Tribunal Criminal Tribunal for the Former Yugoslavia

Page 541

1 Thursday, 1 May 2003

2 [Motion Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.40 p.m.

6 JUDGE MAY: Yes, let the Registrar call the case.

7 THE REGISTRAR: Good afternoon, Your Honours. Case Number

8 IT-99-37-PT, the Prosecutor versus Milan Milutinovic.

9 JUDGE MAY: The appearances, please.

10 MS. ROMANO: Christina Romano, and here with me the

11 Prosecutor, Carla del Ponte, and Milbert Shin, and Susan Grogan as our

12 case manager. And Mr. Shin will be doing most of the arguments today.

13 JUDGE MAY: For the Defence.

14 MR. LIVINGSTON: For the defendant Milan Milutinovic, I appear,

15 John Livingston, together with Mr. Radoje Stefanovic. There's also other

16 counsel from Serbia here. I have an application in relation to him. I

17 don't know whether Your Honours would wish to hear that in private

18 session or in open session.

19 JUDGE MAY: We're in open session, aren't we?

20 MR. LIVINGSTON: The position is that Mr. Milutinovic wishes

21 Mr. Papic to be present in court. He's currently unassigned in this

22 case. He wouldn't therefore normally have any right to be in court. He

23 has, however, as Your Honours will be aware from the paperwork, have some

24 association with the work that's been done in this case so far. It is

25 intended that he will be a legal assistant in the case in the future.

Page 542

1 And although again that wouldn't qualify him to be in court, I would ask

2 that on this one occasion bearing in mind that he is here, that Your

3 Honours will allow him to sit in court and listen to all the proceedings.

4 JUDGE MAY: Yes, we'll grant the application. However, since he

5 has not been assigned, there will be no right of audience, and no right

6 of course of any remuneration for this hearing.

7 Yes, Mr. Caric.

8 MR. CARIC: Your Honour, distinguished member of the Trial

9 Chamber, my name is Slavoljub Caric, the consul of the embassy of Serbia

10 and Montenegro, and I'll present the explanation -- the explanation of the

11 guarantees for provisional release of Mr. Milan Milutinovic. Just one

12 correction concerning the translation, I am the counsellor, not consul.

13 Thank you.

14 JUDGE MAY: Yes, Mr. Livingston, it's your application.

15 MR. LIVINGSTON: [Microphone not activated] It is.

16 THE INTERPRETER: Microphone, please.

17 MR. LIVINGSTON: Your Honour, yes, it is. Your Honour, before I

18 begin, let me indicate that although the word confidential appears on all

19 the filings in this case, except bar one, I am -- I hope this was

20 conveyed to Your Honours -- I am content that the vast bulk of this

21 motion be dealt with in open session. But there are three particular

22 matters which I would ask Your Honour to hear me on in private session,

23 which we would like not to be dealt with in public.

24 JUDGE MAY: Yes, well if you indicate when it is you wish to go

25 into private session, the confidential matters, the Chamber will no doubt

Page 543

1 go into that session.

2 MR. LIVINGSTON: Yes. Well, Your Honour, I think it might be

3 easiest if I deal with those matters straight away and get them out of

4 the way.

5 JUDGE MAY: Yes. Private session.

6 [Private session]

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8 [Open session]

9 JUDGE MAY: We shall have to have an adjournment as usual, at

10 4.00, time for the interpreters' adjournment. We can't sit much at all

11 beyond 5.00, so time is limited.

12 MR. LIVINGSTON: I don't expect that I shall be too long. I

13 think I can put my submissions quite succinctly I hope without any

14 detriment to their strength.

15 JUDGE MAY: Very well.

16 MR. LIVINGSTON: Your Honour, the starting point, of course, for

17 any provisional release application is Rule 65. And there are, in

18 essence, two criteria which that particular rule - it's Rule 65(B) - is

19 concerned with. It says that "Release may be ordered by a Trial Chamber

20 only after giving the host country and the state to which the accused

21 seeks to be released the opportunity to be heard." And I think just

22 pausing there, neither of those countries raise any problem about the

23 provisional release of this defendant.

24 It goes on to say, and this is the critical matter for this

25 Chamber: "If it is satisfied that the accused will appear for trial,"

Page 555

1 that's the first point, "and if released will pose -- will not pose a

2 danger to any victim, witness, or other person." Dealing with the first

3 point, that is the -- whether the accused will appear for trial, in my

4 submission, at the bottom of that particular issue is this question about

5 whether the surrender was voluntary or not. And in my submission, it's a

6 distinguishing factor which marks off this defendant from his coaccused

7 in this trial, because the Appeals Chamber, as this Chamber will be

8 aware, found that neither the surrender of General Ojdanic nor the

9 surrender of Nikola Sainovic were voluntary. Your Honour, the points in

10 favour of this defendant are these, and they are made out in my submission

11 very clearly in the letters that you have from the late Dr. Djindjic and

12 from Mr. Svilanovic in the first annex to the provisional release motion.

13 Can I respectfully refer the Chamber to those letters. Dealing

14 first of all --

15 JUDGE MAY: Which annex?

16 MR. LIVINGSTON: It's annex 1.

17 JUDGE MAY: Annex 1. Yes.

18 MR. LIVINGSTON: Dealing with the letter from Dr. Djindjic dated

19 the 14th of January of this year, going to the second paragraph, what

20 Dr. Djindjic said was this: "As president of Serbia, Mr. Milutinovic

21 contributed to an orderly democratic transition, and for that reason, it

22 was important for democratic stability that he served his full mandate as

23 president. Also, Mr. Milutinovic is the first president of Serbia who

24 orderly stepped down when his mandate expired. Immediately afterwards,

25 Mr. Milutinovic has been ready to appear before the International

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Page 557

1 Tribunal. For these reasons, one should consider that his appearance

2 before the Court has been timely. In addition, Mr. Milutinovic cooperated

3 fully with the federal government and the government of the Republic of

4 Serbia on the issue of his coming to The Hague."

5 And the Chamber will also be aware, I hope you've received these,

6 of letters which are dated the 29th of April of this year. One of them

7 signed by Mr. Zoran Zivkovic, who is Dr. Djindjic's successor as prime

8 minister of Serbia, and another letter from Mr. Svilanovic. Can I just

9 check that the Chamber has those?

10 JUDGE MAY: Have we got them? Just remind me, where are they? I

11 suspect they are in the system somewhere, Mr. Livingston. My colleagues

12 appear to have got it. I don't. Yeah, I have a copy now.

13 Yes, we have them now.

14 MR. LIVINGSTON: I'm grateful. Dealing with the letter from

15 Mr. Zivkovic, he, too, reiterates the fact that Mr. Milutinovic

16 surrendered voluntarily to the International Criminal Tribunal, and he

17 says: "I would like to inform you and the Trial Chamber that the

18 guarantee of the government of the Republic of Serbia of 20th January,

19 2003, continues to be valid. The same applies to the views expressed in

20 the letters of the late president of the government, Dr. Zoran Djindjic,

21 dated the 14th and 20th of January, 2003 respectively." I'll come back

22 to the last paragraph of that letter later.

23 And the letter from Mr. Svilanovic of the same date is in not

24 dissimilar terms to that which he had written earlier, but he does confirm

25 that even after the abolition of the federation, that he would like to

Page 558

1 inform you that the guarantee of the government of the then Federal

2 Republic of Yugoslavia, now Serbian Montenegro of 27th January continues

3 to be valid.

4 But the first point for present purposes is that all three of

5 those people are telling you that this was a voluntary surrender. It's

6 also completely different from that which one can perceive with the other

7 two codefendants, because what seems to have been accepted as far as they

8 were concerned is that they responded speedily to the passing or the

9 passage of the law on cooperation with the Tribunal within a matter of two

10 or three weeks.

11 The Appeals Chamber was of the view that their backs were to the

12 wall. They couldn't remain in Serbia securely any longer. They had no

13 alternative but to go. What Mr. Svilanovic and Dr. Djindjic are saying

14 puts this appellant, this defendant, in a completely different category.

15 What they're saying is this: That on the fall of the Milosevic government

16 in October 2000, he was crucial to the continued stability of the country.

17 He was responsible for persuading Mr. Milosevic to step down. He called

18 the new election speedily, and it is their view - and I read the passage

19 from Dr. Djindjic's letter which Mr. Zivkovic agrees with - that it was

20 important for the country that he served his full mandate as president

21 which of course expired on the 29th of December last year. Now, that is

22 a very different state of affairs from that which applies to the

23 codefendants. Let me say immediately, because I don't want to be

24 misunderstood on this, I'm not suggesting for a minute that legally that

25 provides an answer. But as Judge Hunt pointed out in his dissenting

Page 559

1 judgement in the Ojdanic and Sainovic appeal case, what actually matters

2 for provisional release purposes is not the provisions of Article 29 of

3 the statute; what matters is the state of mind of this appellant -- this

4 defendant. And in my submission, there is nothing to indicate that it

5 wasn't this defendant's intention to go once this necessary and important

6 role had been fulfilled in serving his country to the end of his mandate

7 as its president.

8 And I would submit that once his mandate was over, he came to

9 this Tribunal reasonably promptly, and he can't be criticised.

10 JUDGE ROBINSON: The fulfilment of that role of public service

11 to his country, takes precedence over his answering the charges in the

12 indictment?

13 MR. LIVINGSTON: No. I hope I've made myself clear. I don't

14 pretend to say that if one looks at it in a strictly legal way that that

15 explanation provides an answer to him not surrendering. Of course, he

16 could have surrendered. It's physically possible for him to do so. But

17 it is quite plain that his country needed him, needed him at the time of

18 the fall of the Milosevic government. The politicians are telling you

19 that it was important for continuity and for the stability of the state

20 that he remained. And you know that now that once that particular matter

21 is out of the way, his mandate is at an end, he has come to this Tribunal.

22 So it's not a question -- Judge Shahabuddeen in the passage -- in his

23 additional opinion in the Ojdanic and Sainovic appeal made it quite

24 clear -- if you just bear with me, I'll just get the passage.

25 Yes, what he said was this, at paragraph 10 of his additional

Page 560

1 judgement. He said that "Whatever explanation they might give, it was of

2 their own will that they did not wish to surrender. That is what on the

3 evidence the accused have to be understood to be accepting." That was in

4 relation to certain statements that they had made on previous occasions

5 within a short time before surrendering.

6 Now, that is not the case with this appellant. He has an

7 explanation. It is not a question in that same way of not wanting to

8 come. There was an explanation. I'm not saying that strictly speaking

9 in law he should have surrendered. Of course that's right in law, but

10 the point is being made that that shouldn't be held against him in the

11 context of provisional release where what matters is his state of mind.

12 Did he intend to go to the Tribunal? Did he go voluntarily? And in my

13 submission, if you accept the view of those politicians who are at the

14 highest level of Serbian and union politics, then - as in my submission,

15 you should do - there is a good explanation as to why he did not go

16 before the end of his mandate.

17 And I would add simply this: That I submitted earlier, and I

18 repeat in open session, the passage from the B92 internet site quoting

19 Peter Scheider, who is the president of the parliamentary assembly of the

20 council of Europe, that one must have regard to the political and

21 security risks which Serbia and indeed any country it may be subject to

22 from time to time. And in my submission, one should not apply the law in

23 such a way as to endanger the stability of the country. And what

24 Dr. Djindjic, Mr. Svilanovic, and Mr. Zivkovic are all saying to you is

25 this: That had Mr. Milutinovic strictly by the law surrendered to this

Page 561

1 Tribunal earlier, that would have endangered the stability of the country

2 at a crucial time. That is their view. And I reiterate the point which

3 is made in the pleadings, that none of us as lawyers, and I say that with

4 the greatest respect to the Chamber, none of us as lawyers should lightly

5 substitute our view for that of the politicians who were on the spot in

6 the situation which they faced in October 2000.

7 Your Honour, I'll deal briefly with the period pre October 2000.

8 That's a matter as Your Honour knows I've already dealt with in private

9 session. And I reiterate all the submissions that I made in private

10 session concerning the pre-October 2000 period. Again, the matter is

11 touched on in the pleadings, in paragraph 8 of the reply. And, Your

12 Honour, the Chamber is aware of the security concerns which

13 Mr. Milutinovic had at that time. That is, before October 2000.

14 Your Honour, I repeat: I rely on all the submissions I made

15 about that particular period before October 2000. And as far as the

16 period after October 2000, I rely on the matters which are raised in the

17 letters by the highly responsible politicians whose letters you have in

18 front of you. And I rely on the statement by Peter Scheider that there

19 are other concerns, other than a strict appliance of the law, which may

20 excuse or may explain a failure to comply strictly with the international

21 law requirements.

22 Another part of the voluntary surrender situation or picture is

23 this: That it appeared in the Ojdanic and Sainovic case that there were

24 a number of statements which had been made to the press by both those

25 gentlemen indicating a lack of willingness to come to the Tribunal for

Page 562

1 trial. That was what the Appeals Chamber accepted. The Prosecution

2 don't make that point in relation to Mr. Milutinovic. And can I refer

3 you in that context to their response at paragraph 9.

4 What they say in paragraph 9, if you have it, is that the accused

5 also relies in particular on his own contention that he's never made any

6 statements to the effect that he would not surrender voluntarily to the

7 Tribunal. While the accused may have more recently told the media that

8 he would not resist transfer to the Tribunal or that he would surrender

9 voluntarily, that has not been his consistent position since the issuance

10 of the original indictment as reflected in media reports.

11 Now, let me make it quite clear immediately that Mr. Milutinovic

12 does not accept that he has been correctly quoted at any time as

13 indicating that he did not have an intention to surrender to the

14 Tribunal. But I don't particularly want to go down the path of disputing

15 early reports. There are two referred to in the footnotes there. You

16 can see 16 and 17, both of which are in January of 2001. There's also a

17 statement by Vojislav Seselj which is referred to. And again, in my

18 submission, there are good reasons to doubt the objectivity of such a

19 statement. Seselj is clearly a political opponent of Mr. Milutinovic.

20 He stood against him. He was the failed challenger for the post of

21 president in 1997. And I would reiterate the point that I've made in the

22 reply pleading. Do the Prosecution always rely on the truth of what

23 Dr. Seselj says? One suspects not. And the most obvious example is that

24 presumably by pleading not guilty to the indictment in his case, the

25 Prosecution don't accept that he's being truthful. In my submission, one

Page 563

1 should be careful about accepting anything that he says, in particular

2 one should be careful about accepting his point that if Mr. Milutinovic

3 had really surrendered voluntarily, he would have got on a public plane

4 and gone. That may be the way that Vojislav Seselj would go about things,

5 hold a party the night before, get all his friends and relatives at the

6 airport, fly off publicly. That's the way everybody would do it. This

7 Chamber might think that other accused like this defendant might well have

8 concerns for the privacy of their family. The essential thing is

9 surrendering to the Tribunal, not how you do it, whether it's done in a

10 conservative way or in a flamboyant way.

11 But the important point is this: It's the acceptance by the

12 Prosecution in paragraph 9 that there are no recent reports indicating

13 that he wouldn't -- that he would resist transfer or that he wouldn't

14 surrender voluntarily. That's what it says in the substantive text in

15 paragraph 9. In my submission, one should go for these purposes.

16 Whatever may have been said on an earlier occasion, or may not have been

17 said, it's his recent state of mind that matters. That was what was so

18 critical against Ojdanic and Sainovic, that their statements were recent.

19 In this defendant's case, the Prosecution accept that there aren't any

20 parallel statements which can be attributed to Mr. Milutinovic.

21 Can I just also make one last point. There is a reference to a

22 more recent article in the paper Nacional. But I think it's quite

23 apparent when one looks at that, that it's based on double hearsay. It's

24 what somebody tells the newspaper about what Mr. Milutinovic is alleged

25 to have told him. It's not the most reliable source. It's not accepted

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Page 565

1 by Mr. Milutinovic as being accurate. And it's out of line, not only

2 with other statements made by him, and it's also well out of line with

3 the statements made by Dr. Djindjic, Mr. Svilanovic, and as confirmed now,

4 by Mr. Zivkovic. And I would invite you to the conclusion that there is

5 nothing in statements made to the press or on television, nothing of that

6 order, parallel with those statements made by Ojdanic and Sainovic which

7 can be held against this defendant.

8 So again, that is a further pointer to the genuineness of the

9 voluntary surrender in this particular case.

10 It may be appropriate at this point to deal with a different

11 point. And that is the point which is contained in the Prosecution's

12 reply when this Chamber asked for confirmation from them as to whether

13 they actually opposed Mr. Milutinovic's provisional release or not. And

14 Your Honour may recall the reply that's given. If you just bear with me

15 while I dig it out.

16 It's paragraph 5 of that document. And it says as follows: "The

17 Prosecution notes that its position regarding provisional release for

18 Milutinovic, as with that for any accused seeking provisional release,

19 might at some point in the future be subject to change should

20 there be an appropriate material change in relevant circumstances. This

21 might, for example, be the case, again a consideration that would be

22 applicable to any accused seeking provisional release, should

23 Mr. Milutinovic decide to cooperate with the Prosecution in a full and

24 completely honest and forthcoming manner." The first point I make about

25 that is this: That cooperation, let alone substantial cooperation,

Page 566

1 nowhere features in the text of Rule 65.

2 JUDGE MAY: Well, now, Mr. Livingston, this argument was run I

3 think in front of us in Ojdanic, and finds no favour with this Trial

4 Chamber. The argument as to cooperation of course relates to totally

5 different matters, and not necessarily this matter of provisional

6 release. Although, of course, if the Prosecution want to state a view,

7 they always can, but if you're going to argue that absence of cooperation

8 shouldn't be held against him, I think you're pushing at an open door.

9 MR. LIVINGSTON: I'm very grateful for that indication. I was

10 simply going to say, because I do think it's an important point, and I

11 make the point very briefly, that looking at that wording, and it's

12 reiterated by the Prosecution in a later document which the Chamber will

13 be aware of when they're replying to the Ojdanic Defence who replied to

14 this document, that it's almost - and I say this with great respect to

15 the Prosecution - it's almost an inducement to an accused to confess

16 because what they're actually saying is this: We might take a different

17 view completely on provisional release if this defendant gives a full and

18 completely honest and forthcoming account of his role in the matters

19 which are the subject of the trial. Now coming from the Prosecution,

20 that must mean either a whole -- total confession, or a substantial

21 confession to the indictment. In my submission, it is wholly wrong,

22 wholly wrong, for the Prosecution to have a policy, and it sounds as

23 though it's a policy, to try and induce such statements from a defendant.

24 Your Honour will be very well aware, and I hesitate to make such

25 a trite point to this Bench, but Your Honour particularly will be aware

Page 567

1 of the provisions in English law concerning Section 76 of the Police and

2 Criminal Evidence Act which concerns confessions obtained as a result of

3 things said or done, in that case, obviously by the police. Here it's

4 the Prosecution who are suggesting if you are cooperative, if you're

5 honest, and basically confess, then we might take a different view on

6 provisional release. In my submission, that's a wholly improper

7 submission for them to make. And --

8 JUDGE ROBINSON: I think as a Presiding Judge has indicated, we

9 have already taken a particular view on this. And I think it's a view

10 shared by the European Court of Human Rights, that provisional release

11 should not be used as a punishment. And I think, if I'm not mistaken,

12 the Appeals Chamber, or at any rate, I think Judge Hunt also disapproved

13 very strongly of that line of approach from the Prosecution.

14 MR. LIVINGSTON: Yes. Well, I respectfully agree. The problem

15 is that the Prosecution continue to argue this point, and they have done

16 it in this particular case not once but twice. But in my submission, the

17 question of cooperation is irrelevant. I just say in passing on that, my

18 client is in a completely different position to -- for example,

19 Mr. Sainovic, who at the time of his application had not been interviewed

20 at all. My client, as you know, was voluntarily interviewed by the

21 Prosecution in Belgrade well before he even came to this Tribunal.

22 The question of the veracity or otherwise of that interview is a

23 matter which is doubtless this Trial Chamber will have to determine in

24 due course. But he did agree to be interviewed. And in my submission,

25 it's a matter that should be left to rest until trial, and it should play

Page 568

1 no part in the decision on this particular motion.

2 Can I turn now to the issue of guarantees. The Prosecution say

3 quite frankly that they don't accept the guarantees of the Serbian and

4 what was the federal government in this case. In my submission, there

5 may now be reason to review that position. Your Honours have the letters

6 from Svilanovic and from Zoran Zivkovic. In particular, Mr. Zivkovic

7 says: "I would also like to use this opportunity to reiterate the

8 commitment of the government of the Republic of Serbia to cooperate with

9 the International Criminal Tribunal." And Mr. Svilanovic has also made

10 similar statements.

11 The Prosecutor herself - I don't think there's any doubt about

12 this - has also indicated publicly shortly after the murder of

13 Dr. Djindjic that she was happy to note the positive attitude to the

14 Tribunal both of the new union president and of the new prime minister of

15 Serbia. Now, in my submission, if that is the Prosecution's position

16 now, then the guarantees are worth the paper they're written on, and not,

17 as the Prosecution have maintained to date in their response. And I

18 would reiterate again the point made by Peter Scheider, the parliamentary

19 president of the council of Europe, that it is essential to have regard

20 to the political and security context in which any government makes its

21 decisions. This government is indicating that it will do everything in

22 its power to cooperate with the Tribunal. And that, of course, would

23 involve ultimately in this defendant's case enforcing the guarantee if

24 that's what it came to. But in my submission, one can properly ask with

25 this defendant, is it really a case where we need a guarantee at all?

Page 569

1 Does he not, in fact, fall into the category which the Prosecution refer

2 to in paragraph 12 of their response submissions, is he not in other

3 words a person who's conduct has been exemplary or where his personal

4 circumstances as such where no reliable guarantee is required. And if

5 you are of the view that his surrender was voluntary, then in my

6 submission, there is very little basis for saying that his behaviour

7 isn't exemplary. And certainly, if one looks at his personal

8 circumstances, in my submission, one can regard him as a highly reliable

9 individual. You have annexed the provisional release motion, a curriculum

10 vitae relating to Mr. Milutinovic.

11 What that curriculum vitae indicates is this: That he's a law

12 student, graduated in law in 1965. He became a member of the federal

13 parliament in 1969. And I'm told by him, and I'm sure it's right, that

14 he was the youngest member of parliament that there ever has been in the

15 history of the country. He's director of the national library, an

16 ambassador to Greece, federal minister for foreign affairs before he

17 became president. In other words, a man who has given himself

18 substantially to public service over many years, a law-abiding man. And

19 I would remind you respectfully of what Zoran Djindjic said in his letter

20 in annex 1, that he exercised his powers as president of Serbia in a

21 lawful manner at all times and handed over the presidency for the first

22 time in the history of the country in a lawful manner. This is a man

23 who was brought up to respect the law. And he's a professional man. And

24 he's a man of real substance. And as he reminds me, his name has featured

25 for many years now in the international edition of who's who. He's a

Page 570

1 recognised international figure with weight and substance.

2 And in my submission, the question of guarantees with such a man,

3 with such a record, and such a reputation, in my submission, scarcely

4 needs to be backed up with a guarantee. But the guarantees are there,

5 and in my submission, they are worth the paper they are written on and

6 you can rely on the word of those that give them.

7 Your Honour, can I now turn -- perhaps I can just deal also before

8 leaving that topic with the personal guarantee which he gives, which is

9 also annexed to the provisional release motion. In my submission, again,

10 bearing in mind the character of the accused, of the defendant with whom

11 you are dealing, his personal guarantee that he will return to this

12 Court, that he will abide by the orders of this Court is one which this

13 Chamber can readily accept. Maybe with a person without his history and

14 background and record, one couldn't make that point. But with this

15 defendant in my submission, it's something that stands out from his very

16 impressive curriculum vitae.

17 Can I just reiterate that in the bundle...

18 JUDGE MAY: Yes.

19 MR. LIVINGSTON: Can I just reiterate that in the bundle which I

20 handed up to the Chamber at the beginning of this afternoon's

21 proceedings, at page 5, there is an extract from the ICTY weekly press

22 briefing of the 21st of March. And the Prosecutor's spokesman,

23 Ms. Hartman is quoted in the passage that I have marked as saying that it

24 was those who killed Prime Minister Djindjic were wrong in believing that

25 this might diminish the determination to continue the reform of the

Page 571

1 country to move forward and to cooperate with the Tribunal. She added

2 that for the moment it was a good sign, both the president of the union

3 and the new prime minister of Serbia were unequivocal in their support of

4 the Tribunal. It's a point which in my submission adds considerable

5 substance to the position on guarantees.

6 Can I now turn to the next point, which is the high authority

7 point in relation to this defendant. The fact that a defendant or an

8 accused has or has perceived to have a high public profile has not of

9 course proved a bar intrinsically to provisional release being granted.

10 And to see that, one only has to look at such figures as Mrs. Plavsic,

11 Sefer Halilovic, Rahim Ademi, and Admiral Jokic. Those are all

12 high-ranking military or political figures who have been granted

13 provisional release so it's not intrinsically a bar. The point about high

14 authority, of course as the Chamber will be well aware, is really two

15 fold: Firstly that the more important person that you are, the more

16 serious the crimes that you may be found to have committed, and therefore

17 the more serious the penalty that you will suffer, and therefore it is

18 said the more reason you have not to appear at Court. The second point,

19 of course, is that -- and this really arose first of all in the Brdjanin

20 provisional release motion, and it was also dealt with in the Ojdanic and

21 Sainovic appeal. The second point about high authority is that it's

22 thought that if somebody of such status is released, it may provide the

23 government of the country with a reason for not handing the person over

24 because he's in receipt of -- or he has in his knowledge matters which

25 could convict other people or put the country in a bad light.

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Page 573

1 My primary submission about that is this: And I say so with the

2 greatest respect. That Your Honour and Judge Robinson dealt with this

3 issue of higher authority in the judgement in the Kordic and Cerkez case,

4 and you'll find at the back of that little bundle I've handed you, there

5 are a couple of pages that I've extracted for convenience from that

6 judgement. The point really that I make here about Mr. Milutinovic is

7 that while he may have a perceived high profile, his position really is

8 much more symbol rather than substance. The first paragraph which has

9 relevance to this case, and can I indicate this, it may be that these two

10 paragraphs - it's 415 and 424 - it may be that those are the subject of

11 appeal in the Kordic and Cerkez case. I know not. But Your Honour may be

12 aware and will doubtless be pleased to know that these two paragraphs have

13 been given substantial approval by no less a person than the former

14 president Professor Antonio Cassese in his recently published book

15 "International criminal law." What paragraph 415 says is this: "It

16 follows that a government official will only be held liable under the

17 doctrine of command responsibility if he was part of a superior

18 subordinate relationship, even if that relationship is an indirect one,

19 even though arguably, effective control may be achieved through

20 substantial influence, a demonstration of such powers of influence will

21 not be sufficient in the absence of a showing that he had effective

22 control over subordinates in the sense of possessing the material ability

23 to prevent subordinate offences or punish subordinate offenders after the

24 commission of the crimes."

25 And then an example, which is perhaps not relevant to this case

Page 574

1 is given. But over the page, paragraph 424, the Chamber said this: "A

2 superior status when not clearly spelled out in an appointment order may

3 be deduced from an analysis of the actual tasks performed by the accused

4 in question. Evidence that an accused is perceived as having a high

5 public profile manifested through public appearances and statements, and

6 thus is exercising some authority, may be relevant to the overall

7 assessment of his actual authority although not sufficient in itself to

8 establish it without evidence of the accused's overall behaviour towards

9 subordinates and his duties. Similarly the participation of an accused

10 in high profile international negotiations would not be necessary in

11 itself to demonstrate superior authority."

12 Now, I wouldn't normally trespass in a motion of this sort on

13 matters of evidence. But there are two matters of evidence which I just

14 very briefly refer to, and I've got copies of those documents for the

15 court. Perhaps with the usher's assistance, I could hand those out.

16 JUDGE MAY: Yes, Mr. Shin.

17 MR. SHIN: Your Honours, without knowing beforehand what

18 the -- my learned colleague intends to -- what document he intends to

19 refer to, the Prosecution would simply question whether this is the

20 appropriate time or forum to discuss these matters of evidence going to

21 substantive areas of liability.

22 JUDGE ROBINSON: I think we have to wait to hear what use he makes

23 of it.

24 MR. LIVINGSTON: Well, it relates to this issue of whether this

25 appellant is really symbol or substance. The first document in that

Page 575

1 bundle is a statement from a witness from whom this Chamber has already

2 heard in the Milosevic trial. It's -- he's known in the trial as Radomir

3 Tanic, and he, as I understood it, was a witness whom the Prosecution

4 placed substantial reliance on. I've extracted page 3 simply from that

5 statement, and you can see what he says there about Mr. Milutinovic. He

6 says this: "I also reported to Milan Milutinovic, the president of

7 Serbia, even though he did not have any decision-making power independent

8 of Milosevic. My assessment of Milutinovic is that he was tolerated as

9 being necessary for the de jure structure, however de facto Slobodan

10 Milosevic was running Serbia as well as Yugoslavia."

11 Now, the Prosecution put their case in terms of high authority on

12 two grounds: Firstly, as the president of Serbia; and secondly, as a

13 member of the supreme defence counsel of the former Yugoslavia. In my

14 submission, that's an important Prosecution witness who supports the

15 Defence point that Mr. Milutinovic was a figure of symbol rather than

16 substance. The following document is an extract from the US department of

17 State report on Serbia and Montenegro for the year 1999, which of course

18 is the year of the war and it's the year in question in this case. And

19 again, I've extracted the relevant part, it's the second page and you can

20 see I hope the second main paragraph on the second page, starting "As a

21 key of his hold on power." Does the Chamber have that?

22 JUDGE MAY: We do. But I really doubt very much if it's going to

23 assist us.

24 MR. LIVINGSTON: Well, the only point I wanted to make is one

25 sentence. It says this: "Milosevic, effectively has destroyed the

Page 576

1 constitutional role of the supreme defence council essentially

2 establishing himself as commander in chief of the Yugoslav army." Now

3 it's this accused case, and I don't think there's any great secret about

4 it, that destroyed the supreme defence council is a very apt word to have

5 used because the supreme defence council while continuing to exist in form

6 simply wasn't convened at all during the relevant period of the war. And

7 that statement in my submission backs that up.

8 And if you accept those two pieces of evidence, in my submission,

9 they add weight to my proposition that this is not a defendant whose high

10 authority is such that he should be regarded -- that it should be

11 regarded as a bar to him being granted provisional release.

12 Your Honour, I see that the clock is now just past 4.00. I have

13 to say, I don't have a great deal more, but I haven't quite finished.

14 But if Your Honour wishes to take the break now, it probably would be an

15 appropriate moment.

16 JUDGE MAY: Yes, we'll take the break now. Quarter of an hour,

17 and we will sit until half past 5.00.

18 MR. LIVINGSTON: I'm very grateful.

19 JUDGE MAY: If we can, we will finish this hearing.

20 --- Recess taken at 4.03 p.m.

21 --- On resuming at 4.19 p.m.

22 JUDGE MAY: Yes, Mr. Livingston.

23 MR. LIVINGSTON: Your Honour, the next point I want to deal with,

24 I hope I can deal with quite shortly. And it's the second limb of Rule

25 65(B), that is, dealing with -- does the defendant pose a danger to any

Page 577

1 victim, witness, or other person. My point about that is essentially the

2 same as in the pleadings, which is this: That this defendant was, of

3 course, in Serbia for some time before he came here. There's never been

4 any attempt to interfere with witnesses in the past, any suggestion that

5 he's going to interfere with witnesses is in my submission pure

6 speculation, and there is absolutely no evidence to support it whatsoever.

7 I go further and invoke in this context again the outstanding reputation

8 for integrity and public service which this defendant has demonstrated in

9 the past. This does not mark him out as a man who is likely to try and

10 manipulate his trial by interfering with victims, witnesses, or any other

11 person. Your Honour, I hope that deals satisfactorily with that second

12 objection.

13 Before I turn to the topic of health, can I just deal with the

14 other aspect of Rule 65(B) which is, if you like, the discretionary

15 aspect, because the provision starts by saying "Release may be ordered by

16 a Trial Chamber" if it's satisfied about the two criteria which I've been

17 dealing with to date. The Prosecution deal with that point starting at

18 paragraph 20 of their response brief. And essentially, the point in my

19 submission is about the maintenance of confidence in the administration of

20 justice by the Tribunal. My submission is far from damaging the

21 confidence of administration of justice by the Tribunal, the release of

22 this defendant would actually enhance the confidence that the public

23 internationally would have in the administration of justice by this

24 Tribunal.

25 Dealing firstly with Serbia and Montenegro, Your Honour has the

Page 578

1 letters from Dr. Djindjic, Mr. Svilanovic, and from Mr. Zivkovic, and

2 they deal with an important point here. It's annex 1 to the original

3 motion. What Mr. Djindjic says in his letter of the 14th of January,

4 2003, is this: That "Mr. Milutinovic is coming back to Belgrade after his

5 initial appearance in The Hague would certainly improve the image of the

6 International Tribunal in Serbia, which in turn would contribute to

7 efforts of my government to put at the disposal of the Tribunal other

8 indicted individuals that may be in Serbia." And it's a point reiterated

9 by Mr. Svilanovic. I don't think I need to read any particular passages

10 from his letters. The Court has them. And Mr. Zivkovic adopts the

11 comments made by Dr. Djindjic and reiterates his commitment to the

12 Tribunal.

13 So in my submission, in terms of the public in Serbia and the

14 issue of confidence in the administration of justice in Serbia, there is

15 very much to be said for this -- for the provisional release of this

16 defendant. And it is -- would be helpful for them to see that a

17 defendant doesn't necessarily, even if he may be perceived to have a high

18 profile, have to remain in custody for probably a lengthy period of time

19 before his trial. And that this Tribunal is prepared to be fair to Serbs

20 and where it is appropriate and where Rule 65 is satisfied, to grant the

21 provisional release of the defendant.

22 The second aspect of my submission on this point is contained in

23 annex 1 to the reply to the Prosecutor's response. And what that

24 contains is a number of comments by international dignitaries at the time

25 of Mr. Milutinovic's surrender. The Chamber can read them for

Page 579

1 themselves. But what essentially they come to is that a number of

2 international dignitaries congratulate and indeed welcome

3 Mr. Milutinovic's surrender voluntarily to this Tribunal. In my

4 submission, granted that that is the case, this is hardly a situation

5 where people internationally are going to sit up and say "How can the

6 International Criminal Tribunal for the Former Yugoslavia conscientiously

7 release Mr. Milutinovic?" He surrendered voluntarily, and his behaviour

8 is commended and welcomed. And in my submission, he ought and indeed his

9 behaviour is such to indicate that provisional release is appropriate in

10 the circumstances of his behaviour and of his surrender and of all the

11 circumstances which I've already dealt with. So internationally in terms

12 of boosting confidence in the administration of justice, the pointers in

13 my submission are towards provisional release in this case.

14 Your Honour, that's what I say about the discretionary aspect.

15 One final point before I turn to the issue of health: Mr. Milutinovic is

16 anxious that I remind the Chamber of a point which I'm sure it is aware

17 of, and that is simply this: That there is no longer any state of

18 emergency in Serbia. So if there were any concerns about returning this

19 defendant to a country which -- where the control of the government might

20 in any way have been in any doubt at all, that is gone. Law and order

21 has been maintained. The government is in full control, a government

22 which is favourable towards this Tribunal.

23 Your Honour, turning to the health issue, I'm going to call

24 Mr. Milutinovic in one moment. Can I just deal with that issue in this

25 way: The Chamber has a number of medical reports in this case starting

Page 580












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Page 581

1 with that of Mr. Milasinovic, it is at annex 4 to the original provisional

2 release motion. And without going into any of the details of his medical

3 condition, if one looks particularly at the report which -- the most

4 recent report, that is the 10th of January, 2003, what is apparent from

5 that report in my submission is this: That there will be periods of time

6 when Mr. Milutinovic's health is good. As good as it can be for somebody

7 with the history of serious heart surgery that he has. In particular,

8 what Mr. Milasinovic says in the first paragraph of that report is: "Last

9 time I saw him during the summer," and he refers to a medical report of

10 August the 10th, 2002, "he had no anginal symptoms at that time." So it

11 is a feature, it would seem, of this accused's medical history that

12 sometimes he may be symptom-free, but sometimes as Mr. Milasinovic says in

13 the last paragraph of his report, he can be at elevated risk of sudden

14 cardiac death. And in my submission, none of those conclusions are

15 actually fundamentally at odds with what has been found by Mr. Van der

16 Sloot. The Chamber will of course have those reports. There are two

17 reports which in my submission one must have regard to.

18 The first one is that dated the 11th of March, 2003, which in a

19 sense was a provisional report. And the second one is that dated the

20 14th of April, 2003. Just dealing briefly with the 11th of March report

21 first of all, he talks -- the term he uses at intervals during that

22 report is of premature ventricular contractions which he shortens to

23 PVCs. Perhaps, I can for convenience use that contraction. And he does

24 indicate in that report that a patient - this is in the fourth paragraph -

25 a patient with frequent PVCs, that is, three or more in a row, may have --

Page 582

1 or he says there is in fact a higher risk of sudden cardiac death. Now

2 that is a very similar conclusion to that which Mr. Milasinovic had

3 indicated in the report which I've referred to a few moments ago. In the

4 letter -- it's a letter but it's also a report of the 14th of April, in

5 paragraph 2 of that letter, he says this: "There was made a 24-hour ECG,

6 showed frequent ventricular ectopy." Now, I stress I'm not a medical

7 expert, but my understanding of that phrase is that it means much the same

8 as frequent PVCs. In other words, runs of PVCs. He goes on to say, being

9 multiform PVCs.

10 He of course concludes that at the moment, and I do stress that

11 that last sentence which is over the page in that report simply says that

12 he has no real cardiac complaints at the moment which justify the

13 conclusion that his clinical cardiac condition at this moment is

14 acceptable. It offers no prognosis as to the future. And in my

15 submission, it's not actually out of line with what Mr. Milasinovic is

16 saying, that there are periods fortunately and happily where this

17 defendant -- where his cardiac condition may be acceptable. But equally,

18 Mr. Milasinovic is indicating that his history shows that there are

19 going to be other periods, particularly when he has these frequent PVCs,

20 when his heart condition may present this elevated risk of cardiac

21 arrest. And in my submission, one cannot rule that out in this particular

22 case.

23 Let me say straight away, and Mr. Milutinovic would urge me to

24 make this point very clear, that he doesn't doubt the expertise of the

25 doctors in Holland. He doesn't doubt the excellence of the hospitals.

Page 583

1 Indeed, I think from what he's experienced himself, he's impressed. But

2 the question in his mind, and he will deal with this in a moment himself,

3 the question very much in his mind is if he reaches a stage, as he may,

4 where there is an elevated risk of cardiac arrest, what is going to

5 happen then? Because it is quite apparent that particularly over

6 weekends, bank holidays, any time from 5.00 Friday afternoon onwards,

7 there is very limited staffing in the UN Detention Unit and the potential

8 to react quickly to an emergency such as might be presented, in my

9 submission this is not a criticism of the Detention Unit in any way, is

10 limited, and one must be cautious to expose him to any risk which

11 one -- which might foreseeably occur and which his history indicates.

12 And in my submission, looking at the Milasinovic report, that risk is a

13 real one. At the moment, the heart condition is acceptable. But one

14 cannot by any means guarantee on the documentation that you have that will

15 always be the case. And in my submission, granted that it's now accepted

16 decision in Mrksic, it indicates that, that the health of a defendant is a

17 relevant factor to be taken into account for provisional release

18 purposes. There can be really no question that from the health point of

19 view this defendant would be better served if he wasn't in custody where

20 there is a -- he's easier to react to emergencies and where, to put it

21 frankly, and I hope in a sense this is readily acceptable, where there is

22 less stress. There is inevitable stress involved in being in custody

23 facing the sort of allegations which this defendant does. And in my

24 submission, there will clearly as a matter of common sense be much less

25 stress if he's able to be at home with his family and friends and to

Page 584

1 prepare his case in familiar surroundings.

2 So in my submission, at the end of the day, the evidence about

3 the health, while mercifully from his point of view hopeful and optimistic

4 at the moment does not indicate that provisional release on that ground

5 would be an inappropriate step. Your Honour, I've taken a long time, I'm

6 sorry about that. But this is a very important motion from

7 Mr. Milutinovic's point of view. Can I call him to address you as he

8 wishes to on the medical matters.

9 JUDGE MAY: We'll go into private session. There's a matter that

10 Judge Robinson wants to raise.

11 [Private session]

12 [redacted]

13 [redacted]

14 [redacted]

15 [redacted]

16 [redacted]

17 [redacted]

18 [redacted]

19 [redacted]

20 [redacted]

21 [redacted]

22 [redacted]

23 [redacted]

24 [redacted]

25 [redacted]

Page 585













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Page 594

1 [redacted]

2 [redacted]

3 [redacted]

4 [redacted]

5 [redacted]

6 [redacted]

7 [redacted]

8 [redacted]

9 [redacted]

10 [Open session]

11 JUDGE MAY: Mr. Caric.

12 MR. CARIC: Yes, thank you. Let me present the explanation of

13 guarantees by reading the original text in Serbian, B/C/S. Thank you

14 very much.

15 [Interpretation] Your Honours, on behalf of the state union

16 of Serbia and Montenegro, it is my honour that I'm able to address this

17 Trial Chamber today. Following the application of the accused Milan

18 Milutinovic for provisional release with protective measures, the

19 government of Serbia and Montenegro fully abides by the guarantees given

20 by the federal government on its 25th session held on the 23rd of

21 January, 2003. It means that the government of Serbia and Montenegro are

22 still proposing that the accused, Mr. Milan Milutinovic, the former

23 president of the Republic of Serbia be provisionally released and hereby

24 undertakes that should the Trial Chamber grant the provisional release of

25 the accused and to allow him to stay in the territory of Serbia and

Page 595

1 Montenegro during that period of time, will respect all orders of the

2 Trial Chamber so that he can appear before the Trial Chamber when

3 required to do so. This includes all previous undertakings, obligations,

4 and regarding the travel of Mr. Milutinovic, the control of his stay on

5 the territory of Serbia and Montenegro, and the regular informing of the

6 Tribunal of the situation, including the respect of protective measures.

7 This has been given in accordance with Article 26 of the law on

8 cooperation with the Tribunal, which applies only to the persons who have

9 voluntarily surrendered to the Tribunal. The government of Serbia and

10 Montenegro consider that Mr. Milutinovic has surrendered himself

11 voluntarily although the indictment was confirmed on the 24th of May,

12 1999, Mr. Milutinovic has remained in his office as the president of the

13 Republic of Serbia until the expiration of his mandate which took place

14 on the 29th of December, 2002. Following the political changes in Serbia

15 in October 2000, this was very important for the political stability of

16 the country itself and the entire region. Immediately after the

17 expiration of the mandate of Mr. Milutinovic, he expressed his

18 willingness to surrender voluntarily to the Tribunal.

19 Immediately after the expiration of the mandate -- of his

20 mandate, Mr. Milutinovic expressed his readiness to surrender voluntarily

21 to the Tribunal. And until his arrival in The Hague, he was in contact

22 both with the government of the Republic of Serbia and the ministry of

23 foreign affairs of Serbia and Montenegro. As well as the Office of the

24 Prosecutor in Belgrade. He never went into hiding, and his decision to

25 surrender voluntarily, although it was conditioned by the development of

Page 596












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13 English transcripts.













Page 597

1 the democratic changes taking place in Serbia, was only his.

2 Mr. Milutinovic did not appear before this Tribunal under any kind of

3 constraint or pressure. The voluntary surrender of Mr. Milutinovic, the

4 former president of the Republic of Serbia, constitutes a very strong

5 incentive to other individuals to do the same, to undertake the same

6 step. And a positive ruling of the Chamber pursuant to this motion would

7 further contribute to this.

8 For the above-mentioned reasons, the minister of foreign affairs

9 of Serbia and Montenegro, Mr. Goran Svilanovic, decided to address the

10 President of the Tribunal with a letter in order to provide further

11 support to the guarantee which was offered by the federal government.

12 The president of the government of Serbia, the late Mr. Zoran Djindjic,

13 acted in a similar fashion. In a letter sent to the chief prosecutor of

14 the Tribunal, he made his contribution to the guarantees offered by his

15 government. This was further confirmed several days ago in the letters

16 by the president of the government of Republic of Serbia, Mr. Zivkovic,

17 and by Mr. Svilanovic, minister of foreign affairs. Your Honours, the

18 provisional release of Mr. Milan Milutinovic pending trial with the

19 application of relevant protective measures in our view would not pose

20 any risk to the further successful conduct of this case. This can be

21 concluded on the basis of the seriousness with which our government has

22 so far fulfilled its obligations.

23 As part of the process of establishing a full cooperation with

24 this Tribunal, with the Prosecution and the Defence counsel, we believe

25 that this process is constantly being promoted. Serbia and Montenegro

Page 598

1 have so far surrendered six individuals to this Tribunal, including a

2 former head of state, the former president. A large number of indictees

3 have surrendered voluntarily, encouraged by the campaign of our

4 government. Serbia and Montenegro are ready -- are willing to continue

5 with the arrests of all indictees who find themselves on the territory of

6 these two countries. The cooperation with respect to finding the accused

7 and also with respect of the waiver of their obligation to keep state

8 secrets is also going very well, and the requests of the Prosecutor

9 pursuant to Rule 54 bis have also been adequately processed, and the

10 cooperation with that respect is also going well.

11 As for the request of the Prosecutor pursuant to Rule 54 bis,

12 this request has been mentioned by the Prosecutor as an argument for

13 their allegations in their response to the motion of the accused for

14 provisional release of the 6th of February. With regard to this, I wish

15 to emphasise that the request of the Prosecutor pursuant to Rule 54 bis

16 is not relevant for the current arguments because it is a direct

17 litigation between the Office of the Prosecutor and Serbia and Montenegro

18 which cannot in any way affect the position of the accused in the

19 arguments for his motion of provisional release. The fight against

20 organised crime which, after the assassination of the Serb prime minister

21 Zoran Djindjic has yielded excellent results, has also contributed to the

22 strengthening of democratic stability in our country. And therefore,

23 creation of even better conditions for all forms of cooperation with this

24 Tribunal.

25 Serbia and Montenegro wish to refute the arguments offered by the

Page 599

1 Prosecutor in paragraphs 12 to 15 of their response of the 6th of

2 February. We wish to draw the attention of the Trial Chamber to the

3 unacceptable character of the allegations made therein; in particular, in

4 paragraph 14 of their response whereby they have cast doubt to the

5 reliability of the guarantees offered by Serbia and Montenegro. In

6 future, as stated by the Prosecutor, when current officials are no longer

7 in power, in all cases in which the Court has so far accepted the

8 guarantees offered by our government, namely, the case of Biljana

9 Plavsic, Pavle Strugar, Miodrag Jokic, Momcilo Gruban, and Momir Talic,

10 the surveillance hasn't so far encountered any particular difficulties.

11 All persons who are currently under surveillance have regularly responded

12 to the summons of Trial Chambers, and not a single party to the

13 proceedings held before the Tribunal has ever had any objection as to the

14 conduct of the local authorities. Therefore, we expect that the

15 Prosecutor treat the guarantees offered by Serbia and Montenegro with

16 adequate amount of respect.

17 At this point, Your Honours, this is all I have to say. I thank

18 you very much for your attention.

19 JUDGE MAY: Thank you.

20 Yes, Mr. Shin.

21 MR. SHIN: Thank you, Your Honours. I will -- given the time, I

22 will make my best efforts to move along quickly, although I'm not sure

23 that I will be able to finish prior to 5.30.

24 The Prosecution will begin first by making some general points,

25 taking into consideration in the course of those points the arguments

Page 600

1 raised here today by my learned colleague as well as the representative

2 from the state that is now currently known as Serbia and Montenegro.

3 Secondly, the Prosecution will turn to any other points that have not

4 otherwise been addressed.

5 My learned colleague has stated that at the bottom of this issue

6 of provisional release is the issue -- the question of whether the

7 surrender of the accused was voluntary or not. The Prosecution agrees

8 that this was a very important element in the consideration of an

9 application for provisional release. In this case, the Prosecution notes

10 that the accused has been a fugitive for nearly four years. I believe

11 the actual time period is somewhere in the neighbourhood of three years

12 and eight months. During this time period, the accused could at any time

13 have surrendered. The Prosecution submits, and his allegations to the

14 contrary will be addressed later in these submissions. The original

15 indictment was issued in May of 1999 and was a matter of international

16 news. The accused does not and in fact could not deny that he was in any

17 way unaware of this indictment. The Prosecution turns next to the

18 conditions under which for nearly four years the accused was at large.

19 The accused was openly enjoying the protection of his government. In

20 fact, and indeed, in the past before this very Trial Chamber, a

21 representative of the Federal Republic of Yugoslavia has stated openly

22 that the accused would not be transferred prior to the end of his term in

23 office despite the fact that he had been indicted in May of 1999.

24 The Prosecution submits that these circumstances show that the

25 accused demonstrated by his actions what his attitude was towards the

Page 601

1 Tribunal. In short, that he did not respect the authority of the

2 Tribunal, and that it was his intention to in the context of provisional

3 release get away with as much as he could while he could enjoy the

4 protection of the authorities in his country. In fact, the Prosecution

5 submits that it was only when the accused had to surrender that he

6 decided that he would. This calculation resulting in part on the passage

7 of the law on cooperation, this is a point that perhaps we didn't make

8 adequately in our response brief. And we would just point to Article 36

9 of the law on cooperation in that regard, which states that an accused

10 who voluntarily surrenders shall receive guarantees for provisional

11 release, and I emphasise that it states that he shall receive guarantees

12 for provisional release. This law is publicly available, the Prosecution

13 does have translations available if it would be of assistance to the Trial

14 Chamber.

15 I turn next to the issue of prior statements of the accused. In

16 the Prosecution's filings, the Prosecution cites an article entitled

17 "I will not face war crimes court - Serbian president" with the byline of

18 the Reuters news agency. And dated on the 17th of January, 2001. And

19 I'll read briefly -- very briefly from that article.

20 The article states, and this is a quotation of the accused,

21 Mr. Milutinovic: "I see no reason to surrender myself to the Tribunal.

22 I think the verdict of my people is the main one, and these artificial

23 creations," referring to the Tribunal, "for trying an entire people and

24 its leadership is something I do not recognise." The accused is later in

25 this same article quoted as saying, speaking to the interviewer: "You

Page 602

1 know yourself that The Hague Tribunal is a political court, and

2 Kostunica has spoken his mind about that recently. He clearly said what

3 he thought about it." Despite the allegations now raised that -- the

4 argument now raised that the accuse did not say these words, the

5 Prosecution submits that these words are consistent with the

6 conduct -- conduct of the accused in avoiding the jurisdiction of this

7 Tribunal for nearly four years and is properly reflective of his state of

8 mind at that time.

9 The accused points to recent changes in his statements where he

10 states that now recognised the Tribunal. The Prosecution submits that it

11 is not surprising that he should have changed his view. This is

12 consistent with our argument that the accused recognised the Tribunal when

13 he believed, and we emphasise that when he believed that after four years

14 of living as a fugitive, his period of protection under stated authorities

15 may be coming to an end and therefore chose to surrender to the Tribunal.

16 The Prosecution in its filings also quoted a second article dated

17 the 24th of December. This article entitled "Serbia's Milutinovic refuses

18 to surrender to Hague Tribunal." And I'll quote just briefly from that as

19 well. This article states: "Serbian President Milan Milutinovic has made

20 to deal with the authorities and has no intention of surrendering to The

21 Hague Tribunal. One of Milutinovic's close associates whom the president

22 has asked to pass this message on to the media told Nacional," Nacional

23 being the source of that article.

24 The Prosecution submits is what this shows quite simply is the

25 surrender of the accused was not voluntary surrender within the meaning

Page 603

1 and context of Rule 65 (B), and certainly in line of the jurisprudence of

2 this rule. Under such circumstances, the Prosecution submits that the

3 personal guarantees should be given little weight and cannot be a strong

4 argument for release.

5 On the jurisprudence, the Prosecution relies on the Appeals

6 Chamber's decision on Sainovic and Ojdanic in June of last year. I'm

7 sorry, I believe in October of last year. This decision, of course,

8 offers relevant guidance on the issue of provisional release for this

9 accused. The facts are very similar to this accused, and on those facts,

10 the Appeals Chamber found that the surrender of the accused Sainovic and

11 Ojdanic could not be considered voluntary. There is of course a

12 difference between the facts of that case or the facts of those two

13 applications and the facts of this application. In this case, the accused

14 refused to surrender, and his refusal to surrender continued for nearly a

15 year after his coaccused had surrendered to this Tribunal. This

16 difference the Prosecution submits makes the grounds for detention even

17 more compelling in this case.

18 On the jurisprudence, the Prosecution would also refer the Trial

19 Chamber to the Appeals Chamber decision in Mrksic which upheld denial of

20 the application for provisional release of that accused. In that case,

21 the Trial Chamber found that surrender after six years of refusing to

22 surrender to the Tribunal could have only limited impact in favour of

23 release. In fact, the Trial Chamber in that case stated that it was

24 rather doubtful whether the accused having failed to voluntarily

25 surrender during all those years can be treated as if, in fact, he had

Page 604

1 voluntarily surrendered.

2 In that case as well, the Trial Chamber therefore held that it

3 was not satisfied with the personal undertakings of the accused seeking

4 provisional release. Both these findings of fact by the Trial Chamber

5 were upheld by the Appeals Chamber in its decision.

6 The Prosecution would also briefly refer to the Trial Chamber's

7 decision in the Martic application for provisional release denying

8 release. Similarly, the accused Martic had been a fugitive for

9 approximately six years. And on those and other factors, the Trial

10 Chamber found that he had not satisfied the Trial Chamber that he would

11 return if required for trial -- or rather, when required for trial. The

12 Martic decision certification for appeal on that case was not granted.

13 The Prosecution will now turn to its second point. Allegations

14 and arguments by the accused to the contrary, the Prosecution submits

15 that there was no justification or excuse for failure to surrender during

16 these four years. The Prosecution would note first that despite the

17 arguments that the accused contributed to democratic transition in Serbia

18 and Yugoslavia, or in some way contributed to political stability in

19 those -- in that republic and that state should be given no weight.

20 First of all, there is simply no support in the jurisprudence, nor in

21 the statute or rules of the Tribunal, that such political considerations

22 can justify defiance of the Tribunal's authority; rather, as the

23 Prosecution has indicated in its submissions, the statute and the rules

24 expressly exclude in several instances such types of considerations. And

25 I refer the Trial Chamber again to Statute Article 7 (ii), and also to

Page 605

1 Rule 58 of the Rules of Procedure and Evidence. Despite the clear

2 exclusion of domestic considerations in the context of surrender and

3 transfer as set out in the statute and the rules, the accused goes even

4 one step further and asserts that such political considerations must not

5 only be taken into consideration in this context, but furthermore, that

6 the Trial Chamber must accept them as they come in at their face value

7 and cannot second guess or question them.

8 The Prosecution submits that this is tantamount to saying that

9 this is essentially a non-justiciable question that the Trial Chamber must

10 accept. We submit that the Trial Chamber should simply reject this

11 further invitation to insert political considerations in the provisional

12 release context. As we indicated in our filings, to do otherwise would

13 create incentives to foment conditions that would in fact render surrender

14 to the Tribunal a threat to political stability. The experience of this

15 Tribunal from its early days, even to the present, in bringing indictees

16 before it shows that this is no hypothetical concern, and certainly not

17 an extreme one as suggested by the accused in his reply brief. The

18 Prosecution would next point to paragraph 8 of the reply brief. In that

19 paragraph, the accused asserts that he could not surrender before October

20 2000 --

21 JUDGE MAY: I think we'll deal with that in private session, if

22 you want to make some submissions about that.

23 How much longer do you think you're going to be, Mr. Shin?

24 MR. SHIN: Perhaps --

25 JUDGE MAY: Do not feel that you've got to speed, because we may

Page 606

1 have to have another hearing.

2 MR. SHIN: Yes, I would anticipate chose to a half hour, perhaps

3 more. There were quite a number of issues raised at some level in detail

4 in the course of these lengthy proceedings, and I would request adequate

5 time to treat those matters.

6 JUDGE MAY: We're considering a suitable time to adjourn to.

7 Maybe the Registrar can assist us.

8 Mr. Livingston, what's your position? Are you here tomorrow

9 morning, for instance?

10 MR. LIVINGSTON: Well, I have actually got a flight booked back

11 this evening, but...

12 [Trial Chamber confers]

13 JUDGE MAY: What is your position tomorrow? Because there is a

14 view that we should finish this off. I mean, you've got a flight.

15 MR. LIVINGSTON: Well --

16 JUDGE MAY: Are you elsewhere tomorrow morning?

17 MR. LIVINGSTON: Not as far as I'm aware. But one never knows

18 with barrister's clerks to what they may have done in the interim.

19 JUDGE MAY: Mr. Shin, does this make any difference to you when

20 we hear this? The alternatives are that we hear it tomorrow morning, or

21 that we put it off to another day. Does it make any difference to you?

22 MR. SHIN: Your Honours, I'm entirely at your disposal.

23 JUDGE MAY: Mr. Livingston, what would you ask us to do?

24 MR. LIVINGSTON: May I just take some instructions on it in case

25 Mr. Milutinovic has any particular views.

Page 607

1 [Defence counsel and accused confer]

2 MR. LIVINGSTON: Your Honour, I'm sorry, we took a little bit

3 longer than I thought. Mr. Milutinovic leaves it really in the Court's

4 hands. I think if the Tribunal doesn't mind cancelling my flight and

5 booking me another one tomorrow, I would be quite content to speak to my

6 clerks and finish this matter tomorrow, if that suited the Chamber better.

7 JUDGE MAY: Very well. We'll sit tomorrow morning, 9.00. There

8 will be half an hour for the Prosecution, ten minutes for a response.

9 I take it that will be on the basis that your ticket is a matter

10 for the Tribunal.

11 MR. SHIN: Excuse me, if I may, I indicated that the remainder

12 may take a half hour or more, if it would be possible to have some

13 additional time if necessary.

14 JUDGE MAY: Very little.

15 MR. SHIN: Thank you, Your Honours.

16 JUDGE MAY: Mr. Caric, yes.

17 MR. CARIC: I would be very grateful if the Trial Chamber allow

18 me to be present for tomorrow's hearing because I would like to hear

19 opinion of the Prosecutor in this courtroom.

20 JUDGE MAY: Yes, you could be present, of course. Most certainly.

21 MR. CARIC: Thank you very much, Your Honour.

22 JUDGE MAY: 9.00 tomorrow.

23 --- Whereupon the motion hearing adjourned at

24 5.34 p.m., to be reconvened on Friday, the 2nd day

25 of May, 2003 at 9.00 a.m.