Tribunal Criminal Tribunal for the Former Yugoslavia

Page 107


2 CASE NO. IT-96-20-PT


4 Monday 22nd April 1996 Before: CLAUDE JORDA (The Presiding Judge)



7 MICHAEL KEEGAN and MR. G. BLEWITT appeared on behalf of the

8 Prosecution

9 MR. MILAN VUJIN and MR. TOMA FILA appeared on behalf of the Defence

10 appeared on behalf of the Defendant


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3 THE PRESIDING JUDGE: The hearing is resuming in open session. I would

4 like to thank Mr. Boes and the second gentleman whose name has slipped

5 my mind, but you will introduce yourseIf in a moment. Mr. Boes, would

6 you be so kind as to introduce yourself?

7 MR. BOES: Yes, I a Mr. Adrian Boes, Legal Adviser of the Ministry of

8 Foreign Affairs, and next to me is Mr. Strjart, representing the

9 Minister of Justice.

10 THE PRESIDING JUDGE: Thank you. We have heard the testimony of Dr. de

11 Man in a closed session in order to summarise the present state of

12 affairs. As regards the medical condition of General Dukic, in fact,

13 two very different conclusions have been drawn by the Defence and by

14 the Prosecutor's Office. I would like to give the floor to both

15 parties who will explain their position, the Defence first and then

16 the Prosecutor. In accordance with Rule 65(B) we will then hear the

17 comments by Mr. Boes from the Foreign Affairs Ministry of the

18 Netherlands and Mr. Strjart from the Ministry of Justice. Th Defence

19 attorneys now have the floor in order to comment on Dr. de Man's

20 testimony and also the conclusions that you are in favour of.

21 MR. VUJIN: Thank you, your Honour. The Defence has listened to the

22 submissions made by Dr. de Man. We have informed the Trial chamber

23 that we personally also have information on the health condition of

24 General Dukic which is very difficult. But, aside from that, the

25 Defence stays with its previous motions, and we believe that this

Page 126

1 Trial Chamber will be able to decide and reach a decision which will

2 be in accordance with the Rules of this Tribunal. We believe that the

3 treatment of General Dukic from his kidnapping and then from his

4 transfer was in violation of the Rules. We believe that this caused an

5 emotional stress of Genera1 Dukic. We also believe that later on with

6 inadequate nutrition his medical condition was affected and serious

7 deterioration of his health occurred. That is why I responded to the

8 request by the Prosecutor, request to withdraw the indictment on

9 grounds of difficult health condition, we stated that this should not

10 be the reason for the withdrawal of indictment, but that the reason

11 for the withdrawal should be lack of evidence, because until today not

12 a single piece of evidence has been submitted, has been disclosed, in

13 spite of our requests. So, we maintain our previous motions, but we

14 accept that the general condition of General Dukic is very difficult,

15 and we kindly ask the Trial Chamber to reach a decision on this

16 urgently. We learned from the conversations with General Dukic's

17 doctors that this decision should be reached as soon as possible and

18 cannot be postponed. The question to be raised, the question that we

19 have here, is whether General Dukic will die in hospital or in the

20 detention unit of the United Nations. His health condition was as

21 difficult and as severe at the moment he was transferred, and we

22 believe that the treatment of prison authorities, and the treatment on

23 behalf of those who were in charge of his accommodation and nutrition,

24 we believe that they failed and did not do what we expected them to do

25 and what was their duty.

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Page 132

1 THE PRESIDING JUDGE: Before I give the floor to the Prosecutor, I

2 would like to ask you to state clearly that you are requesting, what

3 is the nature of your request. In other words, you are not requesting

4 the withdrawal of the indictment which, no doubt, the Prosecutor is

5 going to be asking for in a moment. Are you asking in legal terms -

6 after all that is our purpose here -- what exactly is the nature of

7 your request? Apparently, you do not want him to return to prison, but

8 what exactly do you intend?

9 MR. VUJIN: Your Honour, the attitude of the Defence is that until the

10 withdrawal of indictment should be the result of the lack of evidence

11 and that you, as Trial Chamber, should accept such kind of withdrawal

12 of indictment, not because of the medical condition of General Dukic,

13 but because of the lack of evidence. You have our request for the

14 detention to be revoked and we believe that in that case the detention

15 can be revoked because of the serious medical condition of General

16 Dukic without any other conditions that would be restrictive in any

17 way. So that means that by decision of your Chamber, General Dukic

18 would be free and would not be returned to the detention; he would be

19 allowed to move freely wherever he wants and he is prepared in case

20 these conditions are met, and he is prepared to answer all summons of

21 the Tribunal.

22 THE PRESIDING JUDGE: Let me recall that you have presented a request

23 for his release. Are you maintaining this, are you sustaining this

24 request? How can you imagine his release at present given his present

25 state of health? In other words, you are asking that the indictment be

Page 133

1 maintained and that the court withdraw the indictment but for reasons

2 other than the state of health of General Dukic. In addition, on March

3 25th, I believe you requested the release of the General, not for

4 medical reasons, but for other legal reasons. What is the exact nature

5 of your request as regards the release of General Dukic?

6 MR. VUJIN: In any case, your Honour, our request for revokal of

7 detention is of a legal nature because we believe that legal

8 conditions have not been met, legal conditions provided for in the

9 Rules of Procedure and Evidence, for General Dukic to be kept further

10 in the detention. This as our preliminary, this was one of our

11 preliminary motions. So we maintain that there is no legal basis for

12 his detention, because the Prosecution has not disclosed any piece of

13 evidence so far. According to the theory of criminal law in all

14 countries of the world and in accordance with international criminal

15 law, these health conditions, serious health conditions, should be

16 taken into consideration while reaching such a decision. We believe

17 that the withdrawal of indictment due to serious medical conditions

18 was not provided for in the Rules of Procedure and Evidence. We

19 believe that this is not in accordance with national jurisdictions

20 and, therefore, we believe that if it is requested that the indictment

21 be withdrawn, we believe that this has to be based on legal reasons

22 and not medical reasons because this is not provided for in Rules of

23 Procedure and Evidence. Therefore, we believe that General Dukic has

24 the right, in view of his serious medical condition, we believe,

25 therefore, that General Dukic should not be further suspected of

Page 134

1 having committed something for which no evidence has been so far

2 disclosed. Therefore, our request is of lega1, purely legal nature. I

3 apologise, your Honour. We talked to General Dukic today and this is

4 his attitude that we re conveying to you because he wishes, he and his

5 family, to be considered innocent and not to remain under heavy

6 suspicion that he committed crimes and he wishes to clear his name

7 this way. THE PRESIDING JUDGE: Mr. Prosecutor?

8 MR. BLEWITT: Thank you, your Honour. The reason for the present

9 application by the Prosecutor which is to withdraw the indictment

10 pursuant to Rule 51 of the Tribunal's Rules of Procedure and Evidence

11 is based solely on that of the health of the accused. The Prosecutor

12 rejects the submissions of the Defence that the withdrawal of an

13 indictment can only occur in circumstances where there is a lack of

14 evidence in support of that indictment. If this Chamber were to agree

15 with that submission, then the Prosecutor would withdraw his

16 application to have the indictment withdrawn and would elect to

17 proceed to trial. Your Honour, clearly the Trial Chamber is the one to

18 determine whether or not the Prosecutor's evidence is sufficient. That

19 determination can only be made once the evidence is led at the trial

20 and, your Honour, we are a long way from that. The Prosecutor submits,

21 however, that his powers to withdraw an indictment under Rule 51 are

22 not limited to evidentiary matters and include other considerations

23 which are normally found within other jurisdictions throughout the

24 world. Such considerations include, in our submission, humanitarian

25 matters. The independent medical evidence which as revealed to the

Page 135

1 Prosecutor on 17th April, that is, Wednesday of last week, by Dr. Hanz

2 de Man, the medical inspector of the inspectorate of the prison health

3 care in the Netherlands is clear that the accused is suffering in

4 terminal cancer and he is not expected to live. When we spoke to him

5 last week, the life expectancy was expressed in terms of months. You

6 have heard, your Honour, Dr. de Man express the life expectancy in

7 terms of days and weeks, so that the situation as it exists today is

8 worse than it was when this application was made last week. In the

9 light of the fact that the Rules do not provide for this situation,

10 the Prosecutor submits that the solution lies in the exercise of his

11 discretion to terminate the proceedings on humanitarian grounds. In so

12 doing, the Prosecutor preserves his right to represent the indictment

13 in the unlikely event that the accused recovers from his terminal

14 illness. The Prosecutor submits that, in these circumstances, there is

15 no question of issue estoppel or autre fois acquit because there has

16 been no hearing on the merits. Accordingly, there would be no obstacle

17 to representing an indictment at some future date if that eventually

18 becomes necessary. It is further submitted that neither the provisions

19 of Rules 64 nor 65 meet the situation where an accused is terminally

20 ill. Both Rules anticipate that the accused will appear for trial. In

21 fact, Rule 65(B) requires that the Trial Chamber can only order

22 provisional release if it is satisfied that the accused will appear

23 for trial. To be so satisfied, there are at least two things that the

24 Chamber would require. First, an undertaking from the accused that he

25 would so appear, and it is assumed in this case that such an

Page 136

1 undertaking would be given. If an undertaking is not forthcoming of

2 that nature, then we submit that would be the end of the matter.

3 Secondly, the Trial Chamber should require an undertaking from the

4 Government of the Federal Republic of Yugoslavia, if the accused does

5 return to Belgrade, that in the event that he is not prepared to

6 surrender himself to the Tribunal, that they would arrest him and

7 surrender the accused to the Tribunal. I am not confident that such an

8 undertaking would be forthcoming -- at least not in the foreseeable

9 future. There is one other procedural step involved in a determination

10 under Rule 65 and that is that the host country must be heard. I

11 noticed Mr. Boes is here today for that purpose. However, the

12 Prosecutor submits that that provision alone contemplates that the

13 Rule envisages that the accused would be released provisionally within

14 the Netherlands and not be returned outside the jurisdiction. There is

15 one further problem, in the Prosecutor's submission, involving either

16 a release under Rule 65 or modified conditions of detention under Rule

17 64, if that is in fact under contention. The problem relates to the

18 status of the case from that point on. In the light of absence of any

19 provisions in the Tribunal's Rules, the question must be asked: What

20 is the status of the case against the accused after such an order is

21 made? Should the Trial Chamber set a trial date or is the case

22 adjourned indefinitely? Are the proceedings stayed temporarily or

23 permanently? If the case is merely adjourned or stayed, the Prosecutor

24 would be faced with the dilemma of having to continue with his

25 investigations not knowing whether there is going to be a trial at

Page 137

1 some future time or not. It is submitted, your Honour, that all of

2 these questions become relevant if the indictment is withdrawn under

3 Rule 51. The issue facing this Trial Chamber today is dealt with in

4 different ways in various national jurisdictions. These include the

5 exercise of a Prosecutor's discretion, and this is normally the

6 Attorney General or the Director of Public Prosecutions in a state,

7 the exercise of that Officer's discretion to terminate proceedings by

8 entering a nolle prosequi on humanitarian grounds. In the national

9 jurisdictions where this device is used, that does not preclude the

10 proceedings being recommenced if the circumstances change to make a

11 trial possible. There is no question in such cases of issue estoppel

12 or autre fois acquit because there has been no hearing on the merits.

13 Another possible remedy in national jurisdictions is to grant a stay

14 of proceedings. Again, this is a procedure not contemplated by the

15 Tribunal's Rules. In any event, your Honour, such a remedy is usually

16 exercised in situations where the Prosecutor is determined to proceed

17 with the case and the court must intervene to prevent an abuse of

18 process. Other remedies could include in national jurisdictions

19 adjourning the trial and releasing the accused either on bail or

20 placing him under house arrest, but this normally occurs where the

21 accused would remain within the jurisdiction of the court. Your

22 Honour, the Prosecutor submits that having regard to the limitations

23 imposed by sub Rule 65(B), in the absence of any other provisions in

24 the Tribunal's Rules which relate to this situation, the only

25 appropriate remedy rests with Rule 51, namely, the Prosecutor

Page 138

1 withdrawing the indictment with the leave of the Trial Chamber. Thank

2 you, your Honour.

3 THE PRESIDING JUDGE: I would like to ask you a question, Mr. Blewitt.

4 You referred to internal law. I do not know the details of that law,

5 but I know that one can stop the proceedings even and under other

6 legal systems one can stop proceedings for humanitarian reasons -

7 there can be commutation of sentences, there can be provisional

8 release, there can be medical reasons that are taken as part of

9 provisional detention -- but what does raise an issue in my mind and

10 is a question I would like to ask you is going back to the accusation

11 -- in your theory, you are simply withdrawing it in your system, you

12 withdraw the indictment, and then you judge --I am not sure how you do

13 this -- you decide maybe through medical opinion that the accused has

14 recovered his faculties and is now in a position to defend himself and

15 at that point you resubmit an indictment with new warrants, because we

16 can hypothetically say that there is no longer an accusation, and the

17 person, I suppose, has been released, is going wherever he wants. Let

18 us try to move away from General Dukic's situation and this very

19 serious nature of this, but go back into the principles that I would

20 like to have explained. There is an Office of the Prosecutor which

21 issues an indictment, and then at some point considers that the mental

22 or physical condition of the accused is not very good and then,

23 instead of using all the things that are available to it, such as bail

24 or provisional release or word that is given or bail, all measures

25 which I am sure do exist in the United States but in other internal

Page 139

1 courts a well, I would like to remind you that our own Rules even

2 include this. So then you withdraw the indictment which means that we

3 find ourselves in a paradoxical situation today, Mr. Blewitt. You can

4 see what I am talking about. You have the Prosecutor withdrawing. The

5 Prosecutor is withdrawing the indictment and the Defence is asking us

6 to keep it. We have seen many paradoxes already, but I must say here I

7 do not really understand because I would like to know how was the

8 indictment put forth again? Does the Prosecutor come to the court one

9 day and say: "I have some good news about an accused person x"? Let us

10 not talk about General Dukic, let us speak about this other accused.

11 You have to reconstruct an indictment; perhaps the old proof is no

12 longer valid; the warrants of arrest have to be issued again and if

13 the person is going to have a relapse, we start all over again. It is

14 a question of all or nothing. This is the question I am asking you. I

15 do not really understand.

16 MR. BLEWITT: In my experience, your Honour, in situations where an

17 Attorney General or a Director of Public Prosecutions, putting it

18 plainly, the Prosecutor withdraws an indictment by entering a n nolle

19 prosequi (which I see is comparable to the situation under Rule 51) to

20 resurrect in such situations what is normally filed as what is called

21 an ex-officio indictment. The withdrawal of the indictment in the

22 first instance was an act based upon the discretion that the

23 Prosecutor has. That being the case, it is only the act of the

24 Prosecutor which can reinstate those proceedings and that is normally

25 done by the Prosecutor filing in the court what is known as an ex-

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1 officio indictment. That has the result of there is no restriction as

2 to the charges included in an ex-officio indictment. They can include

3 the same charges that were in the original indictment or they can

4 contain fresh charges. But the procedure is normally followed that the

5 indictment is presented in the court, and the accused is required,

6 having been given notice, to appear before the court to plead to that

7 indictment. Your Honour, I would propose that if my application is

8 granted and that the indictment be withdrawn pursuant to Rule 51, that

9 in the unlikely event that the accused's health would permit at some

10 later stage a trial, then the Prosecutor would intend to represent an

11 indictment in accordance with Rule 47 and the procedures there laid

12 down would be followed. So it would be a commencement of the

13 proceedings from the beginning. They are my submissions, your Honour.

14 THE PRESIDING JUDGE: Another question I would like to ask: When you

15 talk about provisional release, is this something that you think the

16 host country should assume responsibility for? We will ask the

17 authorities of the Netherlands to tell us what their opinion is. Do

18 all of these measures appear adequate to you in this case, all the

19 measures we have taken? You have mentioned some of them, that the

20 powers of the presiding judge to modify the detention conditions,

21 provisional releases provided for in the Rules, do you think that one

22 of these should be adopted to this particular case?

23 MR. BLEWITT: Your Honour, we have difficulty in seeing how the Rules,

24 either Rule 64 or 65, are applicable in this case, particularly having

25 regard to the requirements of sub Rule 65(B) which requires the court

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1 to be satisfied that the accused is going to appear for trial. To be

2 so satisfied, your Honour, the court has to hear from the host country

3 which, we would submit, the Rule envisages that the accused if

4 released provisionally would remain within the host country's

5 jurisdiction and, hence, they would have the responsibility to ensure

6 that the accused appears when necessary for trial. If the intention,

7 as I understand it, your Honour, is for the accused, if released, to

8 return to his family in Belgrade so that he can receive the support

9 and care that he needs in the final stages of his life on this earth,

10 then, your Honour, we would submit that that would be defeated if the

11 accused is remaining here in the Netherlands. I have mentioned also,

12 your Honour, the difficulty that faces the Trial Chamber in being

13 satisfied that the accused will appear for trial. I think clearly

14 under the circumstances, your Honour, it is extremely unlikely that

15 this accused will ever be able to attend the trial. So, the

16 conditional release under Rule 65 for that purpose seems to be

17 stretching, your Honour, the intended purpose of the Rule. It is the

18 Prosecutor's submission that there is no stretching of the Tribunal's

19 Rules to fit a situation if the indictment is merely withdrawn. In so

20 withdrawing the indictment, your Honour, the Prosecutor would make it

21 clear it is being done purely on humanitarian grounds and not, as the

22 Defence would suggest, through any lack of evidence. So that the

23 Prosecutor clearly states that that is not the reason for the

24 application, but it is done purely on humanitarian grounds.


Page 142

1 MR. VUJIN: Your Honour, if you would allow me, my apologies again, but

2 I wish to state that the attitude of the Prosecutor regarding the

3 right to file a request to withdraw an indictment the way they exposed

4 it, without prejudging their right to file an indictment again in

5 accordance with Rule 47 of the Rules of Procedure and Evidence, this

6 was not provided for in this Rule. In accordance with Rule 47(e),

7 rejecting certain counts of the indictment mean that an indictment

8 should be looked into before its confirmation and not after the

9 confirmation. In any case, Rule 51 stipulates that the Prosecutor can

10 withdraw an indictment at any moment before its confirmation, and if

11 it is a trial only with the leave of the Trial Chamber. So, if Judge

12 Karibi-Whyte declined its jurisdiction, we believe that this meant

13 that we are already at trial, that the sole competence of this trial

14 is to allow for the indictment to be withdrawn or not. If you, as the

15 Trial Chamber in accordance with Rule 59(b), allow the indictment to

16 be withdrawn, in that case the indictment will be withdrawn. There

17 will be no indictment. This indictment cannot be withdrawn out of

18 humanitarian reasons. The Defence believe that an indictment that has

19 been withdrawn in that way can never be filed again, can never be

20 renewed again, and the Defence expects this Tribunal to judge in

21 accordance with its rules and in the interests of justice, and not

22 only on the basis of some humanitarian issues. We therefore, request

23 that we argue here legally and if the Prosecutor has filed a request

24 to withdraw an indictment this cannot be justified out of humanitarian

25 reasons.

Page 143

1 MR. FILA: Your Honour, Article 51 of the Rules of Procedure and

2 Evidence does not provide for reasons to withdraw an indictment; it

3 only stipulates that the indictment can be withdrawn. I agree that at

4 a press conference the Prosecution can say whatever they want to say,

5 and so can we, but here we have to do understand a couple of very

6 important issues, simple issues. We here are aware of the fact that

7 General Dukic will not survive the trial. So what kind of new

8 indictment are you talking about? In what world? In another world? It

9 is clear that this cannot happen. We will agree for the indictment to

10 be withdrawn without explanation, and we would agree if you allow

11 General Dukic to go to Belgrade and die in the presence of his family

12 and not here in prison without evidence, because Mr. Blewitt has

13 agreed that not a single piece of evidence has been brought before

14 this trial. This is nonsense. In any country in the world once the

15 Prosecutor has withdrawn the indictment he cannot repeat the same

16 indictment once again. But why are we talking about something that

17 cannot happen at all because God has decided differently? Let them

18 withdraw the indictment. We are not asking them to talk about lack of

19 evidence. Let this indictment be simply withdrawn and let us transfer

20 General Dukic to Belgrade. THE PRESIDING JUDGE: I have understood what

21 you have said. I have also understood what the Prosecutor is asking.

22 But in order to make things very clear, one of your arguments, Mr.

23 Vujin, you can tell me if I am wrong, would then be to say that we are

24 in the trial stage and that withdrawing the indictment accepted by the

25 Tribunal would, therefore, mean that we could no longer bring this

Page 144

1 indictment forward again. Is that really what you are saying? Is that

2 what you meant?

3 MR. VUJIN: Yes, your Honour, you understood me properly. Our argument

4 is that once the Trial Chamber, in accordance with Rule 51(a), has

5 allowed the withdrawal of the indictment, we believe that once this is

6 done the Prosecution cannot submit the same evidence, the same

7 indictment with the same counts. This is so in all national

8 jurisdictions and even in legal systems. In the legal system of, for

9 example, the Ivory Coast but in all systems in criminal law an

10 absolute withdrawal of an indictment does not grant the right to

11 submit the same indictment with the same counts against the accused,

12 otherwise a lot of abuse can occur.

13 THE PRESIDING JUDGE: But we do have to be somewhat tempered, Mr.

14 Vujin. I am not answering for the Prosecutor; that is not my role. We

15 have to be tempered. There is Article 47(e) in our rules which states,

16 the wording is a bit vague, that is true, that the withdrawal of a

17 count -- we are talking about the initial presentation of an

18 indictment does not prevent the Prosecutor from presenting a new

19 indictment later on based on new facts. I see you immediately reacting

20 and, therefore, I am giving you the floor.

21 MR. VUJIN: Your Honour, the provision of the Rule 47(e) we think would

22 have a clear judgment. We believe that the dismissal of a count in an

23 indictment before it has been confirmed by the judge reviewing the

24 indictment, in this case certain counts can be dismissed because there

25 is not enough evidence for that. We believe that our view of this

Page 145

1 regulation is very clear. Once the indictment has been confirmed there

2 is no possibility for its withdrawaI without a decision of a Trial

3 Chamber. This was confirmed by Judge Karibi-Whyte and it is evident

4 that this is, therefore, within your jurisdiction.

5 THE PRESIDING JUDGE: One of the solutions proposed, both the

6 Prosecutor and the Defence mentioned 65(b). Of course 65(b) has not

7 escaped the attention of the Tribunal. In 65(b) I can say that release

8 may be ordered by a Trial Chamber only in exceptional circumstances;

9 after hearing the host country and, as the Prosecutor has recalled, knowing

10 that the released person will not pose a danger to any victim,

11 witness or other person. We can, therefore, ask Mr. Boes as the

12 representative of the Ministry of Foreign Affairs and his colleague

13 Mr. Strjart from the Ministry of Justice, to give us the details on

14 their position as regards Rule 65(b). Could you give us your

15 interpretation of the provisions of this Rule and then Mr. Strjart

16 will explain his position. You can remain seated, sir.

17 MR. BOES: Your Honour, if we are here in order to explain what under

18 Dutch law would be the consequence of Article 65 under (b), because I

19 think it is a bit difficult for me to speak about the interpretation

20 of Article 65 except in relation to after the hearing, I think it is

21 indeed an interest for the host state to know what happens, but for

22 the host state I think the situation is quite simple. There is one

23 case that is a person is under the detention of the Tribunal, and then

24 that person is under the jurisdiction of the Tribunal and there is no

25 jurisdiction of the host state with regard to that person. If the

Page 146

1 person is released by the Tribunal then the Dutch law would apply in

2 that case and in that situation. The Dutch law provides, and I refer

3 to the Dutch law that is the statutory regulation of the settlement of

4 foreigners, and then if a person is released by the Tribunal he

5 becomes a foreigner without an authorization to stay in the

6 Netherlands. For the Netherlands authority it would mean that the

7 person should leave the country by virtue of that law, because there

8 is no legal title any longer for him to stay in the Netherlands. That

9 is the basic assumption under the Dutch law with reference to the

10 implementation of the Statute in this regard. Thank you, your Honour.

11 THE PRESIDING JUDGE: Mr. Strjart, for the Ministry of Justice. Do you

12 reason the same way? Could I ask you how you interpret Rule 26 of the

13 host country agreement under security of persons covered by this

14 agreement which also covers the suspect and the accused? The competent

15 authorities will take the necessary measures to guarantee the security

16 and the protection of persons covered in this agreement in the absence

17 of any hindrance to that effect.

18 MR. BOES: That is the general obligation of the Dutch Government, to

19 provide the security, external security for the persons which are

20 under the jurisdiction, under the statute of the Tribunal. With the

21 title here in the Netherlands we provide then for the security for

22 those persons. That is my interpretation of that article, your Honour.

23 THE PRESIDING JUDGE: I can take an example, trying to remove myself a

24 little bit from this specific case and try to reach a proper decision,

25 a decision removed from the Dukic case having to do with the

Page 147

1 application of 65, specifically with 65(c), where the Trial Chamber

2 under such conditions upon the release of the accused, as it may

3 determine appropriate, including the execution of a bail bond and the

4 observance of conditions as are necessary to ensure his presence for

5 trial and the protection of others. If tomorrow a Trial Chamber of

6 this Tribunal wanted to release somebody provisionally on the

7 territory of the Netherlands, how could this Rule 65(c) be applied? I

8 do know that this is not customary for a Tribunal to ask somebody from

9 the civil authorities of the host country to interpret its own rules

10 for it, but you do understand that this raises some questions in my

11 mind and in the minds of my colleagues. Suppose that tomorrow we had a

12 case where there was an accused whose detention was no longer

13 absolutely necessary but who should and had to remain available to the

14 Prosecutor, and that the Trial Chamber would hear you speak, would

15 take a decision requiring bail and a certain kind of summons requiring

16 the person to remain under house detention, how could the host country

17 not assume its obligations then?

18 MR. BOES: I think, your Honour, that under Rule 65 paragraph (c) you

19 were referring to, it is the duty of the Trial Chamber to provide for

20 the necessary conditions, that they may be met upon release but I do


22 not see that the host state under that article has any duty to act

23 because we would have no legal basis for it under our Dutch law.

24 THE PRESIDING JUDGE: I will allow myself to assist a little bit and

25 then we can move to something else. If in 65(b) it is provided that

Page 148

1 the host country should be heard, as we are hearing you today, I think

2 we have to look to the preparatory work for this rule, but I think

3 this is because the possibility of provisional release within the host

4 country is a real one, otherwise one would not release conditionally

5 somebody saying that we will send that person to France or to another

6 country. I think that the 65(b) refers to provisional release in the

7 country where that person is; not in another country. Perhaps that is

8 not the correct interpretation.

9 MR. BOES: I do not dare to give you an interpretation on the Rules of

10 Procedures in relation to Article 65 paragraph (b). To my

11 understanding, the fact that the host state has a hearing in this case

12 of paragraph (b), means that the duty of the host state, as it exists

13 under the applicable rules, is to provide for the necessary

14 transportation in case someone has to leave the country, and that we

15 provide for the transportation. That is a duty under the regulations

16 for the host state. I think the reason that here there is a reference

17 to hearing the host state is for that purpose.

18 THE PRESIDING JUDGE: Then we can move forward, Mr. Boes. Should I

19 understand that if the Tribunal were to decide on provisional release

20 you would ensure transportation? How far under? What conditions? Would

21 this also be a special plane, a hospital plane?

22 MR. BOES: Transport is provided for on the Dutch territory, your

23 Honour.

24 THE PRESIDING JUDGE: Therefore, it would be the transfer from the

25 detention unit in Scheveningen to the nearest airport, and at the

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1 airport -- this a possibility and of course there are many

2 possibilities for this case -- at that point there would have to be a

3 different type of transportation. I would now like to turn to the

4 Registrar and ask the Registrar who worked on the host country

5 agreement and is familiar with these provisions and the application of

6 them is largely our responsibility, how do you get us out of this

7 difficulty? I think that it would be interesting to hear how you see

8 the practical side of the question. I think we are here for a specific

9 reason. If I am going into all these details in our hearing it is

10 because there is a very serious human issue involved. Perhaps this is

11 a dying person, someone who is going to be dead in a few days or a few

12 weeks, so I do believe that we should try to adopt the most effective

13 and efficient measures while we are at the same time respecting 1aw.

14 THE REGISTRAR: Yes, your Honour. I heard the comments from the Dutch

15 authorities. It is true that the reading of Rule 65(b) is not totally

16 clear and that we do have the Trial Chamber here after it has

17 consulted with the host country. We realise that it could take

18 measures which would allow the possible provisional release on the

19 territory of the Netherlands. If this were to be impossible for

20 various reasons, I have noted that the assistance of the Dutch

21 Government as far as the airport, which of course would give us an

22 additional problem later on, could we hope that the Netherlands would

23 help us to transport this person in a hospital vehicle, and another

24 question which we do not have to settle now but it would be how far

25 and how.

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1 THE PRESIDING JUDGE: Thank you, sir. Before we go on to the second

2 issue, that is the handcuffs, I would like to thank Mr. Boes and Mr.

3 Strjart. Can we now allow them to leave? Are there any other questions

4 for the two experts or is everyone satisfied? The Prosecutor has no

5 more questions? The Defence neither. Then in this case we shall

6 continue our hearing. I would like to thank you for your help and your

7 comments will enable us indeed to make our decision in the light of

8 these elements and in the light of Rule 65. Thank you very much. (Mr.

9 Boes and Mr. Stijart withdrew).

10 THE PRESIDING JUDGE: Before we continue, I would like to make one

11 point. I believe that we have a number of legal issues to handle here.

12 Let me summarise briefly to decide how we are going to proceed before

13 we discuss the handcuffs. First of all, the medical condition of

14 General Dukic is very serious. We are not going to go back over that

15 again. The prognosis is serious. General Dukic is under detention and

16 he has been indicted. We have heard two requests: a request for his

17 release on the one hand and a request as regards the indictrnent. As

18 regards the indictment, the Prosecutor has requested that the

19 indictment be withdrawn for humanitarian reasons, and as regards the

20 same indictment the Defence has requested that the indictment cannot

21 be withdrawn simply for humanitarian reasons but for legal reasons. As

22 regards the release of the accused, we have a wide range of

23 possibilities. Just to mention a few in no particular order, because

24 of course we are going to have to reflect upon this, we could,

25 according to our Rules and Statutes which of course apply although the

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1 Prosecutor can also refer to other national law, but we here in the

2 Tribunal must refer first and foremost to our own rules -- we could

3 decide to modify the conditions of detention of the accused. It is up

4 to the President of the Tribunal to do so. Therefore, there is no

5 reason for this not being possible. We could determine a provisional

6 release which seems to be less possible after having heard the

7 representatives of the Netherlands, because the host country does not

8 seem to be in favour of provisional release. Therefore, the Tribunal

9 and the Prosecutor's office perhaps needs to take a closer look at the

10 text. Then come the other possibilities: temporary release with

11 remittance of the accused to a third country, either under full

12 release or temporary release. In fact our texts do not provide for

13 either or one of the two solutions. There could also be the

14 possibility that General Dukic be sent back to his country of origin.

15 I am simply listing the possibilities here, such is my role. The

16 accused could be returned to his country of origin given that he can

17 no longer be called as a witness, given the fact that he has already

18 been indicted. This could occur upon withdrawal of the indictment or

19 for humanitarian reasons. I think I have listed all of the various

20 hypotheses. We are going to have to discuss this amongst ours. Based

21 on what I have just said, do you have any additional comments before

22 we go on to the issue of handcuffs? In any case, this Chamber is going

23 to be handing down its decision next Friday as regards the indictment.

24 We will make a decision regardless of the decisions we have made on

25 the two points we have just discussed. Friday morning at 10 o'clock

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1 the official decision of the court will be presented, perhaps at

2 10.30, we will have to decide. So I believe now that we are in a

3 position to envisage the various possible legal elements. Before we

4 discuss the handcuff issue, do you have anything else to add or can we

5 consider that the discussion is closed? The Prosecutor wants to make a

6 comment and the Defence seems to be ready.

7 MR. VUJIN: Thank you, your Honour. I would wish to remind the Trial

8 Chamber that we made an appeal to the Chamber to reach the decision as

9 soon as possible. Since this hearing was moved two days in advance, we

10 believe that your decision should come much earlier than Friday in

11 view of the situation, of the current situation.

12 THE PRESIDING JUDGE: Mr. Prosecutor? MR. BLEWITT: Your Honour, if the

13 Tribunal was minded to order the provisional release under Rule 65,

14 then the Prosecutor would seek to have some of the conditions required

15 to be spelt out, your Honour. They would include that the Tribunal be

16 given access to regular medical reports as to the accused's health. It

17 may also be necessary to consider the posting of a bail bond as well,

18 your Honour, under Rule 65(c). Additionally, your Honour, I think it

19 is necessary for the Chamber to have some assurances certainly firstly

20 on the part of the accused that he will appear for trial and, as I

21 stated in my earlier submissions, your Honour, I think it is necessary

22 also to have an undertaking from the Government of the Federal

23 Republic of Yugoslavia that they will also return the accused. We

24 would submit, your Honour, it is only once the Trial Chamber is

25 satisfied of those matters that provisional release under Rule 65(b)

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1 can be contemplated.

2 THE PRESIDING JUDGE: Thank you very much. Mr. Vujin, the court will

3 announce its decision on Wednesday at 11 o'clock.

4 MR. VUJIN: Thank you, your Honour.

5 THE PRESIDING JUDGE: Of course, the court will hand down its decision

6 on the other preliminary motions on Friday morning. We still need to

7 discuss the issue of handcuffs. This was a request on the part of the

8 Defence. You have the floor, Mr. Vujin.

9 MR. VUJIN: Your Honour, I believe that at this particular moment it is

10 useless to discuss a motion and we will withdraw this motion at this

11 moment.

12 THE PRESIDING JUDGE: Well, since the motion is withdrawn, do you still

13 want to comment, Prosecutor?

14 MR. BLEWITT: No, your Honour, no comments.

15 THE PRESIDING JUDGE: In that case, we have thus decided that there is

16 no need to deal with this issue at this point, unless of course at

17 some future time it should occur necessary. I believe we have dealt

18 with the various issues at hand. We have made a decision as regards

19 the indictment, the state of health and the decisions that need to be

20 taken. As I said this will be announced on Wednesday, that is April

21 24th at 11 a.m. As regards the remaining decisions, these will be

22 announced on Friday morning at 10.30 , as regards the preliminary

23 motions that have already been pleaded March 25th. Th session is

24 adjourned at 18.47 pm. (The hearing adjourned until Wednesday, April 24th

25 1996)