Tribunal Criminal Tribunal for the Former Yugoslavia

Page 495

1 Tuesday, 25 March 2003

2 [Motion Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.33 p.m.

6 JUDGE MAY: This is the hearing of motions by the accused in

7 relation to provisional release. These, in effect, are second

8 applications by these accused, on the basis that there is new material

9 which should be considered. We will hear briefly submissions on both

10 sides. I think we've got to have the case called first, though. Perhaps

11 we had better start with that.

12 THE REGISTRAR: Case number IT-99-37-PT, the Prosecutor versus

13 Milan Milutinovic, Nikola Sainovic, and Dragoljub Ojdanic.

14 JUDGE MAY: And the appearances.

15 MR. NICE: Your Honour, I appear today with Cristina Romano, Mr.

16 Milbert Shin and case manager Susan Grogan. Geoffrey Nice is my name.

17 MR. FILA: [No interpretation]

18 JUDGE MAY: We didn't get any translation I'm afraid of that. Can

19 you have another go, Mr. Fila and we see if we do a bit better.

20 MR. FILA: [Interpretation] Your Honour, once again, my name is

21 Toma Fila and I represent Mr. Sainovic, together with Mr. Petrovic, an

22 attorney at law from Belgrade. Thank you.

23 MR. VISNJIC: Your Honours, Tomislav Visnjic and Peter Robinson,

24 for Defence of Mr. Ojdanic.

25 JUDGE MAY: Thank you. As I was saying, this is an application

Page 496

1 for provisional release by these accused. We have read the various

2 pleadings, so there's no need to repeat them. One further thing is this:

3 That a representative of the embassy, Mr. Panceski, is in Court. Perhaps

4 you would care to introduce yourself.

5 MR. PANCESKI: [Interpretation] Good afternoon, Your Honours. My

6 name is Miodrag Panceski. I am first secretary of the embassy of Serbia

7 and Montenegro here in The Hague.

8 JUDGE MAY: There has been an application by the Prosecution to

9 cross-examine the representative of the government. We've considered

10 that. We will allow the representative, Mr. Panceski, to make a

11 statement. We will not allow cross-examination. We consider it

12 inappropriate for a representative of the government to be cross-examined

13 in these circumstances. But we will hear submissions.

14 Mr. Fila, for you to begin.

15 MR. FILA: [Interpretation] Your Honours, it is for the second time

16 that the Defence has submitted a request for provisional release of

17 Mr. Sainovic. According to the Rules of this Tribunal, I have the right

18 to do that only if I present new arguments, arguments that I did not

19 present the first time. In order to avoid repetition, because I have

20 expressed my arguments in my motion, and further in the reply to the

21 response of the Prosecutor, I shall just briefly state and summarise these

22 arguments. In the meantime, Mr. Sainovic arrived in the Detention Unit in

23 Scheveningen -- excuse me, Mr. Milutinovic arrived in the Detention Unit

24 in Scheveningen. Therefore, all of the accused are now here present at

25 the Tribunal, which is yet another proof that the guarantees offered by

Page 497

1 Serbia and Montenegro have been fulfilled. If I may remind Their Honours,

2 Mr. Sarkic stated that he would be brought here, he would come here after

3 the expiration of the mandate of Mr. Sainovic. Therefore, the argument of

4 the Prosecutor that Mr. Milutinovic is not yet here is no longer valid.

5 The second matter that needs to be addressed at this point is the

6 fact that a union of Serbia and Montenegro has been created in the

7 meantime. It has been duly constituted. It has its president and its

8 ministers, and I am very pleased to be able to state before this Tribunal

9 that the first president of this union stated in his first address after

10 he had become the president that the cooperation with the Tribunal would

11 be much better than in the past, because he's a representative of the

12 group of people who had always advocated cooperation with the Tribunal.

13 This has also been stated by the president of the Assembly of Serbia and

14 Montenegro. This was further exposed and expressed in a letter addressed

15 to the Council of Europe, as a promise that this cooperation with continue

16 in the future. This promise has been accepted by the Council of Europe,

17 and it is expected that Serbia and Montenegro will become members of the

18 Council of Europe in the near future.

19 That was the second very important issue that I wanted to draw

20 your attention to. So if the Council of Europe believes that the

21 cooperation with the Tribunal will continue, then I think it is only fair

22 to assume that this Tribunal should also trust this guarantee.

23 In the meantime, Serbia has made significant progress in terms of

24 cooperation with the Tribunal. I have already mentioned the arrival of

25 Mr. Milutinovic, and even Mr. Seselj. There is another fact that supports

Page 498

1 this view. Many of the documents are no longer considered to be the

2 secret of the state. The Prosecutor, as far as I am aware, is now able to

3 obtain access to all witnesses that they wish to interview. They are

4 involved in a number of discussions and conversations with the local

5 authorities, members of the Ministry of the Interior and the former

6 members of the SBS, and we can therefore conclude that this cooperation

7 will be finalised with the handover of all the documents that are still

8 outstanding.

9 It is also very important to note that Mr. Sainovic enjoyed

10 immunity as a federal deputy at the time and that the state of Serbia

11 never sheltered him from the arrival of The Hague. He was never told that

12 he should wait for his immunity to expire and then to surrender to the

13 Tribunal. Quite the contrary; it was only necessary for the appropriate

14 law on cooperation with this Tribunal to be adopted, and Mr. Sainovic

15 voluntarily appeared before this Tribunal, never having relied upon the

16 immunity that he enjoyed.

17 I wanted to state this because I wanted to remind Their Honours

18 that he will definitely not enjoy any special treatment by the state, for

19 the fact that he used to have immunity before. The current situation in

20 Serbia is an encouragement for us and should be interpreted as an

21 encouragement for the international community as a whole. However, I have

22 to mention the assassination of the Prime Minister, which is a tragic and

23 regrettable incident. However, the new Prime Minister has also expressed

24 as one of his priorities the cooperation -- the ongoing and continuing

25 cooperation with this Tribunal.

Page 499

1 The state undertook a number of energetic steps and established

2 full control in the Republic of Serbia. The situation has never been as

3 safe as it is now, and it is quite clear that the state of Serbia will be

4 in the position to fulfil its commitments and its obligations should you

5 grant our application.

6 The next thing that I wish to remind you of is the following:

7 Ms. Del Ponte and the OTP before her stated three main requirements that

8 need to be discussed in relation with the provisional release. The first

9 one being voluntary surrender, the second one the guarantees, and the

10 third one interview with the Prosecutor. The Appeals Chamber insisted in

11 particular on the behaviour and the conduct of the accused prior to the

12 arrival in the Tribunal, in order to assess whether and to what extent

13 that surrender was indeed voluntary.

14 The Appeals Chamber held that the key indicator of the voluntary

15 character of the surrender, prior statements made by the accused in

16 relation to the arrival of the accused. I don't know how, but it seems

17 to have been stated in one of the motions that Mr. Sainovic had stated

18 that he would never voluntarily surrender to the Tribunal, that he would

19 never appear before the Tribunal. We, as a Defence, and Mr. Sainovic

20 himself, clearly stated that he had never stated any such statements.

21 There have never been any statements made by Mr. Sainovic in connection

22 with his non-willingness to appear or his lack of respect towards the

23 Tribunal.

24 Furthermore, the Prosecutor forwarded a number of statements that

25 I made before I became Defence counsel of Mr. Sainovic. I don't know

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Page 501

1 whether these statements were correct or not. They were published in a

2 number of articles. But I think that they might become important should

3 the Chamber deliberate rate on the provisional release, that is, what I

4 stated in this regard. I think that it is not relevant what I stated

5 before I became counsel of Mr. Sainovic, that is, before the 24th of April

6 last year.

7 Bearing in mind various experiences with the OTP and others, at

8 the moment of surrender, I insisted that the power of attorney should be

9 first signed by the deputy minister of justice, and you will find the

10 signature of Mr. Sarkic on the document that you have, that is, the date

11 when the power of attorney was received. A copy of the power of attorney

12 can be found at the Court. I proceeded in that manner out of abundance of

13 caution.

14 So whatever I declared prior to the 24th of April, if I had indeed

15 declared anything of that kind, was declared on my own, on a private

16 basis, and it is the nature of our profession. It is true that

17 Mr. Sainovic was waiting for a legal basis to act, and that was the act --

18 the law on cooperation with the Tribunal. When the law was adopted, he

19 immediately took steps in order to surrender.

20 You will also find a statement which was given in relation to the

21 arrest of Mr. Krajisnik, which the Prosecutor is interpreting as a

22 position of Mr. Sainovic. I explained this in detail in my written

23 statement. I said that it was not important, not relevant. It was merely

24 a press communique of the government. He was not referring to what he

25 intended to do.

Page 502

1 So to sum up, you do not dispose of any single interview any

2 single statement or declaration. I'm not here discussing the veracity or

3 the correctness of such statements to that effect. So the first basis

4 that is the lack of respect vis-a-vis the Tribunal does not exist.

5 As for the second requirement, that is, the guarantees, I have

6 already stated that the arrival of Mr. Milutinovic is yet another proof

7 that Serbia and Montenegro are fulfilling their obligations, and I also

8 mentioned the fact that there is a strong intention to pursue this

9 cooperation, as we have seen from the first address of the new Prime

10 Minister.

11 The third requirement which was mentioned by Ms. Del Ponte here

12 before the Chamber was the fact that it was very important for the Office

13 of the Prosecutor that the accused should give statement or give interview

14 to the Prosecutor and that should that be complied with, then she

15 indicated her willingness to agree with the request for provisional

16 release. I took it upon myself to ensure that should Mr. Sainovic be in

17 Belgrade, that interview be conducted.

18 The Appeals Chamber reversed your decision in that respect;

19 however, I have not changed my decision in any way, because the objective

20 was not blackmail, that is to say, if you let me go, I will talk, if you

21 don't let me go, I won't talk. We're not children. We understand what

22 this is all about. When the decision of the Appeals Chamber was adopted,

23 Mr. Sainovic indeed started to talk to the Prosecutor.

24 JUDGE MAY: The Appeals Chamber on that point upheld the Trial

25 Chamber's view that whether the Prosecutor was going to interview an

Page 503

1 accused or not is irrelevant, as far as provisional release is concerned.

2 MR. FILA: [Interpretation] Very well. Thank you. At any rate, I

3 wish to state here before the Chamber that we have fulfilled the

4 obligations that we undertook. I merely wish to indicate for this Chamber

5 that we abide by our commitments. This is also a demonstration of the

6 conduct of the accused before the Chamber, the fact that he's willing to

7 fulfil his commitments, notwithstanding the importance that you will

8 attach to this.

9 Mr. Sainovic has so far conducted nine days of interview with the

10 Prosecutor. It seems that the Prosecutor is not satisfied with this

11 interview. I have never found anywhere in the Rules that the Prosecutor

12 should be satisfied with the interview. If I understand the Prosecutor

13 correctly, they would only be satisfied if the accused confessed to what

14 is alleged against him in the indictment. But in that case, he would not

15 need an interview; it would be enough for him to get up and enter a plea

16 of guilty, and that would be the end of the story.

17 [Trial Chamber confers]

18 MR. FILA: [Interpretation] It is further very important to say

19 that this interview was indeed conducted, and I also wish to say that it

20 was not -- it would not be possible to interfere -- for the accused to

21 interfere with the witnesses in any way, because he has already made his

22 statement, and that can be used against him.

23 So the interview was yet another demonstration of the great

24 respect on the part of the accused for this Tribunal.

25 JUDGE ROBINSON: Mr. Fila, you mentioned that many documents that

Page 504

1 were formerly secret no longer have that status and that therefore the

2 Prosecutor would be able to have access to them. How did that come about

3 that these documents which were formerly secret no longer have that

4 status?

5 MR. FILA: [Interpretation] In our media, and I have inquired

6 personally, Mr. Kostunica, before leaving, in consultation with the

7 supreme council of the Defence, removed the seal of secret of state from

8 most of the documents. So what the president of the former Yugoslavia had

9 as a civilian person is now available. I think this is very important.

10 It is important to know this, because this material is available. That is

11 to say, what Mr. Nice is stating in a memo in relation to the command in

12 Pristina no longer is valid. The seal of -- the secret of the state has

13 been removed from most of the documents. I am referring to the minutes

14 from the meetings with Mr. Milosevic throughout the year of 1998, and so

15 on and so forth. They were also given during the interview minutes from

16 the SBS meeting, some of them. The fact remains that the committee for

17 cooperation with this Tribunal is not supplying the Defence with the same

18 kind of documents they're supplying the Prosecutor with. But this is our

19 problem. However, we know that this has happened. The decision of

20 Mr. Kostunica prior to his departure is valid and applicable, and a large

21 number of documents have been sent in the meantime. This is all I can

22 inform you about.

23 And with Their Honours' indulgence, I should like to ask for a

24 private session for just a couple of minutes.

25 JUDGE MAY: Yes.

Page 505

1 [Private session]

2 [redacted]

3 [redacted]

4 [redacted]

5 [redacted]

6 [redacted]

7 [redacted]

8 [redacted]

9 [redacted]

10 [redacted]

11 [redacted]

12 [redacted]

13 [redacted]

14 [redacted]

15 [redacted]

16 [redacted]

17 [Open session]

18 MR. FILA: [Interpretation] And to conclude, by way of conclusion,

19 let me just appeal to Your Honours to grant this motion and to do so for

20 several reasons, one of them being the cooperation of our state with the

21 Tribunal. That cooperation cannot be a one-way cooperation. With your

22 permission, Your Honour, I have a lot of experience. Once we were "happy"

23 with the influence of the Soviet Union and the former Yugoslavia. They

24 used the word "davaj," "give" whenever they requested anything, whether it

25 was corn or machines, or anything else. They never gave us anything.

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Page 507

1 They always wanted us to give them something. Sometimes I think that this

2 cooperation can be compared with that. We are very often asked to give

3 but very rarely are we given anything.

4 I think that some steps from the opposing side, in terms of

5 cooperation, such as provisional releases, or some other act of goodwill,

6 good faith, would indeed help this new government to start working. You

7 can interpret this as an appeal of a lawyer and an experienced person who

8 has lived for a very long time in that country. Thank you very much.

9 JUDGE MAY: Thank you. Yes, Mr. Robinson.

10 MR. ROBINSON: Good afternoon, Mr. President and members of the

11 Trial Chamber. I think our starting point for consideration of

12 provisional release at this stage has to be the Appeals Chamber's opinion

13 and the two errors of law which it held occurred in the first proceedings

14 before this Trial Chamber.

15 In response to the Prosecutor's argument concerning the failure to

16 arrest President Milutinovic, it was held that the Trial Chamber erred in

17 failing to explicitly consider the senior position of the accused as it

18 related to the guarantees from the Federal Republic of Yugoslavia and the

19 Republic of Serbia. Now, after the Appeals Chamber decision, there has

20 been a change in circumstances. President Milutinovic has arrived in The

21 Hague and there is now not a single former -- person of senior position in

22 the government of either the Federal Republic of Yugoslavia or the

23 Republic of Serbia who remains a fugitive. They are all here, Milosevic,

24 Milutinovic, Sainovic, Ojdanic, and even Seselj. It simply cannot now be

25 said that because of his former senior position, General Ojdanic might

Page 508

1 somehow be shielded from arrest.

2 Lest there be any doubt on this point, we would note the presence

3 of the representative of the government of Serbia and Montenegro, who I

4 believe will affirm that his government stands firmly behind the guarantee

5 for General Ojdanic, that he will be arrested if he violates the

6 conditions of his release, notwithstanding his former senior position, and

7 to reaffirm that after the tragic events of two weeks ago in Serbia, the

8 government of Serbia and Montenegro remains firmly committed to supervise

9 and enforce its guarantees to this Tribunal.

10 I would point out that it was the late Prime Minister Djindjic who

11 personally signed the guarantee of the Republic of Serbia in support of

12 General Ojdanic.

13 The second error of law that was identified by the Appeals Chamber

14 was the failure to explicitly consider the public statements of the

15 accused as they related to whether his surrender to this Tribunal was

16 voluntary. Of course, all you had before you was a footnote in the

17 Prosecutor's brief which referenced a headline to one story, and we now

18 have provided you with all of the public statements of the accused as

19 annex 1 to our application.

20 It is our submission that consideration of the full panoply of

21 General Ojdanic's public statements, demonstrates that his surrender was

22 voluntary. But lest there be any doubt about that, we have provided you

23 with a second personal guarantee, an affidavit of General Ojdanic, in

24 which he details the circumstances which lead to his surrender and

25 explained the public statements reported in the newspapers. It is our

Page 509

1 request that General Ojdanic be allowed to give evidence today. I would

2 propose that you allow me less than five minutes to have him identify and

3 affirm the contents of his affidavit and that the Prosecutor then be

4 allowed to cross-examine him. In this way you will not be deciding this

5 important motion based upon what one reads in newspapers but upon the

6 tried and true reliable method of sworn testimony tested by

7 cross-examination.

8 And of course, if you prefer, I conduct a full direct examination,

9 I can do so.

10 We submit that you, as a Trial Chamber, got it right the first

11 time when you held that General Ojdanic had established that he would

12 appear for trial and not be a danger to others. And when you exercised

13 your discretion in favour of his provisional release. The circumstances

14 since your original decision have borne that out. We urge you to hear

15 from General Ojdanic and the representative from Serbia and Montenegro

16 today so that you and the Appeals Chamber have a full record upon which to

17 decide this issue of great importance to General Ojdanic, his family, and

18 his Defence.

19 Finally, I would note that we have received information that the

20 Prosecutor is no longer opposing the provisional release for the

21 co-accused Milutinovic, and if this is true it would be relevant to these

22 proceedings, because we are relying on the very same guarantees and

23 therefore I would ask that this matter be addressed by the Prosecutor.

24 Thank you.

25 JUDGE MAY: I don't think we've heard that, but we will hear from

Page 510

1 the Prosecutor. We'll consider whether to hear some live evidence or not.

2 [Trial Chamber confers]

3 JUDGE MAY: Mr. Robinson, we are against you about the General

4 giving evidence. We've got his affidavit. We don't think it's

5 appropriate for evidence to be given at this stage. But of course, if you

6 want to add anything to what you've already said upon it, it's open to you

7 to do so.

8 MR. ROBINSON: No, Your Honour. I don't wish to add anything

9 further. Thank you.

10 JUDGE MAY: Mr. Panceski, if you would like to address us.

11 MR. PANCESKI: [Interpretation] Yes, Your Honour.

12 Your Honours, it is an honour to address you today on behalf of

13 Serbia and Montenegro. On the occasion of the motion by the Defence

14 counsel of Nikola Sainovic, Dragoljub Ojdanic for provisional release, I

15 wish to inform you that the guarantees that the federal government of the

16 Federal Republic of Yugoslavia gave at its 51st session held on the 17th

17 of May, 2002 are still valid. This means that the government of Serbia

18 and Montenegro continues to guarantee that should the Tribunal grant

19 provisional release of the accused until the start of trial, the competent

20 authorities in Serbia and Montenegro will comply with all orders of this

21 Tribunal and that the accused will appear at any time they are summoned

22 before the International Criminal Tribunal. These guarantees include all

23 the obligations, including escorting the accused while they are

24 travelling, monitoring of their stay in the territory of Serbia and

25 Montenegro, regular reporting to the Tribunal, and their possible -- their

Page 511

1 arrest should it become necessary, should they not appear when called

2 upon.

3 This is all based on Article 46 of the law on the cooperation of

4 the Federal Republic of Yugoslavia with the International Criminal

5 Tribunal. The government of Serbia and Montenegro considers that the

6 accused surrendered voluntarily, and Mr. Sainovic, although one of the

7 leading politicians of Milosevic's regime, after the democratic changes,

8 remained at liberty for a long time in Yugoslavia, after the indictment

9 was issued. He was one of the first to respond to the call by his

10 government to surrender voluntarily. Mr. Ojdanic did the same. They

11 never tried hide, and what is more important, their decision to surrender,

12 although it did depend on the democratic changes in Yugoslavia, was theirs

13 alone. They were not forced to appear before this Tribunal.

14 In view of the fact that the government of Serbia and Montenegro

15 has a legal duty to provide guarantees to all persons who surrender

16 voluntarily, a positive decision by the Trial Chamber in this case would

17 contribute greatly to others deciding to take the same step. Your

18 Honours, the provisional release of Messrs. Ojdanic and Sainovic, with the

19 appropriate measures, would not, in our view, represent a risk for the

20 further successful running of this trial. This follows from the

21 seriousness with which the government of my country approached the

22 execution of all its obligations to cooperate with the Tribunal, the

23 Office of the Prosecutor, and Defence counsel. This process continues.

24 Serbia and Montenegro has so far extradited six persons including the

25 former head of state. A large number of accused have surrendered

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Page 513

1 voluntarily, supported by a campaign instituted by the government of my

2 country. Cooperation with regard to locating witnesses and their release

3 from the obligation to keep state secrets is complete, and under Rule 54

4 bis in the Milosevic case, cooperation continues.

5 In all cases where this Tribunal has so far accepted the

6 guarantees of my government, and that is Biljana Plavsic, Pavle Strugar,

7 Mr. Jokic, Strugar, and Talic, there have been no difficulties. All these

8 persons are replying to all summons and there have been no objections to

9 the way my government has acted in these cases. That is why we believe

10 that this Chamber and the Office of the Prosecutor and the Defence will

11 treat the guarantees provided by Serbia and Montenegro with all due

12 respect and encourage our further efforts, with a view to cooperation.

13 Your Honours, I wish now to refer to one more point and add to

14 what Mr. Fila said when responding to His Honour Judge Robinson's question

15 relating to the confidentiality of documents. I wish to add to the

16 Defence counsel's response by saying that the seal of confidentiality was

17 removed from these documents by a decision of the Supreme Defence Council,

18 which is the only body authorised in my country to make such decisions.

19 This decision was not made by the former president of the Federal Republic

20 of Yugoslavia, Mr. Vojislav Kostunica, personally, but it was made by this

21 body. Mr. Kostunica, as the president of the Federal Republic of

22 Yugoslavia, in his capacity as such, was the chairperson of the Supreme

23 Defence Council. The removal of the seal of confidentiality from a

24 certain number of documents was done on the basis of the law on

25 cooperation with the Tribunal and at the request or upon a certain number

Page 514

1 of requests received from the Office of the Prosecutor.

2 This is all I have to say at present, Your Honours. I thank you

3 for your attention and for hearing me today. Thank you.

4 [Trial Chamber confers]

5 JUDGE MAY: Thank you, Mr. Panceski.

6 MR. NICE: Your Honour, before I reply in the order in which

7 addresses have been advanced, I noted that Mr. Robinson had information to

8 the effect we were not opposing provisional release of Mr. Milutinovic. I

9 don't know what he means by that. There is no support for that. As I

10 understand it, from my own dealings and as I am instructed by others

11 involved. It may be before I reply that we'll be assisted by further

12 details of what is meant by information to that effect. But I can't deal

13 with it on that basis other than to explain the position as it is.

14 JUDGE MAY: Yes.

15 MR. NICE: In order, then, and with a few additional points, of

16 course the relevant starting point is the Appeal Chamber decision which

17 found fundamentally that these accused had not surrendered voluntarily.

18 Nothing in the pleadings changes that position.

19 Dealing with the points made by Mr. Fila, so far as the surrender

20 of Mr. Milutinovic is concerned, what is important is that he remained a

21 fugitive, guarded by the state, and in his own interest, as long as it

22 suited him. There is nothing to be gained by the fact that he has

23 eventually surrendered.

24 The suggestion that cooperation is going to be better simply

25 underlines that despite earlier assertions, it has been substantially

Page 515

1 imperfect in the past, leaving room for improvement, promises of

2 improvement to come, what are always given in courts. It is, of course,

3 delivery that matters. Picking up on a point just made on behalf of the

4 government about compliance with obligations in respect of making

5 witnesses available and continuing compliance under 54 bis, I'm certainly

6 not aware that the authorities have made every conceivable arrangement for

7 every witness. On the contrary; as the Chamber will well know from a

8 recent hearing, there are two extremely important witnesses, not available

9 to us, one not available long term, because of, as the Chamber expressed

10 it, really, understandable, remaining uncertainty about the terms of a

11 waiver. And as to another witness in particular, and this is just two of

12 it may be several or many, in relation to another witness, there was

13 simply no explanation offered of any kind why that witness was only being

14 provided a waiver in respect of one period when his evidence was

15 absolutely valuable and would be absolutely valuable in respect of two

16 other periods.

17 JUDGE ROBINSON: I think, Mr. Nice, they would want you to look at

18 the picture more generally and to suggest that there has been an overall

19 improvement resulting from this lifting of the secrecy on certain

20 documents. That's not your experience?

21 MR. NICE: No, Your Honour. As I think I said at the earlier

22 hearing, which I think itself was an open hearing, so I break no rules in

23 repeating it, it's one thing to provide a lot of documents that are not

24 particularly significant if the comparatively limited number that you

25 withhold are the absolutely critical ones. That's the point we made then,

Page 516

1 the point we make now. And the Chamber will recall that we, on this

2 particular topic, made two other points: One, and it has another echo in

3 this particular hearing, that there's the world of difference between a

4 body, a government, that says we'll actually actively go out to help this

5 Tribunal, find the material that will assist it and turn up for us, a

6 hundred, 200 documents that will enable this case to be done and dusted in

7 the vernacular, months ago. Not this case, the other case. That's one

8 thing. That's of course not what happens. These states wait until we

9 prise information or material out of them, and that what they say what

10 they then seek to describe as cooperation. But coming from that general

11 point that I made before, we come to the particular point that featured in

12 the 54 bis application and features in the pleadings here, archives. The

13 absolute basic material within which documents might be found. The

14 Prosecution always seeking not to have generalised access to the archives

15 but the ability to know what archives exist to survey indexes, indices and

16 so on, in order to be able to take their particular requests for resisted

17 to the hilt by the authorities. And yet, and I think Mr. Sainovic's own

18 application, we discover, as we explained in the 54 bis hearing, that

19 archives are apparently available to the accused in some way or another,

20 not known to us.

21 So in answer to Your Honour's question, has there been a

22 significant improvement, of course there's been a change and improvement

23 over time, as the authorities have changed. But the position has been

24 clearly articulated in various international forums by the Prosecutor, and

25 in this forum by me, and there's no reason to, as it were, doubt the good

Page 517

1 faith of the OTP in its representations about cooperation, because where

2 cooperation exists, then we have every reason to say it exists, both

3 because we have no reason to say otherwise and also because of the

4 knock-on beneficial effects it would have, and we've seen examples of real

5 cooperation and of our response to it. Mr. Shin was good enough to

6 provide a little chart for me to have a look at. And apart from all the

7 details of the Plavsic case, which the Chamber is particularly acquainted,

8 it's important to have in mind as well that very approximately, the man

9 Jokic surrendered one month and one week, or thereabouts, after knowing of

10 his indictment, conditional provisional release I think not opposed.

11 Strugar, 19 days, provisional release not opposed. Martic and Mrksic, on

12 the other hand, over six years each, and understandably, properly, and

13 sustainably on appeal, of course provisional release was opposed. And so

14 the Prosecution has always taken a measured and fair approach, picking up

15 one of the suggestions from the later or latest submissions by those

16 representing the accused or the government, has taken a measured approach

17 and has responded to proper acts of cooperation where they've existed.

18 But, and it's our duty to do this, we've reflected non-cooperation and

19 resistance where it is identified.

20 And so cooperation, it's said, will be better in the future.

21 There may be improvement, there may not. There is a very volatile area,

22 and indeed a dangerous area, as we know, with forces of work that are not

23 just the forces of government, it would appear, forces that may reflect

24 interests other than political or governmental, forces that may reflect,

25 in some of the steps they take, what's going on here. We can't help

Page 518

1 that. All we know is that we face a regime that has this volatility in

2 its past that may have volatility in the future. The new arrangement

3 between Serbia and Montenegro is itself subject to referenda as soon as I

4 think three years' time, forecasting further change in the structure of

5 that body.

6 So as to cooperation by the state or the state bodies, of no value

7 and not proven and far, far from complete, or even far from good.

8 The Chamber will also have had in mind, or will have in mind, that

9 this protestation of cooperation by those bodies has to be set beside the

10 law that was introduced in April 2002, which required that all people

11 thereafter to be indicted by this Tribunal would not be handed over to

12 this Tribunal because they should be tried in the territory of the former

13 Yugoslavia. We have that law in English, if it's helpful to the Chamber

14 to follow.

15 Mr. Fila, on behalf of Mr. Sainovic, sought to deal with the

16 statements made by him. Can I take you to them, if my learned friend

17 would be good enough just to hand me the relevant part. But while he's

18 doing that, the Chamber will have heard Mr. Fila assert that statements

19 made by him, Mr. Fila, on behalf of somebody identified as his client are

20 in some way not the statements of his client, simply because he hadn't yet

21 become formally the appointed counsel of this Tribunal. That I find a

22 difficult assertion to accept. There is a presumption that a lawyer

23 speaks on behalf of his client, unless rejected, I suppose, and where it

24 happened, as I think it did here, when we find it, twice, that presumption

25 surely becomes irrebuttably strong. It's always the way when we carefully

Page 519

1 prepare the documents, knowing which ones we're going to refer to. They

2 go and get themselves buried in something else. But I wouldn't worry

3 about it. If you'll just give me a minute, they will turn up. There they

4 are, already marked and tagged by Mr. Shin. They can be found on our

5 response to the second application of Mr. Sainovic for provisional

6 release. The registry number is 7699 at the top right-hand corner and the

7 quoted observations of Mr. Fila are these, said to have been made on the

8 22nd of March of as recently as the year 2002:

9 Third line down: "`Former Yugoslav deputy Prime Minister Nikola

10 Sainovic will not surrender to the UN war crimes Tribunal in The Hague,'

11 his lawyer said Friday. `I know that he does not want to surrender

12 voluntarily,' said Mr. Fila."

13 The second quotation recorded as coming from Mr. Fila on the

14 following page, with his comments about speculations that the former

15 vice-president will surrender to the Tribunal: "Toma Fila, a lawyer of

16 the former vice-president of the Yugoslav government and of Serbian

17 Socialist Party official Nikola Sainovic, dismissed public speculations

18 about his client's readiness to voluntarily surrender to The Hague

19 Tribunal.

20 "`I know that Sainovic does not want to go voluntarily to The Hague

21 and his party the SPS has the same position, i.e., voluntary surrender

22 would cause him problems with the party and he would have to bear that in

23 mind,' Fila stated."

24 And on the following page, an earlier reference coming from June

25 2000, under the heading "Topic: International political leader military,"

Page 520

1 two-thirds of the way down the page, and commenting on Mr. Krajisnik's

2 arrest. And it matters not that it was somebody else's arrest rather than

3 his own. It's his attitude to the Tribunal that counts, and counts

4 conclusively against him, in our submission. "Commenting on Momcilo

5 Krajisnik's arrest, Sainovic said that the Yugoslav government had sent a

6 strong protest to the UN Security Council, protesting not only against his

7 arrest and demanding his immediate release, but also elaborating on the

8 essence of the functioning of The Hague Tribunal, and showing that this

9 quasi-court is an exponent of the US administration. The fact that it has

10 not yet reacted to the brutal violation of the UN charter and the open

11 order for the bombing of a country and the killing of its people shows

12 that `There is no need for an investigation and that this is not a

13 court,'" he said. Then it has Mr. Sainovic presenting a document to

14 journalists, and in the following paragraph:

15 "All lower-rank bodies, various tribunals, SFORs and such-like,

16 they are all in the service of NATO, and NATO, on its part, is nothing but

17 a brutal executor of the US administration's policy."

18 And then over the page, I suppose connected in the last paragraph:

19 "If a country doesn't accept a US administration's ultimatum, NATO bombs

20 it. If a television station shows programmes not to the administration's

21 liking, NATO bombs it. If a politician says something opposed to US

22 views, NATO arrests him."

23 So those observations by the accused, through the mouth of his

24 lawyer, as said to be, and under what other circumstances could Mr. Fila

25 possibly have been speaking for him, tell against him, and we say in a way

Page 521

1 that is irrebuttable.

2 The interview, we of course accept the clear jurisprudence to the

3 effect that not to go for interview is no evidence of non-cooperation.

4 Submitting oneself for interview, as again the Chamber indicated its

5 finding, can be some indication of cooperation, and we would perhaps

6 prefer to put it in this way: Can be a step on the way towards

7 cooperation in certain circumstances. And so where people protest that

8 they want to cooperate by interview, that position has to be tested. And

9 this may be indeed what lay behind the particular observations of the

10 Prosecutor on the last occasion, although of course we accept as

11 definitive the Appeals Chamber's decision. But when someone does submit

12 to questioning, if he says nothing of value and gives answers that are

13 neither of value nor reflective of the reality, well, then, is that

14 cooperation? Of course, an evaluation of an accused's interview is

15 ultimately the matter for a Trial Chamber, and not for the Prosecution,

16 but the Chamber may have absolutely no doubt that if a man in the position

17 of Sainovic had cooperated by the method of interview, in a way that

18 unravelled the questions facing the Prosecution and this court, there

19 would have been every reason for the Prosecution to acknowledge that as a

20 step of cooperation. We are quite unable to do so. His being interviewed

21 remains on the jurisprudence a neutral fact.

22 I think I've already dealt with the assertion about availability

23 of documents from archives, but perhaps I should underline it in relation

24 to some assertions about particular documents. If one of my learned

25 friends was suggesting that there has been a complete unlocking of the

Page 522

1 minutes of the SDC in 1998 by provision of stenographic notes, I am not, I

2 think, aware of that, and do not believe that there has been any general

3 unlocking of the stenographic notes that exist and to which we have sought

4 access for so long in an endeavour to assist the Trial Chamber in another

5 case. So that's a further example of non-cooperation by the authorities

6 and inappropriate reliance by those representing these accused.

7 Mr. Fila suggested that they're always asked to give and that in

8 some way the Prosecution would add to goodwill by not opposing provisional

9 release. I must respectfully reject that approach. As I've already

10 reminded the Chamber, we take an attitude, I think as probably Mrksic or

11 Martic makes sure we should, individual by individual to applications of

12 this kind and by no means do we always oppose them. We oppose them where

13 we regard it as essential on the material available to us to do so,

14 bearing in mind that even where we don't oppose applications for

15 provisional release, the discretion is entirely a matter for the Chamber.

16 Here, this accused was a fugitive for three years, in a state that

17 protected him. There was absolutely no reason why he should not have got

18 on a plane. There is absolutely no reason why, in the 18 months he was

19 actually in office, he should not, as it appears he did not, prepare

20 himself by access to documents he then had available to him for Defence.

21 There is no reason why he shouldn't have communicated directly with the

22 Prosecution about his intentions. None of those things did he do.

23 I turn then to Ojdanic. The same observations about his surrender

24 not being voluntary may be made. I turn to the statements that he made,

25 which the Chamber will recall can be found in his application for

Page 523

1 provisional release annexed to it. And there were two pleadings on his

2 behalf in relation to this application. It's perhaps important to observe

3 that the statements which indeed the Prosecution rely on were annexed to

4 the first of those pleadings, and we can see the first relevant document

5 on page 12 of the numbered pages helpfully numbered at the bottom and in

6 the middle, at least in the version I have. From Glas Javnosti of the

7 12th of February, 2002, an interview with the accused Ojdanic as follows:

8 "The federal Ministry of Defence, during the 1999 war, Colonel

9 General Ojdanic told the Glas newspaper that he would not surrender

10 voluntarily. In an interview with a Glas journalist conducted in the

11 Yugoslav army of installation in Dedinje, Ojdanic said he did not feel

12 guilty because he had discharged his duty honourably. I am a soldier, and

13 my duty was to defend the state and the people from aggression. All

14 orders that I issued were in accordance with the Geneva Conventions and

15 the rules of war. If I am guilty of anything, then our courts should

16 decide."

17 Now, I think in the first pleading, the second part of that

18 statement was relied on, but there was no qualification as to the first

19 part. We'll come to that a little later.

20 The following page, page 13, again from April, but of the same

21 year, 2002, under the heading "I will not surrender to The Hague

22 Tribunal," this, Belgrade, April 3rd. "Former chief of the VJ General

23 Staff, General Ojdanic, stated he would not turn himself into The Hague

24 Tribunal. I am not afraid of the arrest, but I will turn myself in only

25 if the Yugoslav parliament adopts the law on cooperation with The Hague

Page 524

1 Tribunal, emphasised General Ojdanic in a written statement submitted to

2 the associated press by his family."

3 We turn on two pages to page 17. This of interest, in the blocked

4 passage in the middle of the page: "One of the accused, General Ojdanic,

5 has protested in public, through his lawyer, because Serbian judiciary has

6 not initiated criminal procedure against him based on The Hague Tribunal's

7 indictment, even though he allegedly requested initialisation of the

8 criminal procedure based on the indictment proclaimed in public, stating

9 it's not -- he is not running away from his eventual responsibility but

10 objects local organs their passivity."

11 I'll come back to that when we look at the affidavit of this

12 accused. And if you go over, however, one page to page 18, it has this

13 passage recorded, for April 14th of 2002: "`At any moment, I expect to

14 receive a court summons from the International Criminal Tribunal. With

15 tranquility and dignity, I will respond to the summons and go to The

16 Hague,' he was quoted as saying. `I waited for a word from the people, in

17 other words, for a law on cooperation with the Tribunal to be adopted,' he

18 said. `Departure to The Hague is now, I emphasise the word now, my legal

19 obligation.'" The clearest and most flagrant denial of the supremacy of

20 authority of this Tribunal which should, could, and one would have thought

21 would have been available to him from an elementary consideration of

22 Article 29 of our Statute and its associated Rule, to which I will refer

23 you briefly by way of reminder in a moment.

24 At page 25 of the same bundle, and at the foot of the page, under

25 a headline of an associated press writer -- not a headline, a reference of

Page 525

1 an associated press writer of April 22nd, 2002: "Two key suspects of the

2 UN war crimes court said Monday they would surrender to the Tribunal just

3 hours before a Yugoslav government deadline expires for 23 people to turn

4 themselves in or face arrest. General Ojdanic and former Croatian Serb

5 leader Milan Martic submitted surrender papers to the Yugoslav justice

6 ministry just before midday."

7 Following paragraph: "A deadline surrender was extended from noon

8 until midnight, after lawyers for several suspects contacted the

9 ministry." Martic has, of course, as I reminded you, been refused

10 provisional release.

11 Thus then the statements that were relied upon, some or two of

12 which to some extent the accused now seeks to challenge. But they were

13 put forward unchallenged because he relied on them for other purposes in

14 his first pleading. And it's only in the affidavit attached to the reply

15 brief that we find any caviller with the terms of those documents, and we

16 would invite the Chamber to say that those accounts given are clearly

17 reliable and sustain absolutely the approach of the accused, which has

18 been to enjoy the harbouring of his state as long as he could. This

19 applies to both of them if they are returned on any terms to a country of

20 entirely uncertain political future, who knows but that that harbouring

21 would not recur.

22 But in the affidavit which deals with and since the Chamber has

23 read it, I won't take you through it in detail, in fact at all, the

24 statement, which deals with those two observations by the accused, there's

25 also the documents whereby it is said he sought to bring prosecution on

Page 526

1 himself locally, and those are documents that I'd invite you to

2 reconsider, perhaps not now but at your leisure. They can be found on

3 registry pages 7771 for the document to the chief military prosecutor of

4 the 19th of November, 2001, and at registry page 7764 for the document

5 dated the 20th of September.

6 These are documents where, it is said, the accused was seeking

7 trial on his home territory. It was and must be well known to the accused

8 and a matter of really public knowledge that no senior person - and these

9 are very senior people - has been brought to trial in their own territory.

10 Second, if you look at the terms of the request, what the accused was

11 really seeking to do, you may in our submission be quite satisfied was

12 seeking to have some kind of public opportunity to put out the defence

13 case in order that in a could be given a recognition that would defend him

14 against prosecution.

15 In his pleadings, this accused relies upon the advice he was given

16 by lawyers, the same lawyers that represent him still. And so there is a

17 parallel involvement of the lawyers, as in the case of Mr. Sainovic. I

18 simply cannot understand how there can be the attempt to shelter behind

19 such advice when Article 29 of the Statute, which of course any lawyer

20 representing any accused or prospective accused before this Chamber would

21 have reviewed, makes absolutely clear that states shall comply without

22 undue delay with request for assistance in the surrender or the transfer

23 of the accused to the Tribunal. And as the Tribunal well knows, the law

24 of the Tribunal is superior to that of the local jurisdictions and indeed

25 the relevant Rule, I think, we can find these matters further set out is

Page 527

1 Rule 58. So just to remind you of that. The obligations laid down in

2 Article 29 of the Statute shall prevail over any legal impediment to the

3 surrender or transfer of the accused or of a witness to the Tribunal which

4 may exist under the national law or expedition treaties of the state

5 concerned.

6 So Your Honour, it's our position that it could hardly be clearer

7 for either of these accused, but I focus for the moment on the accused

8 Ojdanic. He took, so he says, legal advice. We don't know what question

9 it was that was posed. To some degree, the privilege of lawyer/client

10 seems to have penetrated, but I seek to take it no further. The answer he

11 got was the answer that justified his staying where he was. That's all we

12 really know.

13 The remaining points on General Ojdanic, and I'm done really, are

14 these: Mr. Robinson speaks of the Appeal Chamber dealing with the high

15 status of Milutinovic. My reading of the decision is that the high status

16 of the co-accused and of the accused generally is what is significant.

17 High status they undoubtedly had.

18 So far as guarantees are concerned, this: I think the authorities

19 are clear that the primary issue is whether an accused will respond and

20 will attend, and the Appeals Chamber decision on the material available

21 which has not changed is clear.

22 Personal guarantees really do not enter into the position, and

23 guarantees of states, which are, for the reasons I've already explained,

24 of only limited mid or long-term value, don't make the case different

25 from what it is when you look at the individual as an individual. In any

Page 528

1 well-ordered society, there will be police who will bring to book those

2 who are on provisional release or on bail. The fact that they may be

3 successful in doing so in due course, if called upon to act, doesn't -- is

4 not itself determinative of whether a person should be granted provisional

5 release on bail. That decision is made by consideration of the factors

6 that relate to him, so that the guarantees have limited value and in any

7 event are of uncertain security in the circumstances that exist.

8 Your Honour, I think that's all I want to say, but it's Mr. Shin

9 who has helped us and the Chamber by the pleadings, in particular that you

10 have before you. I'm going to check whether he or Ms. Romano have

11 anything else they want to say. Probably he does.

12 [Prosecution counsel confer]

13 MR. NICE: Perhaps a couple of points for emphasis, and I'm

14 grateful to Mr. Shin. So far as Milutinovic is concerned, the fact that

15 Milutinovic has surrendered himself simply changes nothing. I think

16 perhaps I made this point already. They've all been set out, our points

17 on this, in our brief, in both cases. And what we've said in relation to

18 Ojdanic applies equally to Sainovic.

19 So far as the law is concerned, the Mrksic Appeals Chamber makes

20 clear, and we summarise this in our pleadings, that the reliability of a

21 guarantee given by the relevant authority has to be determined in relation

22 to the circumstances of the particular case in which that guarantee

23 arises. And if you're familiar with the Mrksic decision, it then goes on

24 to deal with how a state's guarantee, in relation to two potentially

25 different accused, could be relied upon differently, favourably to one but

Page 529

1 neutrally or negatively as to the other. That, I think, simply

2 reinforcing the general point that I make, that A; they are accused

3 specific in shorthand; and B, that they don't make good a case that cannot

4 be made otherwise. It's up for the accused to satisfy the burden that

5 falls on him as to the two elements he has to prove. And guarantees by

6 state are very much a long stop that have only limited effect thereafter.

7 Your Honour, I think that's probably all I have to add. Thank

8 you.

9 JUDGE MAY: Thank you.

10 Mr. Fila, is there anything you would like to add?

11 MR. FILA: [Interpretation] Your Honours, just to clarify certain

12 things that are not correct or the result of a misunderstanding. It is

13 clear that if this Tribunal is concerned with the individual criminal

14 responsibility of an accused, that we cannot ask from him, the accused in

15 this case, Sainovic, to bear the burden or to be the victim of a pace of

16 cooperation. If we look at the guarantees, in light of that, the value of

17 guarantees in case of Sainovic, that he would be brought here is that he

18 is not enjoying any single privilege of this regime. Not at any point in

19 time was he ordered to appear before the Tribunal upon the expiration of

20 his mandate as a federal deputy, which expired on the 4th of February, I

21 think. He arrived here at the time he arrived. Once again, I was not

22 Defence counsel of Mr. Sainovic prior to the 24th of April. Not only do I

23 not -- I don't remember such statements, but I claim here that I had never

24 given any statement concerning Mr. Sainovic prior to the 24th of April,

25 because I was not his Defence counsel at the time. I don't know about

Page 530

1 what journalists write, and it is true that I have been asked all kinds of

2 questions by them.

3 As far as the portion where Mr. Sainovic is mentioned is

4 concerned, it was a press conference where he stated not his personal

5 opinion but the opinion of the government and the party that he belonged

6 to. He was acting as a spokesperson at that conference. It was not his

7 opinion. He didn't demonstrate any personal disrespect of this Tribunal.

8 I invite the Prosecutor to find such statement by Mr. Sainovic. If the

9 requirement, if the condition for his temporary release is that I should

10 stop defending him, then I would be prepared to withdraw. But let them

11 bring the journalists. Let them state before the Tribunal that I had

12 declared that as his Defence counsel. This can be easily seen from the

13 record, from the files that can be found in this Tribunal. He was

14 prosecuted together with Mr. Milutinovic, and one can clearly see that I

15 was not his Defence counsel at the time. I would have defended him in

16 Belgrade had I been his Defence counsel. This is simply not true that I

17 was Defence counsel of Mr. Sainovic prior to the 24th of April.

18 Therefore, whatever I stated is my problem, and I am prepared to

19 be held responsible for that, but I did not give any such statement as a

20 lawyer of Mr. Sainovic.

21 As for the statements that are used by this Chamber, these are the

22 statements that I state here before the Tribunal. I cannot be held

23 accountable for things that are written by the media, such as some local

24 Banja Luka paper. Once again, I was never -- I was not a Defence counsel

25 of Mr. Sainovic prior to the 24th of April. Furthermore, I never said

Page 531

1 that I had access to the documents that the Prosecution does not have.

2 Quite the contrary, there were many letters that were addressed to my

3 country, to the effect that the documents -- that they were being provided

4 some documents by the state. But I merely wish to be given the same

5 opportunity. There is a law which regulates the access to the archives,

6 and it is pursuant to that law that the Prosecutor has the right to

7 inspect such archives, which right does not apply to me. I have never

8 been given any such document. Formally speaking, this has been enabled in

9 relevant legal provisions recently, but I have not seen them. And

10 Mr. Sainovic cannot face consequences because of that. Mr. Nice is

11 claiming that there are certain documents that exist, but on the other

12 hand, the government of Serbia is claiming that such documents do not

13 exist. I am referring to a number of documents in Pristina concerning a

14 joint command that they allege existed at the time.

15 Finally, to speak about the time limits. There is a decision of a

16 supreme court of Serbia whereby some of the accused are not allowed to

17 appear. That was the case with Milan Martic. If it is possible to kill a

18 Prime Minister in a country such as Serbia, Mr. Djindjic, you can imagine

19 what the situation is. There are no legal provisions to that respect as

20 far as we are concerned. Sainovic spoke and he addressed the Assembly at

21 the time when he wanted to tell them that he was willing to surrender.

22 This was known to minister Batic and everybody else. They all knew that

23 he would surrender as soon as the law on cooperation is adopted. He never

24 relied upon immunity, he never requested anything, and that is why

25 Mr. Nice has nothing specific to show that Mr. Sainovic stated anything

Page 532

1 personally on his behalf, nor did I state any such things as his Defence

2 counsel. I don't remember about other statements.

3 I wish to explain to the Chamber that it is a very good move -- it

4 would be a very good move for this provisional release to be granted. The

5 state of Serbia has taken upon itself to take him back whenever

6 requested. The detention is not a punishment. I did not understand the

7 Prosecutor. I'm not sure whether he meant to say that Serbia cannot be

8 trusted, that the representative of Serbia and Montenegro clearly stated

9 that they were willing to fulfil their obligations, which is what they did

10 in the case of Milutinovic. So if we can be sure that Serbia will fulfil

11 its obligations and Sainovic is willing to appear whenever summoned, I

12 don't understand why we need this discussion at all. As soon as you tell

13 him to come, he will appear, as was the case with Gruban, who was

14 provisionally released, but he then came back and appeared for the

15 Tribunal for a Status Conference and then he went back again.

16 It would really be an act of goodwill of this Tribunal, if the

17 number of 16 or 19 people who are still fugitives would be significantly

18 decreased. And this is the kind of message in a should be sent by this

19 Tribunal to the people who do not understand what else can be done. We

20 have also inquired about the documents in question, but we were told that

21 a lot of that burnt, that there had been a fire, and these are the

22 documents referred to in the letter by Mr. Nice. He was talking about a

23 witness that cannot be brought here. I assume it's Mr. Lilic. I'm not

24 sure. But as far as I know, he never said that he was not willing to

25 appear before the Tribunal. It is before this Chamber that he's supposed

Page 533

1 to testify. I can assure you that he will appear. As to whether he was

2 relieved of his duty to confidentiality, I don't know, but I think that

3 that can be easily dealt with.

4 As for the stenographic notes, they were given and made

5 available. Those were the stenographic notes of the minutes of the SPS.

6 They were even given documents from the Supreme Defence Council. As to

7 the value of those documents, I don't know. I really don't know whether

8 Mr. Nice is telling the truth or not. I believe that he is. I don't know

9 why he wouldn't. Perhaps this is not what he wanted, because this is not

10 as valuable as he thought it would be, but this is all they have.

11 If we sum up, I don't understand why Mr. Sainovic should be

12 sitting here. Why? Because Serbia has failed to send some documents, a

13 thing over which he has no competences at all? That is the crucial

14 question. If the guarantees can be applicable for General Jokic and others

15 and if Mr. Panceski is now telling you that people are reporting regularly

16 that their whereabouts are known and controlled, I don't see where the

17 problem is. These people will therefore appear whenever summoned.

18 We discussed the issue with the Prosecutor. We never stopped

19 discussing the issue. They did. They said: Well, let's wait for another

20 month or a month and a half and then we will see how we will proceed.

21 They said they were not satisfied with the interview. We lost nine days

22 talking. Now, please do not tell me that they need nine days to see for

23 themselves whether they like the result or not. I really don't

24 understand. I really thought that the interview was very useful, but

25 apparently that's not what they think. But the Chamber will have an

Page 534

1 opportunity to see for themselves, because this will constitute evidence

2 before this Tribunal. And this is a demonstration of the respect that

3 Mr. Sainovic has for in Tribunal, the fact that he has agreed to be

4 interviewed. You can trust our word, Your Honour, and I can only give you

5 my word once again that he will appear before the Tribunal when summoned.


7 MR. ROBINSON: Thank you, Your Honours, and I will be brief.

8 First of all, I'd like to tell you the source of my information

9 with respect to the Prosecutor's position on the release of President

10 Milutinovic, and that is a newspaper article which appeared in Sunday in

11 Serbia. Now, I fully accept Mr. Nice's representation that that's not the

12 case, and I guess that's precisely our point, that relying on an article

13 in a Serbian newspaper is no way to make a decision based on anything

14 important, especially someone's freedom.

15 I'm not going to spend a long time reading you newspaper articles,

16 because I don't believe that that's the basis upon which you should decide

17 this case, but I would just note that on page 29 of annex 1 to our

18 provisional release application, when we attached all of the articles that

19 were relevant, there was an article which quoted Florence Hartman, the

20 spokeswoman for the Tribunal's chief prosecutor Carla Del Ponte, after

21 General Ojdanic had surrendered and she was quoted as saying that she had

22 nothing against the idea of Ojdanic awaiting his trial in Serbia.

23 Now, we have provided the Court with a great deal of information

24 upon which to base its decision, based on reliable evidence. Mr. Nice

25 says that nothing in the pleadings changes the position regarding

Page 535

1 voluntary surrender from that which was before you in the first instance

2 or before the Appeals Chamber and that's simply not correct, because what

3 you had before you was simply a headline that said "I will not surrender"

4 and what the Appeals Chamber had before it was that same article in which

5 General Ojdanic was not even quoted as saying "I will not surrender" but

6 which the headline was "I will not surrender." And so since then we've

7 given you all of the articles which show that in fact his position was

8 consistent. He preferred prosecution in his national system, he

9 recognised the primacy of this Tribunal and he acted in accordance with

10 that. And when the law in his country was adopted that said that

11 notwithstanding the prohibition upon extradition of our citizens, we have

12 them surrender to the Tribunal to be processed by the Tribunal, he did

13 that. And so the articles in their totality show a man who in fact

14 recognised his obligations and ultimately fulfilled them, and you said in

15 your decision that it was the fact of surrender that was important. And I

16 believe that was a very wise observation, and I think these newspaper

17 articles notwithstanding, that remains true to this day. But we've also

18 given you a very detailed affidavit from General Ojdanic which allows you

19 to make your decision from facts not innuendo from newspaper articles

20 and I hope you'll give that affidavit very serious consideration.

21 Now, there's been a lot of discussion about documents and archives

22 and lord knows as an American I'm about the last person who knows anything

23 about the status of the cooperation between the Serbian Montenegro and

24 this Tribunal with respect to documents, but I just harken you back to

25 your own decision on provisional release in which you said that the

Page 536

1 suggestion was made that the government's level of cooperation was

2 generally unsatisfactory. However, it is the particular level of

3 cooperation relating to the issues of provisional release with which this

4 application is concerned. In this connection, the Trial Chamber is

5 satisfied that the proposed level of cooperation is satisfactory.

6 That statement was not the subject of any criticism of the Appeals

7 Chamber, and in fact Judge Hunt in his dissent noted that that was correct

8 that it should not be general cooperation that burdens a particular

9 accused but the level of cooperation with respect to provisional release.

10 And that cooperation has been 100 per cent. Every person who has been

11 given release based on a guarantee of the government of Serbian Montenegro

12 and the Republic of Serbia has returned when requested and the government

13 has been enforcing those guarantees. They report to the police station,

14 they file their reports with this court. And so this court was correct in

15 the first place and nothing changes that, either in circumstances or from

16 what you've heard from Mr. Nice today.

17 Now, there are several ways one can be a fugitive. You can go

18 into hiding, you can vow not to be taken alive, but General Ojdanic wasn't

19 doing that. He made efforts to see that he remained in Belgrade, that his

20 whereabouts were known. He asked authorities to look into the possibility

21 of prosecuting him. He was in contact with the ambassador from the United

22 States even before his surrender. He took all of the steps of a person

23 who has no intention of hiding or fleeing from their obligations. And

24 when it became -- when the law was passed, he was the first to surrender,

25 the first to publicly acknowledge that it was his duty to surrender, and

Page 537

1 he was an example for several other people who surrendered after him. And

2 the bottom line is, you have to determine whether this particular man,

3 General Ojdanic, can be trusted to come back when he's needed, and I think

4 that his actions from the time that he learned of his indictment in 1999,

5 through the time that he came to this Tribunal in 2002, show that this is

6 a man who takes his obligations seriously, whose word is his bond, and who

7 will, without doubt, be here every time he's needed, and that's really the

8 issue before this Trial Chamber.

9 Now, I just want to point out that despite all of the efforts that

10 we've made to give you all the articles that contain public statements, to

11 give you a detailed affidavit from General Ojdanic. On the other side of

12 the ledger, the Prosecution has presented nothing, no evidence. They've

13 offered no witness with declarations, they've offered no exhibits.

14 They're simply trying to put their spin on newspaper articles, and they

15 have nothing more. And I think that when you weigh the evidence, as I

16 hope you will, the weight of the evidence is strongly in favour of General

17 Ojdanic and in favour of your original conclusion that he will appear if

18 released and that he will not be a danger to anyone. And I think that

19 what has happened in the last ten months as he's waited in the Detention

20 Unit has only shown how correct your original decision was.

21 I want to just tell you about General Ojdanic's attitude towards

22 this Tribunal, because I've known him, as indicated in his affidavit, now

23 since May of 2001. And General Ojdanic respects the Tribunal, recognises

24 its jurisdiction, and he is going to be here to fight his case, because he

25 is an innocent man and he -- the time that he's spending in this Detention

Page 538

1 Unit is not something that's going to be credited to him when he's

2 sentenced, because we expect that he's going to be acquitted by this Trial

3 Chamber and that he won't be able to ever recover all of this time that

4 he's lost.

5 So, Your Honours, I would ask you to please consider the man

6 General Ojdanic, consider his actions, and to grant our application for

7 provisional release. Thank you very much.

8 JUDGE MAY: Yes, Mr. Panceski.

9 MR. PANCESKI: [Interpretation] Your Honour, I do not wish to enter

10 into a discussion or a polemic with any of the parties, but I would like

11 to refer to a few points made here. I agree completely with Mr. Nice, who

12 said that this should be decided on a case-by-case basis. Many objections

13 relating to the alleged non-cooperation of Serbia and Montenegro with this

14 Tribunal refer to the Milosevic case.

15 Let me remind you that on the 10th of March, a hearing was held

16 before this very Chamber, where the standpoints of the Prosecution and of

17 Serbia and Montenegro were heard, and the Chamber decided that the

18 government of Serbia and Montenegro should be given two months to respond

19 to the motion by the Prosecution. My colleagues in Belgrade are currently

20 considering this motion and, as representatives of a serious and

21 responsible government, we shall comply with this deadline and submit our

22 response within the required time period.

23 But let me reiterate: This is a different case. We are now

24 discussing the provisional release motion of Mr. Sainovic and

25 Mr. Ojdanic.

Page 539

1 As regards the third accused in this case, the third accused

2 in this indictment, the allegation by the Prosecution, and I quote:

3 "Mr. Milutinovic was a fugitive who was protected by the state in his own

4 interest." This absolutely does not correspond with the truth. After the

5 change of government in October 2000, the new government clearly stated

6 that they would comply with their international obligations and that

7 Mr. Milutinovic would arrive in The Hague on the expiration of his term of

8 office. He was then the president of the Republic of Serbia.

9 Let me raise two more points in connection with the law on

10 cooperation, because there is a particular provision that has been

11 criticised, and this provision prohibits the handing over of persons

12 accused after the law entered into force. I would like to say that there

13 is a radical transformation under way in my country and that all

14 legislation will be brought into line with the new political reality. On

15 several occasions, officials of my country have pointed out that Article

16 39 will be changed.

17 Let me address one more point; that is, the authorities in my

18 country, it was said here, are unable to comply with their obligations.

19 In cases such as that of Mrs. Plavsic or Momcilo Gruban, they did turn up

20 for hearings in The Hague and then they went back to Belgrade, which shows

21 that our government bodies are able and willing to meet their obligations.

22 Thank you, Your Honours.

23 JUDGE MAY: Thank you.

24 [Trial Chamber confers]


Page 540

1 Yes. That concludes the hearing. We're grateful to the

2 interpreters for going on rather longer. We'll consider these matters and

3 give our decision in writing in due course.

4 --- Whereupon the Motion Hearing

5 adjourned at 4.14 p.m.