Tribunal Criminal Tribunal for the Former Yugoslavia

Page 40

1 Wednesday, 12 December 2001

2 [Open session]

3 [Motion Hearing]

4 --- Upon commencing at 3.06 p.m.

5 JUDGE SCHOMBURG: May the accused be brought in.

6 [The accused entered court]

7 JUDGE SCHOMBURG: Please be seated. Good afternoon, everybody.

8 Please call the case.

9 THE REGISTRAR: Yes, Your Honour. This is the case number

10 IT-01-47-PT, the Prosecutor versus Hadzihasanovic, Alagic, and Kubura.

11 JUDGE SCHOMBURG: Thank you very much.

12 First of all, I have to apologise for all inconveniences caused by

13 the unfortunate delay at the start of this case. There were some

14 misunderstandings evidently, but fortunately now we are all here together.

15 As to the fact that the participants are confronted with a new

16 Bench, I should like to introduce ourselves. Firstly, I feel obliged to

17 give the reasons for the changes of the Bench. On the 14th of March, the

18 Plenary of the United Nations entrusted 14 Judges, with an absolute

19 majority, to start or continue their work as permanent Judges on the basis

20 of a fresh mandate as from November 17th, 2001. Under this new mandate,

21 the President confirmed, according to the Rules, the assignment of this

22 case to Trial Chamber II. The three Judges on the Bench have been

23 assigned the permanent Judges of Trial Chamber II.

24 Trial Chamber II confirmed that Judge Mumba be -- or stay

25 Pre-Trial Judge in this case. The new permanent Judges are, to my left,

Page 41

1 Judge Agius, and myself. My name is SCHOMBURG. I hope it will not be too

2 difficult for all of you to pronounce these new names, but also to live

3 with this newly composed Bench.

4 Let me take the opportunity to invite all of you, although having

5 different interests by nature, to work together in a spirit of mutual

6 trust as a basis for good cooperation. Having said this, may I have the

7 appearances from the Prosecution, please.

8 MR. WITHOPF: Good afternoon, Your Honours. Good afternoon,

9 counsel. For the Prosecution appear Madam Jocelyne Bodson, senior trial

10 attorney; Ms. Cynthia Fairweather, legal officer; and myself, Ekkehard

11 Withopf, OTP trial attorney.

12 JUDGE SCHOMBURG: Thank you. May I have the appearances of the

13 Defence. First, the ones acting on behalf of Mr. Hadzihasanovic.

14 MS. RESIDOVIC: [Interpretation] Good afternoon, Your Honours. My

15 name is Edina Residovic, attorney from Sarajevo, and Defence counsel for

16 General Enver Hadzihasanovic. Thank you.

17 MS. VIDOVIC: [Interpretation] Good afternoon, Your Honours. My

18 name is Vasvija Vidovic. I'm an attorney from Sarajevo. And together

19 with John Jones, we are Defence counsel for General Mehmed Alagic.

20 MR. IBRISIMOVIC: [Interpretation] Good afternoon, Your Honours.

21 My name is Ibrisimovic, of Sarajevo. And together with Mr. Dixon, we

22 represent the Defence counsel for Amir Kubura.

23 JUDGE SCHOMBURG: Thank you. As this is the first joint hearing,

24 I would like to identify the accused as well, apologising already today

25 for any mispronunciation of their names. Please correct me, if

Page 42

1 necessary.

2 Mr. Hadzihasanovic, would you please raise.

3 [The accused Hadzihasanovic stands up]


5 Mr. Alagic.

6 [The accused Alagic stands up]


8 Mr. Kubura.

9 [The accused Kubura stands up]

10 JUDGE SCHOMBURG: Thank you.

11 Mr. Hadzihasanovic, Mr. Alagic, and Mr. Kubura, this is your

12 procedure: You are not the objects of this procedure; you are the

13 subjects. I'll say you are always on demand and in the framework of the

14 Rules. You have the right to address the Chamber directly. It is, of

15 course, your right to remain silent. It is, however, my duty to inform

16 you that, having this human right in mind, to warn you that each testimony

17 or statement given by you can be used as evidence against you. Did you

18 understand this?

19 THE ACCUSED HADZIHASANOVIC: [Interpretation] Yes.

20 THE ACCUSED ALAGIC: [Interpretation] Yes.

21 THE ACCUSED KUBURA: [Interpretation] Yes.

22 JUDGE SCHOMBURG: And additionally, I feel obliged to inform you: On

23 this other side, if this were a coin, not only given the case, it would

24 come somewhere to sentencing, it is settled practice in criminal courts

25 all over the world that any cooperation bringing us closer to the truth will

Page 43

1 militate in your individual favour. This is, of course, true too when it

2 comes to the decision on provisional release.

3 I may draw your attention, for example, to the decision of

4 Mr. Krajisnik’s motion on provisional release, paragraph 21. Therefore,

5 with the professional advice of your learned Defence counsels, you

6 individually will have to find the avenue suiting and balancing your

7 interests best.

8 Turning now to the representatives of Bosnia-Herzegovina, may I

9 ask for your name, please.

10 THE INTERPRETER: Microphone, please. Microphone.

11 MR. DZIHANOVIC: [Interpretation] Thank you very much. Your

12 Honours, my name is Shabaz Dzihanovic, the Deputy Federal Justice

13 Minister, authorised representative of the government of the Federation of

14 Bosnia-Herzegovina, on behalf of the government of -- Bosnia-Herzegovina

15 government to come here before the Tribunal. And I have been asked to

16 attend this meeting, and here I am. Thank you.

17 MR. LIMOV: [Interpretation] Your Honours, my name is Tomislav

18 Limov, the Deputy Internal Affairs Minister of the Federation of

19 Bosnia-Herzegovina and the authorised representative of the government of

20 the Federation at today's court proceedings. Thank you.

21 JUDGE SCHOMBURG: Thank you. And I want to emphasise --

22 THE INTERPRETER: Microphone, Your Honour, please.

23 JUDGE SCHOMBURG: I have to emphasise that the Trial Chamber is

24 extremely grateful for your appearance on very short notice and

25 appreciates your willingness to cooperate with the ICTY on the basis of

Page 44

1 your commitments to the United Nations.

2 We have got a lot of motions, attachments to motions, and so on.

3 Please regard it as granted that the three Judges have read these papers

4 very carefully and know about the contents. Therefore, I will ask you to

5 refrain from once again bringing up these issues which have already been

6 addressed. And the Trial Chamber today is seized only with the motions on

7 provisional release, Rule 65; therefore, please, all parties refrain from

8 bringing up any other additional issues.

9 Of course the main issue is the application of Rule 65. Let us

10 come to the core issues of this Article right now. And please be sure,

11 both parties, that the members of this Chamber have not yet made up their

12 minds. We're open to your submissions.

13 In order to give some structure in the deliberations, I would like

14 to give a kind of systematic approach and invite you to follow this:

15 First of all, the question of the factual basis of voluntary surrender is

16 a core issue. This was challenged by the Office of the Prosecutor. And

17 here I want both parties to be very concrete.

18 Is it more or less simplified extradition, or in this case,

19 simplified surrender as we know it from international law - for example,

20 Article 66 of the Schengen agreement - or is it additionally a voluntary

21 arrest to that extent that it was not necessary to use any force but the

22 persons coming on their own wish to the Detention Unit. I would like to

23 hear some facts on this issue.

24 Then, of course, we have to address the principle of

25 proportionality. Of course, any procedural measure has to be

Page 45

1 proportional. A measure is in public international law proportional only

2 when suitable, necessary, and its degree and scope stands in reasonable

3 relationship to the envisaged target. Procedural measure shall never be

4 capricious or excessive. If it is sufficient to use a milder measure,

5 this measure has to be applied.

6 This means, in concrete terms, we shouldn't touch the question

7 whether or not detention is suitable but already attach the second step:

8 Is it necessary that the three accused stay in The Hague, or do we really

9 have sufficient guarantees that, first of all, they will, on order of the

10 Tribunal, come to The Hague immediately, guarantees both from the accused

11 and from the government of Bosnia-Herzegovina? Here we have to go into

12 some details. And what are the necessary or what would be the necessary

13 measures for protecting the evidence in whole?

14 Only in case we are not satisfied here, the proportionality, in a

15 narrow sense, becomes a question to be answered, and there we would have

16 to hear your submissions what would be in favour and what would be in --

17 contrary to the decision expected by the Defence.

18 Therefore, I should invite parties, first of all, to stress issues

19 of guarantees. It is in the interest of this Trial Chamber to exhaust all

20 possible measures being less intrusive than ongoing detention in The

21 Hague, and I invite especially the Defence counsels to give their

22 submissions in this respect.

23 Some issues could be, for example - I only touch more or the less

24 in seriousness of these points-what about bail bonds?What about house arrest?

25 And with a view to avoid any danger to any evidence, how can it be granted

Page 46

1 that the accused do not have any possibility detrimental to the interests

2 of justice, for example, by having access to official documents already or

3 not yet identified as probative evidence in this case?

4 In order to have a tight time schedule, we have prepared a short

5 agenda. We'll ask the Defence counsel, if necessary, each team to

6 self-restraint to 15 minutes each; the representative of

7 Bosnia-Herzegovina, 15 minutes; the Office of the Prosecutor, 30 minutes;

8 the Defence counsel in reply, 5 minutes each; and at the -- not the end of

9 the day but in the end of this first period, hear the accused, because

10 without any doubt, they have the right to address the Trial Chamber

11 themselves for approximately 10 minutes each. And I may add, of course,

12 nobody needs to exhaust the time granted.

13 Finally, I have to point out, also with a special view to our

14 friends from Bosnia-Herzegovina, that it is to the discretion of all

15 participants at any point in time to request for having a hearing in

16 closed session, but of course, closed session has to be the exception, not

17 the rule. Therefore, the Trial Chamber invites for any carefully reasoned

18 requests.

19 The very last point: We have a lot of documents filed

20 confidentially. To facilitate our work, I would say if there are no

21 objections by the parties, the Trial Chamber will treat all motions

22 received until now on the issue of provisional release, save attachments

23 because they are containing matters of privacy, as no longer being

24 confidential.

25 Office of the Prosecutor, agree?

Page 47

1 MR. WITHOPF: We have no objections, Your Honours.


3 Defence agrees?

4 MS. RESIDOVIC: [Interpretation] Yes, Your Honour.

5 JUDGE SCHOMBURG: Thank you. So it's ordered that from now on,

6 all motions received on the issue of provisional release are no longer

7 treated as confidential ones.

8 May we come now to the agenda as scheduled. May I ask the Defence

9 team to start. I would say start in alphabetical order, the Defence

10 counsel of Mr. Alagic first. Thank you.

11 MS. VIDOVIC: [Interpretation] Your Honours, with full respect for

12 your time, I won't go into an extensive explanation of the facts which

13 have already been set out in our motions and submissions. I shall try and

14 be as brief as possible and put forward my views that all the conditions

15 under Rule 65 have been fulfilled for the decision to be reached that

16 Mr. Alagic be accorded provisional release, for him to be able to be at

17 liberty. We have provided sufficient proof.

18 On the other hand, I do not consider that the Prosecution has put

19 forward a single valid reason for which the Trial Chamber would not

20 acquiesce to our request. I shall start out from your suggestion, and let

21 us take into consideration first the circumstances of the voluntary

22 surrender of the accused to the Tribunal, because the Prosecution

23 challenges the fact that it was indeed a voluntary surrender on the part

24 of the accused.

25 We have studied with great care all the circumstances surrounding

Page 48

1 the surrender, and in the submission and in the response by the Prosecutor

2 to our request that a letter exists by the Deputy Prosecutor, Mr. Graham

3 Blewitt, sent to Dr. Lagumdzija, the presiding officer of the Council of

4 Bosnia-Herzegovina - this is to be found in annex 2 of the Prosecution

5 response - and it stems from that that the government was not told that

6 our clients, or rather, the accused, can surrender voluntarily. All they

7 were given was an eight-day time limit for the arrest to be conducted.

8 And this fact probably led the government to believe, erroneously, that it

9 was necessary for them to be arrested. In that way, my client was left

10 without the possibility of surrendering voluntarily, and this emanated

11 from Rifat Culjevic's statement, which represents attachment 8 of our

12 submission, who very clearly stated -- because he was the individual who

13 reached General Alagic first when he was to be sent to The Hague, and it

14 emerges from that, quite clearly, that General Alagic knew that he had to

15 contact the Supreme Court of Bosnia-Herzegovina to go to The Hague, said

16 he was sorry that he had not been informed a different way and thus have

17 been able to surrender voluntarily.

18 Furthermore, from an additional official note by the judge of the

19 Supreme Court, Mr. Vlado Adamovic, we can see that Alagic contacted him

20 with a written statement in which he requests that he be surrendered

21 voluntarily. He says that he does not wish to be arrested and sent to the

22 International Tribunal in that way. The Supreme Court of

23 Bosnia-Herzegovina accepted that, and he stopped extraditional arrest and

24 sent General Alagic as somebody who was voluntarily surrendering to The

25 Hague Tribunal.

Page 49

1 The separate question is how the arrest was conducted by the

2 Prosecutor of The Hague Tribunal, and my client had absolutely no

3 possibilities of wielding any influence on that.

4 Let me just comment briefly the following fact, the fact that is

5 set forward by the Prosecutor in this response. The Prosecutor says that

6 it is understood that a voluntary arrest by a person - voluntary

7 surrender, I'm sorry - is if there was no threat towards that person, or

8 coercion and duress, that he would be arrested. Now, if the Prosecutor

9 views matters in this light, then there is not a single person who has

10 been accused by the Tribunal who would voluntarily surrender under those

11 circumstances, because each indictment is accompanied by an arrest

12 warrant, and if a warrant of that kind exists, and if it is -- if the

13 person involved is told of this, then this is pressure, this is coercion,

14 the very knowledge of that existence of that arrest warrant. I therefore

15 do not consider that the position of the Prosecution in that respect is

16 tenable.

17 Without dwelling on that question any more, let me move on to the

18 guarantees given by the government. I do not think I need read the

19 conclusions and specific points in the government decision that we attach

20 as addendum 14, enclosure 14 in our response to the Prosecution and the

21 Prosecution's position. As listed, the government enumerates all the

22 measures which it can take upon itself and issued written guarantees along

23 those lines. The government will respect all the warrants issued by the

24 Tribunal in order to ensure the presence of the accused and in order to

25 adhere and fulfil all the other conditions in order to respect the

Page 50

1 decisions of this Court.

2 I should particularly like to emphasise that the cooperation of

3 the government of Bosnia-Herzegovina, and in this case as well, should be

4 set aside from cooperation of all the other governments with the Tribunal

5 in The Hague. What I want to say is that from the very inception of The

6 Hague Tribunal, that is, since 1994, the government of the

7 Bosnia-Herzegovina Federation, which at that time was the Republic of

8 Bosnia-Herzegovina and later on the Federation, has always cooperated in

9 full with the Tribunal. It has always shown full respect for every

10 request made by the Tribunal, or as early on as the end of 1995 and the

11 beginning of 1996, it arrested persons who were on its territory following

12 orders and warrants by this Tribunal. It allowed the Prosecutor access,

13 unhampered access, to all archives, as well as to those of the president

14 of the presidency of Bosnia-Herzegovina. So there is no reason to doubt

15 the absolute goodwill of the government of Bosnia-Herzegovina to act in

16 accordance with all your orders and warrants, if they are sent. And in

17 that respect, the government is quite different to other governments.

18 Mr. Alagic, in addition to this, himself made a statement under

19 oath and guaranteed that he would appear before this Tribunal, and

20 expressed his readiness to take on and accept all the guarantees issued by

21 the government. Let me also add that Mr. Alagic is a man of advanced

22 age. His health has been seriously impaired; and we show this with the

23 attachments to our submission. He has an apartment in Sanski Most, and

24 nothing more. Even if he would like to go somewhere, he has nowhere to

25 go. He just has his good name, the good name that he wishes to defend.

Page 51

1 And his name means something in Bosanska Krajina, and that's all he has

2 left to him, his name and his face, and that's what he wishes to defend

3 here in The Hague.

4 So he is an individual whose guarantees can be found to be

5 acceptable, and I'm sure that the Tribunal can accept them too. He has

6 also given guarantees that he would not be a danger to witnesses or

7 victims if he is provisionally released.

8 All I want to say is that if my client is provisionally released,

9 he will be living in Sanski Most, which is Bosanska Krajina, in a region

10 of Bosnia-Herzegovina which is quite a long way off from Central Bosnia,

11 which is where the crimes, in fact, took place. His sojourn in Bosanska

12 Krajina cannot in any way disturb the victims or potential witnesses. His

13 movements have briefly been restricted in Bosnia-Herzegovina. That is to

14 say, Mr. Alagic, in his appeals proceedings with the Supreme Court of

15 Bosnia-Herzegovina, with respect to another criminal offence, the result

16 of that was that his travelling papers have been confiscated, so even if

17 he wanted to leave the territory, he would not be able to do so.

18 Therefore, having set out all these reasons, I consider that

19 General Alagic, even if he wanted to, did not have the possibility of

20 leaving the territory, and this makes his guarantee even more firm and

21 more acceptable.

22 Let me also make one final remark with respect to the

23 Prosecution's stand; namely, the Prosecution, in their response to our

24 motion for provisional release, adopted the attitude that Mr. Alagic, in

25 view of his political position - and he was the mayor of Sanski

Page 52

1 Most - wielded great influence and could influence witnesses, and one

2 could thereby conclude that he could come by official documents more

3 easily, documents which could be linked to this case. All I want to say

4 is that in Bosnia-Herzegovina, a little more than a year ago elections

5 were held and that the party, whose member General Alagic was, lost the

6 elections. That political party wields no more political influence in

7 Bosnia-Herzegovina, and therefore this argument on the part of the

8 Prosecution really cannot stand. Even if he did have an influence, his

9 influence could only be limited and restricted to the region of Sanski

10 Most, which is the area that he was the town mayor in, and the broader

11 area of Bosanska Krajina.

12 Let me now dwell for a brief moment on the fact that the

13 Prosecution considers that Alagic has been accused of serious crimes,

14 charged with serious crimes. I consider that he has not been -- or

15 rather, the fact is that he has not been charged with genocide, the crime

16 of genocide, or crimes against humanity. He has not been charged of

17 ordering, aiding, or abetting a criminal offence to take place. He has

18 been charged for omissions and failure to punish the perpetrators, which

19 is, relatively speaking, the lowest level of responsibility in cases tried

20 before this Tribunal. If --

21 JUDGE SCHOMBURG: [Previous translation continues] ... but may I

22 just interrupt you? Of course, we have read all the contributions on

23 these more or less theoretical issues. May I ask a concrete question as

24 regards the matter you mentioned before, that his passport was withdrawn?

25 And we find this in an attachment of your motion dated the 10th of

Page 53

1 October, 2001, saying that his passport was confiscated October 1999 by

2 the police administration of Sanski Most and based on the report from the

3 municipal court of Sanski Most. Can you please indicate the underlying

4 reasons for this fact that has happened in 1999.

5 MS. VIDOVIC: [Interpretation] Yes. Criminal proceedings are under

6 way against General Alagic because of the criminal offence of abuse of

7 official position and authority, and it was in that connection that his

8 passport was seized from him as a guarantee that he would continue to

9 reside in Bosnia-Herzegovina.

10 JUDGE SCHOMBURG: Do I understand correctly that these proceedings

11 are still pending? And what would you add, from your point of view, about

12 the priority given to ICTY in these cases?

13 MS. VIDOVIC: [Interpretation] In such cases, yes, priority is

14 given to the Tribunal, though the proceedings are still ongoing.

15 [Trial Chamber confers]

16 JUDGE SCHOMBURG: Okay. We have to go into these details and

17 another attachment, and I'm of course grateful that you can draw our

18 attention to this. The diplomatic passport has expired and is temporarily

19 revoked. This has been done also in 1997 already. Can you give me

20 additional information on the circumstances?

21 MS. VIDOVIC: [Interpretation] You are referring to the case that

22 is being tried in Bosnia-Herzegovina. General Alagic, in the period, I

23 think, between 1995 and 1996 - I'm not quite sure regarding these

24 dates - he was the town mayor of Sanski Most. In connection with the

25 duties he performed, an investigation was carried out and a first-instance

Page 54

1 judgement was passed, finding him guilty of abuse of official position.

2 JUDGE SCHOMBURG: May I ask you to go on? What is the further

3 development in this case? Was there a sentencing, and was there an

4 appeal?

5 MS. VIDOVIC: [Interpretation] Yes. The first-instance sentence

6 was four years of imprisonment. Then an appeal was lodged. And we expect

7 the Appeals Chamber to be sitting shortly to consider the appeal.

8 JUDGE SCHOMBURG: So this would be a judgement in absentia?

9 MS. VIDOVIC: [Interpretation] No, it was not as a judgement in

10 absentia. The initial judgement was passed while General Alagic was at

11 liberty, and our law on criminal procedure allows for the possibility of a

12 second-instance judgement being passed in the absence of the accused and

13 only in the presence of his Defence counsel.

14 JUDGE SCHOMBURG: Do you have, at this point in time, any more

15 concrete submissions on the actual situation of your client? For example,

16 when it comes to the question of, let's say, house arrest or bail bond,

17 what is your view here? And can you please explain a little bit the

18 concrete family situation of your client as of today? You've already told

19 us he will be available at a certain address. Can you explain a little

20 bit where this will be? Is it a house? Is it an apartment? Has he lived

21 there for a period of time?

22 MS. VIDOVIC: [Interpretation] It is an apartment that

23 General Alagic has been living in for some time with his wife and his

24 adopted son, who is a student at the Faculty of Economics in Sarajevo. He

25 is duty-bound to make a living for his family. He was about to retire

Page 55

1 when he was extradited to The Hague Tribunal. So he would continue to

2 live in the apartment with his family, and I think that he would accept

3 any ruling that would imply that he had to stay in his apartment under

4 house arrest. He doesn't have the funds to pay for any kind of bail

5 bond.

6 JUDGE SCHOMBURG: Thank you very much.

7 And now, please, Defence counsel for Mr. Hadzihasanovic.

8 MS. RESIDOVIC: [Interpretation] Thank you, Your Honour. Like my

9 learned friend Ms. Vidovic, I will follow the instructions you gave us

10 regarding additional arguments to those presented in our motion for

11 provisional release which we filed on the 16th of November and the

12 response of Defence counsel for Hadzihasanovic to the Prosecutor's

13 response of the 11th of December.

14 We have also provided the Court, in addition to our response, with

15 a large number of documents. And I will not be commenting on those

16 documents.

17 What I would like to begin with is to refer to your observation,

18 Your Honour, that we need to bear in mind proportionality, that is, to see

19 in each particular case the need for adequate measures which would

20 guarantee to the Court the conditions under Rule 65, and that is, that

21 would guarantee that my client, General Hadzihasanovic, would respond to

22 any call by the Trial Chamber; and secondly, should he be provisionally

23 released, he would not be a threat to victims, witnesses, or to any other

24 persons.

25 I believe that this Court, in its rulings - and also this applies,

Page 56

1 I presume, to this Trial Chamber - proceeds on the internationally

2 recognised rights of the accused that the Statute of the Tribunal contains

3 and which was submitted to the United Nations. Therefore, in our written

4 motion, we have said that detention prior to trial should be exceptional

5 and that the Court should give the opportunity to the accused to present

6 arguments, to persuade this Court that his provisional release and liberty

7 will not hamper the administration of justice.

8 With respect to your first request for additional arguments, then

9 we need to say that this first condition can be corroborated by

10 General Hadzihasanovic's attitude towards this Tribunal and his appearance

11 here. It is our position that General Hadzihasanovic surrendered

12 voluntarily the moment he learnt for the first time from the competent

13 authorities that there was an indictment issued by this Tribunal against

14 him. The Prosecutor, as you know, has the opposite opinion.

15 My learned friend Ms. Vidovic has described the way in which

16 General Alagic learnt about the existence of the indictment. In the file,

17 we find a statement by Gljiva Jasmin, an authorised official of the

18 Ministry of Internal Affairs, who on behalf of that institution was

19 assigned the task of informing General Hadzihasanovic of a decision on

20 extradition arrest and to hand him that same decision. From that

21 statement issued by the person who, on the 2nd of August, 1992, wearing

22 civilian clothes and not as a policeman, approached General Hadzihasanovic

23 -- and you see from that statement that immediately the response of

24 General Hadzihasanovic was that there was no need for him to be informed

25 about it by the police, that he had always up to now responded to any call

Page 57

1 by the Tribunal, and if anyone had given him a chance of one hour or one

2 day, he would have come to The Hague himself. This is a fact which I feel

3 the Court should appreciate.

4 It can also be seen from that statement that after treating those

5 persons who conveyed to him the fact about the indictment, surrendered to

6 extradition arrest. Therefore, this statement and other indisputable

7 facts disprove the position of the Prosecution that

8 General Hadzihasanovic, after being placed in extradition arrest, it was

9 only on the 3rd of August that he expressed his will to surrender

10 voluntarily. That will was clearly and unequivocally stated on the 2nd of

11 August to the authorities of Bosnia-Herzegovina.

12 I must also point out, as has my colleague Ms. Vidovic, that the

13 letter of the Deputy Prosecutor did not give the government of the

14 Federation a chance to come to The Hague, because the government was told

15 simply to arrest and surrender the accused, and if it fails to do so

16 within a time period of eight days, then the SFOR would do so.

17 Perhaps it is not quite appropriate for me to say this here in

18 court, Your Honours, but I will say it nevertheless. The day my client

19 appeared in court for the first time, I conveyed this fact to the

20 Prosecutor, Madam Carla Del Ponte: It is my opinion that a State that

21 cooperates so well with the Tribunal, as does my client, deserves to be

22 given the chance to come alone without being escorted by any other body.

23 I also wish to point out that the Supreme Court realised that it

24 was a mistake and that the people wanted to come voluntarily, they were

25 released. And in fact, they came to the airport accompanied only by their

Page 58

1 attorneys and surrendered themselves to representatives of the

2 International Tribunal. Those are the facts.

3 Why should the Federation government be trusted that they will

4 carry out all instructions and that the facts are as they stand in my

5 written motion and in my oral submissions is not something I need not

6 repeat? I think my colleague Ms. Vidovic has already placed sufficient

7 emphasis on that. But I think that we should have absolute trust in the

8 guarantees provided by my client, General Hadzihasanovic, because he's a

9 person who, ever since 1996, when many people refused to recognise the

10 Tribunal, and never mind to cooperate with it, he cooperated on a number

11 of occasions and gave two statements. Though he was hurt badly in a

12 traffic accident, he responded and came to this court to testify in the

13 Blaskic case. Then again upon the request of the Prosecution, he came to

14 testify in the Krstic case. Therefore, a man who expressed his position

15 towards the Tribunal in that way could not express his voluntariness in

16 any other way but when he was told about the indictment at the front

17 door. That is why when evaluating whether the surrender was on a

18 voluntary basis, you should take into consideration these facts and

19 circumstances.

20 In assessing the value of the guarantees, I would ask you to

21 consider all the arguments contained in our written submissions, but I

22 also would appeal to you to bear in mind that the European Court for Human

23 Rights, in the case Letellier against France, determined that when the

24 only reason for continued detention is the fear that the accused will

25 escape and avoid appearing at trial, he should be temporarily released if

Page 59

1 he's able to provide adequate guarantees.

2 The guarantees for my client have been provided by the government

3 of the Federation of Bosnia-Herzegovina, which due to all acts it has

4 undertaken in the past and not its promises, should be trusted. My

5 colleague Ms. Vidovic mentioned the arrest in 1996 in which I was Defence

6 counsel. Conditions for investigations in Bosnia-Herzegovina, the

7 documentation given to this Tribunal, the subpoenaing of generals to

8 testify here, all these are facts and arguments which are not dead letter

9 on paper but reflect the real attitude of the government of the

10 Federation, which guarantee that my client will also appear in court when

11 required.

12 There is also the guarantee of my client himself, and for the

13 reasons already given, I think should be trusted. But his family, his

14 wife and children, have also offered their own guarantees under oath. It

15 is not an easy matter to send one's father and husband to trial, but they

16 said that at any time, they would support his appearance in court.

17 There is the question of possible additional guarantees. In the

18 enclosures provided, we have said that General Hadzihasanovic is retired

19 and that his pension amounts to 533 German marks. With such funds,

20 without additional effort, he and his family can hardly survive, never

21 mind travelling outside the borders of the country. And this also shows

22 that he cannot provide any monetary guarantees. He has an apartment of 78

23 square metres in Sarajevo in which he has been residing with his family

24 members for years. He has not left that apartment for years, nor does he

25 intend to. I think that this also is an argument that should convince you

Page 60

1 that those guarantees are sufficient and that they confirm and speak in

2 favour of our motion for provisional release and not to apply stricter

3 measures towards my client than would be required for a fair treatment of

4 any individual.

5 Finally, you also said that we might provide some additional

6 elements. Regarding house arrest, I can tell you that I have not

7 discussed it with my client, but an apartment with four family members

8 living in it is probably a place in which my client could stay, and he

9 would not oppose it, but I don't think that would be necessary.

10 As for the second condition, for which we have already provided

11 arguments, that is, whether my client will wield any influence on victims

12 and witnesses and be a danger to anyone, this Tribunal has a developed

13 jurisdiction in this area. The suggestions of the Prosecutor that only a

14 possibility is sufficient, that is not proper. The Court requires

15 concrete possibilities to be established of influencing witnesses. My

16 colleague Ms. Vidovic has already spoken about this, but let me just add

17 that the witnesses whose statements have been taken and whose statements

18 we have received, together with the indictment, can be divided into two

19 groups: those who are victims and who make no mention of General

20 Hadzihasanovic and don't know him, so I don't see how the General could

21 have any influence over them. The others are officials in various parts

22 of the world. He has no possibility of exerting any influence on them,

23 and even if he did have, these are people of such integrity that they

24 cannot be influenced. Thirdly, he lives in Sarajevo, which is quite a

25 distance from Central Bosnia, and the position of this Court in the

Page 61

1 Brdjanin case is that even a visit to the scene of the crime cannot in

2 itself be a reason to infer that he would be a threat to the witnesses.

3 Finally, I wish to say that provisional release, in addition to

4 guaranteeing the rights of my client, in accordance with international

5 regulations, it also makes for a more adequate trial and great economies

6 for this Tribunal. Every trip here by me and others for Status

7 Conferences would not be necessary, and time would contribute to an

8 expeditious and fair trial.

9 Your Honour, I feel that all these facts presented provide a

10 sufficient basis for you to be able to grant our request for provisional

11 release. Thank you.

12 JUDGE SCHOMBURG: Just one additional question: Is there any

13 trial pending in Bosnia-Herzegovina?

14 MS. RESIDOVIC: [Interpretation] No. My client was never convicted

15 of any act, nor are there any proceedings against him ongoing.

16 JUDGE SCHOMBURG: I, to a certain extent, of course, agree with

17 your view that the question of infringement of interests of victims and

18 witnesses has to be a concrete, not an abstract one, but please let us

19 know what can be guarantees that your client will not have access to

20 documents, as a retired general, detrimental to the interests of justice.

21 MS. RESIDOVIC: [Interpretation] First of all, Your Honour, you

22 have already said that my client is a retired general, and even if a

23 general, once retired, access is difficult.

24 Secondly, you have probably learnt from the case file that the

25 Sarajevo collection and the entire archives of Bosnia-Herzegovina were at

Page 62

1 the disposal of the Prosecutor. Therefore, I don't see that there is any

2 single document that my client could have without that document already

3 being served on us to prepare for defence. Also, his word that he would

4 not even make an attempt to get hold of any such documents, and the

5 measures of the government, which would not allow any such access, in my

6 view, are additional guarantees.

7 JUDGE SCHOMBURG: Could it be part of a written guarantee?

8 MS. RESIDOVIC: [Interpretation] My client can provide additional

9 written guarantees that we will not try to obtain access to any documents

10 that might have a bearing on this case except those which he may review

11 together with me in preparation of his defence.

12 JUDGE SCHOMBURG: Thank you for this clear answer.

13 And another question: We know it, of course, that your client has

14 cooperated in an, I would say, excellent way with the Office of the

15 Prosecutor. What about his attitude in the future on the question of

16 cooperation, taking into account that he is now in a totally different

17 situation, having to defend himself?

18 MS. RESIDOVIC: [Interpretation] Your Honour, we have informed the

19 Prosecution in writing that at this point in time, my client does not wish

20 to make a statement to the Prosecution. How the preparation of the

21 Defence will run, as his Defence counsel, at this point in time, I cannot

22 say. It would be premature.

23 JUDGE SCHOMBURG: Thank you very much for your contribution.

24 May I now ask the representatives of Bosnia-Herzegovina --

25 [Trial Chamber confers]

Page 63

1 JUDGE SCHOMBURG: Yes. As scheduled, we should go on - I beg your

2 pardon - with Defence counsel, please.

3 MR. IBRISIMOVIC: [Interpretation] Your Honours, the Defence of

4 Mr. Kubura stands by the application it made for provisional release and

5 the proposals put forward in that application. The basic question which

6 arises at this time is whether the accused Mr. Kubura surrendered

7 voluntarily to the Tribunal or not. According to the Prosecution,

8 Mr. Kubura was arrested by the Bosnia-Herzegovinian authorities, and after

9 that, in keeping with the rules and regulations, he was transported and

10 handed over to the Tribunal.

11 However, the Defence of Mr. Kubura cannot agree with this position

12 as put forward by the Prosecution. All the acts undertaken by Mr. Kubura

13 from the time he learnt that there were proceedings against him before

14 this Tribunal indicate that he wished -- that it was his wish to surrender

15 voluntarily in order to come before this Tribunal and be tried. It is

16 important to mention the fact that Mr. Kubura interrupted his holiday. He

17 was in the neighbouring state of Croatia at the time, on holiday there,

18 and at the invitation of the BH authorities, he returned to the country

19 forthwith. There he was told of the situation, that is to say, that there

20 were proceedings against him at this Tribunal, and he was given a document

21 to that effect by the Supreme Court of Bosnia-Herzegovina. After that, he

22 was placed in extraditional arrest, and the following day he made a

23 voluntary statement saying that he was voluntarily surrendering and

24 wished, of his own free will, to travel to The Hague.

25 Let me mention one point in this regard. In no way was Mr. Kubura

Page 64

1 offered the possibility, either by the BH authorities or by The Hague

2 Tribunal, of expressing freely and voluntarily his attitude with respect

3 to surrender to the Tribunal. Namely, he was arrested according to the

4 domicile regulations and the Criminal Code of the government of

5 Bosnia-Herzegovina which regulates -- they are Articles 62 to 69 of that

6 code. That is to say, that when detention was prescribed according to the

7 Law on Criminal Procedure of Bosnia-Herzegovina, the defence -- that is to

8 say, defence becomes obligatory for Mr. Kubura; not only for Mr. Kubura,

9 but for each and every individual deprived of liberty. Those rights were

10 not read out to Mr. Kubura. He was not able to have contact with

11 attorneys of his own choice, or ex officio at all, who would indicate to

12 him the possibility and the existence and the chance that he surrender

13 voluntarily to this Tribunal for trial. Those elementary rights were

14 curtailed.

15 When he first had contacts with his attorneys and when they

16 expressed these rights to him, Mr. Kubura said that he wished to travel to

17 The Hague voluntarily. He confirmed that statement of his in front of the

18 Supreme Judge of the Supreme Court of the Federation, Mr. Adamovic, and we

19 attached that letter in our application.

20 Therefore, the conclusion is that Mr. Kubura voluntarily

21 demonstrated that he wanted to go to The Hague. None of his actions

22 indicate that in any way whatsoever he was obstructing either the

23 instructions of the BH authorities or the Office of the Prosecution.

24 Therefore, viewing the statements attached to the application and those

25 from the representatives of the Internal Affairs Ministry of the

Page 65

1 Federation of Bosnia-Herzegovina, we can confirm and assert that it was a

2 case of voluntary surrender and that the Prosecution's position is

3 completely unfounded.

4 The Prosecution pleads that he was arrested twice. If he was

5 arrested by the BH authorities and if the proceedings were interrupted,

6 then there was absolutely no reason for him to be arrested again by The

7 Hague Tribunal. All that had to be done was to have given him -- set out

8 the opportunity of him going to The Hague, and that is quite clear.

9 I should particularly like to express one more point, and that is

10 that any omissions on the part of the BH government, in the sense of

11 indicating to Mr. Kubura the possibility of surrendering voluntarily,

12 cannot make Mr. Kubura's position aggravated, because he did not have the

13 possibility of expressing his own will. As soon as he did have this

14 opportunity, he showed quite clearly that he wanted, without the pressure

15 of being arrested, or any other coercion or under duress of any kind, to

16 appear voluntarily before this Tribunal and attend the trial. Therefore,

17 it is the position of the Defence that we propose to the Trial Chamber

18 that as Mr. Kubura surrendered voluntarily to The Hague, this ought to be

19 accepted, and not the viewpoint of the Prosecution as presented.

20 As far as the measures that the government has proposed in the

21 case that Mr. Kubura be provisionally released, the Defence is not in a

22 situation to comment as to whether the government will stand by their

23 promises and guarantees or not. We have the representatives of the

24 government. But the Defence team, like Mr. Kubura himself, who signed his

25 own statement, are of the opinion that Mr. Kubura will respect all the

Page 66

1 measures set forth by the government should he be provisionally released,

2 as well as all the instructions of the Tribunal in that regard.

3 I do not want to repeat what my learned colleagues Ms. Residovic

4 and Ms. Vidovic have already said, the attitude of the Bosnian government

5 towards this Tribunal and its cooperation from the very start. I think

6 that the measures that have been proposed will be abided by the

7 government, and if the government acted properly during Mr. Kubura's

8 arrest, then there is no reason to believe that they will not stand by all

9 the guarantees that they have issued.

10 As far as the family situation of Mr. Kubura, you have all the

11 documents relative to that. You can see that the situation is very

12 precarious as far as his family is concerned. He is a father of three

13 minor children. Their ages range from 5, 10, and 11. His wife is

14 unemployed. He doesn't even have an apartment and has not solved his

15 residential problems. So his detention in The Hague would make that

16 situation even more grave and bring his family into a highly precarious

17 situation.

18 As to the possibility of wielding any influence on victims and

19 witnesses, a point that has been raised in these proceedings, I agree with

20 the attitude presented by Ms. Residovic and say that we must look at this

21 aspect realistically. His behaviour and conduct so far when he was

22 present in the region does not indicate that he wished to enter into

23 contact with witnesses in any way. So until we don't have a realistic

24 danger of this, I do not think that remarks of this kind stand. I think

25 they are unfounded. And the Tribunal and the Prosecution has an open

Page 67

1 telephone line to all -- for all witnesses and victims in any cases tried

2 before this Tribunal, and if any realistic danger did exist, then there

3 are government measures and Tribunal measures that are highly effective

4 and efficient to arrest any attempts of that kind and sanction conduct of

5 that kind.

6 And for every accused, as for Mr. Kubura as well, there is a trial

7 period. So in order to assess a realistic danger, we must look at this

8 trial period. And the accused will show by -- will show by way of his

9 conduct what this will be. And he has already stated that he is willing

10 to recognise all the decisions of this Tribunal and the government

11 measures expressed in the guarantees that they issued. Thank you.

12 JUDGE SCHOMBURG: I thank you. Also the same question in the

13 direction of your client. Is there any trial or any prosecution pending

14 against your client?

15 MR. IBRISIMOVIC: [Interpretation] Your Honour, my client has never

16 had any proceedings brought against him in Bosnia-Herzegovina. This is

17 the -- these are the first proceedings against my client.

18 JUDGE SCHOMBURG: The actual housing situation, of course, should

19 never be detrimental to the question of whether provisional release will

20 be granted or not, but we should know what will be the address, in future,

21 of your client. You pointed out in your motions that -- he can't

22 stay any longer in the former apartment but seeks for a new one. Is this

23 already settled?

24 MR. IBRISIMOVIC: [Interpretation] For the moment, there is a

25 temporary solution and a new address. And I think we mentioned that new

Page 68

1 address in the attachment, but if not, I can send it on to the Tribunal.

2 But he has still not been able to buy up this flat.

3 JUDGE SCHOMBURG: And also additionally, what would be your

4 position as regards house arrest and what would be the position that there

5 is a certain guarantee given that your client, knowing now about the

6 indictment, will have no improper access to documents detrimental to the

7 interest of justice?

8 MR. IBRISIMOVIC: [Interpretation] My client will make a statement

9 to the effect that he will not have access to any documents which might be

10 harmful to the interests of justice and the conducting of this trial. He

11 is an office of the army of Bosnia-Herzegovina. He has been suspended,

12 and he does not have any access, not only to archives but even to go to

13 his job should he be provisionally released.

14 JUDGE SCHOMBURG: Thank you, Defence. Now, I believe, really the

15 time is ripe that I may ask the representatives of Bosnia-Herzegovina.

16 Please come here a little bit closer to us that we can hear your direct

17 comments, acting as friends of this Tribunal.

18 Who wants to take the floor first, please? I understand

19 Mr. Limov.

20 MR. DZIHANOVIC: [Interpretation] Mr. Dzihanovic. Your Honours,

21 may I, with respect to the case of Mr. Alagic and General Hadzihasanovic

22 and Colonel Kubura, as representative of the government of

23 Bosnia-Herzegovina state the following, and the Deputy of the Federal

24 Justice Minister as well: You yourselves have become convinced that

25 the -- that cooperation between the government of Bosnia-Herzegovina and

Page 69

1 the Tribunal in The Hague has always been exemplary and that both the

2 governments have shown this by virtue of their conduct, both previously

3 and in this particular case.

4 What the government of Bosnia-Herzegovina was to do, and the

5 government of the Federation of Bosnia-Herzegovina and the Supreme Court

6 of Bosnia-Herzegovina, everything was done without a single dilemma. We

7 never asked ourselves whether it should be done or not. We went ahead and

8 did it in order to enable this case to be brought to trial before The

9 Hague Tribunal.

10 Furthermore, upon the request of the Defence counsel of

11 General Hadzihasanovic, Alagic, and Colonel Kubura, the government of the

12 Federation, on the 8th of October, 2001, reached a conclusion and decision

13 that in keeping with the principles of cooperation with The Hague Tribunal

14 that it would respond to every invitation and request on the part of The

15 Hague Tribunal and respond to all the demands made of the government of

16 Bosnia-Herzegovina.

17 In this concrete case, the government of Bosnia-Herzegovina

18 expressed its readiness to respond to the invitation from the Trial

19 Chamber in order to make a statement before the Tribunal with respect to

20 guarantees on respect of the conditions set by the International Tribunal

21 for persons accused of war crimes in the former Yugoslavia, and we have

22 three accused before us.

23 On the 6th of December, 2001, the Defence of these accused once

24 again appealed to the government of Bosnia-Herzegovina for it to issue

25 detailed measures which the government of the Federation of

Page 70

1 Bosnia-Herzegovina would undertake or which it would be ready to

2 undertake, and they consist in the following - these measures refer to all

3 three accused persons.

4 At a meeting of the government of the Federation of

5 Bosnia-Herzegovina, held on the 10th of December, 2001, it was decided to

6 undertake the following: First, the government of the Federation of

7 Bosnia-Herzegovina, in case of the decision to be taken for the

8 provisional release of the persons, guarantees are issued for each of the

9 stipulated persons. It will ensure that the representatives of the

10 Bosnian government and the Federal Justice Ministry and Federal Internal

11 Affairs Ministry will accompany the individual to Sarajevo if they are

12 provisionally released, and they will ensure that they come back to the

13 Tribunal for trial and will supply escorts to the airport and transfer

14 these individuals to The Hague authorities, as stipulated by the Court.

15 Second, during the sojourn of the accused on the territory of

16 Bosnia-Herzegovina, the federal organs and cantonal organs will undertake

17 the following measures and activities: They will ensure that during the

18 trial or proceedings, the accused Mehmed Alagic, the accused Enver

19 Hadzihasanovic, and the accused Amir Kubura should stay on the territory

20 of the Federation of Bosnia-Herzegovina, and once they reach Sarajevo,

21 that they will hand over their travel documents and passports to the

22 international department in Sarajevo; that they will report to the local

23 police station in their place of domicile once a week; that the Federal

24 Ministry of the Interior, in cooperation with the Cantonal Internal

25 Affairs Ministry in Sarajevo and in the Sanski canton and the other

Page 71

1 cantons where the accused are domiciled, in cooperation with the IPTF,

2 undertake operative and tactical measures and activities to control the

3 sojourn of the provisionally released accused to defend themselves while

4 at liberty and that if any attempt be made to escape which the accused --

5 that the organs under point 6, the competent organs and authorities of

6 Internal Affairs would undertake the detention of these persons. We also

7 undertake that the named persons will be domiciled at the address they

8 have given to the Tribunal. If there are any changes, the Tribunal will

9 be informed thereof.

10 We shall also undertake to guarantee that they will not contact

11 any witnesses or victims, that we will ensure that they will not talk to

12 the media about their indictments, and that the accused persons will

13 respond to every instruction issued by this Tribunal.

14 The government of the Federation of Bosnia-Herzegovina will take

15 it upon itself to send out reports at least once a month to the Tribunal

16 stating that the individuals are abiding by the conditions set out here.

17 The government of the Federation of Bosnia-Herzegovina takes on the

18 obligation of reporting to the Trial Chamber as to whether the accused

19 have violated any of their obligations or whether they are adhering to

20 those obligations.

21 So much from me for the moment. I'm at your disposal for any

22 further questions you may wish to ask me. Thank you.

23 JUDGE SCHOMBURG: Thank you very much.

24 Additional comments from the side of your colleague.

25 MR. LIMOV: [Interpretation] Your Honour, thank you for giving me

Page 72

1 the floor. I shall add a few words to what my colleague Dzihanovic said

2 with respect to the police, because it is clear from the measures listed

3 that the police have special responsibilities to implement these

4 above-mentioned measures should the Tribunal rule to provisionally release

5 the accused. I, of course, will not repeat the measures listed, but I

6 wish to say that upon the instructions of the Prime Minister of the

7 Federation yesterday, I had a working meeting with Ministers of the

8 cantons, the Sanski, Dojbojski, and Sarajevski cantons, and at that

9 meeting we specified their obligations pursuant to the guarantees provided

10 by the government of the Federation of Bosnia-Herzegovina.

11 Should the Tribunal decide to grant provisional release for

12 Generals Hadzihasanovic and Alagic, as well as Colonel Kubura, the Federal

13 MUP, Ministry of the Interior, is capable of implementing all these

14 measures as well as any other instructions from the Tribunal within the

15 framework of its terms of reference. Thank you.

16 JUDGE SCHOMBURG: Thank you very much. The first point to be

17 addressed is, of course, in case the Trial Chamber could -- would come to

18 the solution of granting provisional release but expecting more

19 restrictive measures and guarantees, would the government of

20 Bosnia-Herzegovina be ready to execute orders, for example, a more

21 restrictive approach saying they have to stay in their town, be it

22 Sarajevo, be it another town? Or additionally, even when it would come to

23 house arrest, would this be feasible?

24 MR. LIMOV: [Interpretation] That would be feasible, and the

25 government of Bosnia-Herzegovina and the appropriate ministries would

Page 73

1 implement any orders from the Trial Chamber.

2 JUDGE SCHOMBURG: And I take it as granted that you would be ready

3 and prepared to give this in writing to the Tribunal.

4 MR. LIMOV: [Interpretation] Yes.


6 I want to address to the representative of the Ministry of Justice

7 a very crucial question. We are aware of the fact that a trial is pending

8 against one of the accused here in the ICTY. What is your position on the

9 relationship between both pending trials, and can you tell us a little bit

10 more about the allegations in this case?

11 MR. DZIHANOVIC: [Interpretation] As far as the proceedings in

12 domestic courts that was referred to during the statements by Defence

13 counsel, the authorities of the Federation of Bosnia-Herzegovina and the

14 judiciary will give priority to the proceedings in this Tribunal.

15 As regards the specific content of the charges, I must admit that

16 I am not informed in detail about those charges, as the Ministry of

17 Justice, according to the principle of division of competencies, has no

18 authority over the activities of the courts as independent bodies. But if

19 necessary, the competent court could provide information to this Trial

20 Chamber regarding the specifics of that case.

21 JUDGE SCHOMBURG: Unfortunately, when it comes to,

22 possible guarantees, we have to be very precise. I take it as granted

23 that it is also your view that it would be the responsibility of the State

24 of Bosnia-Herzegovina to enforce the orders of ICTY, and --

25 the ICTY, of course, is not interested in internal affairs, especially

Page 74

1 when it comes to the responsibility of cantons.

2 In addition, there are only a very few points, but they have to be

3 addressed. What about the costs for the transport to Bosnia-Herzegovina

4 and back to The Hague? Is the government of Bosnia-Herzegovina ready to

5 grant that they take these costs?

6 MR. DZIHANOVIC: [Interpretation] As regards expenditures linked to

7 this and other similar cases, that is a question for which we do not have

8 a solution in the State of Bosnia-Herzegovina, but in this specific case,

9 should the Trial Chamber grant provisional release for these accused, then

10 we will have to find a solution.

11 JUDGE SCHOMBURG: What would be the time frame needed to provide

12 the Court with an additional guarantee to this point?

13 MR. DZIHANOVIC: [Interpretation] These guarantees that you have

14 mentioned and which may be missing with respect to certain details, we can

15 commit ourselves to provide those comments within a few days in accordance

16 with the Court's request.

17 JUDGE SCHOMBURG: I see there are no other questions right now. I

18 thank you very much for coming here, and I would ask you, just in case

19 there will be new questions, we would highly appreciate if you could stay

20 until the end of this hearing. Thank you.

21 MR. DZIHANOVIC: [Interpretation] Thank you.

22 This hearing will be adjourned now for 20 minutes, so that will

23 mean we start again 10 minutes to 5.00. Thank you.

24 --- Recess taken at 4.32 p.m.

25 --- On resuming at 4.56 p.m.

Page 75












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 76

1 JUDGE SCHOMBURG: May the hearing on provisional release be

2 resumed.

3 I was told that the representative of Bosnia-Herzegovina wants to

4 take the floor for another minute. Is that right?

5 MR. DZIHANOVIC: [Interpretation] Yes, Your Honour, I would like to

6 speak, with your permission, Your Honour.

7 JUDGE SCHOMBURG: Would you please repeat, because the accused

8 hadn't been present.

9 MR. DZIHANOVIC: [Interpretation] I would request, on behalf of the

10 government of the Federation of Bosnia-Herzegovina, to be allowed to say a

11 few more words.


13 MR. DZIHANOVIC: [Interpretation] Thank you, Your Honour. Allow me

14 just to add by saying, in answer to your question as to the resources that

15 would be provided to cover the costs of travel for the accused should they

16 be provisionally released, I have had contact by telephone with the Prime

17 Minister of the government of the Federation of Bosnia-Herzegovina, and

18 his response was that I am free to state that the government of the

19 Federation will provide a way of financing the travel of the accused for

20 every hearing here at the Tribunal at any time. Thank you.

21 JUDGE SCHOMBURG: Thank you for this additional clarification.

22 Now we turn to the Office of the Prosecutor. And you know the

23 arguments of the Defence counsel now, and the Trial Chamber really would

24 invite you to address, first of all, the question of whether or not we can

25 speak of voluntary arrest, and especially what you have expected the

Page 77

1 accused to do more than they have done in the concrete case; and the

2 question, of course, of additional measures: Would they be sufficient for

3 you to have the guarantee, from your point of view, that the accused will

4 appear for standing trial? And the last point, of course, is: Could you

5 please give the Trial Chamber a little bit more information on the

6 severeness of the crime from your point of view? I want to add that it

7 goes without saying that the arguments of the Defence stating that a

8 case - I quote, "it's only a case of 7(3)" - has no merits because we have

9 to look into the concrete law, and a case of 7(3) may be even more severe

10 crime than the one under 7(1). So we shouldn't waste our time with this

11 issue, but please, as pointed out by the Defence, also the Trial Chamber

12 would be interested to hear something more in detail what it's about in

13 this case. Thank you.

14 MS. BODSON: [Interpretation] Mr. President, I have just been

15 entrusted with this case. I give the floor, therefore, to Mr. Withopf.

16 If necessary, I will make some additional remarks after that.

17 MR. WITHOPF: Your Honours, following your advice, I will focus on

18 the crucial issues only. Simultaneously, I will put forward additional

19 information as requested, and I will also respond to issues raised by the

20 Defence.

21 Rule 65 details two requirements for provisional release. The

22 Trial Chamber must be satisfied of both: that the accused will appear for

23 trial and that the accused will not pose a danger to any victim, witness,

24 or other person. But even if these requirements are met, that does not

25 mean that provisional release has automatically to be granted. There is

Page 78

1 no automatism. Rule 65, accordingly, explicitly says "may be granted,"

2 "Provisional release may be granted," meaning the Trial Chamber has the

3 discretion to refuse the order notwithstanding the applicant has

4 established the two matters. That's an issue the Defence, for obvious

5 reasons, did not consider too much. Therefore, I will, in particular,

6 expand on these issues.

7 Coming to the first and main issue, the issue whether it is

8 ensured that the accused will appear for trial and whether it has been a

9 voluntary surrender or whether it has been an arrest, I will cover this

10 matter with regard to all of the accused, Hadzihasanovic, Alagic, and

11 Kubura, together, since it's the opinion of the Prosecution that the

12 situation with regard to all three of the accused is a very, very similar

13 one.

14 With regard to the voluntary surrender, I want to stress that only

15 the situation before the accused, before all of the three accused were put

16 in extraditional arrest is of relevance; everything that happened

17 afterwards is not. A voluntary surrender is, per definition, excluded

18 after an arrest.

19 I come to the affidavits of Mr. Kljucka, Mr. Culjevic, and

20 Mr. Faik, and I actually want to quote. The first one is the one of Gljva

21 Jasmin, and he tells the story that he, together with two more authorised

22 officers, served General Hadzihasanovic with the decision of the Supreme

23 Court on extraditional arrest. We have the same situation with regard to

24 Alagic and with regard to the accused Kubura. The first impression is as

25 if he would have returned from the Croatian coast from his annual leave

Page 79

1 knowing that he has been indicted. But if you read the affidavit related

2 to him, the affidavit by Lusija Faik, it becomes obvious that on the

3 Croatian coast, he was never told that an indictment has been issued.

4 This individual, Mr. Lusija Faik, says in his affidavit: "Amir Kubura

5 immediately said that there was no problem, that that should have been

6 said to him straight away so he could have taken his family, as his wife

7 and three minor children stayed at the coast in Croatia."

8 I think, based on this information, there's only one conclusion

9 possible. It hasn't been a voluntary surrender. It has been - and I

10 would call it - an arrest without resistance.

11 With regard to Kubura, it's quite normal that he, as a serving

12 soldier, responded to the call of his commanding officer and that he

13 reported back. Also with regard to him, there is not a very different

14 situation as compared to his two co-accused.

15 The fact that all of the three accused in the course of the local

16 Bosnian extradition proceedings waived their rights is not of any

17 relevance. As a matter of fact, the accused were already imprisoned when

18 they did so, and this fact is actually reflected in the official press

19 release of the Federation of Bosnia-Herzegovinian government. In

20 addition, the head of the Sarajevo field office of the ICTY, Mr. Jan van

21 Hecke, corroborated on Thursday, the 2nd of August, 2001, that the three

22 accused had been arrested - and I quote, the word "arrested" - at their

23 homes at approximately 0700 hours that morning, following an operation of

24 the Ministry of Interior.

25 Secondly, there's a legal consideration in this regard. Rule 58

Page 80

1 of the Rules says the obligation as laid down in the ICTY Statute prevail

2 over any national law on extradition. The reference to the national

3 jurisdiction made by the Defence and made by the accused is therefore not

4 really helpful. As a consequence, the Prosecution remains and maintains

5 its position. It hasn't been a voluntary surrender. It has been an

6 arrest without resistance.

7 I'm turning now to the issue of the guarantees. The Prosecutor

8 appreciates the guarantees as provided by the government of the Federation

9 of Bosnia and Herzegovina. As they were detailed today, the Prosecution

10 considers them as also being relevant in practice and sufficient in

11 practice. However, the Prosecution wants to draw the attention of the

12 Trial Chamber to the fact that the Bosnian authorities tried to implement

13 the national extradition proceedings contrary to Rule 58 of the Rules of

14 Procedure and Evidence. As a result, there are still some doubts on the

15 value of these guarantees.

16 The Prosecution's overall assessment with regard to the first

17 matter as provided in Rule 65(B) is, therefore, there is no voluntary

18 surrender and some doubts remain with respect to the guarantees provided.

19 I am now turning to the second matter as provided in Rule 65(B),

20 outlining that the accused will not pose a danger to any victim, to any

21 witness, or other person. The Prosecution concedes that there are no

22 instances of concrete intimidation related to the accused. However, the

23 following incidents should be kept in mind: When the accused were

24 arrested and taken to The Hague, the Bosnian authorities made public

25 comments that they would do all they could do to help the accused. Such

Page 81

1 public statements made by senior Bosnian officials was immediately, very

2 immediately, interpreted by the Prosecution witnesses as a threat against

3 them. And furthermore, the accused were in command of the Mujahedin, and

4 it is well known that there are still many of them living in Bosnia and

5 Herzegovina, particularly in the area of Central Bosnia. It would be no

6 surprise if these Mujahedin would be willing to help out their former

7 superiors.

8 Just for illustration, I want to provide the Trial Chamber with a

9 few instances that happened within the last years. And I want to stress

10 again these instances are not related to the accused; however, they

11 illustrate the situation down in Central Bosnia.

12 On 25th August 1998, a nail bomb was placed outside the front door

13 of Ivo Mirzo [phoen]. Jovo Mirzo [phoen] is a Prosecution witness in this

14 case. He's an outspoken member of the Croat community in Bugojno, and he

15 is a prominent local HDZ politician. Four or five local Muslims were

16 eventually charged with the attack, and at least one received a

17 substantial prison sentence.

18 Another incident --

19 JUDGE SCHOMBURG: I beg your pardon. Before you go on with such

20 examples, could you show the Trial Chamber the link between these

21 occasions and these crimes committed and the accused in this case?

22 MR. WITHOPF: These illustrations that I'm about to give to the

23 Trial Chamber should show the situation in Central Bosnia as such and what

24 could happen. And I repeat myself: We cannot prove there is a link to

25 the accused, and I stay away from such an allegation. However - and I

Page 82

1 will expand on this issue later on - it seems to be of quite an

2 importance.

3 MR. JONES: Your Honour. Your Honour, may we ask why the

4 Prosecution hasn't raised these very specific objections at any time in

5 the past? We wrote to the Prosecution some time ago to inquire as to

6 whether they had any specific objections to provisional release. Again,

7 we filed our applications for provisional release calling on the

8 Prosecution to let us know if they had any specific particularised

9 allegations. We've had absolutely nothing until now about these grounds

10 for refusing provisional release, and I think it's quite unacceptable that

11 we should be ambushed with whatever the Prosecution is going to outline

12 now as to threats to witnesses and whatnot of which we have been given no

13 forewarning.

14 [Trial Chamber confers]

15 JUDGE SCHOMBURG: The Trial Chamber finds that the -- the Office

16 of the Prosecutor should concentrate on those issues being -- yes, the

17 central points of this hearing and not to confuse us with new additional

18 elements and information where we can't see the relevance for the decision

19 to be taken today.

20 MR. WITHOPF: I appreciate your comments, and we therefore turn to

21 different issues.

22 With regard to the accused Alagic, I want to mention his criminal

23 background, even if it's only the abuse of an official position, but it

24 shows that he has some background.

25 The Prosecution's assessment with regard to the second matter,

Page 83

1 therefore, is as follows: Although so far no incident of intimidation has

2 been proven, there's a high potential regarding further intimidation.

3 I'm now turning to the issues that fall within the discretion of

4 the Trial Chamber. First of all, and that -- actually, in the context of

5 the previous issue, the effect of a provisional release on the situation

6 in Central Bosnia. It can be anticipated that a provisional release would

7 have a negative impact on the relations of Muslims and Croats in Central

8 Bosnia, and such a provisional release, if granted, would have a very

9 negative impact on the willingness of witnesses to testify. The

10 Prosecution may face serious problems with Prosecution witnesses and

11 potential Prosecution witnesses. For the witnesses, from their view,

12 provisional release, if granted, would make the case look weak, and such a

13 situation could have a serious impact on the willingness of the witnesses

14 to testify or to give a witness statement.

15 The third issue, with regard to proportionality. The accused so

16 far spent only four months in custody. They were transferred to The Hague

17 in the beginning of August. A trial date is envisaged for April 2002.

18 Compared to other accused of the Tribunal whose trial dates were much

19 later, the accused in the present case did not spend substantial time in

20 prison. The Prosecution submits that similar situations should be treated

21 equally.

22 I'm turning to the fourth point with regard to the discretionary

23 issues, the matter of cooperation, as it has also been stressed by the

24 Trial Chamber. It's a matter of fact that the accused cooperated with the

25 Tribunal as court witnesses: Hadzihasanovic and Kubura in the Blaskic

Page 84

1 case; the accused Hadzihasanovic, furthermore, in the Krstic case, and/or

2 gave witness statements. But I need to stress that in all instances, they

3 were heard as witnesses against their former enemies and, as such, they

4 were obviously and apparently willing to cooperate.

5 The accused Hadzihasanovic and accused Kubura were called as

6 witnesses in the Blaskic case. During their testimony, they had to answer

7 questions of the Defence with regard to some crimes that form part of the

8 indictment against them. They either denied that crimes had happened or

9 their knowledge about such crimes. The Prosecution considers such a

10 cooperation as limited. Furthermore, since they have been arrested, all

11 three of the accused exercise their right to remain silent. There is no

12 further cooperation any more.

13 With regard to the family hardship, the Prosecution maintains its

14 position as laid out in the response. I do not want to be repetitive. I

15 only want to mention that it's interesting -- it's interesting enough that

16 the accused Hadzihasanovic has not shown that he had engaged in additional

17 jobs before he was arrested and that the accused Kubura does not make any

18 statement whether he still gets a salary from the Bosnian government.

19 With regard to the health condition, in the opinion of the

20 Prosecution, this is only a relevant factor with regard to the accused

21 Alagic. The medical examination has been ordered. I understand that the

22 medical examination has not yet been carried out. Therefore, the

23 Prosecution's final position depends on the result of such a medical

24 examination.

25 This leads to the conclusion that the Prosecution maintains its

Page 85

1 request that the motions of Hadzihasanovic and Kubura be denied.

2 Concerning the accused Alagic, the Prosecution's position will depend on

3 the result of his medical examination.

4 With regard -- or in the event that the Trial Chamber thinks about

5 to grant provisional release, the Prosecution wants to have imposed

6 certain conditions on the accused as follows: A guarantee that a

7 designated official of the Federation of Bosnia and Herzegovina shall take

8 custody of the accused from the Dutch authorities at Schipol airport at a

9 date and time to be determined by the Trial Chamber; furthermore, that

10 they accompany the accused for the duration of their travel to the

11 Federation of Bosnia and Herzegovina, and that they accompany the accused

12 back from Bosnia and Herzegovina to Schipol airport and deliver the

13 accused back to the Dutch authorities at a date and time to be determined

14 by this Trial Chamber; in addition, that the local police will ensure that

15 the accused report to the police station each day, maintain a log and

16 file, and file a monthly written report confirming the accused's

17 compliance, and immediately report the failure to attend by the accused to

18 the Tribunal; in addition, detain the accused immediately should they

19 attempt to escape or breach any of the terms of their provisional release

20 and advise the Tribunal so that arrangements for his transfer back to the

21 Tribunal can be made; in addition, that whilst on provision release, the

22 accused shall remain within the confines of the Federation of Bosnia and

23 Herzegovina; furthermore, that whilst on provision release, the accused

24 shall surrender their passports to the International Police Task Force,

25 IPTF, or the field Office of the Prosecutor in Sarajevo; in addition, that

Page 86

1 whilst on provisional release, the accused shall report --

2 THE INTERPRETER: Could counsel slow down, please.

3 MR. WITHOPF: I will do so. Furthermore, that the accused shall

4 report each day to the local police; in addition, that whilst on

5 provisional release, the accused shall consent to have the IPTF check with

6 the local police about its presence and to the making of occasional

7 unannounced visits to the accused; in addition, that whilst on provisional

8 release, the accused shall undertake not to have any contact whatsoever

9 nor in any way interfere with any person who may testify at their trial;

10 in addition, that while on provisional release, the accused indicate not

11 to speak to the media or make any public statement; and finally, that the

12 accused shall undertake to comply strictly with any order of this Trial

13 Chamber varying the terms of or terminating their provisional release.

14 Thank you.

15 JUDGE SCHOMBURG: Thank you. Of course, the answer to the

16 question whether a case is ripe for provisional release or not is a very

17 individual one, and we have to take into account the individual situation

18 of each human being. I appreciate very much that we learnt from the

19 Defence counsel in a very honest approach about the problems with the

20 passport and the trial pending in Bosnia.

21 Could the Office of the Prosecutor please provide the Trial

22 Chamber with her view on the relationship of this case, of this ongoing

23 trial in Bosnia? Do you have any further information on the underlying

24 factual basis? And in addition, what is your point of view, what is the

25 impact on the question of provisional release given the case the trial

Page 87

1 goes on? From the point of view of the Prosecutor, can the question of

2 non bis in idem arise? And additionally, what would be the situation if

3 this imprisonment would be upheld and Mr. Alagic would have to serve

4 imprisonment in Bosnia-Herzegovina? Thank you.

5 MR. WITHOPF: To answer the questions, first, we don't have any

6 other concrete information on the local -- with regard to the local

7 proceedings. However, it's obviously a case alleging that Mr. Alagic

8 abused his power in an official position. Therefore, the Prosecution

9 thinks that the question of non bis in idem will not arise.

10 And with regard to the third question, the Prosecution is of the

11 opinion that the international proceedings supersede over the national

12 proceedings.

13 JUDGE SCHOMBURG: Thank you. I take it as given there is no

14 more -- any other --

15 MS. BODSON: [Interpretation] No, Mr. President. No further

16 remarks. Thank you.

17 JUDGE SCHOMBURG: We turn once again to the Defence counsel. Yes,

18 please.

19 MS. RESIDOVIC: [Interpretation] Thank you, Your Honours. I shall

20 be very brief and respond to the points made by the Prosecutor.

21 First of all, the Prosecutor reproached the government of

22 Bosnia-Herzegovina to the effect that the statements of officials were not

23 in conformity with Rule 58, and I wish to draw attention to the fact that

24 Rule 58 has to do with the obligations of the cooperation of states

25 according to Article 29 of the Statute, whereby states are obliged to

Page 88

1 cooperate with the International Tribunal. The Prosecutor and all of us

2 know that the Tribunal consists of Trial Chambers, the Prosecution and the

3 Defence. Therefore, statements by officials of Bosnia-Herzegovina are

4 precisely in line with the behaviour required by Article 29 of the

5 Statute, so that I think this observation cannot be accepted.

6 I repeat that the position of the Prosecution, in spite of all the

7 arguments given by us that the clients apparently voluntarily surrendered

8 after they were arrested, is not in accordance with the facts, because

9 they gave their first statements on the 2nd, prior to the arrest, and two

10 of us three counsels came voluntarily to representatives of the

11 International Tribunal, to whom our client surrendered without any

12 resistance.

13 Thank you, Your Honour, for drawing the attention of the

14 Prosecution not to introduce into these proceedings elements and facts

15 that are not relevant to this case.

16 Another point I wish to make is the attempt by the Prosecution to

17 call in question the full cooperation of my client with the Tribunal and

18 the Prosecution. I think that it is not in accordance with the Rules and

19 the Statute of this Tribunal, because my client -- and there is ample

20 evidence about that, and his statements have been provided as supporting

21 material with the indictment, are relevant to this case, and I think that

22 the Trial Chamber cannot accept any interpretation at the expense of the

23 accused if the accused is resorting to his rights under Article 21.

24 Therefore, this cannot be adversely interpreted or taken as prejudicial to

25 the client. The guarantees proposed by the Prosecution, I think, are

Page 89

1 already contained in the guarantees given by the government, and there's

2 no dispute that my client will accept those terms.

3 As for the seriousness of the charges, I would like to draw the

4 attention of the Court to the European Court of Rights in the case ^ Jacob

5 against Bulgaria, that the Court ruled that the seriousness of charges

6 cannot justify extended pre-trial detention. So even if they were such

7 charges per se, they could not be an argument that the Prosecution can

8 rely on.

9 Finally, in connection with the possibility of influencing

10 witnesses and victims, I should like to draw your attention to the ruling

11 regarding the motion for provisional release in the Brdjanin/Talic case

12 last year, whereby the Tribunal developed its own jurisdiction and

13 explicitly stated that the fact that the accused may be released to the

14 area where the crimes were allegedly committed in itself does not show

15 that he will bring pressure to bear on victims and witnesses and be a

16 threat to them. Furthermore, the very possibility that provisional

17 release may jeopardise the readiness of witnesses to testify does not

18 represent a threat according to the provisions of Rule 65.

19 Those are my additional arguments. I would just like to add, Your

20 Honours, that we have prepared a statement, which my client is ready to

21 sign and hand over to you today, in which he says that he is ready to

22 carry out all the conditions ordered by the Court and is also ready to

23 accept measures that this Trial Chamber might pass regarding restriction

24 of movement. So would you allow my client to sign this statement so we

25 can attach it to the other documents already filed? Thank you.

Page 90

1 MR. JONES: Your Honour, I'm speaking on behalf of General Alagic.

2 THE INTERPRETER: Microphone, counsel.

3 MR. JONES: May it please Your Honour. I'm speaking on behalf of

4 General Alagic. I'll just make a few brief points, but of necessity, the

5 points I'll make will be a bit longer than I had planned, given that there

6 were a number of issues which we heard from the Prosecution which have

7 never been raised before. So this is the first time that we've had an

8 opportunity to respond.

9 The first point concerning voluntary surrender, I note that the

10 Prosecution didn't, in fact, answer the question which you posed, which

11 was, in essence, what more could the accused have done, given the

12 circumstances that they were arrested and they were willing to surrender

13 at the Tribunal. In effect, the Prosecution's letter to the Bosnian

14 authorities left no scope whatsoever for a voluntary surrender, and

15 therefore it's a bit rich for the Prosecution to say that the accused

16 didn't voluntarily surrender and therefore that's the reason for refusing

17 provisional release, when their very own actions deprive the accused of

18 that possibility.

19 But what's also interesting is that the Prosecution raised the

20 point that the Federation of Bosnia and Herzegovina started to implement

21 extradition proceedings, and it seemed that the suggestion was that this

22 casts a doubt on whether the authorities of the Federation of Bosnia and

23 Herzegovina would be able to effectively arrest the accused and transfer

24 them to The Hague. But in fact, what's interesting about that assertion

25 is that, in effect, that recognises that the accused waiving any

Page 91

1 procedures which they could have raised in Bosnia to object to extradition

2 in fact did facilitate their delivery here. They were delivered here,

3 they were delivered here speedily, and the Prosecution in effect concedes

4 with that statement that it was made easier by the accused. So even they,

5 even in circumstances where the accused were deprived of the right to

6 voluntary surrender, in fact, they did all they could, and the Prosecution

7 must admit that actually was effective.

8 Secondly, the Prosecution drew attention to the fact that the

9 accused, or General Alagic, is now no longer being cooperative. But in

10 fact, the Prosecution is wishing to interview Mr. Alagic at this stage,

11 after he's been indicted, for the purpose of this investigation in this

12 trial, in essence, wishing to interview him, I imagine, in order to obtain

13 incriminating statements from him. In no system in the world would it

14 be - at least, not in my system - would one imagine the Prosecution

15 continuing to obtain evidence from the accused after he had already been

16 indicted. So I submit that in the circumstances, it's really unreasonable

17 to hold against General Alagic the fact that he's no longer cooperating,

18 i.e., no longer admitting to be interviewed by the Prosecution.

19 JUDGE SCHOMBURG: May I ask you, Counsel: Of course you're right,

20 but isn't it true, having the right to remain silent in mind, that there

21 can also be a cooperation or cooperative attitude of an accused in a

22 certain case? And what is the expression or the position of your client

23 in this concrete case?

24 MR. JONES: Your Honour, if the Prosecution were wishing to

25 interview General Alagic in relation to other cases, that would be one

Page 92

1 matter. There's been no indication of that. That obviously would be one

2 situation in which General Alagic might be in a position to aid the

3 Prosecution without jeopardising his own privilege against

4 self-incrimination. Secondly, there's the possibility of immunised

5 testimony. If the Prosecution had offered to allow General Alagic to be

6 interviewed by their office, but subject to the condition that nothing

7 that he could -- nothing that he said would be used against him in this

8 trial, then again that would provide scope for General Alagic continuing

9 to cooperate with the Prosecution. Neither of those possibilities have

10 been mooted by the Prosecutor. If they are, then we can take it from

11 there.

12 JUDGE SCHOMBURG: Probably you are aware that the underlying

13 reason for my questions is, of course, that the Trial Chamber has to find

14 out: Are there any reasons distinguishing this case from the case of

15 Madam Plavsic? And as you know, in both cases, there was a point made:

16 voluntary surrender, and, in addition, cooperation with the Office of the

17 Prosecutor in the future. I never would ask your client if he doesn't

18 want to cooperate, but I want to have your attitude, your approach to this

19 question in this present moment of time.

20 MR. JONES: One matter in relation to that which I wish to

21 address, Your Honour, is the fact that there is a danger here that if

22 cooperation of the accused is to become a sine qua non of the Prosecution

23 not objecting to their provisional release, then there's very dangerous

24 scope there for pressure to be applied to an accused to make him give

25 statements which he perhaps is not inclined to do. There is that danger,

Page 93

1 which is a matter I was going to come to later.

2 But the effect on witnesses in Central Bosnia has been mentioned

3 of the provisional release. Well, that's exactly the same situation that

4 General Sefer Halilovic is in, and in that case the Prosecution is not

5 objecting, as far as I understand it, to his provisional release, and as

6 we know, Sefer Halilovic is cooperating with the Tribunal, with the

7 Prosecution. Now, as I said, that creates dangerous scope for the

8 Prosecution, in effect, saying, "Cooperate with us or we'll ensure that

9 you remain in custody for a long time before your trial starts." And I

10 think the Chamber should be very astute to ensure that that sort of

11 pressure isn't applied.

12 If I can move on to the mention of the Mujahedin. The Prosecution

13 began to suggest that since there are cases that the accused controlled

14 the Mujahedin, that in effect there are hoards of Mujahedin out there who

15 are willing to go and intimidate witnesses or interfere with evidence.

16 Now, first of all, I would say General Alagic is presumed innocent

17 at this point. It's not to presume that the charges which the Prosecution

18 have laid in the indictment are irrefutably true. And in any event, the

19 Prosecution's case is not that General Alagic ordered the Mujahedin to do

20 anything. It's that he failed to prevent them from doing anything. So in

21 any event, even that suggestion contradicts the Prosecution's own case in

22 the indictment.

23 Finally, Your Honour, I think that would be my replies to what the

24 Prosecution said. I did want to just put into context all of what you've

25 heard today. Obviously, the Chamber has heard a great deal of discussion

Page 94

1 on this matter, and I won't go through all the various factors again. But

2 Your Honour referred earlier to the question of proportionality. I would

3 submit that it is disproportionate to keep the accused in custody in

4 circumstances where there are much less Draconian methods to ensure that

5 the accused do appear for trial. A curfew is a possibility, an order that

6 the accused be at his residence after a certain hour, at which point the

7 authorities can check that he's there, and by various means, or house

8 arrest. As indeed the Prosecution recognised towards the end of their

9 speech, there are other methods available.

10 Finally, I would just like to put in context the test, in essence,

11 which you have to apply. It's long been said at this Tribunal that the

12 Tribunal is at a disadvantage and that it doesn't have its own police

13 force and therefore it has to rely on national authorities. And

14 generally, where one has been dealing with Republika Srpska and initially

15 Croatia, it is true that there were not willing authorities on the ground

16 willing to execute warrants. In this case, I think it's abundantly clear

17 that the Bosnian authorities are fully willing to cooperate. So in

18 effect, one has an effective police force on the ground.

19 In effect, that means that the rationale for treating detention as

20 the rule and provisional release as exceptional disappears, and at that

21 moment I would submit it's simply a question of considering the arguments

22 of both parties and not considering that there's a substantial burden on

23 the Defence which is very onerous for the Defence to discharge. It's

24 simply a question of whether you are satisfied that the accused will

25 appear for trial. And I would submit that even the Prosecution -- can

Page 95

1 they, hand on heart, say with all these conditions imposed, they genuinely

2 fear that the accused will not appear for trial or will interfere with

3 witnesses? I submit that they can't and that you can be satisfied, with

4 the curfew or the house arrest, that the accused certainly will reappear.

5 We also have an additional undertaking which General Alagic has

6 signed with respect to his willingness to abide by any restrictions on his

7 movement and not to interfere with any documents.

8 And unless I can assist you any further, those would be my

9 submissions.

10 JUDGE SCHOMBURG: We would appreciate to have this in writing

11 too. It facilitates our deliberations. One question only remaining, just

12 to be quite clear on this issue. It was submitted by the Office of the

13 Prosecutor, quoting an affidavit, that the return from Croatia was not a

14 voluntary one. Could you please address this question once more? Thank

15 you.

16 MR. JONES: It's a question for Mr. Kubura, I believe. Yes.

17 JUDGE SCHOMBURG: I believe Mr. Kubura's Defence counsel will

18 start now.

19 MR. DIXON: Yes, Your Honours. On behalf of Mr. Kubura, that was

20 the first matter that I wished to deal with, which is whether or not he

21 knew about the indictment when he was in Croatia. In his affidavit, he

22 makes quite clear that when he was contacted while on an annual leave in

23 Croatia, that he was told about the indictment. He didn't have a copy of

24 the indictment at that stage, but he knew of the indictment issued by the

25 Tribunal in general terms, and that is why he returned from Croatia to

Page 96

1 Sarajevo, in order to sort this matter out. He didn't bring his family

2 back, because he didn't want his family to be there while this matter was

3 to be dealt with, and he was going to make arrangements for his family to

4 return later.

5 The reason why, in the affidavit of Mr. Lusija, that it

6 states - and I'm looking at the affidavit now, which is in enclosure 1 of

7 our reply - that Mr. Kubura said that "You should have told me this

8 straight away" is that he's referring to the order of the Supreme Court.

9 He's referring to the order of the Supreme Court. He didn't know that the

10 Supreme Court had issued an order for his extradition. This came as a

11 surprise to him. And that's why in the affidavit you get the comment

12 later on that he felt somewhat aggrieved by the situation, because he had

13 said all along, "If there's ever an indictment, I would go to The Hague.

14 There's no problem. I will surrender myself. So why did you therefore

15 have to take this procedure of going through the national courts and

16 getting an extradition order for my detention?" And that's the reason why

17 he said, "Well, you should have told me about this straight away, because

18 if I knew that, if I knew I was going to be arrested right now, as you're

19 telling me, well, then I would have brought my family back." He was under

20 the impression that there would be some time after the indictment was

21 issued for him to make arrangements, to sort out matters with the Bosnian

22 government, with his family, and then to be transferred to The Hague, and

23 that is, we would submit, indicative of his state of mind at the time,

24 that he did wish to surrender voluntarily. He did not think that there

25 would be any need for an arrest of this kind.

Page 97

1 Your Honour, just a few further matters. The first, in relation

2 to his arrest, we would submit that the Prosecution's arguments that it

3 wasn't voluntary because he was already detained under this extradition

4 order before he decided to hand himself over is really a matter of

5 splitting hairs. It's very artificial. Mr. Kubura came back from Croatia

6 because of the indictment, and he intended to surrender and he was

7 arrested because he wanted to be transferred to The Hague. That was the

8 whole purpose of this exercise. There's no other reason why he would have

9 surrendered if it wasn't because of the indictment in The Hague. So that

10 argument, we submit, has got no merit.

11 I also wish to underline that it is significant that the

12 Prosecutor has accepted that the government's guarantees are sufficient

13 and that they are sufficient in practice as well. I think - and I might

14 be wrong here - that this is probably the first case ever where the

15 Prosecution has accepted guarantees from a government with regard to the

16 release of an accused. I think that is very significant to bear in mind

17 for this case.

18 In addition, a number of smaller matters. The Prosecution has

19 raised that it might make the case look weaker or sour relations between

20 Croats and Muslims if these accused were released. We submit that those

21 are considerations that form no part of such an application. In fact, in

22 many jurisdictions, if the case is weak, that is a reason why the

23 defendants should be released, because of the strength, or lack thereof,

24 of evidence against the accused.

25 Secondly, in respect of willingness to testify, that has been held

Page 98

1 already to not be a consideration either, that witnesses might now not be

2 willing. It's a matter that can't be accurately determined anyway. It's

3 a general statement.

4 Thirdly, the trial date that was mentioned of April 2002, that's

5 incorrect. There's no trial date been fixed in this matter yet. The

6 matter is open. The parties are endeavouring, as is Mr. Kubura, to ensure

7 that the trial starts as soon as possible. And the aim is to try and

8 start it next year, but there's no fixed date yet. So if provisionally

9 released, there would be, we say, a substantial time that they would be

10 out of custody before the trial commences.

11 Then on the point made by the Prosecutor that Mr. Kubura didn't

12 cooperate fully when he came to the Tribunal for the Blaskic case, if the

13 you consider that testimony, you will note that he answered many questions

14 in respect of the matters in hand in that case, and others, about what was

15 occurring. He was full and frank there, and fully cooperated both in

16 travelling to The Hague and also answering questions and returning.

17 And then finally, there was a question raised about his salary,

18 whether he's still receiving a salary from the Bosnian government. If

19 Your Honours look at our reply, it's quite clear that he's no longer

20 receiving any income from the Bosnian government. As a result of the

21 indictment, he no longer holds an official position in the Bosnian army,

22 and that is the reason why there are financial difficulties being

23 experienced now with his family, and it's because of those hardships that

24 he has indicated if he was able to return, he could obtain employment and

25 once again become the breadwinner of his family.

Page 99

1 Your Honours, those are my submissions. My final point would be

2 that in the circumstances of Mr. Kubura returning from Croatia back to

3 Bosnia as a result of this indictment, that it is a very unique situation

4 for him to have done that, and it certainly provided opportunities at the

5 time for him to abscond if he ever had that idea, but he came back. It's

6 very unique. Once again, I cannot think of a situation where that has

7 occurred in exactly the same way before.

8 Those are our submissions, Your Honour.

9 JUDGE SCHOMBURG: Thank you. In addition, I would invite the

10 Office of the Prosecutor, in a way of rebuttal, to address the question

11 raised by the Trial Chamber. What is, from your point of view, the

12 distinguishing factor, the distinguishing facts justifying a different

13 treatment in the case of Madam Plavsic and the case we have to decide on

14 today?

15 MR. WITHOPF: Your Honour, before I'm going to answer this

16 particular question, I want to make a few additional observations.

17 The Prosecution strongly opposes to introduce the case against

18 Halilovic in these proceedings. The case against Halilovic, the accused

19 Halilovic, is a very different one, not only with regard to cooperation

20 but also with regard to other issues that are of relevance for the issue

21 of granting provisional release.

22 Secondly, the explanation that was given by Mr. Kubura's Defence

23 with regard to the affidavit, it's not necessarily convincing. For me,

24 it's still surprising that Mr. Kubura did not take his family with him

25 home to Sarajevo --

Page 100

1 JUDGE SCHOMBURG: I believe you have made this point.

2 MR. WITHOPF: I will come to the distinguishing factors. I mean,

3 there are a few distinguishing factors. One of them, of course, is the

4 age of the accused in the other case and in this case. And there's also a

5 distinguishing factor insofar as Mrs. Plavsic has cooperated with the

6 Tribunal. That's very different from the situation to our accused.

7 But therefore, before I come to an end, I want to request an

8 additional guarantee. The Prosecution requests that if provisional

9 release will be granted, that there will be no contact of the accused with

10 each other. Thank you very much.

11 JUDGE SCHOMBURG: Thank you. In order to have a fair trial, you

12 should have the possibility to address. Please, one sentence only.

13 MR. DIXON: Yes. Your Honour, I apologise. This was a matter

14 that I left out in my initial submission, that is, that there is also a

15 declaration by Mr. Kubura, to be signed by him, indicating, as was

16 specifically raised by Your Honours, that he will not try to gain access

17 to any documents if provisionally released and that he will comply with

18 any measure regarding restrictions in his movement within a town or area

19 as has been proposed.

20 JUDGE SCHOMBURG: Thank you. Any other comments from the side of

21 Defence? I don't see any.

22 Then we invite the accused, if they want to give a statement. And

23 this is, of course, a statement of the accused applying Rule 84 bis

24 correspondingly. That will say it's not a kind of witness statement but

25 the right of the accused to address the Trial Chamber directly.

Page 101

1 Mr. Kubura, do you want to address the Court?

2 THE ACCUSED KUBURA: [Interpretation] Yes.

3 JUDGE SCHOMBURG: Then please rise and come to -- could you please

4 come here and take the place where normally is the place of the witness.

5 Thank you.

6 THE ACCUSED KUBURA: [Interpretation] Your Honours, I should like

7 to put forward certain elements with respect to my request for provisional

8 release. What I have to say is the following: First of all, in viewing

9 the entire area of the former Yugoslavia, starting with the Republic of

10 Croatia via the Federation of Bosnia-Herzegovina and Republika Srpska, the

11 Republic of Serbia, the Federal Republic of Yugoslavia, we can quite

12 certainly say and we agree that the government of Bosnia-Herzegovina has

13 had exemplary cooperation with the Tribunal so far, and an indication of

14 this and proof of this is that there is not a single person or not the

15 territory of Bosnia-Herzegovina against whom an indictment has been raised

16 by this Tribunal without that individual giving himself up voluntarily to

17 the Tribunal or being held in custody, which is not the case with the

18 other areas and territories of the former Yugoslavia.

19 The representatives of the government in this case and on this

20 occasion, Deputy Minister for the Interior and Deputy Justice Minister,

21 amongst other things, in the presentation they made a moment ago stressed

22 these elements and facts.

23 Furthermore, they also emphasised that we gave ourselves up

24 voluntarily to The Hague Tribunal. And I will speak in my own personal

25 name. On that occasion, they, as the regular representatives of the

Page 102

1 government, stressed through their briefing that we surrendered

2 voluntarily. In addition to saying that the government of the Federation

3 of Bosnia and Herzegovina has had excellent cooperation with the Tribunal

4 thus far and in addition to the report they tendered a moment ago, I see

5 no reason for not believing those two individuals and their government,

6 the government they represent. Otherwise, this would be undermining the

7 government if we compare it to other governments that have not hitherto

8 fulfilled their obligations towards this court and Tribunal.

9 In concrete terms, when it comes to my own particular case and me

10 personally, on the 2nd of August this year, I was at the seaside with my

11 wife and three children. In the morning, at 10.05, I was called by my

12 commander and asked to come to the headquarters to report to him there.

13 Let me emphasise that I was holidaying by the sea in Croatia, which is

14 another state. I had a passport, as did my wife and my children.

15 On the basis of a telephone conversation which lasted 10 to 15

16 minutes, I was able to assess and size up the situation. But in view of

17 the communication lines, I was not able to talk about that concrete case.

18 So that is -- it was my personal assessment and appraisal of the

19 situation.

20 I decided to return immediately and to go back to Sarajevo, and I

21 told my wife that she should stay where she was with the children and that

22 I would let her know in due course and tell her whether I would come and

23 fetch her or whether I would send somebody to fetch her.

24 I reached Sarajevo at about 1620 hours. I had a change of

25 clothing and went to my headquarters to report to my commander. I told

Page 103

1 him that I wished to be allowed to go to Den Haag to defend myself and

2 prove my innocence. I called my relative up and told him to go and fetch

3 my family by car, and that's what he did that afternoon and in the course

4 of the night, and he accomplished that by the morning.

5 I went to my apartment, took the basic essentials, and went to the

6 Ministry of the Interior, which means that I never had any contact with

7 the police nor was I detained or taken into custody, nor did I have

8 handcuffs on me or anything of the kind.

9 I think that it was between 1900 and 2000 hours when I entered the

10 Ministry of the Interior and remained there until the following morning.

11 On the following morning, I signed a statement in the Ministry of Justice,

12 stating that I wished to be provided transport to The Hague. So that was

13 then the 3rd of August.

14 On that morning, my wife and children were also brought to the

15 Justice Ministry, and I spent half an hour with them in a room in the

16 Ministry. I said goodbye to them and started out for The Hague.

17 Let me mention that in the meantime, while I have been here, my

18 family was moved out of the apartment that we were living in. My family

19 is now in another apartment. And actually, I don't know where they are

20 living because I never went to that apartment. I know the street they

21 live in and the number of the house and that they are in Sarajevo. My

22 wife is unemployed.

23 Now with respect to my testimony in the Blaskic trial. I was

24 invited by the Prosecution -- I was not invited either by the Prosecution

25 or the Defence. I was invited by the Trial Chamber, and at that time -

Page 104

1 and it was 1999 - I could have agreed to come to testify or not agreed at

2 the invitation of the Trial Chamber. The fact that I acquiesced proves

3 that I cooperated with the Tribunal at that time. I agreed to come, and I

4 came and testified. Now, this act on my part demonstrated my willingness

5 to cooperate with the Tribunal.

6 Let me also mention that so far, I have never been convicted of

7 any criminal offence nor have any proceedings been brought against me.

8 Your Honours, I have been informed in detail with Article 65 of

9 the rules and regulations, so that if I am provisionally released, I

10 hereby state that I will abide by the provisions of Rule 65 in its

11 entirety and that I will adhere to any decision you see fit to make, as

12 well as the guarantees that have been provided by the government of the

13 Federation of Bosnia-Herzegovina.

14 That is what I wanted to say, Your Honours. If you have any

15 questions, I shall be willing to answer them.

16 JUDGE SCHOMBURG: Thank you. Please be seated at your place once

17 again.

18 We now turn to Mr. Hadzihasanovic. Would you please come.

19 THE ACCUSED HADZIHASANOVIC: [Interpretation] Your Honours, thank

20 you for giving me this opportunity to say a few words, and I will not take

21 long.

22 I should like to begin by saying that I cannot avoid being

23 disappointed and hurt why I wasn't given an honourable legal summons to

24 come to the Tribunal, even if it were in the form of an indictment. I was

25 one of the few people who, with the Prosecution, at the end of 1996 and

Page 105

1 1997, cooperated not only from -- not only regarding the 3rd Corps zone of

2 responsibility but whole of Bosnia-Herzegovina. Should such a need arise

3 again in the future, I will be ready to cooperate. I will make no further

4 comments about that. I consider myself to be here on an absolutely

5 voluntary basis.

6 Secondly, I wish to defend my honour and my freedom, and I wish to

7 struggle for my family. I have a wife who is unemployed and two children

8 who are students. Both are on the first year of the university. My

9 daughter is studying law; my son, economics. They need me at this stage

10 of their studies. I would like them to be good students. And I wish to

11 solemnly declare here that I will appear in court at each hearing.

12 Secondly, I declare that I will not represent a threat, nor will I

13 bear any kind of influence on victims and witnesses. I also declare that

14 I will implement all other additional orders made by this Trial Chamber

15 and respect all the guarantees given here by the government of the

16 Federation of Bosnia-Herzegovina. Thank you.

17 JUDGE SCHOMBURG: Thank you very much. Please be seated. We now

18 turn to Mr. Alagic, please.

19 THE ACCUSED ALAGIC: [Interpretation] Your Honours, I would like to

20 thank you for giving me the opportunity of saying a few words here before

21 you. I should also like to take advantage of this opportunity to greet

22 the representatives of the Prosecution and also the representatives of the

23 government from the country from which I come, from the Federation of

24 Bosnia-Herzegovina.

25 Having listened to the reasons put forward and the problems that

Page 106

1 might arise if I were to be provisionally released, I do not think they

2 can be upheld. My name is Alagic, my father's name is Redzo, and my first

3 name is Mehmed. I have always cooperated with the representatives of the

4 investigators of the Tribunal and the Prosecution, not only by giving

5 certain statement but also by assessing in the field towards the detection

6 and discovery of certain things in certain regions, and mass graves.

7 As somebody who has gone through the war, I have had the

8 opportunity -- and I could have had the opportunity of perhaps leaving my

9 own country. Mr. President, President of this Trial Chamber, the only

10 country I know is the State of Bosnia-Herzegovina. That is my country.

11 It is now a Federation, and my place of residence is there in the

12 municipality of Sanski Most. The address is Kljucka, number 42. I am

13 somebody who has been demobilised, but I have not been pensioned off

14 immediately after the war, which means that I do not have the possibility,

15 nor would I access documents of any kind. That can only be done with

16 people who have specific authority and permission to do so.

17 At the time in the past, the time for which the members of the

18 Prosecution have accused me of having committed certain crimes during that

19 period of time, I think that this Trial Chamber and this Tribunal will

20 be -- bring in the correct decision with respect to those crimes and

21 whether I committed them or not. Despite the difficult times, I am

22 somebody who by my conduct and behaviour always endeavoured within the

23 frameworks of my competencies in terms of reference to solve the questions

24 and problems which five or six years after the war have become a

25 cornerstone and stumbling-block. I always value sincerity.

Page 107

1 People who have made statements are also my good friends. They

2 are my colleagues, my fellow soldiers, who were -- who had undertaken

3 various missions in those regions. So I was not somebody who could have

4 committed anything of that kind.

5 The case which is being tried before this Tribunal and the case

6 that I have -- that legal proceedings have been undertaken against me is

7 that I overstepped my authorisation with respect to the budget and the

8 resources within the budget, and part of the testimony so far has showed

9 that the damages amount to 1.250 German marks. And the Court, in the

10 first instance, did not recognise the decisions about the rebalance of the

11 budget during that period.

12 I do not want to discuss the decisions. I think that they are

13 still the subject of similar proceedings, whether the rebalance of the

14 budget will be adopted or not, and the Ministers can bear this out. I

15 considered, at the time, that by adopting a decision to rebalance the

16 budget, that the decision had been made on the use of those funds and

17 resources.

18 As to some additional questions with regard to expert reports, the

19 cantonal court, which is a court of the first instance, did not accept all

20 these reasons, and I lodged an appeal to the Supreme Court of the

21 Federation with respect to the Court's ruling. Neither at that time nor

22 otherwise - although some people might have arrived at the wrong

23 conclusion - not even then was any pressure exerted on potential witnesses

24 at that time. I am by nature a man who would never even envisage exerting

25 pressure on anybody. The truth must be shown to be the truth by the

Page 108

1 truth.

2 Now, whether there was voluntary surrender or, as the Prosecution

3 stated, that it was an arrest without coercion, the gentlemen from the

4 government were also able to call me up on the phone. They could have

5 called me to come to Sarajevo from Sanski Most without sending a car or a

6 driver or anybody else to fetch me. I would have come of my own free

7 will. Your Honours of the Trial Chamber, I should like to have come as a

8 citizen of the State of Bosnia-Herzegovina by plane. I should like to

9 have come directly to The Hague and not to have been transferred from one

10 base in Bosnia-Herzegovina by a military transport plane to The Hague

11 here.

12 I can also state that I have nothing to fear, nor any restraints,

13 because it is truly an honour and privilege to stand here before this

14 Tribunal and Trial Chamber and to have the truth presented here and

15 proved, the truth and only the truth.

16 In one of the cases that was tried by this Tribunal in The Hague,

17 I was invited to come to The Hague, and I came. I spent several days in

18 The Hague, and I think that I made a statement on that occasion. But the

19 questions that were asked me on that occasion were not quite clear to me

20 so that I was not able to give any relevant information in that regard.

21 I stand at your disposal. I am willing to accept every decision

22 and ruling that you might make, all the measures that you might prescribe,

23 and regardless of everything else, I am ready and willing to come here to

24 The Hague, to the Tribunal, to this Court. May I just say that the only

25 thing that could prevent me would be my death, because I am a living

Page 109

1 being, a human being, and that too can happen.


3 THE ACCUSED ALAGIC: [Interpretation] If you have any questions, I

4 shall be happy to reply.

5 [Trial Chamber confers]

6 JUDGE SCHOMBURG: As you may have seen, we discussed the further

7 proceedings, and we decided that the case is not ripe for a decision

8 today. We have to discuss some issues in depth, and therefore we will

9 finalise this day. Let's call it a day now and start again tomorrow, 3.00

10 in the afternoon. Are there any obstacles from the parties as regards

11 this point in time?

12 MR. WITHOPF: Not from the side of the Prosecution.

13 JUDGE SCHOMBURG: I can't see any objections, so we meet again

14 tomorrow, 3.00.

15 --- Whereupon the Motion Hearing adjourned at

16 6.17 p.m., to be reconvened on Thursday, the 13th

17 day of December, 2001, at 3.00 p.m.