He is absolutely aware of the fact

23 that in a certain way he is exposed to criminal charges. However, he has

24 not influenced in any way either the victims or the witnesses, nor has

25 this been indicated in the Prosecution's motion. They could not have

Page 35

1 indicated that because there have been no such threats or events of this

2 sort.

3 In his affidavit, Mr. Cermak has expressed a willingness to meet

4 all of the obligations imposed on him by the Trial Chamber in a very

5 disciplined way. He's going to comply with all the restrictions imposed

6 on him by the Trial Chamber. In our submission we have also mentioned

7 that. We have stated all the things that we are prepared to observe in

8 case General Cermak is provisionally released. And in case the Trial

9 Chamber imposes some other measures on top of those measures that are

10 mentioned in our submission, General Cermak is absolutely prepared to

11 comply with them.

12 In view of all these facts, and with an additional remark by the

13 Defence counsel that the seriousness of the indictment is by no means a

14 valid reason for General Cermak to be afraid of the punishment, and once

15 he has voluntarily surrendered, that he might change his mind and refuse

16 to appear before this Trial Chamber, in case he was provisionally

17 released, because of the fear of a high sentence, he certainly wouldn't do

18 that because he understands very well what he is facing. He is aware of

19 the charges. He is not an illiterate person; on the contrary, he has been

20 clear of all the charges from day one and with the full knowledge of the

21 incriminations, he has come before this Trial Chamber, and his intention

22 is to have the charges refuted.

23 For those reasons, once again, I would like the Trial Chamber to

24 review all of our arguments, to look at the submission, and to make a

25 ruling for Mr. Cermak to be provisionally released until the beginning of

Page 36

1 trial.

2 JUDGE AGIUS: Yes. The order will proceed. We'll now hear the

3 submissions of Mr. Separovic on behalf of General Markac. Then I will

4 give the floor to Her Excellency before I give the floor to the

5 Prosecutor.

6 Yes, Mr. Separovic.

7 MR. SEPAROVIC: [Interpretation] Thank you, Your Honours. In its

8 submission, in its motion, the Defence presented the arguments, the

9 reasons for which it believes that the conditions set out in Rule 65 have

10 been met. I don't want to repeat everything that my colleague Prodanovic

11 has said given that our arguments are similar, identical. As a result, I

12 will immediately turn to the Prosecution's submission. And my objection

13 to the Prosecution submission is that the Prosecution didn't take into

14 account arguments which include the voluntary surrender of General Markac

15 and of cooperation with the Prosecution to date. It also concerns all the

16 promises he has given you and the guarantees provided by the Croatian

17 government.

18 Instead of answering our arguments, in our understanding, the

19 Prosecution cited the importance, the significance of the indictment and

20 the possible penalty that Mr. Markac might have as reasons to object to

21 our motion. As far as the Prosecution's reasons are concerned, I would

22 like to say that Mr. Markac is familiar with the Statute of the ICTY and

23 he is also familiar with the indictment. But after the indictment was

24 issued on the 8th of March 2004, he voluntarily surrendered to the ICTY

25 and travelled to The Hague seven days later. So this fact shows that

Page 37

1 General Markac was aware that he might be found guilty and a severe

2 sentence might be imposed on him, although we believe that we will prove

3 that he is innocent. In spite of all these factors, he voluntarily

4 surrendered to the Tribunal. So the seriousness of the indictment isn't a

5 legal reason for objecting to our motion.

6 Similarly, the General has responded to all requests made by the

7 Prosecution. He gave them an interview that lasted five days. The

8 investigators told him about the seriousness of the charges. He was aware

9 of what he was being charged with; namely, the violation of humanitarian

10 law. The investigators informed him of this fact. So I believe that in

11 spite of all these factors, he did cooperate and show goodwill.

12 As far as influencing witnesses and victims are concerned, as in

13 the case of my colleague Prodanovic, I would like to say that over ten

14 years have passed since the end of the war in the former Yugoslavia. The

15 Croatian media, even before he was interviewed as a suspect, their

16 speculation about him being a potential accused. In December, he was

17 interviewed as a suspect for the first time, in December 2000. If he

18 wanted to influence victims and witnesses in any way, he could have done

19 so. Because up until 2002, he held a high office in the Ministry of the

20 Interior. And although he was aware of the fact that he might be

21 indicted, he in no way attempted to influence witnesses, and the

22 Prosecution didn't even mention any such cases, although I should draw

23 your attention to the fact that the Prosecution even spoke to many

24 policemen and police officers about this matter, people who work in the

25 police in Croatia or used to work in the police in Croatia. I would be

Page 38

1 grateful if the Prosecution could tell me whether any of these persons

2 said that they even suspected that General Markac might try to influence

3 them.

4 So the argument according to which he was a high-ranking police

5 official, well, this shows the contrary to what the Prosecution tried to

6 prove in its submission. As a result, I don't think that General Markac

7 tried to take advantage of the position he held in the course of the

8 investigation or before. And I think this is a guarantee that he won't

9 try to do so in the future. As far as the other witnesses are concerned,

10 who are mostly outside the territory of the Republic of Croatia, we have

11 presented our views in detail in our motion, so I don't want to go over

12 that again.

13 There is something else I would like to say that concerns the

14 arguments that this case might be linked to the case of General Gotovina.

15 As far as the facts of the Government of Croatia is concerned in the case

16 of the indictment against General Gotovina, I believe that the minister

17 who is present here will express her views on this matter. What I would

18 like to draw your attention to is that linking up General Gotovina's case

19 with General Markac's case is in no way justified. General Markac

20 conducted himself in a way which was completely contrary to the way in

21 which General Gotovina conducted himself. He has cooperated with the

22 Prosecution, he gave a statement, and he voluntarily surrendered to the

23 Tribunal. The Prosecution shows that they don't trust the guarantees

24 provided by the government because they didn't provide -- they didn't

25 deliver General Gotovina. But General Markac was always accessible to the

Page 39

1 government and to the Tribunal at all times, and he was accessible when

2 the indictment was made public, and he went to The Hague immediately. So

3 if the Prosecution's argument was accepted, General Markac would suffer

4 the negative results, he would be punished because of General Gotovina's

5 conduct, and he had no way of influencing General Gotovina's conduct.

6 His behaviour was quite the opposite. I'm not going to repeat

7 what my colleague Prodanovic said, but all I would like to say is that we

8 asked in writing that the minister provide us with a guarantee. This is

9 what she did, and we have attached this to our motion. I don't see how

10 this could be in dispute. Likewise, with regard to the minister's

11 statement, I believe that she should explain her position about the

12 innocence of the accused. But with respect to Article 21 in the Statute,

13 each accused is presumed innocent until he is proved guilty, and this is

14 how the Defence interpreted the statement made by the minister.

15 And finally, I would like to conclude by saying that the Defence

16 will provide other guarantees, Your Honours, if you should so request.

17 And I believe that the conditions under Rule 65 have been met and that

18 General Markac could be granted provisional release. Thank you.

19 MR. MIKULICIC: [Interpretation] Your Honour, if you will allow me,

20 I would like to follow up on my colleague's word with a few additional

21 arguments.

22 JUDGE AGIUS: It's not normally the practice that both counsel

23 stand up and take the floor. But I will allow it in the present

24 circumstances --

25 [Trial Chamber confers]

Page 40

1 JUDGE AGIUS: Yes, exceptionally, we are giving you the floor.

2 Please try to restrict your arguments to not more than five minutes.

3 Thank you.

4 MR. MIKULICIC: [Interpretation] I would like to thank the Trial

5 Chamber. I was going to adhere to the time given to every Defence

6 counsel. If you will allow me, I would like to highlight some general

7 facts, although I'm aware of the fact that this Trial Chamber is familiar

8 with the legal issues.

9 I would like to say something about detention during the pre-trial

10 stage before this Tribunal with regard to the modern European legislature

11 of European countries. The detention measure is the gravest measure of

12 the sort. The European national jurisdiction is -- has other measures to

13 put in place, such as summons, forcible transfer, an affidavit, and

14 guarantees. Sometimes the accused are put under house arrest. The modern

15 jurisdiction has developed the principle of the so-called proportionality

16 when it comes to ordering measures of the presence of the accused with

17 regard to their participation in crimes. This principle is based on the

18 philosophy of the modern accusatory procedure which calls for the maximum

19 protection of the accused and presumes the accused innocent until proven

20 different, and his only duty and obligation is to participate in trial.

21 One of the reasons for detention is prevention of influence that

22 the accused may exert on witnesses and victims, or to prevent another

23 criminal activity on the part of the accused. The traditional solutions

24 to that problem with regard to the detention approach the solutions of the

25 so-called mixed trial in the countries of the continental Europe. I'm

Page 41

1 referring to the legislation of Italy, Switzerland, Germany, as well as

2 the legislation of the Republic of Croatia. In this mixed trial

3 procedure, the principle has been adopted that detention is not always a

4 procedural measure, but that it has to be selectively used if there are

5 conditions.

6 Article 5 of the European Convention on Human Rights allows for

7 the measure of provisional release before trial. This is the measure that

8 we have asked for in our submission, depending on the conditions that will

9 provide enough guarantee that the accused will come to stand trial. Since

10 this condition is not an absolute reason for the abolishment of detention,

11 the European Court for European Rights has established that national

12 legislations have to apply the so-called rule of proportionality. This

13 principle relies on the principle that a grave measure is not going to be

14 applied in the case of the accused if the same effect can be achieved with

15 a less serious measure.

16 Such a principle has been adopted by Article 58 of the Rome

17 Statute, that is the Statute of the ICC. This Article lists the reasons

18 to have the accused detained but also provides for alternative measures

19 for making sure that the accused will stand trial. If we recall the

20 regulations of this Tribunal, then we will notice that in the Rules and in

21 the practice of this Tribunal there have been major steps forward with

22 regard to the measure of detention. The former Rule 65 provided for

23 detention to be replaced by provisional release only in cases of

24 extraordinary circumstances. This was a very restrictive measure which

25 has been derogated throughout the practice of this Tribunal. It has been

Page 42

1 amended and no longer exists in Rule 65. The practice of this Tribunal

2 also indicates that it is approaching the rules of the modern European

3 legislation, and that the detention measure in the pre-trial procedure is

4 applied only exceptionally in case there are conditions which call for

5 that.

6 In light of these reasons, the Defence believes that in this

7 specific case there are reasons for this Trial Chamber to make a ruling on

8 the provisional release of my client. In that, the Defence is absolutely

9 sure that such a decision would be in keeping with the circumstances of

10 this particular case as well as in the modern practice and solutions of

11 the democratic world. In addition to that, and in conclusion, the Defence

12 believes that your decision on provisional -- on the provisional release

13 of our client would in no way burden your very high professional

14 consciousness. Thank you very much for giving me the floor.

15 JUDGE AGIUS: I thank you, Mr. Mikulicic.

16 Having heard submissions by the learned counsel for each of the

17 accused, Excellency, Madam Vesna Skare-Ozbolt, I would like to give you

18 the floor.

19 MS. SKARE-OZBOLT: [Interpretation] Your Honours, the Government of

20 the Republic of Croatia will provide and is providing all the necessary

21 guarantees. We will respect all conditions imposed by the Trial Chamber

22 for the provisional release of General Cermak and General Markac and this

23 will be in accordance with Rule 65 of The Rules of Procedure and Evidence.

24 With your leave, Your Honours, I would like to say a little about

25 the relation between the Government of Croatia and The Hague Tribunal. In

Page 43

1 our opinion, these relations are very good. Very recently General Markac

2 and General Cermak in less than 24 hours declared that they would be

3 appearing before The Hague Tribunal. And in fact, this is what they

4 actually did very rapidly. And given that another four accused will be

5 appearing before The Hague Tribunal on Monday, this is additional proof

6 that the cooperation is very good. The problems that existed in the past

7 have been resolved as far as cooperation is concerned.

8 Your Honours, allow me to also raise a number of other issues that

9 appear in the motions. The principle of the presumption of innocence is

10 accepted, and with regard to this principle the Government of Croatia,

11 which I represent, declared that we believe that General Markac and Cermak

12 are innocent until proved guilty. On the basis of the principle that

13 there is no crime without a law, this is quite clear, and The Hague

14 Tribunal can decide whether they are guilty or innocent.

15 As far as the charges are concerned, the Vienna Convention obliges

16 the Government of Croatia to take care of all its citizens. And for

17 humanitarian reasons, the Croatian parliament has taken a decision

18 obliging the government to provide the accused and their families with

19 financial and professional aid. These costs are very high, Your Honours,

20 and part of these costs will be also borne by the Croatian government.

21 The Croatian parliament has taken a number of such decisions from 1997 to

22 date on the principle of -- the reasons of humanitarian principles and

23 also in accordance with the Vienna Convention.

24 The Croatian government has also provided guarantees in writing

25 for General Markac and General Cermak. They included the guarantees that

Page 44

1 the accused would appear for trial and that they would not pose any danger

2 to any victims or witnesses. In their written guarantees, the government

3 stated that they would act in accordance with all the orders issued by the

4 Court as far as the appearance of the accused is concerned and it would

5 take all measures to ensure that the accused appeared for trial and that

6 General Markac and General Cermak would not pose any danger to any

7 witness, victim, or any other person. The government is also prepared to

8 provide other forms of assistance and to provide all the necessary

9 guarantees in order to support the motion for provisional release.

10 I thank you very much.

11 JUDGE AGIUS: I thank you, Excellency.

12 I take it that you will -- only you are going to make submissions

13 on behalf of the Croatian government, in other words? Thank you.

14 From the Prosecution. Shall I give the floor to you, Mr. Ierace?

15 MR. IERACE: Thank you, Your Honour. In the first instance, my

16 comments will be followed --

17 JUDGE AGIUS: You have -- since you have various submissions to

18 respond to; namely, both Defence counsel plus also the comments and

19 remarks made by Her Excellency, we are giving you 15 minutes. Should you

20 require more than 15 minutes, just let us know and we will decide if it's

21 the case.

22 MR. IERACE: Yes, I'm grateful for that. And might I indicate at

23 the outset that Madam Prosecutor will also address you, and I assure you

24 that our observations will be complementary, that we will not cross each

25 other's territory in the interests of saving time.

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Page 46

1 If I could perhaps start with response to submissions made by

2 Mr. Mikulicic and Her Excellency the Minister for Justice and in relation

3 to the right the presumption and other rights which are enshrined in the

4 International Convention for Human Rights and in various decisions handed

5 down from the -- by the European Court of Human Rights, that has been a

6 matter considered previously by the Courts of the Tribunal, and you may be

7 assisted by the decision of Trial Chamber I in the case of the Prosecutor

8 versus Ademi, a decision handed down on the 20th of February 2002. I have

9 copies, should they be required, in which Their Honours referred to

10 specific decisions of the European Court, and distilled from those

11 decisions that: "Continued detention is therefore not prohibited nor does

12 it have the nature of a sanction. Its purpose is to ensure the presence

13 of the accused at trial, to preserve the integrity of victims and

14 witnesses, and to serve the public interest."

15 They went on to state in their judgement that beyond the two

16 prerequisite conditions stated in Rule 65(B), there was a very broad

17 discretion enjoyed by the Trial Chamber to nevertheless continue

18 detention. They set out various circumstances which might activate that

19 discretion against the motions of the applicants.

20 Coming now to the submissions made on other matters, submissions

21 were made by both Mr. Prodanovic and Mr. Separovic on behalf of their

22 clients often to essentially the same effect. For instance, it was said

23 by each that the behaviour of their clients over the previous six years

24 was an assurance - I think the word guarantee is used in the written

25 submissions - that they would indeed, firstly, attend when required,

Page 47

1 should provisional release be granted; and secondly, that they would not

2 interfere with witnesses or victims. It must be remembered, however, that

3 the status of the two applicants has changed fundamentally from what it

4 has been prior to their arrest. They make their applications not as

5 suspects, but as accused.

6 The relevance of that is twofold: Firstly, that they have a

7 greater motive to interfere with victims and witnesses, and evidence in

8 other forms, should they wish to do so. Secondly, they will now become

9 more intimately acquainted with the detail of the Prosecution case. That

10 means that they will become aware of the weight of the case against them

11 and again, should they so desire, more information which would enable them

12 to make contact with victims, witnesses, and perhaps other evidence. I

13 note that both accused have held positions, significant positions in

14 government, in the military, the police. And with those positions comes

15 the potential for influence.

16 Mr. Cermak, in his motion, refers to his previous status as a

17 businessman as well as a general. We have no detail before the Trial

18 Chamber of the nature of the business or the extent of it. Mr. Cermak has

19 a public reputation as a man of considerable wealth, but we have no

20 information from Mr. Cermak before the Trial Chamber as to what assets he

21 may possess outside Croatia, inside Croatia.

22 Both applicants in their motions acknowledge that up until 2004,

23 which I take to be a reference to the date of their arrests, that they had

24 contact with witnesses in terms of -- or the potential for contact with

25 witnesses in terms of army officers, military officers, and police. That

Page 48

1 does not, therefore, appear to be in dispute, that there is the potential

2 for contact with witnesses living in Croatia should they wish to exercise

3 that.

4 I think it's also important to remember in relation to victims in

5 particular who continue to live inside Croatia, that their position is

6 especially vulnerable. Whether one accepts their perception of extreme

7 vulnerability as being entirely based on reality or partly imagined on --

8 by them, the fact remains that they regard themselves as being in that

9 position. Both of the applicants in their written submissions say that it

10 is impossible for them to influence or affect such persons. It is not

11 explained why that is. Perhaps it's a problem with the translation, but

12 in any event I think it could be readily accepted that there is the

13 potential for that particularly as they become more aware of the details

14 of the cases against them should they wish to interfere with witnesses.

15 I note also that both applicants in their written submissions say

16 that the Government of the Republic of Croatia will take measures to

17 ensure that there is no such contact. And with the greatest of respect to

18 Her Excellency, one wonders what steps a government could take to

19 guarantee that there would be no such contact by the witnesses -- I'm

20 sorry, by the applicants. Indeed, if there was 24-hour surveillance, that

21 would not eliminate the possibility for such contact.

22 Mindful of the time, unless there's anything else I can

23 specifically assist you with at this stage, I will hand over to Madam

24 Prosecutor.

25 JUDGE AGIUS: Before you do so, perhaps, Mr. Ierace, you would

Page 49

1 enlighten the Trial Chamber on what I'm going to point out to you. The

2 way you have presented the reasons behind your continued opposition to the

3 accused's request for provisional release seems to be that you are

4 suggesting that things could only get worse as we go along because the

5 situation will prove to be graver. As we go along, the accused will be

6 made more aware of the Prosecution's case, how serious it is. And are you

7 suggesting that these two gentlemen would never be in a position to

8 deserve provisional release?

9 MR. IERACE: Your Honour, the Trial Chamber is in the invidious

10 position of having, to an extent, to look into a crystal ball. The

11 Prosecution seeks to draw to your attention the factors that mitigate

12 against provisional release, a decision in their favour, mindful of the

13 fact, and I note that it's accepted in their submissions, that the burden

14 of proof does remain with the applicants in making this application. In

15 response to your particular question, the last part of your question,

16 whether it is our submission that they should never be entitled to

17 provisional release, we note in our response, our written response, that

18 if the motions are declined, we propose to invite both of the applicants

19 to partake in a further interview. I do not for a minute suggest that

20 that is relevant to the decision itself, but it's simply a matter to be

21 aware of, that that would occur.

22 By that exercise, and perhaps other developments, it may be - it's

23 possible, as it always is - that the Prosecution would take a different

24 view at some stage in the future. But at this stage on the information we

25 presently have and given the current state, that is our position, to

Page 50

1 oppose the applications.

2 JUDGE AGIUS: All right. Thank you.

3 Madam Del Ponte.

4 MS. DEL PONTE: [Interpretation] Your Honours, I was asking myself

5 why the accused arrived here on the 11th of March. On the 12th of March

6 we had the first interview. And on the same day, they submitted the

7 request, the motion for provisional release. I was asking myself what

8 that meant. And I told myself that - and this was included in the motion

9 - they said it was because they love their country, because this was a

10 political way of behaving. And I told myself that this was work done by

11 the Government of Croatia. And I thank them for it. I thank them for

12 appearing immediately.

13 But this doesn't mean that what is requested in Rule 65 shouldn't

14 be respected. You were told why in our opinion the Trial Chamber, the

15 Tribunal can't be certain that the two conditions set out in Rule 65 would

16 be met. And I haven't heard anything from the Defence about this. But we

17 know that the two accused have claimed that they are innocent. This is

18 their right. But this means that during the hearings that we have

19 scheduled for the following days, they will start next week, this means

20 that we will be presenting all our evidence to the accused, because if

21 they agree to be questioned, and the procedure allows for this, in that

22 case, we will naturally contest their affirmations, the affirmations they

23 made during the interviews that they had as suspects because we shouldn't

24 mix up these two forms of interviews. When you're interviewed as a

25 suspect, it's a general sort of interview. This is done in order to

Page 51

1 obtain certain information. And if the Defence want to assist the accused

2 during the hearings that we have scheduled, all this changes. They know

3 exactly what the evidence is that we'll be presenting during the

4 proceedings, they know who the witnesses for the Prosecution will be. So

5 this means that the second condition, not posing a danger to anyone, is

6 one that is difficult to be met.

7 Your Honours, the second element that I wanted to draw your

8 attention to is that I want to be sure that the Croatian government will

9 do everything to ensure that they appear for trial if they are granted

10 provisional release. But I have a bad example which concerns the accused

11 Gotovina. The Croatian government can't do anything about this,

12 naturally. So once the accused are granted provisional release, they can

13 quite simply disappear. Gotovina, he has disappeared. He did this

14 independently of what the government can do.

15 But the most important thing I wanted to inform the Trial Chamber

16 of, as I'm the Prosecutor at this Tribunal, is that I don't want there to

17 be any differences in treatment. There are accused of different ethnic

18 background, and they have taken the same steps that have been taken now.

19 And this is the right of the accused. They can request provisional

20 release immediately, because we are talking of a request that was made

21 immediately. They have only been here for a few weeks. So in the case of

22 the accused Milutinovic who appeared here, who had guarantees and who

23 requested provisional release, well, he didn't -- he wasn't granted

24 provisional release. But there are other accused who were granted

25 provisional release, and we agreed to this because we are not here to

Page 52

1 raise objections to granting provisional release immediately. We have a

2 certain -- provisional release was granted for 200 days, 130 days in

3 certain cases. Someone was granted provisional release for over two

4 years.

5 So I'm going back to the initial question. After only a few days

6 of detention, why should these accused, accused of such serious crimes

7 according to the penal code, the Statute of the Tribunal, can you be sure

8 that they will appear for trial? Can you be sure that they don't pose any

9 danger to the witnesses and victims?

10 Thank you, Mr. President.

11 JUDGE AGIUS: I thank you, Madam Del Ponte.

12 Mr. Prodanovic.

13 MR. PRODANOVIC: [Interpretation] Thank you, Your Honours. I would

14 like to respond to the arguments put forth by my learned friends from the

15 Prosecution.

16 First of all, the Defence does not see any difference with regard

17 to the matter being discussed between the fact that the application for

18 provisional release and the interviews, whether they were given by

19 suspects or by the accused. Likewise, we cannot agree with the position

20 of the Prosecution that after Mr. Cermak has been indicted, now has a

21 greater motive to influence witnesses than he had before. The Defence

22 would like to put forward arguments to the contrary. If he didn't want to

23 be indicted, he would then have influenced witnesses had he wanted to do

24 so. And he had ten years to do that. The biggest guarantee that he will

25 never do that is his behaviour up to now, before his appearance before

Page 53

1 this Trial Chamber.

2 With regard to the remark that this application for provisional

3 release is premature, I would like to draw your attention to the fact that

4 from the position of the Rules of Procedure and Evidence, this application

5 may only be granted or groundless. It cannot be premature. What is going

6 to change in six months? What will be the context that you're going to

7 look at when you look at their behaviour in the Detention Unit as opposed

8 to their behaviour in the Republic of Croatia? Nothing is going to

9 change. The guarantee is that they will appear before this Trial Chamber,

10 that they will not influence witnesses. And the guarantee for that is

11 their impeccable behaviour when they were free at home. The fact whether

12 Mr. Cermak is rich or not has not any bearing on his attitude towards the

13 witnesses. We have to say that he was rich even before, with the caveat

14 that the word "rich" has to be defined.

15 And the Defence also does not think that they have to provide

16 argumentation for the things that haven't been established at all, one of

17 them being whether Mr. Cermak may have an account in a foreign bank and

18 that this could be a good motive for him not to appear before this Trial

19 Chamber. All of these are very summary conclusions put forth by the

20 Prosecution. Lacking proper arguments, the Prosecution uses very summary,

21 very general sentences that may be applicable in some cases, but certainly

22 not in this one.

23 With regard to the fact that the -- my learned friend mentioned a

24 mistake in translation, there is no mistake in translation. The Defence

25 did submit that it is impossible for the accused to exert any influence on

Page 54

1 the witnesses for a simple reason: Most of the witnesses have been

2 recruited from the ranks of the members of international organisations.

3 And most of the victims of the crimes have abandoned the Republic of

4 Croatia and it is very difficult to exert any influence for them. And

5 again, I repeat, so far there hasn't been any evidence that such an

6 influence has been attempted in the past.

7 As far as the last part is concerned, and this concerned the

8 interviews with the OTP, I've already mentioned that we believe that we

9 have complied with all of our obligations as regards cooperation with the

10 Tribunal by having given four interviews. The facts that were discussed

11 then will be discussed in the future. Maybe discussion is going to be

12 more thorough and complete. However, this is not important. My learned

13 friend from the OTP has said himself that an interview cannot be the

14 reason for the Prosecution to either consent or deny the application for

15 provisional release. However, judging from the arguments put forth by the

16 Prosecution, it seems to me that the Defence and Mr. Cermak should allow

17 them to comfortably carry out their interviews in the vicinity of the

18 premises of the OTP because it would be much simpler for them than calling

19 him from Croatia to come to The Hague or them going to Croatia to carry

20 out the interview.

21 I believe that this request should not be met, particularly

22 bearing in mind that this would abolish the only privilege that Mr. Cermak

23 has as the accused, and that is to provide his defence at the end of the

24 procedure. These requests - and it seems that these are the prevalent

25 requests, what we heard at the very end - I believe that these are the

Page 55

1 main reasons why the Prosecution is denying Mr. Cermak's application.

2 However, these reasons are not grounded. They are not grounded in the

3 Rules of Procedure and Evidence. And that is why I believe that the

4 arguments put forth by the Prosecution are absolutely not applicable to

5 this case.

6 And another fact, if I may, when they listed their arguments for

7 opposing the motion for provisional release, the negative example of

8 General Gotovina is mentioned as one of the arguments. May I remind

9 Your Honours about a positive example. This example is General Ademi that

10 this Trial Chamber has provisionally released, and General Ademi has been

11 complying with all the obligations imposed on him by the Trial Chamber.

12 The Government of the Republic of Croatia also has complied with all the

13 orders. Mr. Ademi has been on provisional release for two years and has

14 cooperated both with the OTP and the Tribunal. Some cases which have

15 nothing whatsoever to do with a specific case cannot serve as the basis

16 for conclusions in this case.

17 Once again, I would like to repeat that I believe that the

18 conditions have been put in place for this Trial Chamber to meet our

19 application for provisional release.

20 JUDGE AGIUS: Mr. Separovic. Is it you or Mr. Mikulicic?

21 MR. SEPAROVIC: [Interpretation] Thank you, Your Honours. I fully

22 support what my colleague Mr. Prodanovic has just said. All I would like

23 to say is that contrary to General Cermak, I believe that General Markac

24 is poor. He is a pensioner. That is the only difference.

25 But I would like to add to the influence that the Defence -- to

Page 56

1 the impression that the Defence has, I don't think that the Rules justify

2 the fact that it might be better to have the accused here for the sake of

3 interviews or for the sake of having easy access to them. So I believe

4 that the Trial Chamber won't accept these arguments because it is the

5 right of each accused -- this is the right of each accused. The

6 Prosecution has had the opportunity of interviewing General Markac. He

7 responded on five occasions. He gave interviews on five occasions. He

8 would do it again. It is only if the Trial Chamber set such a condition,

9 in such a case, we would agree to it, but I don't believe it is a legal

10 condition. And that is the main reason for which the Prosecution is

11 opposing our motion and not the arguments that they presented.

12 JUDGE AGIUS: Yes. I thank you, Mr. Separovic.

13 Before I give the floor to the accused themselves for any

14 observations that they might have, Judge Antonetti, would you like to put

15 any questions? Judge Parker.

16 Okay. Mr. Cermak, would you like to address the Trial Chamber?

17 THE ACCUSED CERMAK: [Interpretation] Yes.

18 Your Honours, I would like to say that I'm disappointed by the

19 Prosecution's motions because if anyone, whenever he appeared in public,

20 said that it was necessary to cooperate with The Hague Tribunal, it was I

21 personally. I have responded to all requests made from 1998, and I have

22 always said whenever it's necessary for me to appear before the Court,

23 whenever it's necessary to speak to me, I said I would respond to such

24 requests.

25 If you accept the motion submitted by myself and my Defence, my

Page 57

1 motion for provisional release, I can promise you that I will appear

2 before this Tribunal. I'm an honourable man, and I have never had any

3 problems with the law up until this day. Thank you.

4 JUDGE AGIUS: I thank you, Mr. Cermak.

5 General Markac, would you like to address the Trial Chamber.

6 THE ACCUSED MARKAC: [Interpretation] I would, Your Honour.

7 I fully support the submission by my Defence counsel, and I

8 promise to the Honourable Chamber that I will honour all of the

9 obligations imposed on me by the Trial Chamber for interviews or for

10 appearing before the Trial Chamber in order to put forth my Defence.

11 In this case, I'm convinced that I am innocent and that I can

12 reply to any question that you may put to me. And I don't want to

13 influence any of the charges that I have been charged with or any -- I

14 don't wish to have any influence on that. Thank you.

15 JUDGE AGIUS: I thank you, General Markac.

16 Are there any further comments, remarks, even from you,

17 Excellency? Okay, which basically means that we can bring this sitting to

18 an end.

19 Before I do so, however, I would like to make two points: First

20 one is you will recall during the initial appearance, I had told you that

21 in all likelihood I would retain this case as Pre-Trial Judge. I have

22 reconsidered the matter. Because of the load of work that we currently

23 have, I have decided and signed an order accordingly to appoint

24 Judge Parker from Australia as the Pre-Trial Judge instead of me in this

25 case.

Page 58

1 However, that -- you should also be aware that there are certain

2 issues like this one, for example, like provisional release, that will be

3 determined collegially, the three of us all together. That's the first

4 one.

5 The second is that we will consider all the submissions that have

6 been made today, together with the written motions and responses that have

7 been forwarded. And we will very shortly be in a position to hand down

8 our decision, which will be communicated to you through the usual channels

9 of this Tribunal.

10 I take this opportunity once more to thank you, Excellency, for

11 taking the trouble to come here, and the Deputy Minister of Justice, too.

12 I also wish to thank formally the Embassy of Croatia to the Netherlands

13 and the Attorney-General of Croatia, not only for their cooperation but

14 also for their attendance for today's hearing.

15 With that, I think we can adjourn. Thank you.

16 --- Whereupon the Motion Hearing adjourned

17 at 3.42 p.m.