Tribunal Criminal Tribunal for the Former Yugoslavia

Page 17

1 Monday, 23 September 2002

2 [Provisional Release Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 11.02 a.m.

6 JUDGE LIU: Good morning, ladies and gentlemen.

7 Madam Registrar, would you please call the case.

8 THE REGISTRAR: Case number IT-95-11-PT, the Prosecutor versus

9 Milan Martic.

10 JUDGE LIU: Thank you. May we have the appearances, please, for

11 the Prosecution.

12 MS. UERTZ-RETZLAFF: For the Prosecution, Mr. Alex Whiting and my

13 name is Hildegard Uertz-Retzlaff.

14 JUDGE LIU: Thank you. For the Defence.

15 MR. S. KASTRATOVIC: [Interpretation] For -- the Defence team

16 consists of myself, Strahinja Kastratovic, and my assistant Marko

17 Kastratovic.

18 JUDGE LIU: Thank you. May I attend to the distinguished

19 representatives from the government of the Federal Republic of

20 Yugoslavia. Would you please introduce yourselves and your colleague to

21 us.

22 MR. MARKOVIC: [Interpretation] My name is Savo Markovic, Federal

23 Minister of Justice, and I will present the guarantees of the federal

24 government and the government of the Republic of Serbia.

25 MR. VUKASINOVIC: [Interpretation] My name is Dusan Vukasinovic,

Page 18

1 first counsellor of the Yugoslav embassy in The Hague.

2 JUDGE LIU: Thank you very much. This Trial Chamber is very

3 grateful for your appearance on such short notice. We appreciate your

4 coming to The Hague with your delegation, which indicates the willingness

5 of the government of the Federal Republic of Yugoslavia to cooperate with

6 the Tribunal.

7 We may ask you to address the Chamber and ask you some questions

8 at a later stage.

9 Mr. Martic, are you hearing the proceedings in a language that you

10 understand?

11 THE ACCUSED: [Interpretation] Yes, I can. I can understand.

12 JUDGE LIU: You may sit down, please.

13 THE ACCUSED: [Interpretation] Thank you.

14 JUDGE LIU: Today's hearing will be divided into two sittings.

15 The first is the provisional release hearing. The second is the Status

16 Conference. Between the two, we will have a very short break.

17 In the Order scheduling a hearing on the motion for provisional

18 release under Status Conference rendered by this Trial Chamber on 9

19 September, 2002, the Chamber considered itself seized of the motion for

20 provisional release filed by the former counsel Knoops on the July 9th,

21 2002, and after request for provisional release until the beginning of the

22 trial filed by the accused on July 10th, 2002.

23 This Trial Chamber also received the reply of the Prosecutor dated

24 July 18th, 2002, and a guarantee of the government of the Federal Republic

25 of Yugoslavia and the government of Serbia.

Page 19

1 The provisional release hearing will, therefore, be conducted on

2 the basis of these provisions.

3 Here is the full bench of the Trial Chamber. Sitting on my right

4 is Honourable Judge El Mahdi, and sitting on my left is Honourable

5 Judge Orie. My name is Liu, the presiding Judge of this Trial Chamber.

6 Since the Defence counsel applied for the provisional release of

7 Mr. Martic, I would like to turn to Mr. Kastratovic first. Would you,

8 please, outline the main points in your request very briefly and add

9 anything that you feel that is new.

10 Mr. Kastratovic.

11 MR. S. KASTRATOVIC: [Interpretation] Thank you, Your Honour, for

12 this opportunity to speak. At the outset, I would like to say that you

13 don't have my appeals in this case. You have the appeal by Mr. Knoops,

14 the lawyer from Amsterdam, which was written rather formally and does not

15 include certain significant circumstances which should have been included.

16 Formally speaking, only because Mr. Knoops was never accepted by

17 Mr. Martic, the accused in this case, as his own counsel. Figuratively

18 speaking, the dispute between the Prosecutor's office and the accused

19 lasted for two months, during which time Mr. Martic was deprived of

20 Defence counsel.

21 He is a sick man, a man in detention, and as a patient has the

22 right to choose the surgeon who will operate on him. The accused person

23 has the right to choose his own counsel. Thanks, however, to the decision

24 of this Trial Chamber, I am here again as his Defence counsel.

25 At the outset, you asked me to be brief. I would like, however,

Page 20

1 to ask you for a certain amount of patience, although I will be using your

2 time sparingly.

3 Since you do not have in front of you my appeal, however, I need

4 to elaborate in greater detail about the case of my client. You know that

5 his indictment was raised in 1995 and became effective only the 21st of

6 September this year. He has been in detention for four months now. In

7 one of the following stages, we will discuss the events that took place

8 during those four months.

9 I have to stress, however, whichever way we look at it, the Court

10 bases its decisions exclusively on law. However, there is always a

11 political side to things, and even though I will be abusing my rights to a

12 certain extent, I must point this fact out.

13 Mr. Martic was a leader of a nation which no longer exists in

14 Croatia. Starting from 1991 when the first 182 villages were evacuated

15 from Western Slovenia and then on the 1st and 2nd of May of 1995, in the

16 so-called military operation, the remaining 30.000 people were driven out

17 from that part of Croatia, which was followed by the notorious date of the

18 5th of August, 1995, when in the Knin Krajina, the remaining 250 to

19 300.000 Serbs were expelled from Croatia.

20 I do have to remind you of this at this point, although this topic

21 will be much discussed, I'm certain, in the months that follow. Let me

22 also remind you that once upon a time, there was about a million Serbs in

23 Croatia. Nowadays there are no more than 100 to 120.000. The rest were

24 expelled in a brutal operation of ethnic cleansing. Those were the Serbs

25 who had lived in Croatia for many hundreds of years.

Page 21

1 Has anyone from -- has anyone yet answered before this Court for

2 the expelling of Serbs from Croatia? Many thousands of people were driven

3 out of Croatia and now live in Serbia, Montenegro, and elsewhere. Do we

4 have here before this court any of the commanders who commanded this

5 operation?

6 JUDGE LIU: Well, Mr. Kastratovic, I have to remind you that today

7 is a hearing of the provisional release of your client; we are not

8 discussing about potential issues of this case, and we will not discuss

9 about the previous counsel, the counsel assigned by this Trial Chamber.

10 I hope you could concentrate on the reason why you applied for the

11 provisional release of your client. There are plenty of opportunities in

12 the future for you to address to this Court about the substantial matters

13 of this case. We'll give you the opportunity at a later stage. Please

14 concentrate on the very issue of today's hearing, that is, the provisional

15 release of your client.

16 MR. S. KASTRATOVIC: [Interpretation] Do you allow me to continue?

17 JUDGE LIU: Yes.

18 MR. S. KASTRATOVIC: [Interpretation] I understand this warning,

19 but it seems to me that I have been trying to paint a picture of an

20 injustice, precisely the injustice which brought my client here to the

21 dock. This is the reason for this little speech of mine. I'm not now

22 speaking to the merits of our case. This is just something that I would

23 like the Honourable Trial Chamber to bear in mind when deciding about my

24 client's case.

25 As for other reasons of a more personal nature, I would like to

Page 22

1 remind you, Your Honours, that my client uttered a sentence which I

2 second. From the very beginning, I have had a great trust in this

3 Tribunal. My client has trust in this Tribunal from the day when

4 government adopted the law on cooperation with it. Many people have

5 appeared with this Tribunal, backed by guarantees from my government,

6 which you will later deliberate upon.

7 I have one misgiving, however, namely that you are not really

8 giving great credit to my country's willingness to cooperate with the

9 Tribunal. It seems to me that the experience that my government and my

10 people have of cooperation with this Tribunal and with the Office of the

11 Prosecutor are pending the credibility in that -- of that cooperation.

12 Certain people have already been granted provisional release on grounds of

13 sickness and other grounds and have been returned -- and have returned to

14 their homeland.

15 During the military operation, when 300.000 Serbs were driven out

16 of Croatia, my client moved to Serbia, became a citizen of Serbia, of

17 Croatia, and was never involved in politics again. That means that from

18 1995, he has partaken of the same misfortune, he has shared the same

19 suffering that his people have undergone. But from that day onwards, he

20 no longer took part in the civil war. He lost whatever he had together

21 with his people, and he was only interested in seeing what the

22 international community would do to prevent this misfortune.

23 He is a permanent resident of Yugoslavia. He has a Yugoslav

24 passport. His family resides there. His son is a student of law.

25 Another son is a student of political sciences. His spouse lives there.

Page 23

1 And he has absolutely no reason to violate the guarantees provided by his

2 government.

3 Let me now turn to another point, special guarantees and special

4 circumstances, that he would report to a police station in Vrnjacka Banja

5 regularly, once in 30 days, or perhaps even in shorter intervals and that

6 he would report any change of address if he moves to Belgrade.

7 I would like to abstain from suggesting that you release my

8 client, Milan Martic, the very moment when I provide you with abundant

9 medical certificates confirming that my client is seriously ill. He has

10 serious problems with sugar in his blood, the levels of which are

11 extremely unstable and seriously endanger his health.

12 There is another thing that my client would like to notify to the

13 Office of the Prosecutor through this Trial Chamber. If my learned

14 friends from the Prosecution would agree to it in -- pursuant to Rule 71,

15 either here in The Hague or in Belgrade, this accused can grant an

16 interview to the investigators of the Office of the Prosecutor either here

17 or in Belgrade depending on the agreement reached between us and the

18 decision of this Honourable Trial Chamber.

19 I think I have explained clearly in my written submission that

20 there is no reason why my client should not be granted provisional

21 release. He will refrain from any public statement for the entire

22 duration of these proceedings. He will have full respect for this

23 process, including the political process and the fact-finding process.

24 And I should like to say that although I have taken up some more of your

25 time, I hope that I have convinced you of my client's sincerity.

Page 24

1 My colleague Mr. Knoops was not in a position to present these

2 additional reasons simply because he had no contact with my client.

3 Thank you very much.

4 JUDGE LIU: Thank you. May we hear the Prosecution, please.

5 MR. WHITING: Good morning, Your Honours. My name, again, is

6 Alex Whiting. I will be addressing this part of the hearing today. And

7 keeping in mind the Court's request that we be brief and try to bring to

8 the Court's attention any new matters which may be relevant since our

9 filing of 18 July.

10 Our first point is that the surrender -- that the accused's

11 surrender in this case was not a voluntary surrender. The accused -- as

12 we argued in our submission, the accused surrendered in this case only

13 when he had no other choice, when he was, in fact, compelled by the law on

14 cooperation that was passed in Serbia and was facing immediate arrest.

15 The accused himself, as we attached to our submission, stated

16 that -- stated that just before surrendering he thought he would never be

17 forced to surrender, that he hoped that Serbia would never extradite

18 fugitives is to the Tribunal, that he believed that the new law on

19 cooperation was illegal and inconsistent with the constitution and that he

20 only surrendered, in his words, because he had no other choice.

21 In addition, a point that I don't think was sufficiently made in

22 our response, was the law on cooperation included another provision which

23 stated that had if fugitives surrendered immediately before arrest, they

24 would then obtain by law the guarantees from Serbia and from the

25 federal -- the federal government.

Page 25

1 Therefore, the accused obviously made a calculation when the law

2 was passed that he was facing immediate arrest and also if he surrendered

3 before he was arrested he would obtain those guarantees and thereby

4 enhance his chance of obtaining release. When weighed against seven years

5 of refusing to surrender and define an indictment, a Rule 61 hearing, an

6 international arrest warrant, of which -- all of which he was aware from

7 the very date of the original indictment in July of 1995, the

8 circumstances of his surrender in May do not show that he would not be a

9 flight risk in released. In fact, all of the evidence taken together, the

10 circumstances of his surrender which were, in fact, compelled and the

11 circumstances of his flight beforehand would show that he would be a

12 flight risk and could not be relied upon to return to the Tribunal if he

13 were released.

14 I would draw to the Court's attention the decision in the Mrksic

15 case on provisional release which was rendered after our filing on 24

16 July, 2002. That decision addressed some of these very issues. Some of

17 the circumstances, the factual circumstances of that case, are similar to

18 the circumstances in this case, though I would submit that the grounds for

19 detention are much more compelling, much stronger, in that case than in

20 the Mrksic case.

21 In the Mrksic case, the Trial Chamber concerned the circumstances

22 of a so-called voluntary surrender, which were quite similar to this

23 accused's surrender, and found, in fact, it could not be considered

24 voluntary and could not weigh very heavily in favour of release. And I

25 would draw the Court's attention in particular to paragraphs 42 and 43 of

Page 26

1 that decision.

2 In addition in that decision, the -- the Court discounted very

3 heavily the accused's own personal guarantee that he would submit to the

4 jurisdiction of the Court and would return for trial. A personal -- a

5 similar personal guarantee has been offered in this case. The Court in

6 Mrksic found in paragraph 45 of its decision that given the record of six

7 years of flight, this personal guarantee from the accused was not very

8 weighty and could not be considered as a very strong argument in favour of

9 release.

10 The second point I would make, and this is a -- this is, I think,

11 a factual distinction from the Mrksic case and which makes this case, as I

12 said, even more compelling, is that this accused was not just a fugitive

13 for seven years but was what I would call an active fugitive. That is, he

14 actively hid from an indictment of which he was aware, there is no doubt,

15 and did so living under an alias, in hiding both in the RS and then later

16 in Serbia.

17 This is a significant point, I think, for two reasons. The first

18 is it shows this accused's propensity to flee and to avoid the

19 jurisdiction of this court and to avoid the Tribunal. But secondly, and

20 as critically, it shows that this accused has had experience living on the

21 run, living as a fugitive, and that experience is important because that's

22 not an easy thing to do, living as a fugitive, and having that experience

23 is something that he will be able to draw upon again if he is released

24 flees again.

25 The third point I would make is the accused has shown and we have

Page 27

1 attached Articles to our submission which I won't go through in length,

2 but the accused has shown utter and repeated disdain for this court and

3 for this indictment. And this goes back to the Jokic decision which this

4 Chamber rendered, the decision on provisional release, which this Court

5 outlined some of the considerations that should be taken into -- some of

6 the factors that should be considered in considering provisional release.

7 And in paragraph 23 of that decision, this Chamber said that because the

8 Tribunal does not have its own arrest powers and is dependent on states

9 for enforcing its powers, one thing that may be -- have to be considered

10 is stringent conditions of release as a kind of substitute for the

11 Tribunal's own -- the absence of powers by the Tribunal.

12 In this case, the Prosecution would submit that there are no

13 conditions of release that however stringent this court could reply upon,

14 because in light of the utter disdain that this accused has shown for this

15 Tribunal, for this Tribunal's orders, for its indictments, for its arrest

16 warrant, and his repeated statements about this Tribunal, this Court could

17 not have any confidence that this accused would abide by any conditions of

18 release, would feel compelled either to appear or to abide by conditions

19 of release however stringent. Therefore, we would submit that the

20 conditions of release in this case cannot act as a substitute for a

21 finding that this accused is not a flight risk, a finding which given all

22 the evidence I don't think is available based on all the evidence.

23 The next point is that the incentive -- the accused's incentive to

24 flee is now greater than when he came to this Tribunal in May. In May, he

25 obviously, as I said, made a calculation based on the circumstances at

Page 28

1 that time that it was in his best interest to surrender. He thought he

2 was going to be arrested, and he wanted to get the guarantee from the

3 government. Now the circumstances have changed.

4 The Prosecution, as promised in its submission in July, has

5 submitted an amended indictment for the Court's consideration which

6 greatly expands the charges against this accused. The consequence of that

7 is that this accused is facing -- now facing a greater likelihood of

8 conviction, and he is also facing a greater likelihood of a longer

9 sentence, which obviously will bear on his incentive and his calculation

10 about whether he will flee or not.

11 In addition, there are other circumstances that have changed. In

12 May when he came to interest Tribunal, he was faced with this new law that

13 had just been passed and the threat of immediate arrests. Well, in fact,

14 there has just been one arrest under the new law. There have been a

15 certain number of surrenders, but there are many individuals who have not

16 been arrested. Therefore, if released, this accused could very well make

17 a very different calculation about what his self-interest is, a

18 calculation that would be similar to the calculation he made for seven

19 years when he was living as a fugitive, a calculation that now -- that

20 he's not likely to be arrested and now that he is facing a more serious

21 indictment, it is in his interest to flee.

22 Finally, I would address a few of the points that were made by

23 Mr. Kastratovic. He stated that from the very beginning, his client has

24 stated that he has trust in the Tribunal. Well, in fact, that

25 representation is belied by the attachments to our submission which show

Page 29

1 that for years this accused has, as I said, shown disdain for this

2 Tribunal, and only when he was forced to surrender did he begin making

3 other kinds of statements.

4 Mr. Kastratovic also represented that his client is seriously

5 ill. Obviously that is a matter we are hearing about for the first time

6 today, and I would submit is -- it is at this time not a factor that could

7 be considered but would need to be dealt with in a more orderly fashion

8 and a submission from Mr. Kastratovic with the relevant materials that we

9 would have an opportunity to review.

10 Mr. Kastratovic also submitted that Serbia and the federal

11 government are not getting sufficient credit for their cooperation. It is

12 true that there is a guarantee that has been submitted in this case.

13 However, as we stated in our reply, that -- those guarantees, number one,

14 should be treated with caution given the failure to arrest more fugitives

15 that are -- that should be arrested, more fugitives from this Tribunal;

16 and secondly - and I think an equally important point - the guarantees

17 cannot, once again, be a substitute for a finding that has to be made

18 under Rule 65(B) based on evidence that this accused is not a flight

19 risk. He has the burden of showing through evidence that he is not a

20 flight risk, and all the evidence, we would submit, is to the contrary and

21 shows that, in fact, he is a flight risk.

22 Finally, Your Honours, Mr. Kastratovic offered a -- offered on

23 behalf of his client to grant an interview with the Prosecution. That is,

24 of course, something that we would be interested in talking with

25 Mr. Kastratovic further about, however, should have no bearing on his

Page 30

1 provisional release at this stage, should only -- could only possibly have

2 a bearing on his release at a future time if, number one, the interview

3 actually occurs; and number two, what occurs in the interview is that it

4 is a truthful and complete interview by our judgement. Therefore, that is

5 also a matter which at this stage, I would submit, should not weigh on

6 whether this accused should obtain provisional release.

7 If I could just have a moment.

8 [Prosecution counsel confer]

9 MR. WHITING: Nothing further. Thank you.

10 JUDGE LIU: Thank you.

11 Now I may turn to the distinguished representative from the

12 federal republic of Yugoslavia, his excellency Mr. Markovic, the Minister

13 of Justice. You have the floor, sir.

14 MR. MARKOVIC: [Interpretation] Your Honour, the Prosecution, the

15 attorneys for the Defence, I have been authorised on behalf of the federal

16 government of the Federal Republic of Yugoslavia and the government of the

17 Republic of Serbia to offer guarantees for the accused, Mr. Milan Martic,

18 in order for him to be provisionally released until the start of his

19 trial.

20 Since you have the text of the guarantees, there is no need for

21 me to mention the items from that guarantee in particular or to go into

22 any kind of detailed analysis of them, but I can state that these are

23 serious guarantees of a serious state regardless of what the Prosecution

24 thinks about that.

25 Your Honour, Mr. Presiding Judge and Your Honours, my presence

Page 31

1 here today is the best test that my country, my state, and my people are

2 seriously devoted to or committed to cooperation with The Hague Tribunal.

3 That this is so, I would like to note that we only need to look at a few

4 years back and to see how large a step forward we have made over the past

5 year, because the former government not only did not cooperate with The

6 Hague Tribunal but ignored the Tribunal. But since the democratic changes

7 and the democratic government which came into power in the October events

8 in 2001, you can see that this attitude has now changed and that we are

9 committed to cooperation with The Hague Tribunal. Speaking about this is

10 also the law that was adopted in the federal assembly and not in the

11 assembly of Serbia. And they have also offered these guarantees.

12 We have provided guarantees for several of the accused so far, and

13 to date the guarantee in the case of Mr. Gruban has been positively

14 resolved to date.

15 What does a positive decision mean in this specific case? For us,

16 it means a lot. There are a thousand and one reasons for us to ask you to

17 decide positively on this matter, and I will only note the most important

18 one.

19 With a positive decision, we would strengthen the further

20 cooperation of the Federal Republic of Yugoslavia with the International

21 Criminal Tribunal. The public opinion, which is not a meaningless factor

22 in any politically serious state. The faith would be strengthened that

23 this Tribunal is not in the business of issuing selective justice but that

24 it passes down true, real justice.

25 The faith in the Tribunal would be strengthened, and it would,

Page 32

1 additionally, encourage some other people that are outside the reach of

2 the law to voluntarily surrender for whom the federal state would offer

3 its guarantees in turn. This would also strengthen the authority of the

4 federal and the republican bodies of the government. In case of an

5 unfavourable decision I am afraid that anti-democratic and retrograde

6 forces would be directly encouraged, all the more so because we are

7 approaching new elections in Serbia and Montenegro which form this joint

8 state.

9 A positive decision would have a very strong echo also in the

10 international arena since we're on the brink of being accepted into the

11 partnership for peace and the European Council. It would also indicate

12 that we stick to our word. We have invited people to voluntarily

13 surrender, and we have submitted guarantees and then it would be very

14 negative if the Trial Chambers responded or decided negatively on the

15 basis of these guarantees. That would demonstrate a certain attitude

16 toward a state and its guarantees.

17 I also am in favour of equal cooperation. Cooperation must go

18 both ways because both partners in it are equal. If my country's a

19 sovereign state, it should not just be something that is carrying out

20 blindly the instructions of the Prosecution or the Tribunal.

21 I'm almost finished, but I would just like to make a few more

22 remarks about -- in response to what the Prosecution said. The Prosecutor

23 said that the accused did not surrender voluntarily. According to our

24 laws, the accused surrendered voluntarily, and I'm not going to speculate

25 about this. With our guarantees, we guarantee that he will be accessible

Page 33












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13 English transcripts.













Page 34

1 to the bodies, and we do not guarantee any kind of escape with these

2 guarantees and any kind of thinking is not logical in this sense.

3 The federal law has been adopt. The Prosecution is aware of this,

4 and we believe that conditions have been created now for this matter to be

5 positively resolved. Mr. Martic, even if he wanted to, and he does not

6 want to, would have no place to flee.

7 And once again, I thank you very much.

8 JUDGE LIU: Thank you. Mr. Kastratovic, you have something to

9 add?

10 MR. S. KASTRATOVIC: [Interpretation] If you permit me just to

11 response -- to respond to what the Prosecutor said. The Prosecutor, first

12 of all, has a large quantity of contradictory statements that I am not

13 able to comment on each one of those things. His excellency the Minister

14 from the Federal Republic of Yugoslavia has said that the federal

15 government has adopted this law on the 20th of April, 2002 -- yes, the

16 year 2002. This Tribunal has -- Mr. Martic reported to this Tribunal on

17 the 15th of May. So 25 days from the day of the adoption of this law.

18 The second question which the Prosecution continuously insists on

19 is flight. This Tribunal did not recognise the regime of Mr. Milosevic;

20 this is a fact. There is a new regime as of October the 5th, and this is

21 recognised, and it seeks cooperation. It has opened up its archives and

22 wishes to cooperate fully. It wishes also to preserve the civil rights of

23 its citizens. The Prosecution also talked about that.

24 I never said that Martic recognised this court right from the

25 beginning; I said quite the opposite. Martic did not recognise this court

Page 35

1 to the extent that this regime was not recognised by the Tribunal. But at

2 this point, a new law has been adopted and he has acted in accordance with

3 this law. And it says that a person who voluntarily surrenders to the

4 Tribunal, the federal and republican government will offer guarantees for

5 that person. So we have a very clear situation here, the situation in

6 which the Prosecutor states that I stated that Mr. Martic is sick, well, I

7 think it's quite the opposite. Perhaps they didn't quite understand me.

8 I just wanted to state a metaphor, and I wanted to inform you that

9 Mr. Martic, luckily is quite healthy, and that this ephemeral, unimportant

10 fact of his unstable sugar levels, which is perhaps the case with many of

11 us, is not reason why we are calling for or using as the reason to

12 provisionally release him.

13 I was just talking about something else, in fact, that the

14 occasional accused should be returned on the basis of these guarantees,

15 even if they are not in a serious health situation. As opposed to the

16 situation with General Mrksic, no case, no accused has the same

17 circumstances, personal or family circumstances, and their legal and

18 factual circumstances are not the same. So the Prosecution of The Hague

19 Tribunal cannot treat all the accused in a uniform way and to mummify its

20 indictments.

21 Also, the Prosecutor's remark about the fact that the amended --

22 about the amended indictment, it seems to us that this is not okay to

23 include new charges. This indictment has been accepted. We will speak

24 about this later, but this indictment does not practically exist. Why

25 would we use that in our discussions here today when it practically does

Page 36

1 not exist? Their proposals regarding the indictment have not yet been

2 dealt by the Chamber. So by talking about this, they're just prejudicing

3 the accused, the interests of my government, and generally justice, which

4 we expect from you.

5 Thank you very much.

6 JUDGE LIU: Well, this Trial Chamber also received a motion filed

7 by the accused himself -- excuse me. The request of provisional release

8 until the beginning of trial.

9 Mr. Martic, do you want to address on this subject to this Trial

10 Chamber? If so, you may.

11 THE INTERPRETER: Microphone, please, for Mr. Martic.

12 THE ACCUSED: [Interpretation] I would like to say a few words.

13 First of all, I would like to thank my Federal Minister, Mr. Markovic, and

14 also the representative of the embassy, Mr. Vukaskinovic, for finding time

15 to come and provide these guarantees.

16 I do not ask for mercy from this Tribunal. I expect justice. The

17 remarks by the Prosecutor about possible flight or non-recognition of the

18 court are, to a certain extent, true. I really did not recognise this

19 court, and I had my reasons for that. The indictment which was issued

20 against me expressly in 15 days for the bombardment of Zagreb, which I

21 admit to, for reason that I hope will be understood why I did this.

22 At the same time, no indictment was issued against the Croatian

23 government and the politicians for the ethnic cleansing of my people. I

24 did not recognise the court for these reasons. And second, nobody was

25 backing me. I did not have a state. I came to Serbia when the law was

Page 37

1 adopted. Had anybody even backed me, I would have voluntarily

2 surrendered. And the Prosecutor thinks that I did not want to come here.

3 Couldn't I have stayed hidden away for a long time without anybody ever

4 finding me? But I did not think that was the proper course of action. I

5 decided to come in order to clear my name, first of all. And what is most

6 important of all is in order for us to prove the truth about Krajina and

7 to see who caused such an exodus of my people.

8 The new indictment which I received is different from the first

9 indictment. I would call it a packet of nebulous things which I believe

10 that we will be able to reject with the help of my Defence counsel.

11 So I would like to underscore the following amendment asking for

12 mercy. Why would I need to be provisionally released? So that I could

13 spend time in the summer house of my friend where I could prepare for my

14 defence in peace with my attorneys, and then I would be able to be

15 completely prepared to come to this trial in order to reject this package

16 of nebulous matters.

17 There is no need for me to hide. I have a state now, and I have

18 asked God to give me somebody who could be able to give me support, and I

19 have my country now. And I have no intention of escaping.

20 If you believe that you should not grant this request for

21 provisional release, that is up to you, but I do not wish to be here for

22 two years waiting for some trial. And when this trial comes, I hope that

23 it will be a true, just trial.

24 If you release me, there is no need for me to repeat what my

25 attorney and what the Minister stated. I will be reporting to the

Page 38

1 police. There are no reasons for me to flee. I have provided my

2 telephone number, and if necessary, I can report daily to the police and

3 to authorities of the Tribunal. But for principled reasons, it is

4 important for me to show the truth about Krajina. I expect this to be a

5 Tribunal that passes down justice, that hands down justice, and not the

6 other thing which I do not wish to mention.

7 That is all I wish to say. Thank you very much.

8 JUDGE LIU: Thank you. You may sit down, please.

9 Well, I have some questions to ask. Mr. Kastratovic, you

10 mentioned the conditions of your client, and you gave some explanations on

11 that. I understand that this is a subject in the Status Conference, but

12 since you have already mentioned it, would you please clarify your

13 position on this issue? I mean the health conditions of your client. Are

14 there any medical reports in this aspect, whether your client has been

15 taken care of in the Detention Unit here?

16 THE INTERPRETER: Microphone, please.

17 JUDGE LIU: Microphone, please.

18 MR. S. KASTRATOVIC: [Interpretation] Thank you, Your Honour,

19 Mr. Presiding Judge. Just like my client, I am not referring or using his

20 health situation in this matter. His state of health is good. He's a man

21 of 48 years, old, quite fit. He exercises, reads, and so on in the

22 Detention Unit. I didn't even talk about that. I just wanted to talk

23 about what the Prosecutor said through a metaphor, through a story. I

24 wanted to state following: Do we need to wait for him to get sick so that

25 we can release him so that he can die at home? This is what I was talking

Page 39

1 about. But he is a perfectly healthy man, and he has just stated that.

2 I mentioned his sugar levels, blood sugar levels, but I you don't

3 think you need to be offered any kind of proof regarding this matter

4 because this is not something that should be taken into account while you

5 are reaching your decision about granting or not granting the request for

6 provisional release. His circumstances, his family circumstances --

7 JUDGE LIU: Thank you very much.

8 THE INTERPRETER: Microphone, please.

9 MR. S. KASTRATOVIC: [Interpretation] You asked me about -- you

10 asked me about his personal family circumstances. I only talked about his

11 family. Is this what you're asking, where he will be? I didn't quite

12 understand what you were thinking of. If that's all, thank you.

13 JUDGE LIU: Well, I think you have answered my question. Thank

14 you very much.

15 Any questions from other Judges? Judge El Mahdi.

16 JUDGE EL MAHDI: Thank you, Mr. President.

17 [Interpretation] I would like, if you allow me, to address the

18 Defence counsel. If I understood him well, Mr. Martic decided to

19 surrender the moment when the law was enacted, and I mean the law on the

20 cooperation between the Federal Republic of Yugoslavia and the Tribunal.

21 So if I understand well, he was aware of the indictment long before the

22 date when he actually surrendered.

23 Could the Defence please tell us at least approximately the day

24 when he was informed, when he became aware of the indictment? And that's

25 my first question.

Page 40

1 Second, very briefly, he mentioned using a pseudonym and a place

2 of residence that he had chosen during the period between the date when he

3 became aware of the indictment and the date when he surrendered

4 voluntarily. How was it possible for him to take a pseudonym and live in

5 hiding for six or seven years? Was it with the knowledge of the

6 authorities or was it unknown to the authorities at the time? And that's

7 my second question.

8 MR. S. KASTRATOVIC: [Interpretation] The first question -- my

9 response to your first question is not going to be difficult when he

10 decided to surrender. I would like to tell you something here. You never

11 should forget that we were living in an autocratic regime of a man who is

12 before -- who has been brought to trial before this Tribunal here today.

13 I am not entering into any kind of details regarding that person. I do

14 not wish him any -- anything ill. But Mr. Martic [as interpreted] did not

15 recognise -- that person did not recognise the -- the international

16 community or the Tribunal to which the bombing attests.

17 THE INTERPRETER: Interpreter's correction not Mr. Martic but this

18 other person.

19 MR. S. KASTRATOVIC: [Interpretation] So under those circumstances,

20 Mr. Martic did not have the opportunity to act, and he remained in the

21 country. And at that point, as he had said himself, he did not have

22 anybody to back him up in order for him to come forward. He should have

23 been reported in 1995.

24 Your Honours, do not forget that the Croatian state condemned

25 Mr. Martic in absentia to a sentence of 99 years imprisonment. So do you

Page 41

1 really believe that he was fleeing only from The Hague Tribunal? He was

2 fleeing from the Croatian authorities so that he would not arrest him and

3 bring him before their courts. So in such a situation you cannot ask of a

4 man who felt threatened end from several sides to think clearly and

5 sensibly.

6 The moment on the 5th of October, 2000, when the regime in

7 Belgrade changed and when the authorities adopted the law that his

8 excellency the Minister talked about, Mr. Martic surrendered himself 25

9 days after the adoption of this law.

10 So these are the reasons that we are using to explain why he was

11 in hiding and who he obtained these documents from, as you said, false

12 documents, which we're not disputing. We are saying that he received

13 those documents from the police of that regime. So I'm just explaining to

14 you that in this situation, you need to be aware of the full circumstances

15 of Mr. Martic's position. Not only from the aspect of the jurisdiction of

16 this Tribunal but also from the aspect of the court -- decisions of the

17 courts in Croatia which had sentenced him to almost 100 years'

18 imprisonment. Who would not, I ask you, Your Honours, act in the same

19 way?

20 Thank you.

21 JUDGE LIU: Judge Orie, please.

22 JUDGE ORIE: Yes. I've got a few questions for you,

23 Mr. Kastratovic, or to be answered by the -- by Mr. Martic himself.

24 Could you please tell me when exactly Mr. Martic was convicted in

25 Croatia in absentia? What date? What year? Yes.

Page 42

1 MR. S. KASTRATOVIC: [Interpretation] Not exactly, Your Honours.

2 Mr. Martic was not condemned in one court. He was condemned in many

3 courts in Croatia. From the year 1990, the bombing of Zagreb onwards, on

4 many occasions the State of Croatia tried Mr. Martic. We even [as

5 interpreted] received some of those judgements.

6 THE INTERPRETER: Interpreter's correction. We never received any

7 of these judgements.

8 MR. S. KASTRATOVIC: [Interpretation] But there is no question that

9 they exist. You can obtain them from the Croatian authorities and the

10 Croatian courts, and I assure you that I'm not making it up.

11 JUDGE ORIE: Mr. Kastratovic, if you make an argument that

12 Mr. Martic was convicted and sentenced to a 99-year sentence, then it's up

13 to you not to say that we can find these judgements but to tell this

14 Chamber when, for example, the first of these judgements has been passed

15 by what court. That's just providing us with the facts underlying your

16 argument.

17 Do you have this information?

18 MR. S. KASTRATOVIC: [Interpretation] I must remind you that I am

19 aware that I have to prove my every claim. What I have been telling you

20 about I know from the mass media.

21 After the civil war in Yugoslavia, the relationship between the

22 Federal Republic of Yugoslavia and the Republic of Croatia has

23 deteriorated so much that I cannot even ask to get those judgements. All

24 I can do is read about that in their press, in the Croatian press. And

25 indeed I read in the Croatian press that Mr. Martic was condemned in

Page 43

1 absentia to 99 years. Perhaps it is not an exact figure. But if you

2 displayed an interest and contacted the Croatian authorities, I am sure

3 that you would be able to obtain these judgements.

4 Mr. Martic probably knows more about this than I know, but I have

5 read more than once in the Croatian press about trials in absence of

6 Mr. Martic and the judgements handed down.

7 I hope I have explained why I cannot be of more assistance in this

8 matter.

9 JUDGE ORIE: Mr. Martic, do you know when for the first time you

10 were convicted and sentenced in a Croatian court for the shelling of

11 Zagreb?

12 THE ACCUSED: [Interpretation] It is not only the shelling of

13 Zagreb. I never got a single indictment, not even the indictment from

14 your Tribunal. All I know about indictments I know from the press.

15 Croatia selectively raised its indictments, and I was able to find out

16 about them only from the press. Exactly how many years I was condemned

17 to, I never found out.

18 Unfortunately, they are still doing it. The majority of the

19 people who have been ethnically cleansed for only one purpose --

20 JUDGE ORIE: I'm not asking for further statements. I did put a

21 question to you, and the answer of the question is quite clear to me, that

22 you only have information from the press and you have no precise date or

23 year or month for your first conviction. Thank you for your answer.

24 THE ACCUSED: [Interpretation] No, I don't know exactly. All I

25 know is from the media.

Page 44

1 JUDGE ORIE: Mr. Kastratovic, you repeatedly said that -- or at

2 least it has been said that due to the lack of support of a national

3 government, Mr. Martic was not in a position to surrender himself. What

4 exactly has been changed? What is the support, apart from guarantees in

5 respect of a request for provisional release, that is given at this very

6 moment by the state in which he lives and of which he has the

7 nationality? What's the support? Could you please explain to me what

8 difference is? Apart from the guarantees, of course. We heard about the

9 guarantees, but --

10 MR. S. KASTRATOVIC: [Interpretation] You see, Your Honour, perhaps

11 I did not make myself quite clear the first time. There was a regime in

12 Yugoslavia, which you are very well aware of it, and it is now a relic.

13 It ceased to exist on the 5th of October, 2001. Yugoslavia entered a new

14 era on that date.

15 Taking into account and understanding the important changes and

16 the return of Yugoslavia into the democratic community, Yugoslavia

17 understands it has to meet all the standards and requirements for actually

18 becoming a part of that international community.

19 One of the steps in that direction was the law that Yugoslavia

20 adopted on cooperation with The Hague Tribunal. When we speak about that

21 law, we are not only referring to specific guarantees. Please do not

22 forget, Your Honours, that the investigators of the OTP are present

23 everywhere in Yugoslavia. All the archives are open to them, everyone is

24 available to them for interviews. They have the right to read, tape,

25 record. And Yugoslavia is extending them its full cooperation for the

Page 45

1 sake of those more important political aims.

2 What I was saying is that this law encouraged indictees, people

3 who have been indicted by the Office of the Prosecutor, to surrender

4 rather than be brought here by force, in which case they would not be in a

5 position to ask for provisional release.

6 Speaking of my client, I'm basing my request on his personal

7 circumstances and the situation explained by the Federal Minister of

8 Justice.

9 You cannot -- you should not underestimate the presence of the

10 Federal Minister of Justice of Yugoslavia. His presence here signifies

11 the readiness of the federal government to consistently apply the law that

12 has been enacted.

13 I think the Office of the Prosecutor should admit here themselves

14 how well they are received in Belgrade and how full a cooperation they are

15 receiving. They have access to all the archives and documents.

16 The people that Mr. Martic belonged to no longer exists in

17 Croatia. And I don't mean only the Serbian people, I mean also the

18 Albanian, Muslim, Croatian, Serbian, and other people who have all gone

19 through ten years of great suffering.

20 I'm only saying one thing here. Mr. Martic was a representative

21 of one Serbian enclave which counted about a million people. There are no

22 Serbs there anymore. And for the last seven years, he has refrained from

23 involvement in politics, although he could have been politically

24 involved. He is here today, and he will be here again any time you for

25 it. If he doesn't come of his own free will, we have enforcement powers

Page 46

1 and tools and regulations and means to bring him here in handcuffs. He

2 knows that he will not be released before he receives his final judgement.

3 JUDGE ORIE: Mr. Kastratovic, the whole accent during this

4 argument is upon the attitude of the federal government and of the Serbian

5 government. Would you agree with me that the main issue is the attitude

6 of the accused? And if that is a positive that, of course, the support

7 given by the government would certainly assist to convince the Court that

8 a provision release might be taken into consideration, but the only thing

9 I heard until now is that Mr. Martic said that when there was a change of

10 regime that would favour the cooperation with the ICTY, then I will

11 cooperate as well, and up to that moment, it was impossible for me.

12 At the same time, all the press clippings received contain rather

13 strong wordings. Like, if someone arrests me -- I don't know whether he

14 said it or not, but you have not commented on that, I would consider this

15 to be a terrorist act and I would do whatever I have to do under these

16 circumstances.

17 Is there any personal change in attitude apart from referring to

18 the government? Is there any change in attitude between what he said

19 before, according to these press clippings, since it's not easy to detect

20 at this moment if someone says, "Well, I'm forced to go now because my

21 government changed. There's a different regime now so I've got no

22 choice." Isn't there a personal attitude and would you agree with me the

23 personal attitude is the very first step to be taken into consideration?

24 I don't know whether you want to answer the question or whether

25 Mr. Martic wants to answer to that question, but I'm still not a clear

Page 47

1 view on his personal attitude rather than support of the government, which

2 seems to be apparent over the last period of time.

3 MR. S. KASTRATOVIC: [Interpretation] I will give the floor to my

4 client later if you allow me. But his explicit personal attitude is

5 evident in his whole conduct, in the fact that he had reported to his own

6 government, to his own Minister, and to this Tribunal, to all the people

7 who are designated to receive his surrender by law.

8 He accepted to be arrested. On the 15th of May of this year, he

9 said so in so many words, "I recognised the Tribunal. I recognised the

10 new authorities."

11 Before that time, a different authority, different governments,

12 were in power. There was a different regime, which also had an impact on

13 his personal attitude. He expressed his real convictions by coming here

14 where he is now in detention. And he has said himself that he will

15 continue to recognise and respect this Court.

16 You cannot hold it against him that he did not surrender

17 voluntarily at once. He is no different from many others in that

18 respect. It is not only the guarantees of the state that corroborate our

19 motion for provisional release. There are other circumstances that you

20 have to take into account; the expulsion of his people, their misfortune,

21 the political regime that was in power before, his own circumstances. You

22 must understand that these circumstances taken together had put him in the

23 position in which he was. Once the regime in Yugoslavia changed, he

24 surrendered immediately.

25 I apologise to the interpreters.

Page 48

1 In this situation which I am trying to explain to you in greater

2 detail, I believe it would perhaps be better for my client to say a few

3 words about this if you are not pleased with my answer.

4 THE ACCUSED: [Interpretation] Your Honours, I will perhaps be

5 repeating myself, but let me say this once again. After the ethnic

6 cleansing of the people whose president I was, I had no state. I was an

7 apatriot, a man without a homeland. I was supposed to be extradited to

8 the Tribunal as a citizen of Croatia. After all the things that I read in

9 the Croatian press about my being condemned for this and that, the main

10 point in all this writing, that our nation was not going to be allowed to

11 return to that state, and I wanted to come here as a Yugoslav citizen. So

12 I waited to get my Yugoslav passport, and as soon as I did, I came here.

13 I reported not 25, as my counsel said, days after the enactment of the

14 law. I reported after five days. But certain preparations had to be made

15 before I came here.

16 I am not asking for mercy. I'm asking for justice. And I want

17 the truth about what is going on in my land of Krajina to finally come out

18 from this Tribunal. That is my hope and my expectation.

19 JUDGE ORIE: Thank you. May I put one question to the

20 Prosecution.

21 You have stressed again and again that the accused is still at

22 risk of absconding. Do you have an explanation, apart from the proposed

23 amended indictment, do you have an explanation why he did not flee when he

24 was under the arrest -- under the threat of being arrested after the

25 adoption of the domestic law? I mean, that would be the situation where

Page 49

1 there might be a need, if you want to abscond from justice, to act. Why

2 do you expect him to -- to find a refuge somewhere else where he did not

3 do that in the spring of this year?

4 MR. WHITING: Your Honour, clearly in the spring of this year,

5 when faced with the law on cooperation, the accused then made a

6 calculation that it was in his interest to surrender. And we can't be

7 exactly sure what went into that calculation, but the evidence would

8 suggest that the calculation, after seven years of absconding, was based

9 on a fear of immediate arrest, combined with an interest in obtaining the

10 guarantees of the state which he could only do if he surrendered. So a

11 calculation that was both fear of immediate arrest and also wanting to

12 obtain provisional release.

13 Why would it be different in the future? We submit that this

14 calculation could change and is likely to change at any time because the

15 circumstances that will enter into the calculation will change.

16 The first circumstance that was cited by the Court itself, that is

17 the amendment has been changed. So now the calculation is different

18 because the indictment is expanded and it's a more serious indictment.

19 That changes the calculation.

20 Also now, there is a bit of a track record with respect to the law

21 on cooperation. When the accused surrendered in May, at that time he

22 could have expected that all of the fugitives would be immediately

23 arrested. Well, that, in fact, has not happened. In fact, there has

24 openly been one arrest. There are a number of outstanding fugitives, and

25 in fact, some rather prominent visible fugitives in Serbia who have not

Page 50

1 been arrested.

2 Based on that, the calculation could be different.

3 This Court, we would submit, cannot rely on the calculation always

4 being the same every single day if this accused were released. In fact,

5 based on the circumstances of his surrender, what actually made him

6 surrender? The unique circumstances and his past conduct and past

7 unwillingness to come to this Tribunal when nothing prevented him from

8 doing so would suggest that it is very likely that a day will come and he

9 will, of course on provisional release, have some time to prepare this,

10 but a day will come when he will abscond and seek refuge either in his own

11 country under -- again under an alias or perhaps in another country and

12 that he would gain through provisional release the time to be able to

13 implement that.

14 If I may, there was an earlier question about when this accused

15 knew, was aware, of this indictment, and I would draw the Court's

16 attention to page 1 of our appendix to our filing in July which is an

17 article from the 26th of July, 1995, the day after the indictment -- the

18 first indictment against him was confirmed in which the accused is quoted

19 speaking about the indictment. Presumably he was well aware of it the day

20 after the indictment on the 26th of July, 1995.

21 JUDGE ORIE: I have one other short question to you. You said, as

22 far as I remember, that the burden of proof to demonstrate that there is

23 no risk of fleeing would be on the shoulders of the accused. What is

24 exactly the legal basis for that assertion?

25 MR. WHITING: Your Honour, I was relying on this Court's judgement

Page 51












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Page 52

1 in the Jokic case in which that was the conclusion after reviewing the law

2 of this court. And the Jokic order is from the 27th of February, 2002. I

3 draw the Court's attention to paragraph 17 in which it comes to that

4 conclusion.

5 I believe that every other Trial Chamber that has considered that

6 issue with the exception of a dissent from Judge Robinson in one matter,

7 has reached the same conclusion.

8 I would also note that in the Brdjanin provisional release

9 decision of 25 July, 2000, in paragraphs 16 and 22, that Trial Chamber

10 found that not only was this burden on the accused but found that it is

11 also a substantial burden on the accused.

12 I would also make one final point and that is that the Prosecution

13 is also -- also submits that the evidence would suggest that this accused

14 poses a danger to victims, witnesses, or other persons, which is the

15 second part of 65(B), Rule 65(B). That has not been addressed but it is

16 our argument based on the evidence that we stand by here as well.

17 JUDGE ORIE: Thank you. No further questions.

18 JUDGE LIU: Well, I think that's all for today's hearing on the

19 provisional release of Mr. Martic.

20 Yes, Mr. Kastratovic.

21 MR. S. KASTRATOVIC: [Interpretation] I will not respond to what

22 the Prosecutor said, because he has made some lump sum judgements, as if

23 we were trading on the market. He is trying to guess at what is going on

24 in Mr. Martic's head. He can get it into his head he wants to commit

25 suicide and do it, or something else may happen. He may get a terminal

Page 53

1 illness and die. We cannot know what will happen in the future.

2 There is another thing that we must take into account and that is

3 possible danger to victims. And that is why I mentioned all the things I

4 mentioned about Mr. Martic. He cannot leave the country even if he wanted

5 to abscond, precisely because all the victims and all the witnesses are in

6 Croatia, not in Serbia. He is bound by his situation. He is between a

7 rock and a hard place. He can be arrested by two sides. He is tied to

8 the place where he resides. So any suggestions about his being a flight

9 risk are groundless, in my view.

10 Thank you very much.

11 JUDGE LIU: Well, this Trial Chamber will deliberate this issue,

12 taking into account the submissions by both parties as well as the

13 guarantees submitted by the government of the Federal Republic of

14 Yugoslavia. We will make our decisions at a later stage.

15 Now we will have a short break. Then at ten minutes to 1, we will

16 resume our Status Conference.

17 --- Whereupon the Provisional Release

18 Hearing adjourned at 12.28 p.m., to be

19 followed by a Status Conference